Application of the International Convention for the Suppression of the Financing of Terrorism and of International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Judgment

The dispute in Ukraine v. Russian Federation was based on two conventions: the International Convention for the Suppression of the Financing of Terrorism (ICSFT) of 1999 and the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (CERD).¹ In its judgment, the International Court of Justice (ICJ) rejected most of Ukraine's claims but nevertheless found that the Russian Federation had violated both of these Conventions.

The ICJ made four important findings. First, by thirteen votes to two, the ICJ established that Russia had violated its obligations under ICSFT Article 9, paragraph 1 for failing to take measures to investigate facts contained in information received from Ukraine regarding persons who had allegedly committed acts of terrorism. Secondly, by the same majority, the ICJ found that Russia had violated its obligations under CERD Article 2, paragraphs 1(a) and 5(e)(v) for the way it had implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language. Third, the ICJ found that by maintaining limitations on the Crimean Tatar organization Mejlis, Russia had violated the ICJ's provisional measures order of April 19, 2017, in which the ICJ required Russia to refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.² Fourth, the Court found that Russia had violated the same provisional measures order for failing to refrain from any action that might aggravate or extend the dispute between the parties or make it more difficult to resolve. However, the ICJ did not order any compensation or further form of relief from Russia to Ukraine (paras. 150, 374, 401, 403).

The judgment is significant both for its interpretations of the ICSFT and CERD, and when placed in a broader historical context on Russia's relationship to international adjudication. This judgment is the first ICJ judgment to deal with the interpretation and application of the CERD at the merits phrase of a dispute.³ It also is the first time in history that a case concerning Russia was resolved on the merits by the ICJ, with a finding that Russia had violated international law.

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Ukraine initiated this case against Russia on January 16, 2017. The case arose out of Russia's 2014 invasion and annexation of Crimea and the ensuing military conflict in southeastern Ukraine (Donbas) during which two pro-Russian separatist political entities, Donetsk People's Republic (DNR) and Luhansk People's Republic (LNR), were proclaimed. Russia characterized the events in separatist Donbas as a Ukrainian civil conflict, but Ukraine condemned it as Russia's covert military-political attack against Ukraine's sovereignty and territorial integrity. Because the ICJ does not have general jurisdiction over matters of war and peace, the illegality of the use of military force and the legality of self-defense, for Ukraine to judicialize the conflict with Russia before the ICJ, it had to base its legal claims on conventions that could provide both for the Court's jurisdiction and for a possible victory on merits.⁴

The full-scale invasion of Ukraine on February 24, 2022 by the Russian Federation, during the pendency of this case, was a watershed moment in the context of the adjudication of this dispute. Ukraine's effort to frame Russia's actions as supporting “terrorism” appeared in a new light.⁵ These bases for bringing the case limited its scope.⁶ In a way, there are two cases in one here: one based on ICSFT and the other on CERD. Ukraine claimed quite a high number and intensity of violations on the Russian side, referring to ICSFT with respect to the conflict in Donbas and to CERD with respect to Russia's policies in Crimea. In turn, Russia asked the Court to dismiss all claims of Ukraine.

On the ICSFT, the main clash in the case was between the narrower and broader interpretations of what the obligations in the ICSFT meant. The ICJ favored in its reasoning the narrower interpretations on the meaning of obligations in the ICSFT, also pointing out that Ukraine in its legal assistance communications with Russia had not sufficiently substantiated its allegations of terrorism funding (paras. 119, 130). Of key importance here was that the ICJ interpreted the concept of “funds” in the ICSFT narrowly—confined to resources that possess a financial or monetary character and not extending to the means used to commit acts of terrorism, such as with the provision of weapons (para. 53).

The ICJ found that Russia violated the Convention's Article 9, which obliges a state party to investigate allegations of the commission of terrorism financing offenses by alleged offenders present in its territory. Some of the Notes Verbales sent by Ukraine to Russia contained sufficiently detailed allegations to give rise to obligations to undertake investigations but the Russian authorities did not act based on this information (paras. 109–11). In conclusion, the Court found that Russia violated ICSFT Article 9, paragraph 1 and further specified that Russia continues to be required to undertake investigations into sufficiently substantiated allegations of acts of terrorism financing in eastern Ukraine (para. 149). However, the ICJ also added that it did not consider it “necessary or appropriate” to grant any of the other forms of relief requested by Ukraine (para. 150).

On CERD, the main question in dispute was whether the acts for which Ukraine accused Russia in Crimea had been based on ethnic discrimination, which CERD prohibits. The specific acts discussed in the case included the murder and disappearance of political activists, the Russian prohibition of the Crimean Tatar organization Mejlis, restrictions to the freedom of assembly and local media, the application of the Russian citizenship régime, and changes concerning the language of instruction in the education system. Russia's main counterargument was that such acts and policies in Crimea, to the extent that Russia admitted that they had even occurred, were based not on ethnic discrimination but rather on the political views of targeted groups and individuals. According to this argument, if individuals had been targeted, they were targeted not because they were ethnic Ukrainians or Crimean Tatars but because they were critical of or hostile to the Russian government. The ICJ largely followed this interpretation, rejecting almost all of Ukraine's claims on the account that the individuals and groups in Crimea had not been targeted on the basis of their ethnic origin and thus that the conduct at issue did not fall within the terms of the CERD (paras. 217, 229, 241, 248, 271, 287, 305, 319, 337). In her separate opinion, Judge Donoghue questioned this distinction—and, for example, asked how Crimean Tatar ethnic identity could be isolated from their “political” views.⁷

The only exception that the ICJ made here concerned the school education in the Ukrainian language in Crimea after 2014 (not, however, for the Crimean Tatars). The ICJ concluded that there was a pattern of racial discrimination on the side of the Russian government in how the opportunities to study in the Ukrainian language were drastically diminished in Crimea (para. 369). The Court declared that Russia had violated its obligations under CERD Article 2, paragraph 1(a) and Article 5(e)(v), which provide that each State Party undertakes to engage in no act or practice of racial discrimination, including in the context of the right to education and training. The ICJ added that Russia remains under an obligation to ensure that the system of instruction in the Ukrainian language gives due regard to the needs and reasonable expectations of children and parents of Ukrainian ethnic origin. However, just as in the case of the ICSFT, the ICJ laconically stated that it did not consider it “necessary or appropriate” to order any other remedy requested by Ukraine (paras. 373–74).

In his dissenting opinion, Judge Tuzmukhamedov of Russia observed that based on the judgment and the criteria laid out by the ICJ, a lot of states parties will have to reflect on their education policies (sep. op., partly concurring and partly dissenting, Tuzmukhamedov, J. Ad Hoc, para. 143).

After the ICJ issued its judgment, the Russian Ministry of Foreign Affairs (MFA) issued two separate press releases on the ICJ's findings. Overall, the Russian MFA interpreted the judgment as a victory for Russia, especially because the ICJ did not award any compensation to Ukraine.⁸ The Ukrainian MFA opted for a different take on the ICJ judgment, stating that: “[t]he Court concluded that Russia violated both treaties. This is the first time in its history that the International Court of Justice has reached a final judgment on Russia's violations of international law.”⁹

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Many analysts immediately reacted to the judgment by opining that Ukraine lost the case¹⁰ or that it lost on nearly every claim of any significance.¹¹ They raise legitimate questions and reveal an essential point about the politics of the ICJ in this judgment.

The key question, though, remains: what is the work that the ICJ is doing in this judgment? On the somewhat modest accounts on which it won, Ukraine managed to make Russia (sort of) accountable at the ICJ for the first time in the Court's history. Historically, this remains the most essential feature of the judgment. In fact, the ICJ judgment must be assessed not just on its own technical terms but also in light of the history of international adjudication and Russia's (and before it, the Soviet Union's) role in it.

The seed for the establishment of the future ICJ was planted at the 1899 Hague Peace Conference, which was convened at the initiative of the Russian Empire. However, at the time, the Russian government also formulated what we might call the great power doctrine of international adjudication and arbitration. The Russian memorandum at The Hague was mainly formulated by FF Martens and stated the following:

In introducing international arbitration into the international life of States we must proceed with extreme care in order not to extend unreasonably its sphere of application, so as to shake the confidence which may be inspired therein, or discredit arbitration in the eyes of Governments and peoples. . . . We must not lose sight of the fact that each State, and above all each Great Power, would prefer to propose the abrogation of the treaty making arbitration obligatory, rather than to submit to it questions which absolutely require that the decision thereof shall be made by the sovereign Power acting freely and without restriction. In all cases, in the interests of a greater development of the institution of arbitration, the Conference should limit its application to a specified number of legal questions arising from the interpretation of existing treaties of no political significance.¹²

What could such treaties of “no political significance” have been? Quite interestingly, the Russian position at The Hague in 1899 saw the potential for arbitration in multilateral treaties of State cooperation, as opposed to bilateral political treaties:

Since other treaties, as a general rule, are only artificial settlements of opposing interests, treaties of a universal character always express necessarily the agreement upon common and identic interests. That is the reason that within the scope of these treaties serious disputes incapable of settlement, or conflicts of a national character in which the interests of one are absolutely opposed to those of another, never arise and cannot arise.¹³

The context of the Russian memorandum, and the examples that the text further mentioned, indicate that it meant to subject to arbitration universal treaties of the character of technical cooperation. The Russian memorandum of 1899 could not yet foresee that in international law of the twentieth century, multilateral treaties would also assume a decisively political and non-technical character.

The Soviet Union was even more reluctant to accede to international adjudication than the late Russian Empire had been. In 1923, the Permanent Court of International Justice (PCIJ) decided that it could not issue an advisory opinion on the question of Finnish autonomy rights in Eastern Carelia, a dispute between Finland and the Soviet Union based on the Peace Treaty of Tartu (Dorpat) of October 14, 1920. The reason was that the Soviet Union had not recognized the jurisdiction of the PCIJ.¹⁴ In another case concerning foreign investment, dealing with investor-state arbitration, rather than at the PCIJ, the Soviet Union refused to participate in the proceedings and accept the ensuing arbitral award, even though it had accepted an arbitration clause in the 1925 concession agreement.¹⁵ Writing in 1926, the leading Soviet international lawyer at the time, Evgeny Korovin, to an extent repeated and accommodated for new circumstances what Tsarist Russia had said at The Hague in 1899: “the Soviet government might accept arbitration for technical disputes and private law collisions but not for the solution of political conflicts.”¹⁶

After World War II, the Soviet Union finally joined the ICJ, as the Court was made a principal organ of the UN. Although the Soviet judges were continuously elected to serve on the bench, little changed in Soviet attitudes toward the ICJ and its jurisdiction. Fedor Kozhevnikov who was himself a Soviet judge on the ICJ from 1953 to 1961 wrote that, as a rule, the ICJ could only deal with legal disputes and not with disputes of “political character.”¹⁷ For disputes of “political character,” negotiations were the suitable means of dispute resolution. In reality, of course all significant disputes were simultaneously disputes of “political character.” For example, the Soviet Union when signing the Genocide Convention in 1948 (it ratified it in 1954) had made a reservation that ruled out the ICJ's jurisdiction. Legal effects of such reservations were under scrutiny in the 1951 advisory opinion at the ICJ.¹⁸ The Soviet reservations to the Genocide Convention and other UN multilateral conventions, regarding the ICJ's jurisdiction, were upheld until 1989.

The leading Cold War-era Soviet treatise on international law emphasized that negotiations were the most important means of international dispute resolution. The USSR favored them as they were the most “flexible and efficient” means of international conflict resolution.¹⁹ Especially crucial were negotiations between leaders of great powers as the resolution of most important international problems depended primarily on such states.²⁰ The same Soviet treatise had the following to say on international arbitration (but from the context it appears that adjudication was meant as well):

Characterizing the attitude of the USSR towards arbitration, one needs to mention that the USSR in principle relates positively to arbitration as one of the possible means of peaceful resolution of disputed questions. . . . At the same time, the USSR is against attempts to use arbitration for imposing on states illegal judgments and such which are against their interests.²¹

Consequently, the USSR never had any cases at the ICJ. Perestroika and the dissolution of the Soviet Union initially seemed to have produced a change in Soviet and Russian attitudes toward international adjudication. The revised version of the above cited main authoritative Soviet treatise on international law, was frank about a certain tension between the Western states and the Soviet Union regarding dispute resolution. The Western states had been more critical of negotiations as the type of dispute resolution most favored by the USSR.²² The treatise concluded that international adjudication had become “part of everyday life” mostly just for West European states but at the truly international level, its potential was not used fully—although “theoretically, it is very big.”²³ The late Soviet treatise also admitted that international adjudication was a good thing from the perspective of equality of states, big and small.²⁴

However, actual changes in the post-Soviet practice of Russia were slow and soon marked with backlashes. Russia was under the jurisdiction of the European Court of Human Rights in 1998–2022, but by the time judgments in interstate cases from the post-Soviet space started to be issued, Russia's relationship with the ECtHR had already become strained; it refused to implement judgments perceived as particularly “political.”²⁵ Essentially, over the last years, Russia has returned to its great power doctrine of international adjudication; the cautious opening of the perestroika and immediate post-Soviet era is over.²⁶

The ICJ's judgment of January 31, 2024 should be appreciated from the perspective of this history. One of its key findings—on the groups covered by CERD—reflects the earlier Cold War outcomes in which the Soviet diplomats managed to shape the Genocide Convention and subsequent human rights conventions in a way that “ethnic” groups were protected but “politically defined” groups were not.²⁷ Moreover, on November 9, 2023, the UN General Assembly did not elect the Russian judge, Kirill Gevorgian, for another term,²⁸ and Moscow lost a seat at the ICJ for the first time since Sergey Krylov became the Soviet judge in early 1946. A “too harsh” judgment on Moscow in this case might have thrown the ICJ's relationship back to the interwar era, when Moscow did not participate at all in international adjudication (PCIJ). Moreover, the ICJ may have considered that its own prestige would suffer if its findings, especially for compensation, were not implemented—and the not complying power is also a permanent member of the UN Security Council. Such an approach shows the limits of what the ICJ thinks it can do in politically highly complex cases.

Thus, the ICJ apparently tried to do several things at once with this overall cautious judgment. As a principle, it made sure that Russia as “great power” is not above international law—unlike what it had de facto claimed for most of its history, at least in the context of the possibility of international adjudication over “political” disputes. This is an important reminder and outcome. However, while supporting this message with its finding on Russian violations in Russia's first ever ICJ case on merits, the ICJ also treated Russia rather gently, possibly also in order not to estrange it further from the ICJ and from international adjudication more generally. Points made in separate opinions of Judges Charlesworth, Donoghue, Pocar, and Sebutinde demonstrate that there was potential for more generosity in its interpretations, to favor Ukraine, but the majority did not adopt these interpretations. One of the few victories of Ukraine in this case—the finding that Russia's educational policies in Crimea regarding the use of the Ukrainian language constituted a discrimination based on CERD—can as standard also be used by Russia as Russian jurists have complained about Ukraine's educational and other policies regarding the Russian language.²⁹ And yet, even with these limitations and caveats, the Court's interpretations, particularly on CERD and language of education (para. 357), will present interest to future litigants, also in human rights courts. CERD remains a living document, and some of its initial negotiators, if they were still alive, would be surprised by its current reach.³⁰