Ukraine’s Dashed High Hopes: Predictable and Sober Decision of the ICJ on Indication of Provisional Measures in Ukraine v Russia

There has been a lot of speculation on the possible outcome of Ukraine’s request for indication of provisional measures in the highly politicized case of Ukraine v Russia, in particular following the parties’ heated exchange of arguments during oral proceedings that took place on 6-9 March 2017 before the ICJ (see my blog here and another blog here). Last week, the Court delivered a highly anticipated decision in which it indicated provisional measures with respect to Ukraine’s claims under CERD by requesting Russia “to refrain from maintaining or imposing limitations on the ability of Crimean tatar community to conserve its representative institutions, including the Mejlis” (by 13 to 3) and “ensure the availability of education in the Ukrainian language” by a unanimous vote (p. 106). In addition to those specific measures aimed at preserving specific rights, the Court chose to indicate an additional measure of general nature with the view of ensuring the non-aggravation of the dispute between the Parties (paras 103, 106).

In rather mild language, the Court also spoke of its ‘expectation’ for the Parties, “through individual and joint efforts, to work for the full implementation of [the Minsk agreements] in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine” (para. 104). This seems to be a compromise middle-ground solution when the Majority, although having dismissed the plausibility of claims under ICSFT and therefore chosen not to indicate provisional measures with respect to Ukraine’s claims under the Convention, highlighted the seriousness of the ongoing fighting in eastern Ukraine and encouraged the Parties to revive the Minsk agreements that have been violated countless times. Also, in the opening paragraph of the decision read out by President Abraham, the judges emphasized the gravity of the conflict in eastern Ukraine characterized by extensive fighting that has claimed many civilian lives, including those who were killed when the ill fated MH17 passenger plane was shot down over the territory of Ukraine (para. 16). However, at the same time, they made it clear that the scope of their judicial inquiry was solely limited to the claims under the two Conventions (ibid). In deciding whether to indicate provisional measures, there are three basis prerequisites that have to be met: (1) the existence of prima facie jurisdiction; (2) a link between the rights protected and the provisional measures sought (the test of plausibility of the existence of the asserted rights); (3) risk of irreparable prejudice and urgency.

Prima facie Jurisdiction under CERD and ICSFT

Given that Ukraine invoked Article 22 of CERD and Article 24 of ICSFT as two compromissory clauses in order to establish the jurisdiction of the Court, the ICJ initially examined whether those clauses prima facie conferred jurisdiction upon it to rule on the merits of the case (para. 18). As for the existence of the dispute under ICSFT, the Court found that “at least some of the allegations made by Ukraine appear to be capable of falling within the scope of the ICSFT ratione materiae” (para. 30). However, it is not entirely clear what specific allegations appear to be capable of falling within the scope of the Convention, as the judges merely referred to the preceding paragraph which summarises Ukraine’s allegations on the violations of Articles 8, 9, 10, 11, 12 and 18 of ICSFT (para. 29). While the Court took note of Ukraine’s argument of the prohibition of direct state responsibility for terrorism, which the latter had inferred from a state’s obligation to prevent the terrorism financing offences by analogy to the ICJ Bosnia Genocide case, it did not make any pronouncements at this stage as to whether a state’s obligation to prevent implies an obligation not to commit the crime under ICSFT (para. 31). With respect to the procedural preconditions under ICSFT, the Court found that it appeared that the issues “could not then be resolved by negotiations” (para. 52). The Court found that the evidence at its disposal appeared to demonstrate the failure of both parties to agree upon an organization of arbitration, within six months from the date of the arbitration request, and therefore was sufficient to establish, prima facie, that the procedural preconditions for the seisin of the Court have been met (paras 53-54). At this stage, the Court did not comment on whether Ukraine’s insistence of setting up an arbitral tribunal by way of creation an ad hoc chamber of the ICJ, which I commented on in my previous blog, could satisfy the procedural preconditions under ICSFT. However, the issue is likely to re-emerge at a later stage of proceedings.

As for the existence of the dispute within the meaning of CERD, the Court concluded that the acts referred to by Ukraine, which included the banning of the Mejlis and the alleged restrictions of cultural and educational rights of Crimean tatars and ethnic Ukrainians, appear to be capable of falling within the scope of the Convention (para. 38). This is notwithstanding the fact that Ukraine alleged a broad spectrum of discriminatory practices in Crimea, which included far more serious allegations under CERD, such as disappearance and murder, arbitrary searches and detention, media restrictions and harassment (Ukraine’s application, paras 103-110, 121-123 and my blog here). Given the Court’s conclusion that the issues pertinent to CERD appeared not to have been resolved by negotiations, it was satisfied that the procedural preconditions for the seisin of the Court, prima facie, have been met (para. 61). However, as in Georgia v Russia, the Court did not make any pronouncements on whether the procedural preconditions of ‘negotiations’ and recourse to the ‘procedures expressly provided for in CERD’ are alternative or cumulative (para. 60) This matter is yet unresolved and will come up at a later stage of proceedings, although I believe that the plain textual reading of Article 22 strongly suggests that these two preconditions are used in alternative.

Plausibility of Claims under ICSFT

The finding of the Court that provoked the sighs and lively reaction from the audience was its conclusion that Ukraine’s claims under ICSFT were not plausible for the purposes of the second limb of the test for indicating provisional measures (para. 76). The Court made it clear that a state’s obligations under Article 18 to cooperate in the prevention of terrorism financing offences arise only if it is plausible that the acts constitute offences under Article 2 of ICSFT (para. 74). As earlier discussed in my blog post, this predictable outcome is due to the fact that Ukraine’s counsel spent little time on discussing the necessary mens rea requirement, having taking it for granted that the alleged acts “would naturally intimidate Ukrainian civilians”, and poorly linking the alleged acts of terrorism to intentional or knowing financing of such acts. State responsibility for terrorism financing, which arises out of the breach of ICSFT by States Parties, is objective in nature and does not require establishing the subjective element. However, if the primary rule of conduct requires the proof of intent, it has to be demonstrated that individual agents possess the required intent. In the ICJ Bosnia Genocide case, the ICJ was aided by the developed jurisprudence of the ICTY that dealt with the attribution of individual criminal responsibility for genocide committed in Srebrenica. In that respect, one can say that the ICJ had a significant advantage, unlike in the present case, given its access to ample evidence of the ICTY.

The discussion on the plausibility of claims features heavily in separate opinions appended to the decision. Having noted uncertainty regarding the interpretation of the plausibility standard for the purposes of indication of provisional measures, Judge Pocar found that the plausibility test required for indication of provisional measures had been positively met in the present case (paras 4, 6). The same conclusion was reached by Judge Owada who argued that the standard of plausibility should be fairly low at the provisional measures stage (para. 20). Judge Bhandari opines that the question of intent has to be addressed at the merits stage, whereas at this stage it must only be shown that individuals allegedly financing terrorism had at least knowledge that the funds might be used for carrying out acts in Article 2 ICSFT, which could be inferred from the pattern of behavior (para. 22). Judge Cancado Trindade went as far as to dismiss the ‘plausibility of rights’ test and claimed that, in present circumstances, the decisive test should be that of human vulnerability (para 85). The disagreement among judges shows that the Court would definitely benefit from more clarity on the interpretation of the plausibility test at the stage of provisional measures.

For Ukraine, despite the court’s finding on prima facie jurisdiction under ICSFT, the prospects of the Court addressing its claims under the Convention on the merits are very bleak, in particular, given the Majority’s finding on the absence of the plausibility of claims under ICSFT at this preliminary stage. At the next stage of proceedings, Russia would most probably rehearse the same arguments as during oral proceedings on indication of provisional measures and submit objections to the Court’s jurisdictions on the basis of the two Conventions. As soon as the decision came out, Russian media declared the decision to be “a grand failure” for Ukraine, whereas Ukrainian media paints a more optimistic picture of its prospects before the ICJ. My best take on this is that Ukraine’s claims under CERD will be heard on the merits, however, it is a big disappointment for Ukraine at this stage that the Court did not find sufficient evidence to recognize the plausibility of its more serious allegations under CERD and indicate specific provisional measures with respect to those alleged breaches of the Convention. However, Ukraine should not be disheartened, as its strategy of pursuing parallel proceedings before the ICC and the ECtHR might bear some fruitful results in the future.