Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  This issue is a factual question bearing on whether the NSAG conduct meets the elements of terrorism as defined in Article 2(1) ICSFT.  It is also, however, a legal question calling for an appreciation of the relationship between IHL and the terrorism suppression regime.

The first issue turned out to be something of a non-event in the Court’s Order, as the Court essentially accepted the point. However, the Court used language which makes it clear that the scope of the ICSFT remains open for the merits phase of the proceedings (paras 30-31, Order).  Given that part of Ukraine’s case is in respect of a Russian failure to prevent private actors from financing terrorism (covered by Article 18 of the ICSFT), it is undoubtedly true 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, Order).  But part of Ukraine’s case bears on the financing of terrorism by the Russian state.  As the ICSFT does not expressly prohibit States from financing terrorist conduct, resolution of this issue calls for the Court to determine whether the ICSFT is purely a criminal law enforcement treaty which contemplates State regulation of private / non-State conduct, or whether it can be interpreted to prohibit States from engaging in the defined offences.  With that in mind, both parties addressed the relevance of the Bosnia Genocide Case precedent (in which the Court held that the obligation to prevent genocide under the Genocide Convention necessarily implies a prohibition on the commission of genocide by State parties).  Ukraine’s initial arguments were rather cursory on this point.  Russia’s pleadings on the issue, on the other hand, ran from para. 6 – para. 55 in the oral proceedings transcript (CR.2).

In an attempt to distinguish the Genocide Convention from the ICSFT, Russia relied on the difference between the compromissory clause in the Genocide Convention (which mentions ‘responsibility of a State’) and that in the ICSFT (which does not); that Article IV of the Genocide Convention expressly contemplates commission of the defined offences by constitutionally responsible rulers and public officials, while the ICSFT does not; and that (as a result of these differences in addition to others) the ICSFT has a distinctly criminal law enforcement flavor to it.  Ukraine’s Rebuttal rightly notes that absolutely nothing hung on the language in the compromissory clause or Article IV of the Genocide Convention as far as the implied prohibition of genocide was concerned in the Court’s Bosnia Genocide Case decision on the merits (paras. 38-39, CR.3). Indeed, as I have argued elsewhere, the argument as to implied obligations in the Bosnia Genocide Case decision is even more compelling in the terrorism suppression context than it was in reference to the Genocide Convention.

But Ukraine’s Rebuttal in respect of the criminal law enforcement flavour of the Convention would benefit from further development.  In particular, there is evidence in the travaux préparatoires that the reference to ‘any person’ committing an offence within the scope of the terrorism suppression conventions (including the ICSFT) was understood to cover state actors.  It is equally noteworthy that an exclusion clause, which might have excluded State conduct in the context of an AC from the scope of the ICSFT, was proposed but not incorporated in the final draft – very strong evidence that the Convention is at least silent on the State terrorism financing issue.  While there is obviously much controversy regarding ‘State terrorism’ as a phenomenon, and no difficulty at all in acknowledging ‘State genocide’, it is hard to see how the Court will convincingly avoid applying its Bosnia Genocide Case interpretive approach to the ICSFT, even if the Order leaves the question open in a somewhat pointed way.

In respect of the second issue, it bears repeating that the NSAG attacks which underlie Ukraine’s Application took place principally in the context of an AC in Eastern Ukraine.  If Ukraine’s allegations regarding the downing of a civilian airliner, the bombing of peaceful protestors, and attacks against civilian residential areas, all carried out by NSAGs, are true – those incidents amount to a breach of Common Article 3 of the Geneva Conventions (‘GCs’) [as ‘violence to life and person’ against ‘persons taking no active part in the hostilities’ in the context of a non-international AC].   Whether IHL should apply exclusively to these acts (as lex specialis), or whether the terrorism suppression regime overlaps with IHL and should be available to plug any law enforcement gaps (or ICJ jurisdictional gaps) in respect of IHL breaches to which the terrorism regime also applies, is something of a contested issue.  Russia avoided the legal issue by addressing the regime interaction question from a factual perspective.  Russia characterized the underlying NSAG conduct as a series of attacks against military objectives, even if indiscriminate and affecting civilians, and therefore as a matter exclusively for IHL and its proportionality calculus (paras 15-33, CR.2).  This conclusion draws on the requirement that attacks against civilians be intentional in order that they amount to ‘terrorism’ under Article 2(1)(b) ICSFT.  Indiscriminate attacks on the other hand, accepting for argument’s sake Russia’s logic, are not intentional attacks against civilians (thereby failing to satisfy one of the elements of Article 2(1)(b) ICSFT), and are instead intentional attacks against military objectives which have the accidental or unfortunate consequence of civilian casualties.  There are of course very serious problems with this logic, most notably that the ICTY has repeatedly held that indiscriminate attacks can be indicative of the fact that the attack was directed against the civilian population (Prosecutor v Milošević, IT-98-29/1, Appeals Chamber, Judgment, 12 November 2009, paras 66-67; Prosecutor v. Galić, IT-98-29, Trial Chamber Judgment, 5 December 2003, para 60).  Russia also insisted on the point (not obviously relevant in the form presented) that Ukraine is equally guilty of indiscriminate attacks in the AC.  To the extent that there was a legal point being made, it seemed to be based on an assumption that Ukraine would not accept the characterization of its war activities as ‘terrorist’, thereby implicitly deploying a ‘good for goose / good for gander’ type argument.

Ukraine, on the other hand, factually characterized the NSAG conduct as a series of intentional attacks against civilians, thereby falling within the scope of both IHL and Art. 2(1)(b) ICSFT.  And indeed given the scale of civilian casualties, some of the attacks could very well be characterized as attacks against civilians under the ICTY’s approach, even if they might also be characterized as indiscriminate.  As a result of its factual claims, Ukraine takes a nuanced approach to the regime interaction question from a legal perspective, arguing that IHL and the terrorism suppression regime can overlap in respect of attacks against civilians (paras. 26-28, CR.1; paras. 10-14, CR.3).  Ukraine naturally relies on the very express language in the definition of terrorism of Article 2(1)(b) of the ICSFT (which includes intentional attacks against ‘persons not taking an active part in hostilities in a situation of AC’), but (as discussed further below) this does not entirely resolve the regime interaction issue.

The Court did not address the regime interaction question at this stage.  Instead, the Court held, in one sentence, that insufficient evidence had been adduced in respect of the Article 2(1)(b) ‘terrorist purpose’ element of the NSAG conduct underlying Ukraine’s Application, in addition to there being insufficient evidence of intentional or knowing financing of such conduct (as required by Art. 2(1) ICSFT).  Given Ukraine’s approach to its pleadings on this point, this is perhaps not a surprising outcome.  In Ukraine’s first round of pleadings, there were several conclusory statements made as to the purpose of the NSAG attacks underlying the Application and Request for provisional measures, but no argument or evidence offered in support thereof.  In its Rebuttal, Ukraine argued that terrorist purpose should be inferred from the ‘nature or context’ of the specific attacks – and that was indeed the understanding of States negotiating the ICSFT.  But Ukraine’s evidence in support of the argument was somewhat weak.  On the merits, it might be expected that Ukraine will address itself to the ‘terrorist purpose’ and ’intentional or knowing financing of terrorism’ questions – in particular from an evidentiary perspective – more fully.  But, if it is to be successful on the merits, and assuming for the moment that it can prove both ‘terrorist purpose’ and intentionality with respect to civilian casualties, it will also need to address the ‘IHL as lex specialis’ question as a matter of law. This is because Article 21 of the ICSFT states that ‘[n]othing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular […] international humanitarian law’.

Article 21 ISCFT gives effect to States’ clear intentions vis à vis the terrorism suppression conventions that it not upset the balances achieved by IHL. In negotiating the series of terrorism suppression conventions, States were particularly concerned that conduct which is lawful (or at least not unlawful) as a matter of IHL not be rendered unlawful under the guise of terrorism suppression.  This concern of course only applies to conduct that is otherwise regulated by IHL, such that there is substantive overlap between the terrorism suppression convention and IHL.  Financing acts of war is not something IHL expressly regulates.  Having said which, the ICRC takes the view that the obligation to ‘respect and ensure respect’ for the GCs in Common Article 1 imposes a negative obligation on States to refrain from encouraging, aiding or assisting in violations of the Conventions by Parties to a conflict (including non-State actors).  If the Terrorism Financing Convention does indeed prohibit State support for terrorist acts (à la Bosnia Genocide Case), then there is an overlap between those negative obligations under the Terrorism Financing Convention and Common Article 1 of the GCs as interpreted by the ICRC – insofar as the conduct defined as terrorist under the Terrorism Financing Convention also amounts to a breach of the GCs.  And indeed, as far as Article 2(1)(b) ICSFT is concerned, every act which amounts to terrorist conduct will also be unlawful under Common Article 3 of the GCs when committed in the context of an AC.  This is because terrorism is defined under Article 2(1)(b) ICSFT as deliberate attacks against persons not participating in hostilities, which is absolutely prohibited under IHL without any proportionality balancing to account for military necessity.  As a result, the prohibition of supporting terrorism under the ICSFT and the prohibition of supporting IHL breaches under Common Article 1 of the GCs are co-extensive.

So far as far as Article 2(1)(b) is concerned, the Court’s eventual application of the Terrorism Financing Convention to the financing of IHL breaches in the context of an AC would not only not undermine IHL, it would be its jurisdictional champion – upholding prohibitions under IHL.  In respect of terrorism offences defined under Article 2(1)(a) ICSFT (like the downing of MH17 in reliance on the  Montreal Convention), the matter is more complicated – and perhaps for another post…. As most of Ukraine’s Application relies on 2(1)(b) ICSFT, however, the point as to the Terrorism Financing Convention being an appropriate vehicle for upholding the Common Article 1 GC prohibition on aiding or assisting IHL breaches stands.  And given the current international law context, in which proxy wars and arming NSAGs (often recklessly) abound, the Court might best serve the interests of international peace and security by being open to Ukraine’s legal case on regime interaction as a matter of principle, whether or not the facts ultimately support a finding of Russian responsibility.