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Application of the Int'l Conv. for the Suppression of the Financing of Terrorism & of the Int'l Conv. on the Elimination of All Forms of Racial Discr. (Ukr. v. Russ.) (Merits) (I.C.J.)
Published online by Cambridge University Press: 29 October 2024
Extract
On January 31, 2024, marking the tenth anniversary of the Russo-Ukrainian war, the International Court of Justice (ICJ) delivered its eagerly anticipated judgment on the merits in Ukraine v. Russia concerning alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). This was the first case lodged by Ukraine against Russia back in 2017, in response to alleged numerous violations arising from Russia's occupation of Crimea and its proxy war in Donbas. Although Ukraine might have hoped for a more favourable outcome, the majority only established narrow and rather minor violations under ICSFT and CERD, despite a plethora of claims advanced by Ukraine under both Conventions. A 13:2 majority found that Russia violated Article 9, paragraph 1 of ICSFT due to its failure to investigate individuals who allegedly committed terrorism financing offences upon receiving the information from Ukraine. As for CERD, another 13:2 majority found that Russia violated Articles 2, paragraph 1(a), and 5(e)(v) of the Convention with regard to the implementation of school education in the Ukrainian language in Crimea. In addition, an 11:4 majority found that Russia violated the provisional measures order, which obliged Russia to lift restrictions on the Mejlis, the highest representative executive organ of Crimean Tatars in Crimea banned by Russian authorities, and imposed the non-aggravation measure. The judges were divided on the scope of the non-aggravation measure, and questioned the appropriateness of establishing the violation of the provisional measures order in part concerning the Mejlis in the absence of the majority's finding of the corresponding violation under CERD on the merits.
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- Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of American Society of International Law
References
ENDNOTES
1 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Judgment, (Jan. 31, 2024), https://www.icj-cij.org/case/166 [hereinafter Judgment]. See Iryna Marchuk, Unfulfilled Promises of the ICJ Litigation for Ukraine: Analysis of the ICJ Judgment in Ukraine v Russia (CERD and ICSFT) EJIL Talk! (Feb. 22, 2024), https://www.ejiltalk.org/unfulfilled-promises-of-the-icj-litigation-for-ukraine-analysis-of-the-icj-judgment-in-ukraine-v-russia-cerd-and-icsft/.
2 Id. ¶ 404.
3 Id.
4 Id.
5 Declaration of Judge Bennouna, ¶¶ 1–5, Declaration of Judge Yusuf ¶¶ 3–6, Separate Opinion of Judge ad hoc Tuzmukhamedov ¶¶ 162–170 cf. Dissenting Opinion of Judge Sebutinde ¶¶ 33–36, Separate Opinion of Judge Charlesworth ¶¶ 35–41.
6 Declaration of Judge Tomka ¶¶ 1–7, Declaration of Judge Brant ¶¶ 1–4, Separate Opinion of Judge ad hoc Tuzmukhamedov ¶¶ 156–161.
7 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Provisional Measures (Apr. 19, 2017), ¶ 75. See Iryna Marchuk, Ukraine's Dashed High Hopes: Predictable and Sober Decision of the ICJ on Indication of Provisional Measures in Ukraine v Russia EJIL Talk! (Apr. 24, 2017), https://www.ejiltalk.org/ukraines-dashed-high-hopes-predictable-and-sober-decision-of-the-icj-on-indication-of-provisional-measures-in-ukraine-v-russia/.
8 Judgment ¶ 76.
9 Marchuk, supra note 1.
10 Judgment ¶ 53. Article 1 (1) of ICSFT provides the following definition of “funds”: “Funds means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit.”
11 Id.
12 FATF Recommendations 5 (Oct. 2016) ¶ 10.
13 Separate Opinion of Judge Bhandari, Separate Opinion of Judge Charlesworth ¶¶ 2–12, Separate Opinion of Judge ad hoc Pocar ¶¶ 13–18.
14 Judgment ¶ 74.
15 Id. ¶ 97 (art 8); ¶ 119 (art. 10); ¶ 130 (art. 12) and ¶¶ 143–145 (art. 18).
16 Separate Opinion of Judge ad hoc Pocar, ¶¶ 12–10 (in relation to arts. 10 and 12); Separate Opinion of President Donoghue, ¶¶ 27–42 (in relation to art. 12); and Dissenting Opinion of Judge Sebutinde ¶¶ 5–18 (in relation to arts. 12 and 18).
17 The allegations put forward by Ukraine encompassed numerous acts of physical violence (e.g., murders, abductions, torture, enforced disappearances), law enforcement measures (e.g., arbitrary searches, detentions, prosecutions, trials on bogus charges), the ban of the Mejlis and law enforcement measures against its leadership, measures relating to citizenship, culturally significant gatherings, media outlets, cultural heritage, and education. See Memorial of Ukraine (June 18, 2018), Part III.
18 Judgment ¶ 196.
19 Id.
20 Id.
21 Id. ¶¶ 270–272.
22 CERD General Recommendation No. 23 (the meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial discrimination) (2009) ¶ 7. See Shreya Atrey, Ukraine v. Russian Federation—ICJ Continues to Struggle with the Grounds of Racial Discrimination, Oxford Human Rights Hub (Feb. 2, 2024), https://ohrh.law.ox.ac.uk/ukraine-v-russian-federation-icj-continues-to-struggle-with-the-grounds-of-racial-discrimination.
23 Separate Opinion of President Donoghue ¶ 17.
24 Id. ¶¶ 19–21 (original footnotes omitted).
25 Separate Opinion of Judge Charlesworth ¶ 32.
26 Judgment ¶ 355.
27 Id. ¶ 363.
28 Id. ¶ 150 (ICSFT), ¶ 374 (CERD).