Introduction
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).Footnote 1 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.Footnote 2 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.Footnote 3 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.Footnote 4 The judges were divided on the scope of the non-aggravation measure,Footnote 5 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.Footnote 6
ICSFT
Ukraine was well aware of the inherent risks in framing its claims connected to the armed conflict in Donbas within the legal framework of the ICSFT, which was litigated for the first time before the ICJ. The evidentiary challenges were apparent in relation to the proof of mens rea for the offence of terrorism financing, upon which state responsibility is predicated.Footnote 7 At the merits stage, the majority dismissed Ukraine's argument that the funder's knowledge could be inferred from the character of the pro-Russian separatist groups in the Donetsk and Luhansk People's Republics, which it described as being “notorious for the commission of terrorist acts.”Footnote 8 Although the mens rea was understood to be the most challenging aspect of the case, and put Ukraine's litigation strategy in peril, it was a narrow definition of “funds” embedded within the definition of the offence of terrorism financing that to a large extent determined the outcome of Ukraine's case under ICSFT.Footnote 9
The term “funds” was construed as “resources provided or collected for their monetary and financial value.”Footnote 10 The majority's restrictive reading of “funds” limited to the assets of monetary and financial value excluded “the means to commit acts of terrorism” (e.g., supply of arms and weaponry, training of militia groups) from its definition.Footnote 11 As a result, key aspects of Ukraine's case concerning the shootdown of the MH17 passenger jet with a Russian-supplied BUK missile and the provision of weapons to the pro-Russian separatist groups used for shelling civilians in Donbas fell apart. Such a narrow definition of “funds” endorsed by the majority stands at odds with Financial Action Task Force Recommendations 5 (2016), which specify that a terrorism financing offence is “not limited to certain forms or methods of providing or collecting funds, but should apply to any means of doing so.”Footnote 12 The bench was also split on the meaning of “funds,” with Judges Charlesworth, Bhandari, and Pocar disagreeing with the majority's restrictive interpretation of the term.Footnote 13
The subsequent discussion of Russia's alleged violations of Articles 8, 9, 10, 12, and 18 of the ICSFT was guided by the majority's interpretation of “funds.”Footnote 14 All alleged violations of the obligations invoked by Ukraine related to Russia's failure in undertaking specific measures and cooperating in the prevention or suppression of terrorism financing, including by freezing the accounts of suspected terrorism funders (Article 8); assisting in the investigation of terrorism financing offences (Article 9); initiating prosecutions (Article 10); affording the greatest degree of assistance in connection with criminal proceedings (Article 12); or otherwise taking all practicable measures in the prevention of terrorism financing (Article 18). The majority only established a single violation under ICSFT with respect to Russia's failure to investigate individuals for alleged terrorism financing offences. As for other alleged violations, the majority generally pointed to the “absence of convincing evidence” put forward by Ukraine, which would have compelled Russia to comply with its obligations under ICSFT.Footnote 15 However, Judges Donoghue, Sebutinde, and Pocar disagreed with the majority's interpretation of states parties' obligations under ICSFT and the applicable evidentiary threshold, which was necessary to trigger certain obligations under the Convention.Footnote 16
CERD
Ukraine advanced a plethora of claims under CERD, arguing that Russia's wide-reaching and pervasive discriminatory practices in Crimea against Crimean Tatars and ethnic Ukrainians constituted a pattern of racial discrimination within the meaning of CERD and produced a disparate adverse effect on the rights of members of targeted communities.Footnote 17 The majority established that “racial discrimination” within the meaning of Article 1, paragraph 1 of CERD encompassed both direct and indirect discrimination. Direct discrimination involves any measure “whose purpose is a differentiation of treatment based on a prohibited ground under Article 1, paragraph 1 of CERD.”Footnote 18 Indirect discrimination is a more subtle type of discrimination that encompasses any measure that is neutral on its face, but “whose effects show that it is ‘based on’ a prohibited ground.”Footnote 19 Such effects-based discrimination is apparent in cases where “a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin, unless such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1” of CERD.Footnote 20 In many instances, the majority found that that the discriminatory measures complained of by Ukraine (e.g., the ban of the Mejlis) produced a disparate adverse effect on the rights of Crimean Tatars; however, it explained this effect by the political opposition of targeted group members to the Russian regime.Footnote 21 It essentially failed to see the bigger picture that discrimination on account of political views is intertwined with discrimination on ethnic grounds, and probe the possibility of “double of multiple discrimination” by adopting the CERD Committee's intersectionality approach.Footnote 22 In a separate opinion, Judge Donoghue found it problematic that “ethnic identity can be isolated from ‘political’ views.”Footnote 23 She rooted her finding in the complex and painful history of the Crimean Tatar people, which explains their strong political opposition to the 2014 occupation of Crimea.Footnote 24 Similarly, Judge Charlesworth argued that that differential treatment on political grounds “does not preclude it being also based on prohibited grounds, such as ethnic origin.”Footnote 25 Only in one instance did the majority elaborate on the links between ethnicity and other factors, describing the language as “an essential social bond among the members of an ethnic group.”Footnote 26 That bond was severely fractured when Russian authorities undertook the exceptional “re-orientation of the Crimean educational system towards Russia,” which adversely affected parents whose children received their school education in the Ukrainian language until the occupation of Crimea in 2014.Footnote 27
Concluding Words
The outcome in the present case is a modest achievement for Ukraine and marks the end of its litigation journey in the ICJ concerning the events in Crimea and Donbas prior to Russia's full-scale invasion of Ukraine on February 24, 2022. Given the narrow scope of the established violations under ICSFT and CERD, the majority did not find it necessary or appropriate to grant extensive remedies sought by Ukraine.Footnote 28 The restrictive reading of “funds” under ICSFT and “prohibited grounds” under CERD undermined major aspects of Ukraine's case. Notwithstanding Ukraine's lack of access to Crimea and Donbas, Ukraine was nevertheless saddled with an unjustifiably heavy burden of proof. The outcome will weigh heavily on other states that might consider bringing the lawsuit under ICSFT and CERD, given that the ICJ shows little appetite to adjudge conflict-related violations within the framework of both Conventions.
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 (UKRAINE v. RUSSIAN FEDERATION)
APPLICATION DE LA CONVENTION INTERNATIONALE POUR LA RÉPRESSION DU FINANCEMENT DU TERRORISME ET DE LA CONVENTION INTERNATIONALE SUR L'ÉLIMINATION DE TOUTES LES FORMES DE DISCRIMINATION RACIALE (UKRAINE c. FÉDÉRATION DE RUSSIE)
31 JANVIER 2024
ARRÊT
Table of Contents
Paragraphs
Chronology of the procedure....................[1-27]
I. General background....................[28-31]
II. The International Convention for the Suppression of the Financing of Terrorism....................[32-150]
A. Preliminary issues....................[33-85]
1. Invocation of the “clean hands” doctrine in respect of the ICSFT....................[34-38]
2. Interpretation of certain provisions of the ICSFT....................[39-76]
(a) Article 1, paragraph 1, of the ICSFT....................[40-53]
(b) The offence of “terrorism financing” under Article 2, paragraph 1, of the ICSFT....................[54-64]
(i) The scope ratione personae of the offence of terrorism financing....................[56]
(ii) The scope ratione materiae of the offence of terrorism financing....................[57-58]
(iii) The mental elements of the offence of terrorism financing....................[59-64]
(c) Article 2, paragraph 1 (a) and (b), of the ICSFT....................[65-69]
(d) Proof of predicate acts under Article 2, paragraph 1 (a) or (b), of the ICSFT....................[70-76]
3. Questions of proof....................[77-85]
B. Alleged violations of obligations under the ICSFT....................[86-147]
1. Alleged violation of Article 8, paragraph 1....................[86-98]
2. Alleged violation of Article 9, paragraph 1....................[99-111]
3. Alleged violation of Article 10, paragraph 1....................[112-120]
4. Alleged violation of Article 12, paragraph 1....................[121-131]
5. Alleged violation of Article 18, paragraph 1....................[132-146]
6. General conclusions on the alleged violations of obligations under the ICSFT....................[147]
C. Remedies....................[148-150]
III. The International Convention on the Elimination of All Forms of Racial Discrimination....................[151-374]
A. Preliminary issues under CERD....................[152-200]
1. Invocation of the “clean hands” doctrine in respect of CERD....................[153-155]
2. Nature and scope of the alleged violations....................[156-161]
3. Questions of proof....................[162-178]
(a) Burden and standard of proof....................[164-171]
(b) Methods of proof....................[172-178]
4. Article 1, paragraph 1, of CERD....................[179-197]
5. Crimean Tatars and ethnic Ukrainians as protected groups....................[198-200]
B. Alleged violations of Articles 2 and 4 to 7 of CERD....................[201-370]
1. Disappearances, murders, abductions and torture of Crimean Tatars and ethnic Ukrainians....................[202-221]
2. Law enforcement measures, including searches, detentions and prosecutions....................[222-251]
(a) Measures taken against persons of Crimean Tatar origin....................[230-244]
(b) Measures taken against the Mejlis....................[245-251]
3. Ban on the Mejlis....................[252-275]
4. Measures relating to citizenship....................[276-288]
5. Measures relating to culturally significant gatherings....................[289-306]
6. Measures relating to media outlets....................[307-323]
7. Measures relating to cultural heritage and cultural institutions....................[324-337]
8. Measures relating to education....................[338-370]
(a) Access to education in the Ukrainian language....................[358-363]
(b) Access to education in the Crimean Tatar language....................[364-368]
(c) Existence of a pattern of racial discrimination....................[369]
(d) Conclusion....................[370]
C. Remedies....................[371-374]
IV. Alleged violation of obligations under the Order on provisional measures of 19 April 2017....................[375-403]
A. Compliance with provisional measures....................[375-398]
B. Remedies....................[399-403]
Operative clause....................[404]
2024
31 January General List No. 166
YEAR 2024
31 January 2024
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
(UKRAINE v. RUSSIAN FEDERATION)
General background — Proceedings instituted by Ukraine in January 2017 following events which occurred from early 2014 in.eastern Ukraine and in Crimean peninsula — Subject-matter of dispute — Dispute brought under International Convention for the Suppression of the Financing of Terrorism (ICSFT) and International Convention on the Elimination of All Forms of Racial Discrimination (CERD) — Jurisdiction of the Court limited to alleged violations of those two Conventions.
* *
International Convention for the Suppression of the Financing of Terrorism.
Preliminary issue — “Clean hands” doctrine — Doctrine cannot be applied in inter-State dispute where the Court's jurisdiction is established and application is admissible — Invocation of “clean hands” doctrine as defence on merits rejected.
*
Interpretation of term “funds” as defined in Article 1, paragraph 1, of ICSFT in accordance with Articles 31 to 33 of 1969 Vienna Convention — In defining “funds”, text of Article 1, paragraph 1, makes broad reference to “assets of every kind” — Context indicates that term “funds” is confined to resources possessing financial and monetary character and does not extend to means used to commit acts of terrorism — According to object and purpose, ICSFT specifically concerns the financing aspect of terrorism — Interpretation confirmed by travaux préparatoires — The Court's conclusion that term “funds” refers to resources provided or collected for their monetary value and does not include means used to commit acts of terrorism, including weapons or training camps — Consequently, alleged supply of weapons to armed groups operating in Ukraine and alleged organization of training for their members fall outside material scope of ICSFT.
Offence of terrorism financing under Article 2, paragraph 1, of ICSFT — Scope ratione personae — Financing of terrorism by a State outside scope of ICSFT — States are required to act to suppress and prevent commission of offence of terrorism financing by all persons, including by State officials — Scope ratione materiae — Distinction between offence of terrorism financing in chapeau of Article 2, paragraph 1, of ICSFT and categories of underlying offences in Article 2, paragraph 1 (a) and (b) (Predicate acts) — Term “offences set out in Article 2” in ICSFT only refers to terrorism financing in the chapeau — Mental elements of offence of terrorism financing — Funds to be provided or collected either with the “intention” or in the “knowledge” that they will be used to carry out predicate acts — Not necessary that funds actually used to carry out predicate acts — Reliance by Ukraine upon mental element of “knowledge” — Ordinary meaning of term “knowledge” — Funder must have been aware that funds were to be used to carry out a predicate act — “Knowledge” to be determined on basis of objective factual circumstances — Whether groups notorious for committing predicate acts or were characterized as “terrorist” by United Nations organ — Characterization by a single State of organization or group as “terrorist” insufficient.
Proof of predicate acts — Offence of terrorism financing distinct from commission of predicate acts — Not necessary to determine whether incidents alleged by Ukraine constitute predicate acts — Insufficient evidence to characterize armed groups implicated by Ukraine in commission of alleged predicate acts as groups notorious for committing such acts.
Questions of proof — Claims do not require application of heightened standard of proof — The Court will determine whether evidence is convincing — Evidential threshold differs depending on nature of obligation imposed by particular provision of ICSFT invoked.
*
Alleged violations of obligations under ICSFT.
Obligation of States parties under Article 8 of ICSFT — Applicant's claim primarily concerns alleged obligation to freeze funds — Evidentiary threshold — Obligation to freeze funds comes into operation if State party has reasonable grounds to suspect that funds were used or allocated for purpose of terrorism financing — Notes Verbales and requests for legal assistance do not contain sufficiently specific and detailed evidence to give Russian Federation reasonable grounds to suspect that funds were allocated for carrying out predicate acts — Not established that Russian Federation violated its obligations under Article 8, paragraph 1, of ICSFT.
Obligations of State parties under Article 9, paragraph 1, of ICSFT — Relatively low evidentiary threshold for obligation to arise — Article 9 does not however require initiation of investigation into unsubstantiated allegations of terrorism financing — Information provided by Ukraine to Russian Federation met evidentiary threshold — Respondent required to undertake investigation — Failure of Russian Federation to fulfil its obligation — Violation by Russian Federation of its obligations under Article 9, paragraph 1, of ICSFT.
Obligations of States parties under Article 10, paragraph 1, of ICSFT — Applicant's allegation relates to obligation to prosecute — Obligation to prosecute is ordinarily implemented after conduct of an investigation — Article 10 does not impose absolute obligation — Competent authorities to determine whether prosecution warranted based on available evidence and applicable legal rules — Reasonable grounds must exist to suspect that an offence of terrorism financing has been committed — Information provided by Ukraine to Russian Federation did not meet that threshold — Respondent not under obligation to submit any specific cases to competent authorities for purpose of prosecution — Not established that Russian Federation violated its obligations under Article 10, paragraph 1, of ICSFT.
Obligation of States parties under Article 12 of ICSFT — Of 12 requests for legal assistance by Ukraine, only three concerned allegations regarding provision of funds to persons or organizations engaged in commission of predicate acts — Requests did not describe in any detail the commission of alleged predicate acts by recipients of funds — No indication that alleged funders knew that funds provided would be used for commission of predicate acts — Requests did not give rise to obligation for Russian Federation to provide legal assistance for terrorism financing investigations — Not established that Russian Federation violated its obligations under Article 12, paragraph 1, of ICSFT.
Obligation of States parties under Article 18, paragraph 1, of ICSFT — Not necessary to find that offence of terrorism financing has been committed for a State party to have breached its obligations under Article 18, paragraph 1 — Ordinary meaning of term “all practicable measures” encompasses all reasonable and feasible measures — Such measures may include legislative and regulatory measures — Ukraine did not point to specific measures that Russian Federation failed to take to prevent terrorism financing offences — Russian Federation not under obligation to restrict all funding for the “Donetsk People's Republic” (DPR) and the “Luhansk People's Republic” (LPR) — Russian Federation not under obligation to designate a group as a terrorist entity under
its domestic law — Russian Federation had no reasonable grounds to suspect the funds in question were to be used for purpose of terrorism financing — Not established that Russian Federation violated its obligations under Article 18, paragraph 1, of ICSFT.
*
Remedies in respect of claims under ICSFT.
Declaration by the Court that Russian Federation violated its obligations under Article 9, paragraph 1, of ICSFT and continues to be required to undertake investigations into sufficiently substantiated allegations of acts of terrorism financing in eastern Ukraine — Not necessary or appropriate to grant any of the other forms of relief requested.
* *
International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
Preliminary issues — Doctrine of “clean hands” not applicable — Reference to “campaign of racial discrimination” in 2019 Judgment on preliminary objections — Pattern of racial discrimination needs to be established — Burden of proof varies depending on type of facts to be established — Standard of proof varies depending on gravity of allegation — Convincing evidence necessary in present case — Probative value of evidence — Meaning of “racial discrimination” under Article 1, paragraph 1, of CERD — Neutral measure may be discriminatory if it produces disparate adverse effect on rights of a person or a group protected under CERD — Crimean Tatars and ethnic Ukrainians in Crimea are ethnic groups protected under CERD.
*
Alleged violations by Respondent of Articles 2 and 4 to 7 of CERD.
Incidents of physical violence directed at Crimean Tatars and ethnic Ukrainians in Crimea — Individuals targeted for their political and ideological positions — Any disparate adverse effect on rights of Crimean Tatars and ethnic Ukrainians may be the result of political opposition and not related to prohibited grounds — Physical violence in Crimea not only suffered by Crimean Tatars and ethnic Ukrainians — Alleged violation of duty to investigate allegations of racial discrimination not substantiated — Violations by Russian Federation of its obligations under CERD on account of incidents of physical violence not established.
Law enforcement measures, including searches, detentions and prosecutions directed at persons of Crimean Tatar origin — Disparate adverse effect of measures on rights of persons of Crimean Tatar origin — Measures not based on prohibited grounds — Allegations of failure by Russian Federation to adopt measures for prevention, eradication and punishment of hate speech not established — The Court not convinced that Russian Federation engaged in discriminatory law enforcement measures against Crimean Tatars based on ethnic origin.
Measures taken against the Mejlis — Measures were taken in response to political opposition — Not established that measures were based on ethnic origin of targeted persons.
Ban on the Mejlis — Role of the Mejlis in representing Crimean Tatar community — The Mejlis is executive body of the Qurultay — Qurultay not banned — Ban on the Mejlis produced disparate adverse effect on rights of persons of Crimean Tatar origin — Ban on the Mejlis appears due to political activities of some of its leaders rather than based on ethnic origin — Not established that Russian Federation violated its obligations under CERD by imposing ban on the Mejlis.
Measures relating to citizenship — Russian Federation applies citizenship régime in Crimea to all persons over whom it exercises jurisdiction — Not established that Respondent violated its obligations under CERD as a result of citizenship régime in Crimea.
Restrictions relating to gatherings of cultural importance to Crimean Tatars and ethnic Ukrainians — Measures produced disparate adverse effect on rights of Crimean Tatars and ethnic Ukrainians — Restrictions not based on prohibited grounds — Not established that Russian Federation violated its obligations under CERD by imposing restrictions on certain gatherings of ethnic cultural importance.
Measures restricting Crimean Tatar and Ukrainian media outlets — Measures not based on ethnic origin of persons affiliated with those media outlets — Not established that Respondent violated its obligations under CERD by restricting Crimean Tatar and ethnic Ukrainian media.
Measures relating to cultural heritage of Crimean Tatar and ethnic Ukrainian communities — Not established that any differentiation of treatment of persons affiliated with ethnic Ukrainian cultural institutions in Crimea based on ethnic origin — Not established that Russian Federation violated its obligations under CERD by taking measures relating to cultural heritage of Crimean Tatar and ethnic Ukrainian communities.
Measures relating to education in Crimea — Restrictive measures taken by a State with respect to education in a minority language may fall within scope of CERD — Decline noted in number of students receiving education in Ukrainian language between 2014 and 2016 — Disparate adverse effect on rights of ethnic Ukrainian families — Russian Federation not in compliance with its duty to protect rights of ethnic Ukrainians to have access to education in Ukrainian language —
The Court unable to conclude on basis of evidence that quality of education in Crimean Tatar language has significantly deteriorated since 2014 — The Court's finding that there is pattern of racial discrimination with regard to school education in Ukrainian language, but that no such pattern is established with regard to school education in Crimean Tatar language.
Russian Federation has violated Article 2 (1) (a) and Article 5 (e) (v) of CERD with regard to implementation of school education in Ukrainian language.
*
Remedies in respect of claims under CERD.
Declaration by the Court that Russian Federation has acted in violation of Article 2 (1) (a) of CERD and Article 5 (e) (v) of CERD — Not necessary or appropriate to order any other remedy requested.
* *
Alleged violation of obligations under Order on provisional measures of 19 April 2017.
Finding that Russian Federation, by maintaining ban on the Mejlis, has violated first provisional measure — Finding is independent of conclusion that ban on the Mejlis not in violation of Russian Federation's obligations under CERD — Finding that Russian Federation has not violated second provisional measure requiring Respondent to ensure availability of education in Ukrainian language — Finding that Russian Federation, by recognizing the DPR and the LPR as independent States and by launching “special military operation” against Ukraine, has violated its obligation regarding non-aggravation of dispute.
*
Remedies in respect of violations of provisional measures.
Declaration by the Court that Russian Federation acted in breach of provisional measures indicated in Order of 19 April 2017 provides adequate satisfaction to Ukraine — Not necessary or appropriate to order any other remedy requested.
JUDGMENT
Present: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant;
Judges ad hoc Pocar, Tuzmukhamedov; Registrar Gautier.
In the case concerning the 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,
between
Ukraine,
represented by
HE Mr Anton Korynevych, Ambassador-at-Large, Ministry of Foreign Affairs of Ukraine, as Agent;
Ms Oksana Zolotaryova, Director General for International Law, Ministry of Foreign Affairs of Ukraine,
as Co-Agent;
Ms Marney L. Cheek, Covington & Burling LLP, member of the Bars of the Supreme Court of the United States of America and the District of Columbia,
Mr Jonathan Gimblett, Covington & Burling LLP, member of the Bars of the District of Columbia and the State of Virginia, solicitor of the Senior Courts of England and Wales,
Mr Harold Hongju Koh, Sterling Professor of International Law, Yale Law School, member of the Bars of the State of New York and the District of Columbia,
Mr Jean-Marc Thouvenin, Professor at the University of Paris Nanterre, Secretary-General of the Hague Academy of International Law, associate member of the Institut de droit international, member of the Paris Bar, Sygna Partners,
Ms Clovis Trevino, Covington & Burling LLP, member of the Bars of the District of Columbia and the State of New York,
Mr David M. Zionts, Covington & Burling LLP, member of the Bars of the Supreme Court of the United States of America and the District of Columbia,
as Counsel and Advocates;
Mr Andrii Pasichnyk, Deputy Director, Department of International Law, Ministry of Foreign Affairs of Ukraine,
Ms Anastasiia Mochulska, Department of International Law, Ministry of Foreign Affairs of Ukraine,
Ms Mariia Bezdieniezhna, Counsellor, Embassy of Ukraine in the Kingdom of the Netherlands,
Mr Volodymyr Shkilevych, Covington & Burling LLP, member of the Bar of the State of New York,
Ms Amanda Tuninetti, Covington & Burling LLP, member of the Bars of the State of New York and the District of Columbia,
Ms Ariel Rosenbaum, Covington & Burling LLP, member of the Bars of the State of New York and the District of Columbia,
Mr Paul Strauch, Covington & Burling LLP, member of the Bars of the District of Columbia and the State of California,
Mr Minwoo Kim, Covington & Burling LLP, member of the Bars of the State of New York and the District of Columbia,
Ms Jill Warnock, Covington & Burling LLP, member of the Bar of the District of Columbia, as Counsel;
Mr Refat Chubarov, Chairman of the Mejlis of the Crimean Tatar People,
Mr Pavlo Kushch, Metropolitan of Simferopol and Crimea Klyment, Head of the Crimean Eparchy of the Orthodox Church of Ukraine,
Major General Victor Trepak, Defence Intelligence, Ministry of Defence of Ukraine, Mr Dmytro Zyuzia, Security Service of Ukraine,
Mr Mykola Govorukha, Deputy Head of Unit, Office of the Prosecutor General of Ukraine,
Ms Olha Kuryshko, Mission of the President of Ukraine in the Autonomous Republic of Crimea,
Mr Anatolii Skoryk, Associate Professor, Kharkiv Air Force University,
Ms Iulia Tyshchenko, Head of the Democratic Processes Support Program, Ukrainian Center for Independent Political Research,
Lieutenant General (Retired) Christopher Brown, former Head of the Artillery Branch of the British Army,
as Members of the Delegation;
Mr Fedir Venislavskyy, Defence Intelligence, Ministry of Defence of Ukraine,
Ms Ambria Davis-Alexander, Covington & Burling LLP, Mr Liam Tormey, Covington & Burling LLP,
Ms Églantine Jamet, Sygna Partners,
as Assistants,
and
the Russian Federation,
represented by
HE Mr Gennady Kuzmin, Ambassador-at-Large, Ministry of Foreign Affairs of the Russian Federation,
HE Mr Alexander Shulgin, Ambassador of the Russian Federation to the Kingdom of the Netherlands,
HE Ms Maria Zabolotskaya, Deputy Permanent Representative of the Russian Federation to the United Nations,
as Agents;
Mr Hadi Azari, Professor of Public International Law at the Kharazmi University of Tehran, Legal Adviser to the Centre for International Legal Affairs of Iran,
Mr Michael Swainston, KC, member of the Bar of England and Wales, Brick Court Chambers, Mr Jean-Charles Tchikaya, member of the Paris and Bordeaux Bars,
Mr Kirill Udovichenko, Partner, Monastyrsky, Zyuba, Stepanov & Partners,
Mr Sienho Yee, Changjiang Xuezhe Professor of International Law and Director of the Chinese Institute of International Law, China Foreign Affairs University, Beijing; member of the Bars of the United States Supreme Court and the State of New York; member of the Institut de droit international,
as Counsel and Advocates;
Mr Dmitry Andreev, Counsel, Monastyrsky, Zyuba, Stepanov & Partners,
Mr Konstantin Kosorukov, Head of Division, Legal Department, Ministry of Foreign Affairs of the Russian Federation,
Mr Andrew Thomas, member of the Bar of England and Wales, Brick Court Chambers, as Counsel;
Mr Aider Abliatipov, Adviser to the President of the State Council of the Republic of Crimea,
Mr Mikhail Abramov, Senior Associate, Monastyrsky, Zyuba, Stepanov & Partners,
Mr Yury Andryushkin, First Secretary, Legal Department, Ministry of Foreign Affairs of the Russian Federation,
Mr Mikhail Averianov, First Secretary, Permanent Mission of the Russian Federation to the Organisation for Security and Co-operation in Europe,
Mr Ruslan Bairov, Deputy Mufti of the Republic of Crimea,
Ms Olga Chekrizova, First Secretary, Department for Multilateral Human Rights Cooperation, Ministry of Foreign Affairs of the Russian Federation,
Mr Vladislav Donakanian, Attaché, Legal Department, Ministry of Foreign Affairs of the Russian Federation,
Ms Kseniia Galkina, Second Secretary, Legal Department, Ministry of Foreign Affairs of the Russian Federation,
Ms Victoria Goncharova, First Secretary, Permanent Representation of the Russian Federation to the Organisation for the Prohibition of Chemical Weapons,
Ms Anastasia Khamenkova, Expert, Office of the Prosecutor General of the Russian Federation,
Mr Stanislav Kovpak, Principal Counsellor, Department for Multilateral Human Rights Cooperation, Ministry of Foreign Affairs of the Russian Federation,
Ms Marina Kulidobrova, Associate, Monastyrsky, Zyuba, Stepanov & Partners, Mr Artem Lupandin, Associate, Monastyrsky, Zyuba, Stepanov & Partners,
Ms Tatiana Manezhina, Minister of Culture of the Republic of Crimea,
Ms Daria Mosina, Second Secretary, Permanent Mission of the Russian Federation to the Organisation for Security and Co-operation in Europe,
Mr Igor Nazaikin, Expert, Federal Financial Monitoring Service of the Russian Federation,
Ms Emile Shirin, Assistant at the Department of Russian, Slavic and General Linguistics at the V. I. Vernadsky Crimean Federal University,
Mr Ibraim Shirin, member of the Public Chamber of the Republic of Crimea,
Ms Elena Stepanova, Expert, Prosecutor General's Office of the Russian Federation,
Mr Aider Tippa, Chairman of the State Committee on Inter-Ethnic Relations of the Republic of Crimea,
Mr Aleksei Trofimenkov, Counsellor, Legal Department, Ministry of Foreign Affairs of the Russian Federation,
Ms Kata Varga, Associate, Monastyrsky, Zyuba, Stepanov & Partners,
Ms Victoria Zabyyvorota, First Secretary, Second CIS Department, Ministry of Foreign Affairs of the Russian Federation,
Mr Mikhail Zaitsev, Third Secretary, Legal Department, Ministry of Foreign Affairs of the Russian Federation,
Ms Olga Zinchenko, Second Secretary, Department for Multilateral Human Rights Cooperation, Ministry of Foreign Affairs of the Russian Federation,
Mr Nikolay Zinovyev, Senior Associate, Monastyrsky, Zyuba, Stepanov & Partners, as Advisers,
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 16 January 2017, the Government of Ukraine filed in the Registry of the Court an Application instituting proceedings against the Russian Federation with regard to alleged violations by the latter of its obligations under the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 (hereinafter the “ICSFT”) and the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD”).
2. In its Application, Ukraine sought to found the jurisdiction of the Court on Article 24, paragraph 1, of the ICSFT and on Article 22 of CERD, in conjunction with Article 36, paragraph 1, of the Statute of the Court.
3. On 16 January 2017, Ukraine also submitted a Request for the indication of provisional measures, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.
4. The Registrar immediately communicated the Application to the Government of the Russian Federation in accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the indication of provisional measures, in accordance with Article 73, paragraph 2, of the Rules of Court. He also notified the Secretary-General of the United Nations of the filing of the Application and the Request for the indication of provisional measures by Ukraine.
5. In addition, by a letter dated 17 January 2017, the Registrar informed all Member States of the United Nations of the filing of the above-mentioned Application and Request for the indication of provisional measures.
6. Pursuant to Article 40, paragraph 3, of the Statute, the Registrar notified the Member States of the United Nations, through the Secretary-General, of the filing of the Application, by transmission of the printed bilingual text.
7. By letters dated 20 January 2017, the Registrar notified both Parties that the Member of the Court of Russian nationality, referring to Article 24, paragraph 1, of the Statute, had informed the President of the Court of his intention not to participate in the decision of the case. Pursuant to Article 31 of the Statute and Article 37, paragraph 1, of the Rules of Court, the Russian Federation chose Mr Leonid Skotnikov to sit as judge ad hoc in the case. Following the resignation of Judge ad hoc Skotnikov on 27 February 2023, the Russian Federation chose Mr Bakhtiyar Tuzmukhamedov to sit as judge ad hoc.
8. Since the Court included upon the Bench no judge of Ukrainian nationality, Ukraine proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a judge ad hoc to sit in the case; it chose Mr Fausto Pocar.
9. By an Order of 19 April 2017, the Court, having heard the Parties, indicated the following provisional measures:
“(1) With regard to the situation in Crimea, the Russian Federation must, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,
(a) Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis;
(b) Ensure the availability of education in the Ukrainian language;
(2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” (I.C.J. Reports 2017, pp. 140-141, para. 106.)
10. In a letter dated 19 April 2018, Ukraine drew the Court's attention to the Russian Federation's alleged non-compliance with point (1) (a) of operative paragraph 106 of the Court's Order on the Request for the indication of provisional measures (hereinafter the “Order indicating provisional measures” or “Order of 19 April 2017”). Following this communication, at the Court's request, the Russian Federation provided information on measures that had been taken by it to implement point (1) (a) of operative paragraph 106 of the Court's Order of 19 April 2017, and Ukraine furnished comments on that information. At the Court's further request, additional information and comments were provided by the Parties. By letters dated 29 March 2019, the Parties were informed that the Court had considered and taken due note of the various communications submitted by them. It was further indicated in this respect that the issues raised in these communications may need to be addressed by the Court at a later juncture. It was also conveyed to the Parties that, in such an eventuality, they would be at liberty to raise any issues of concern relating to the provisional measures indicated by the Court.
11. Pursuant to the instructions of the Court under Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States parties to the ICSFT and to States parties to CERD the notifications provided for in Article 63, paragraph 1, of the Statute. In addition, with regard to both of these instruments, in accordance with Article 69, paragraph 3, of the Rules of Court, the Registrar addressed to the United Nations, through its Secretary-General, the notifications provided for in Article 34, paragraph 3, of the Statute.
12. By an Order dated 12 May 2017, the President of the Court fixed 12 June 2018 and 12 July 2019 as the respective time-limits for the filing of a Memorial by Ukraine and a Counter-Memorial by the Russian Federation. The Memorial of Ukraine was filed within the time-limit thus fixed.
13. On 12 September 2018, within the time-limit prescribed by Article 79, paragraph 1, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the Russian Federation raised preliminary objections to the jurisdiction of the Court and the admissibility of the Application. Consequently, by an Order of 17 September 2018, the President of the Court noted that, by virtue of Article 79, paragraph 5, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, the proceedings on the merits were suspended, and, taking account of Practice Direction V, fixed 14 January 2019 as the time-limit within which Ukraine could present a written statement of its observations and submissions on the preliminary objections raised by the Russian Federation. Ukraine filed such a statement within the time-limit so prescribed and the case thus became ready for hearing in respect of the preliminary objections.
14. Referring to Article 53, paragraph 1, of the Rules of Court, the Government of the State of Qatar asked to be furnished with copies of the Memorial of Ukraine and the preliminary objections of the Russian Federation filed in the case, as well as any documents annexed thereto. Having ascertained the views of the Parties in accordance with the same provision, the Court decided, taking into account the objection raised by one Party, that it would not be appropriate to grant that request. The Registrar duly communicated that decision to the Government of the State of Qatar and to the Parties.
15. Public hearings on the preliminary objections raised by the Russian Federation were held on 3, 4, 6 and 7 June 2019. In its Judgment of 8 November 2019, the Court found that it had jurisdiction on the basis of Article 24, paragraph 1, of the ICSFT to entertain the claims made by Ukraine under this Convention. In the same Judgment, the Court found that it had jurisdiction on the basis of Article 22 of CERD to entertain the claims made by Ukraine under this Convention and that the Application in relation to those claims was admissible.
16. By an Order of 8 November 2019, the Court fixed 8 December 2020 as the new time-limit for the filing of the Counter-Memorial of the Russian Federation. By Orders dated 13 July 2020 and 20 January 2021, respectively, the Court, at the request of the Respondent, extended that time-limit first until 8 April 2021 and then until 8 July 2021. By an Order dated 28 June 2021, the President of the Court, at the request of the Respondent, further extended that time-limit to 9 August 2021. The Counter-Memorial was filed within the time-limit thus extended.
17. By an Order dated 8 October 2021, the Court authorized the submission of a Reply by Ukraine and a Rejoinder by the Russian Federation, and fixed 8 April 2022 and 8 December 2022 as the respective time-limits for the filing of those pleadings. By an Order dated 8 April 2022, at the request of the Applicant, the Court extended to 29 April 2022 and 19 January 2023 the respective time-limits for the filing of these pleadings. The Reply was filed within the time-limit thus extended.
18. By Orders dated 15 December 2022 and 3 February 2023, respectively, the Court, at the request of the Respondent, extended the time-limit for the filing of the Rejoinder by the Russian Federation first until 24 February 2023 and then until 10 March 2023. The Rejoinder was filed within the time-limit thus extended.
19. By a letter dated 21 March 2023, the Registrar, acting pursuant to Article 69, paragraph 3, of the Rules of Court, transmitted to the Secretary-General of the United Nations copies of the written proceedings filed in the merits stage of the case, and asked whether the Organization intended to present observations in writing under that provision. By a letter dated 23 March 2023, the Assistant Secretary-General in charge of the Office of Legal Affairs of the United Nations stated that the Organization did not intend to submit any observations in writing within the meaning of Article 69, paragraph 3, of the Rules of Court.
20. By a letter dated 30 May 2023, the Agent of the Russian Federation, referring to Article 56 of the Rules of Court and Practice Direction IX, submitted a document entitled “Expert report of Alexey Borisovich Artyushenko, Olga Anatolyevna Zolotareva, Viktor Viktorovich Merkuryev”, together with annexed exhibits. By a letter dated 2 June 2023, the Agent of Ukraine informed the Court that his Government objected to the production of the said document by the Russian Federation. The Court, having considered the views of the Parties, decided to authorize the production by the Russian Federation of the Expert Report and annexed exhibits pursuant to Article 56, paragraph 2, of the Rules of Court, it being understood that Ukraine would have the opportunity to comment thereon during the hearings. The Court further decided that, should Ukraine wish to comment in writing and submit documents in support of its comments pursuant to Article 56, paragraph 3, of the Rules of Court, it might do so by 26 June 2023. The decision of the Court with respect to the Russian Federation's request was duly communicated to the Parties by letters from the Registrar dated 5 June 2023. Ukraine provided written comments on the Expert Report on 26 June 2023.
21. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the written pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings, with the exception of the names and personal data of certain witnesses referred to in the Counter-Memorial and Rejoinder of the Russian Federation, as well as in documents annexed thereto.
22. Public hearings were held on 6, 8, 12 and 14 June 2023, at which the Court heard the oral arguments and replies of:
For Ukraine:
HE Mr Anton Korynevych,
Mr Harold Hongju Koh,
Mr Jean-Marc Thouvenin,
Mr David M. Zionts,
Ms Marney L. Cheek,
Ms Clovis Trevino,
Mr Jonathan Gimblett,
Ms Oksana Zolotaryova.
For the Russian Federation:
HE Mr Alexander Shulgin,
HE Mr Gennady Kuzmin,
Mr Michael Swainston,
Mr Hadi Azari,
Mr Sienho Yee,
Mr Kirill Udovichenko,
HE Ms Maria Zabolotskaya,
Mr Jean-Charles Tchikaya,
Mr Konstantin Kosorukov.
23. At the hearings, a Member of the Court put a question to the Parties, to which replies were given orally, in accordance with Article 61, paragraph 4, of the Rules of Court.
24. Before the opening of its second round of oral pleadings on 14 June 2023, the Russian Federation, in accordance with usual practice, transmitted to the Registry the texts of its oral pleadings for that day, as well as a folder of documents for the convenience of the judges. Among these texts was a speech (with accompanying slides available in the judges' folder), in which counsel for the Russian Federation raised a certain matter that, according to the Respondent, might have implications for the administration of justice. The Court considered that, in the interests of the good administration of justice, the Russian Federation should not address that matter during the second round of oral argument, but should instead raise its concerns in writing. Ukraine would then be given an opportunity to comment thereon also in writing. The President made a statement to this effect at the opening of the public sitting on 14 June 2023. The Russian Federation, however, did not subsequently communicate in writing its concerns and therefore no further action by the other Party or by the Court ensued.
*
25. In the Application, the following claims were made by Ukraine:
With regard to the ICSFT:
“134. Ukraine respectfully requests the Court to adjudge and declare that the Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control, has violated its obligations under the Terrorism Financing Convention by:
(a) supplying funds, including in-kind contributions of weapons and training, to illegal armed groups that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals, in violation of Article 18;
(b) failing to take appropriate measures to detect, freeze, and seize funds used to assist illegal armed groups that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals, in violation of Articles 8 and 18;
(c) failing to investigate, prosecute, or extradite perpetrators of the financing of terrorism found within its territory, in violation of Articles 9, 10, 11, and 18;
(d) failing to provide Ukraine with the greatest measure of assistance in connection with criminal investigations of the financing of terrorism, in violation of Articles 12 and 18; and
(e) failing to take all practicable measures to prevent and counter acts of financing of terrorism committed by Russian public and private actors, in violation of Article 18.
135. Ukraine respectfully requests the Court to adjudge and declare that the Russian Federation bears international responsibility, by virtue of its sponsorship of terrorism and failure to prevent the financing of terrorism under the Convention, for the acts of terrorism committed by its proxies in Ukraine, including:
(a) the shoot-down of Malaysia Airlines Flight MH17;
(b) the shelling of civilians, including in Volnovakha, Mariupol, and Kramatorsk; and
(c) the bombing of civilians, including in Kharkiv.
136. Ukraeine respectfully requests the Court to order the Russian Federation to comply with its obligations under the Terrorism Financing Convention, including that the Russian Federation:
(a) immediately and unconditionally cease and desist from all support, including the provision of money, weapons, and training, to illegal armed groups that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals;
(b) immediately make all efforts to ensure that all weaponry provided to such armed groups is withdrawn from Ukraine;
(c) immediately exercise appropriate control over its border to prevent further acts of financing of terrorism, including the supply of weapons, from the territory of the Russian Federation to the territory of Ukraine;
(d) immediately stop the movement of money, weapons, and all other assets from the territory of the Russian Federation and occupied Crimea to illegal armed groups that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals, including by freezing all bank accounts used to support such groups;
(e) immediately prevent all Russian officials from financing terrorism in Ukraine, including Sergei Shoigu, Minister of Defence of the Russian Federation; Vladimir Zhirinovsky, Vice-Chairman of the State Duma; Sergei Mironov, member of the State Duma; and Gennadiy Zyuganov, member of the State Duma, and initiate prosecution against these and other actors responsible for financing terrorism;
(f) immediately provide full co-operation to Ukraine in all pending and future requests for assistance in the investigation and interdiction of the financing of terrorism relating to illegal armed groups that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals;
(g) make full reparation for the shoot-down of Malaysia Airlines Flight MH17;
(h) make full reparation for the shelling of civilians in Volnovakha;
(i) make full reparation for the shelling of civilians in Mariupol;
(j) make full reparation for the shelling of civilians in Kramatorsk;
(k) make full reparation for the bombing of civilians in Kharkiv; and
(l) make full reparation for all other acts of terrorism the Russian Federation has caused, facilitated, or supported through its financing of terrorism, and failure to prevent and investigate the financing of terrorism.”
With regard to CERD:
“137. Ukraine respectfully requests the Court to adjudge and declare that the Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, including the de facto authorities administering the illegal Russian occupation of Crimea, and through other agents acting on its instructions or under its direction and control, has violated its obligations under the CERD by:
(a) systematically discriminating against and mistreating the Crimean Tatar and ethnic Ukrainian communities in Crimea, in furtherance of a State policy of cultural erasure of disfavoured groups perceived to be opponents of the occupation régime;
(b) holding an illegal referendum in an atmosphere of violence and intimidation against non-Russian ethnic groups, without any effort to seek a consensual and inclusive solution protecting those groups, and as an initial step toward depriving these communities of the protection of Ukrainian law and subjecting them to a régime of Russian dominance;
(c) suppressing the political and cultural expression of Crimean Tatar identity, including through the persecution of Crimean Tatar leaders and the ban on the Mejlis of the Crimean Tatar People;
(d) preventing Crimean Tatars from gathering to celebrate and commemorate important cultural events;
(e) perpetrating and tolerating a campaign of disappearances and murders of Crimean Tatars;
(f) harassing the Crimean Tatar community with an arbitrary régime of searches and detention;
(g) silencing Crimean Tatar media;
(h) suppressing Crimean Tatar language education and the community's educational institutions;
(i) suppressing Ukrainian language education relied on by ethnic Ukrainians;
(j) preventing ethnic Ukrainians from gathering to celebrate and commemorate important cultural events; and
(k) silencing ethnic Ukrainian media.
138. Ukraine respectfully requests the Court to order the Russian Federation to comply with its obligations under the CERD, including:
(a) immediately cease and desist from the policy of cultural erasure and take all necessary and appropriate measures to guarantee the full and equal protection of the law to all groups in Russian-occupied Crimea, including Crimean Tatars and ethnic Ukrainians;
(b) immediately restore the rights of the Mejlis of the Crimean Tatar People and of Crimean Tatar leaders in Russian-occupied Crimea;
(c) immediately restore the rights of the Crimean Tatar People in Russian-occupied Crimea to engage in cultural gatherings, including the annual commemoration of the Sürgün;
(d) immediately take all necessary and appropriate measures to end the disappearance and murder of Crimean Tatars in Russian-occupied Crimea, and to fully and adequately investigate the disappearances of Reshat Ametov, Timur Shaimardanov, Ervin Ibragimov, and all other victims;
(e) immediately take all necessary and appropriate measures to end unjustified and disproportionate searches and detentions of Crimean Tatars in Russian-occupied Crimea;
(f) immediately restore licenses and take all other necessary and appropriate measures to permit Crimean Tatar media outlets to resume operations in Russian-occupied Crimea;
(g) immediately cease interference with Crimean Tatar education and take all necessary and appropriate measures to restore education in the Crimean Tatar language in Russian-occupied Crimea;
(h) immediately cease interference with ethnic Ukrainian education and take all necessary and appropriate measures to restore education in the Ukrainian language in Russian-occupied Crimea;
(i) immediately restore the rights of ethnic Ukrainians to engage in cultural gatherings in Russian-occupied Crimea;
(j) immediately take all necessary and appropriate measures to permit the free operation of ethnic Ukrainian media in Russian-occupied Crimea; and
(k) make full reparation for all victims of the Russian Federation's policy and pattern of cultural erasure through discrimination in Russian-occupied Crimea.”
26. In the written proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Ukraine,
in the Memorial:
“653. For the reasons set out in this Memorial, Ukraine respectfully requests the Court to adjudge and declare that:
ICSFT
(a) The Russian Federation is responsible for violations of Article 18 of the ICSFT by failing to cooperate in the prevention of the terrorism financing offenses set forth in Article 2 by taking all practicable measures to prevent and counter preparations in its territory for the commission of those offenses within or outside its territory. Specifically, the Russian Federation has violated Article 18 by failing to take the practicable measures of: (i) preventing Russian state officials and agents from financing terrorism in Ukraine; (ii) discouraging public and private actors and other non-governmental third parties from financing terrorism in Ukraine; (iii) policing its border with Ukraine to stop the financing of terrorism; and (iv) monitoring and suspending banking activity and other fundraising activities undertaken by private and public actors on its territory to finance . . . terrorism in Ukraine.
(b) The Russian Federation is responsible for violations of Article 8 of the ICSFT by failing to identify and detect funds used or allocated for the purposes of financing terrorism in Ukraine, and by failing to freeze or seize funds used or allocated for the purpose of financing terrorism in Ukraine.
(c) The Russian Federation has violated Articles 9 and 10 of the ICSFT by failing to investigate the facts concerning persons who have committed or are alleged to have committed terrorism financing in Ukraine, and to extradite or prosecute alleged offenders.
(d) The Russian Federation has violated Article 12 of the ICSFT by failing to provide Ukraine the greatest measure of assistance in connection with criminal investigations in respect of terrorism financing offenses.
(e) As a consequence of the Russian Federation's violations of the ICSFT, its proxies in Ukraine have been provided with funds that enabled them to commit numerous acts of terrorism, including the downing of Flight MH17, the shelling of Volnovakha, Mariupol, Kramatorsk, and Avdiivka, the bombings of the Kharkiv unity march and Stena Rock Club, the attempted assassination of a Ukrainian member of Parliament, and others.
CERD
(f) The Russian Federation has violated CERD Article 2 by engaging in numerous and pervasive acts of racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea and by engaging in a policy and practice of racial discrimination against those communities.
(g) The Russian Federation has further violated CERD Article 2 by sponsoring, defending or supporting racial discrimination by other persons or organizations against the Crimean Tatar and Ukrainian communities in Crimea.
(h) The Russian Federation has violated CERD Article 4 by promoting and inciting racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
(i) The Russian Federation has violated CERD Article 5 by failing to guarantee the right of members of the Crimean Tatar and Ukrainian communities to equality before the law, notably in their enjoyment of (i) the right to equal treatment before the tribunals and all other organs administering justice; (ii) the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; (iii) political rights; (iv) other civil rights; and (v) economic, social and cultural rights.
(j) The Russian Federation has violated CERD Article 6 by failing to assure the Crimean Tatar and Ukrainian communities in Crimea effective protection and remedies against acts of racial discrimination.
(k) The Russian Federation has violated CERD Article 7 by failing to adopt immediate and effective measures in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
654. The aforementioned acts constitute violations of the ICSFT and CERD, and are therefore internationally wrongful acts for which the Russian Federation bears international responsibility. The Russian Federation is therefore required to:
ICSFT
(a) Cease immediately each of the above violations of ICSFT Articles 8, 9, 10, 12, and 18 and provide Ukraine with appropriate guarantees and public assurances that it will refrain from such actions in the future.
(b) Take all practicable measures to prevent the commission of terrorism financing offences, including (i) ensuring that Russian state officials or any other person under its jurisdiction do not provide weapons or other funds to groups engaged in terrorism in Ukraine, including without limitation the DPR, LPR, Kharkiv Partisans, and other illegal armed groups; (ii) cease encouraging public and private actors and other non-governmental third parties to finance terrorism in Ukraine; (iii) police Russia's border with Ukraine to stop any supply of weapons into Ukraine; and (iv) monitor and prohibit private and public transactions originating in Russian territory, or initiated by Russian nationals, that finance terrorism in Ukraine, including by enforcing banking restrictions to block transactions for the benefit of groups engaged in terrorism in Ukraine, including without limitation the DPR, LPR, the Kharkiv Partisans, and other illegal armed groups.
(c) Freeze or seize assets of persons suspected of supplying funds to groups engaged in terrorism in Ukraine, including without limitation illegal armed groups associated with the DPR, LPR, and Kharkiv Partisans, and cause the forfeiture of assets of persons found to have supplied funds to such groups.
(d) Provide the greatest measure of assistance to Ukraine in connection with criminal investigations of suspected financers of terrorism.
(e) Pay Ukraine financial compensation, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the ICSFT, including the harm suffered by its nationals injured by acts of terrorism that occurred as a consequence of the Russian Federation's ICSFT violations, with such compensation to be quantified in a separate phase of these proceedings.
(f) Pay moral damages to Ukraine in an amount deemed appropriate by the Court, reflecting the seriousness of the Russian Federation's violations of the ICSFT, the quantum of which is to be determined in a separate phase of these proceedings.
CERD
(g) Immediately comply with the provisional measures ordered by the Court on 19 April 2017, in particular by lifting its ban on the activities of the Mejlis of the Crimean Tatar People and by ensuring the availability of education in the Ukrainian language.
(h) Cease immediately each of the above violations of CERD Articles 2, 4, 5, 6, and 7, and provide Ukraine with appropriate guarantees and public assurances that it will refrain from such actions in the future.
(i) Guarantee the right of members of the Crimean Tatar and Ukrainian communities to equality before the law, notably in the enjoyment of the human rights and fundamental freedoms protected by the Convention.
(j) Assure to all residents of Crimea within its jurisdiction effective protection and remedies against acts of racial discrimination.
(k) Adopt immediate and effective measures in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
(l) Pay Ukraine financial compensation, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the CERD, including the harm suffered by victims as a result of the Russian Federation's violations of CERD Articles 2, 4, 5, 6 and 7, with such compensation to be quantified in a separate phase of these proceedings.”
in the Reply:
“734. For the reasons set out in the Memorial and in this Reply, Ukraine respectfully requests the Court to adjudge and declare that:
ICSFT
(a) The Russian Federation is responsible for violations of Article 18 of the ICSFT by failing to cooperate in the prevention of the terrorism financing offenses set forth in Article 2 by taking all practicable measures to prevent and counter preparations in its territory for the commission of those offenses within or outside its territory. Specifically, the Russian Federation has violated Article 18 by failing to take the practicable measures of: (i) preventing Russian state officials and agents from financing terrorism in Ukraine; (ii) discouraging public and private actors and other non-governmental third parties from financing terrorism in Ukraine; (iii) policing its border with Ukraine to stop the financing of terrorism; and (iv) monitoring and suspending banking activity and other fundraising activities undertaken by private and public actors on its territory to finance . . . terrorism in Ukraine.
(b) The Russian Federation is responsible for violations of Article 8 of the ICSFT by failing to identify and detect funds used or allocated for the purpose of financing terrorism in Ukraine, and by failing to freeze or seize funds used or allocated for the purpose of financing terrorism in Ukraine.
(c) The Russian Federation has violated Articles 9 and 10 of the ICSFT by failing to investigate the facts concerning persons who have committed or are alleged to have committed terrorism financing in Ukraine, and to extradite or prosecute alleged offenders.
(d) The Russian Federation has violated Article 12 of the ICSFT by failing to provide Ukraine the greatest measure of assistance in connection with criminal investigations in respect of terrorism financing offenses.
(e) As a consequence of the Russian Federation's violations of the ICSFT, its proxies in Ukraine have been provided with funds that enabled them to commit numerous acts of terrorism, including the downing of Flight MH17, the shelling of Volnovakha, Mariupol, Kramatorsk, and Avdiivka, the bombings of the Kharkiv unity march and Stena Rock Club, the attempted assassination of a Ukrainian member of Parliament, and others.
CERD
(f) The Russian Federation has violated CERD Article 2 by engaging in numerous and pervasive acts of racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea and by engaging in a policy and practice of racial discrimination against those communities.
(g) The Russian Federation has further violated CERD Article 2 by sponsoring, defending or supporting racial discrimination by other persons or organizations against the Crimean Tatar and Ukrainian communities in Crimea.
(h) The Russian Federation has violated CERD Articles 4 by promoting and inciting racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
(i) The Russian Federation has violated CERD Article 5 by failing to guarantee the right of members of the Crimean Tatar and Ukrainian communities to equality before the law, notably in their enjoyment of (i) the right to equal treatment before the tribunals and all other organs administering justice; (ii) the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; (iii) political rights; (iv) other civil rights; and (v) economic, social and cultural rights.
(j) The Russian Federation has violated CERD Article 6 by failing to assure the Crimean Tatar and Ukrainian communities in Crimea effective protection and remedies against acts of racial discrimination.
(k) The Russian Federation has violated CERD Article 7 by failing to adopt immediate and effective measures in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
Provisional Measures Order
(l) The Russian Federation has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 19 April 2017 by maintaining limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.
(m) The Russian Federation has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 19 April 2017 by failing to ensure the availability of education in the Ukrainian language.
(n) The Russian Federation has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 19 April 2017 by aggravating and extending the dispute and making it more difficult to resolve by recognizing the independence and sovereignty of the DPR and LPR and engaging in acts of racial discrimination in the course of its renewed aggression against Ukraine.
735. The aforementioned acts constitute violations of the ICSFT, the CERD, and the Court's Order on provisional measures, and are therefore internationally wrongful acts for which the Russian Federation bears international responsibility. The Russian Federation is therefore required to:
ICSFT
(a) Cease immediately each of the above violations of ICSFT Articles 8, 9, 10, 12, and 18 and provide Ukraine with appropriate guarantees and public assurances that it will refrain from such actions in the future.
(b) Take all practicable measures to prevent the commission of terrorism financing offenses, including (i) ensuring that Russian state officials or any other person under its jurisdiction do not provide weapons or other funds to groups engaged in terrorism in Ukraine, including without limitation the DPR, LPR, Kharkiv Partisans, and other illegal armed groups; (ii) cease encouraging public and private actors and other nongovernmental third parties to finance terrorism in Ukraine; (iii) police Russia's border with Ukraine to stop any supply of weapons into Ukraine; and (iv) monitor and prohibit private and public transactions originating in Russian territory, or initiated by Russian nationals, that finance terrorism in Ukraine, including by enforcing banking restrictions to block transactions for the benefit of groups engaged in terrorism in Ukraine, including without limitation the DPR, LPR, the Kharkiv Partisans, and other illegal armed groups.
(c) Freeze or seize assets of persons suspected of supplying funds to groups engaged in terrorism in Ukraine, including without limitation illegal armed groups associated with the DPR, LPR, and Kharkiv Partisans, and cause the forfeiture of assets of persons found to have supplied funds to such groups.
(d) Provide the greatest measure of assistance to Ukraine in connection with criminal investigations of suspected financers of terrorism.
(e) Pay Ukraine financial compensation, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the ICSFT, including the harm suffered by its nationals injured by acts of terrorism that occurred as a consequence of the Russian Federation's ICSFT violations, with such compensation to be quantified in a separate phase of these proceedings.
(f) Pay moral damages to Ukraine in an amount deemed appropriate by the Court, reflecting the seriousness of the Russian Federation's violations of the ICSFT, the quantum of which is to be determined in a separate phase of these proceedings.
CERD
(g) Cease immediately each of the above violations of CERD Articles 2, 4, 5, 6, and 7, and provide Ukraine with appropriate guarantees and public assurances that it will refrain from such actions in the future.
(h) Guarantee the right of members of the Crimean Tatar and Ukrainian communities to equality before the law, notably in the enjoyment of the human rights and fundamental freedoms protected by the Convention.
(i) Assure to all residents of Crimea within its jurisdiction effective protection and remedies against acts of racial discrimination.
(j) Adopt immediate and effective measures in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
(k) Pay Ukraine financial compensation and moral damages, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the CERD, including the harm suffered by victims as a result of the Russian Federation's violations of CERD Articles 2, 4, 5, 6 and 7, with such compensation to be quantified in a separate phase of these proceedings.
Provisional Measures Order
(l) Immediately comply with the provisional measures ordered by the Court on 19 April 2017, in particular by lifting its ban on the activities of the Mejlis of the Crimean Tatar People and by ensuring the availability of education in the Ukrainian language.
(m) Immediately comply with the provisional measures ordered by the Court on 19 April 2017, in particular by ceasing its actions that aggravate the dispute and by not taking any further action to aggravate the dispute.
(n) Pay Ukraine financial compensation and moral damages, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the Court's order of 19 April 2017, with such compensation to be quantified in a separate phase of these proceedings.”
On behalf of the Government of the Russian Federation,
in the Counter-Memorial:
With respect to the ICSFT:
“For the reasons set out in the present Counter-Memorial, and reserving its right to supplement or amend this Submission, the Russian Federation respectfully requests the Court to dismiss all of the claims made by Ukraine.”
With respect to CERD:
“For the reasons set out in the present Counter-Memorial, and reserving its right to supplement or amend this Submission, the Russian Federation respectfully requests the Court to dismiss all of the claims made by Ukraine.”
in the Rejoinder:
With respect to the ICSFT:
“In view of the foregoing, the Russian Federation respectfully requests the Court to dismiss all of the claims made by Ukraine under the ICSFT.”
With respect to CERD:
“In view of the foregoing, the Russian Federation respectfully requests the Court to dismiss all of the claims made by Ukraine under the CERD.”
27. At the oral proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Ukraine,
at the hearing of 12 June 2023:
“1. On the basis of the facts and legal arguments presented in its written and oral pleadings, Ukraine respectfully requests the Court to adjudge and declare:
ICSFT
(a) The Russian Federation is responsible for violations of Article 18 of the ICSFT by failing to cooperate in the prevention of the terrorism financing offenses set forth in Article 2 by taking all practicable measures to prevent and counter preparations in its territory for the commission of those offenses within or outside its territory. Specifically, the Russian Federation has violated Article 18 by failing to take the practicable measures of: (i) preventing Russian state officials and agents from financing terrorism in Ukraine; (ii) discouraging public and private actors and other non-governmental third parties from financing terrorism in Ukraine; (iii) policing its border with Ukraine to stop the financing of terrorism; and (iv) monitoring and suspending banking activity and other fundraising activities undertaken by private and public actors on its territory to finance terrorism in Ukraine.
(b) The Russian Federation is responsible for violations of Article 8 of the ICSFT by failing to identify and detect funds used or allocated for the purposes of financing terrorism in Ukraine, and by failing to freeze or seize funds used or allocated for the purpose of financing terrorism in Ukraine.
(c) The Russian Federation has violated Articles 9 and 10 of the ICSFT by failing to investigate the facts concerning persons who have committed or are alleged to have committed terrorism financing in Ukraine, and to extradite or prosecute alleged offenders.
(d) The Russian Federation has violated Article 12 of the ICSFT by failing to provide Ukraine the greatest measure of assistance in connection with criminal investigations in respect of terrorism financing offenses.
(e) As a consequence of the Russian Federation's violations of the ICSFT, illegal armed groups in Ukraine have been provided with funds that enabled them to commit numerous acts of terrorism, including the shootdown of Flight MH17, the shelling of Volnovakha, Mariupol, Kramatorsk, and Avdiivka, the bombings of the Kharkiv unity march and Stena Rock Club, the attempted assassination of a Ukrainian member of Parliament, and others.
CERD
(f) The Russian Federation has violated CERD Article 2 by engaging in numerous and pervasive acts of racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea and by engaging in a policy and practice of racial discrimination against those communities.
(g) The Russian Federation has further violated CERD Article 2 by sponsoring, defending or supporting racial discrimination by other persons or organizations against the Crimean Tatar and Ukrainian communities in Crimea.
(h) The Russian Federation has violated CERD Article 4 by promoting and inciting racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
(i) The Russian Federation has violated CERD Article 5 by failing to guarantee the right of members of the Crimean Tatar and Ukrainian communities to equality before the law, notably in their enjoyment of (i) the right to equal treatment before the tribunals and all other organs administering justice; (ii) the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; (iii) political rights; (iv) other civil rights; and (v) economic, social and cultural rights.
(j) The Russian Federation has violated CERD Article 6 by failing to assure the Crimean Tatar and Ukrainian communities in Crimea effective protection and remedies against acts of racial discrimination.
(k) The Russian Federation has violated CERD Article 7 by failing to adopt immediate and effective measures in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
Provisional Measures Order
(l) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by maintaining limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.
(m) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by failing to ensure the availability of education in the Ukrainian language.
(n) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by aggravating and extending the dispute and making it more difficult to resolve by recognizing the independence and sovereignty of the so-called DPR and LPR and engaging in acts of racial discrimination in the course of its renewed aggression against Ukraine.
2. The aforementioned acts constitute violations of the ICSFT, the CERD, and the Court's order on provisional measures, and are therefore internationally wrongful acts for which the Russian Federation bears international responsibility. The Russian Federation is therefore required to:
ICSFT
(a) Cease immediately each of the above violations of ICSFT Articles 8, 9, 10, 12, and 18 and provide Ukraine with appropriate guarantees and public assurances that it will refrain from such actions in the future.
(b) Take all practicable measures to prevent the commission of terrorism financing offenses in Ukraine, including in the oblasts purportedly annexed by the Russian Federation on September 30, including in particular (i) ensuring that Russian state officials or any other person under its jurisdiction do not provide weapons or other funds to groups engaged in terrorism in Ukraine; (ii) cease encouraging public and private actors and other nongovernmental third parties to finance terrorism in Ukraine; (iii) police Russia's border with Ukraine to stop any supply of weapons into Ukraine; and (iv) monitor and prohibit private and public transactions originating in Russian territory, or initiated by Russian nationals, that finance terrorism in Ukraine, including by enforcing banking restrictions to block transactions for the benefit of groups engaged in terrorism in Ukraine.
(c) Freeze or seize assets of persons suspected of supplying funds to groups engaged in terrorism in Ukraine, and cause the forfeiture of assets of persons found to have supplied funds to such groups.
(d) Provide the greatest measure of assistance to Ukraine in connection with criminal investigations of suspected financers of terrorism.
(e) Pay Ukraine financial compensation, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the ICSFT, including the harm suffered by its nationals injured by acts of terrorism that occurred as a consequence of the Russian Federation's ICSFT violations, with such compensation to be quantified in a separate phase of these proceedings.
(f) Pay moral damages to Ukraine in an amount deemed appropriate by the Court, reflecting the seriousness of the Russian Federation's violations of the ICSFT, the quantum of which is to be determined in a separate phase of these proceedings.
CERD
(g) Cease immediately each of the above violations of CERD Articles 2, 4, 5, 6, and 7, and provide Ukraine with appropriate guarantees and public assurances that it will refrain from such actions in the future.
(h) Guarantee the right of members of the Crimean Tatar and Ukrainian communities to equality before the law, notably in the enjoyment of the human rights and fundamental freedoms protected by the Convention.
(i) Assure to all residents of occupied Crimea effective protection and remedies against acts of racial discrimination.
(j) Adopt immediate and effective measures in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea.
(k) Pay Ukraine financial compensation and moral damages, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the CERD, including the harm suffered by victims as a result of the Russian Federation's violations of CERD Articles 2, 4, 5, 6 and 7, with such compensation to be quantified in a separate phase of these proceedings.
Provisional Measures Order
(l) Provide full reparation for the harm caused for its actions, including restitution, financial compensation and moral damages, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the Court's Order of 19 April 2017, with such compensation to be quantified in a separate phase of these proceedings.
(m) Regarding restitution: restore the Mejlis' activities in Crimea and its members and all their rights, including their properties, retroactive elimination of all Russian administrative and other measures contrary to the Court's Order and release of members of Mejlis currently in jail.”
On behalf of the Government of the Russian Federation,
at the hearing of 14 June 2023:
“For the reasons explained in its written submissions and developed further during the oral hearings, and for any other reasons that the Court may deem appropriate, the Russian Federation respectfully requests the Court
1. to dismiss all of the claims that Ukraine made under the International Convention for the Suppression of the Financing of Terrorism; and
2. to dismiss all of the claims that Ukraine made under the International Convention on the Elimination of All Forms of Racial Discrimination.”
*
* *
I. General background
28. The present proceedings were instituted by Ukraine following events which occurred from early 2014 in. eastern Ukraine and in the Crimean peninsula. The situation in Ukraine is very different today than it was when Ukraine submitted its Application in January 2017. The Parties are presently engaged in an intense armed conflict that has led to a tremendous loss of life and great human suffering. Nevertheless, with regard to the situation in eastern Ukraine and in the Crimean peninsula, the case before the Court is limited in scope and is brought only under the provisions of the ICSFT and CERD. The Court is not called upon to rule in this case on any other issue in dispute between the Parties.
29. With regard to the ICSFT, the Applicant instituted proceedings relating to the events in eastern Ukraine, alleging that the Russian Federation failed to take measures to prevent and suppress the commission of offences of terrorism financing. In particular, the Applicant refers to acts and armed activities in eastern Ukraine allegedly perpetrated by armed groups linked to two entities that refer to themselves as the “Donetsk People's Republic” (DPR) and the “Luhansk People's Republic” (LPR). Other acts to which the Applicant refers were allegedly perpetrated by armed groups and individuals in other parts of Ukraine. With regard to CERD, the Applicant refers to events which took place in Crimea from early 2014, after the Russian Federation took control over the territory of the Crimean peninsula, alleging that the Russian Federation has engaged in a campaign of racial discrimination depriving Crimean Tatars and ethnic Ukrainians in Crimea of their political, civil, economic, social and cultural rights in violation of its obligations under CERD.
30. The Court recalls that, in its Judgment of 8 November 2019 on preliminary objections (hereinafter the “2019 Judgment”), it considered that the dispute consists of two aspects: the first relates to the ICSFT and the second relates to CERD. The Court therefore defined the subject-matter of the dispute between the Parties in the following terms:
“[I]n so far as its first aspect is concerned, [the subject-matter of the dispute] is whether the Russian Federation had the obligation, under the ICSFT, to take measures and to co-operate in the prevention and suppression of the alleged financing of terrorism in the context of events in eastern Ukraine and, if so, whether the Russian Federation breached such an obligation. The subject-matter of the dispute, in so far as its second aspect is concerned, is whether the Russian Federation breached its obligations under CERD through discriminatory measures allegedly taken against the Crimean Tatar and Ukrainian communities in Crimea.” (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 (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 577, para. 32.)
The Court further stated that, in the present proceedings, Ukraine is not requesting that it rule on issues concerning the Russian Federation's alleged “aggression” or its alleged “unlawful occupation” of Ukrainian territory, nor is the Applicant seeking a pronouncement of the Court on the status of the Crimean peninsula under international law. These matters do not constitute the subject-matter of the dispute before the Court (ibid., para. 29).
31. In the same Judgment, the Court found that it had jurisdiction on the basis of Article 24, paragraph 1, of the ICSFT and Article 22 of CERD to entertain the claims made by Ukraine under these Conventions. Thus, the jurisdiction of the Court is limited to the alleged violations by the Russian Federation of its obligations under the two instruments invoked by Ukraine and does not concern the conformity of conduct of the Russian Federation with its obligations under other rules of international law.
II. The International Convention for the Suppression of the Financing of Terrorism
32. The Court recalls that both Ukraine and the Russian Federation are parties to the ICSFT, which entered into force for them on 5 January 2003 and 27 December 2002, respectively. Neither Party entered any reservation to that instrument. As the Court has already stated (paragraph 30), the aspect of the Parties' dispute under the ICSFT concerns alleged violations by the Russian Federation of certain obligations under that Convention.
A. Preliminary issues
33. Before addressing Ukraine's claims under the ICSFT, the Court will first consider certain preliminary issues relevant to the determination of the dispute, namely the Russian Federation's invocation of the “clean hands” doctrine, the interpretation of relevant provisions of the ICSFT and certain questions of proof.
1. Invocation of the “clean hands” doctrine in respect of the ICSFT
34. The Russian Federation requests the Court to dismiss Ukraine's claims under the ICSFT on the grounds that the Applicant comes to the Court with “unclean hands”. The Russian Federation argues that Ukraine has itself engaged in serious misconduct or wrongdoing that has a close connection with the relief that it seeks. First, the Russian Federation argues that Ukraine has failed to implement the “Package of Measures for the Implementation of the Minsk Agreements” adopted in Minsk on 12 February 2015. Secondly, the Respondent contends that Ukraine has shelled residential areas and used indiscriminate weapons against civilians in eastern Ukraine. Thirdly, the Russian Federation argues that Ukraine has taken a “hypocritical approach” in its interpretation and application of the ICSFT. In this regard, the Respondent contends that the Applicant has brought charges of terrorism financing against political opponents of the Government of Ukraine, as well as residents of the Donetsk and Luhansk oblasts (administrative territorial units) for financial and commercial activities in the DPR and LPR, but failed to bring similar charges against other Ukrainian persons including top Ukrainian officials and politicians, who freely trade with the DPR and LPR in coal, steel and other goods, despite labelling the leadership of the DPR and LPR as “terrorists”.
35. For its part, Ukraine asks the Court to disregard the arguments by the Russian Federation on the grounds that the Respondent misapplies the “clean hands” doctrine and has failed to substantiate Ukraine's alleged misconduct with evidence. In Ukraine's view, the Russian Federation falsely equates coal purchases by Ukrainian officials in their own territory with the supply of deadly weapons by officials of the Russian Federation to terrorist groups that target innocent civilians in Ukraine. The Applicant considers that the Russian Federation's invocation of the “clean hands” doctrine is a “distraction” and not a meaningful “defence” to Ukraine's claims.
* *
36. In its 2019 Judgment, the Court ruled on several preliminary objections to jurisdiction and admissibility raised by the Russian Federation in relation to Ukraine's claims (I.C.J. Reports 2019 (II), p. 558). However, the Russian Federation's objection based on the “clean hands” doctrine was raised for the first time in its Rejoinder filed on 10 March 2023. The Respondent did not specify, either in its Rejoinder or in its oral arguments, whether it invokes the doctrine as an objection to the admissibility of Ukraine's claims or as a defence on the merits. Given that the Respondent raised the objection only at this late stage in the proceedings, the Court views its invocation as a defence on the merits.
37. The Court has hitherto treated the invocation of the “clean hands” doctrine with the utmost caution. It has never upheld the doctrine or recognized it either as a principle of customary international law or as a general principle of law (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), p. 44, para. 122; Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment of 30 March 2023, para. 81).
38. Furthermore, the Court has rejected the invocation of the doctrine as an objection to admissibility, stating that it “does not consider that an objection based on the ‘clean hands’ doctrine may by itself render an application based on a valid title of jurisdiction inadmissible” (Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019 (II), p. 435, para. 61; Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment of 30 March 2023, para. 81). Similarly, the Court considers that the “clean hands” doctrine cannot be applied in an inter-State dispute where the Court's jurisdiction is established and the application is admissible. Accordingly, the invocation of the “clean hands” doctrine as a defence on the merits by the Russian Federation must be rejected.
2. Interpretation of certain provisions of the ICSFT
39. Before addressing Ukraine's claims under the ICSFT, the Court will consider the interpretation of certain provisions of that Convention that are in dispute between the Parties.
(a) Article 1, paragraph 1, of the ICSFT
40. The Parties disagree regarding the meaning of the term “funds” as defined in Article 1 and used in Article 2, paragraph 1, and other provisions of the ICSFT.
* *
41. Ukraine maintains that whenever States parties wish to accord a special meaning to a term in a treaty, they do so by including a definition in the treaty, as is the case regarding the definition of the term “funds” in Article 1 of the ICSFT. Ukraine, referring to the text of Article 1, paragraph 1, of the ICSFT, argues that the term “funds”, according to its ordinary meaning and read in context and in light of the object and purpose of the ICSFT, has a broad meaning and includes “assets of every kind, whether tangible or intangible, movable or immovable”. Ukraine further argues that, consistent with that broad definition, the term “funds” is not limited to “financial assets” but covers all forms of property, including weapons and other non-financial assets. In this regard, Ukraine emphasizes that the French and Spanish texts of the phrase “assets of every kind”, namely “biens de toute nature” and “los bienes de cualquier tipo”, respectively, support the conclusion that “funds” includes weapons and other non-financial assets. Ukraine also cites the travaux préparatoires of the ICSFT which, it contends, show that the terms “funds” and “financing” were understood by the drafters to include the provision of in-kind contributions including heavy weaponry.
*
42. The Russian Federation contends that the term “funds” used in Article 2 of the ICSFT is limited to resources intended to finance the commission of acts of terrorism, rather than resources that are themselves used as means of committing those same terrorist acts. According to the Russian Federation, the term “assets” in Article 1, paragraph 1, of the ICSFT must be read in the context of the provision as a whole, in particular in light of the specific categories of assets listed, namely “bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit, as well as documents or instruments evidencing title to or interest in such assets”, all of which “assets” have “an inherently monetary value as such, are forms of payment and can be freely and legally purchased, exchanged and sold”. In the view of the Russian Federation, the term “funds” as used in Article 2 of the ICSFT must be interpreted in light of the object and purpose of that Convention, which is to suppress a specific form of support of acts of terrorism, namely their financing, rather than broadly prohibiting all forms of in-kind support to alleged terrorist groups.
43. In response to Ukraine's reference to the French and Spanish texts of the phrase “assets of every kind”, the Russian Federation refers to the Arabic and Russian texts of the same phrase, in particular the use of the words “أﻣﻮال” (“amwaal”) and “активы” (“aktivy”), respectively, which the Respondent maintains convey a limited meaning of assets of a financial or monetary nature. The Russian Federation also refers to other rules of international law, including the Arms Trade Treaty and resolutions by the United Nations Security Council, all of which, it argues, distinguish “financing” from “the provision of weapons”. The Respondent highlights specific references to the term “financial resources” in the drafting history of the ICSFT and argues that the discussion by the drafters of that Convention revolved exclusively around various types of financial resources. Finally, the Russian Federation argues that domestic practice does not support a broad definition of the term “funds”, asserting that Ukraine has mischaracterized certain national legislation and that some States have applied a notion of “funds” in their national laws that does not include weapons.
* *
44. In its 2019 Judgment, the Court did not interpret the term “funds”, taking the view that it was not necessary to address the issue at that stage of the proceedings since the Russian Federation had not objected to the jurisdiction of the Court in that regard. The Court stated, however, that “the definition of ‘funds’ could be relevant, as appropriate, at the stage of an examination of the merits” (I.C.J. Reports 2019 (II), p. 586, para. 62).
45. Under Article 2, paragraph 1, of the ICSFT, the provision or collection of funds is a constituent element of the offence of terrorism financing (the actus reus). The term “funds” is defined in Article 1, paragraph 1, as meaning:
“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”.
46. The Court will interpret the terms “funds” and “assets of every kind” in the ICSFT, in accordance with the rules of interpretation stipulated in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties (hereinafter the “Vienna Convention”) to which Ukraine and the Russian Federation are party. According to those provisions, a treaty shall be interpreted in good faith, in accordance with the ordinary meaning to be given to its terms in their context and in light of that treaty's object and purpose. Furthermore, according to Article 31, paragraph 4, of the Vienna Convention, a special meaning shall be given to a term if it is established that the parties so intended.
47. The Court first turns to the text of Article 1, paragraph 1, of the ICSFT. The definition of “funds” in Article 1, paragraph 1, of the ICSFT begins with a broad reference to “assets of every kind, whether tangible or intangible, movable or immovable, however acquired”. That phrase must be interpreted in accordance with the above-mentioned provisions of the Vienna Convention. The rest of that paragraph provides a non-exhaustive list of documents or instruments that may evidence title to or interest in such assets. Those instruments include bank credits, traveller's cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit. Thus, while the phrase “assets of every kind” is an expansive one, the documents or instruments listed in the definition are ordinarily used for the purpose of evidencing title or interest only with regard to certain types of assets, such as currency, bank accounts, shares or bonds.
48. The Court notes that the use of the phrase “but not limited to” in Article 1, paragraph 1, suggests that the term “funds” covers more than traditional financial assets. The term also extends to a broad range of assets that are exchangeable or used for their monetary value. For instance, precious metals or minerals such as gold or diamonds, artwork, energy resources such as oil, and digital assets such as cryptocurrency may fall within the ordinary meaning of the definition of “funds” under the ICSFT where such assets are provided for their monetary value and not as a means of committing acts of terrorism. In addition, the definition in Article 1 specifically refers to “immovable” assets, suggesting that “funds” may include the provision of land or real estate.
49. Secondly, the Court takes into account the context in which the term “funds” is used in the other provisions of the ICSFT, including Articles 8, 12, 13 and 18. Article 8, which concerns measures for the identification, detection and freezing or seizure of funds used or allocated for use in the commission of the offence of terrorism financing, suggests that the term “funds” covers different forms of monetary or financial support. Similarly, under Article 12, paragraph 2, States parties may not refuse a request for legal assistance on the grounds of bank secrecy, again suggesting that the ICSFT is concerned with financial or monetary transactions. Article 13, which provides that, for the purposes of extradition or mutual legal assistance, none of the offences set forth in Article 2 shall be regarded as “a fiscal offence”, further suggests that the ICSFT is concerned with financial or monetary transactions. Finally, Article 18, which concerns the institution of practical measures regulating financial transactions, including in relation to physical cross-border transportation of cash and other negotiable instruments, also suggests that the ICSFT is concerned with financial or monetary transactions. In the view of the Court, the context provided by these provisions suggests that the term “funds” as used in Article 1, paragraph 1, of the ICSFT, is confined to resources that possess a financial or monetary character and does not extend to the means used to commit acts of terrorism.
50. Thirdly, the Court also takes into account the object and purpose of the ICSFT in determining the meaning of the term “funds”. The preamble of the ICSFT demonstrates that that Convention was intended to address the “financing” of terrorism, rather than terrorism generally. For example, the preamble states that “the financing of terrorism is a matter of grave concern to the international community as a whole”. It also notes that “the number and seriousness of acts of international terrorism depend on the financing that terrorists may obtain” and that “existing multilateral legal instruments do not expressly address such financing” (emphases added). In this regard, the Court recalls that in its 2019 Judgment, it explained that “[a]s stated in the preamble, the purpose of the Convention is to adopt ‘effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators’” (I.C.J. Reports 2019 (II), p. 585, para. 59). The title of the ICSFT, which refers to “the Suppression of the Financing of Terrorism”, also suggests that that Convention specifically concerns the financing aspect of terrorism. Accordingly, the object of the ICSFT is not to suppress and prevent support for terrorism in general, but rather to prevent and suppress a specific form of support, namely its financing.
51. The travaux préparatoires confirm the above interpretation of the term “funds”. The Parties referred to the text proposed by France in the Sixth Committee of the General Assembly and the subsequent negotiations in the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996 and the Working Group on measures to eliminate international terrorism. The record of the negotiations appears to indicate that the concern of the drafters was that international law did not provide means for tracing and effectively punishing those who contribute finances to terrorist organizations, arguing that terrorist acts could be prevented by depriving criminal groups of their financial resources. It was this gap that the ICSFT was intended to fill. Proposals made by delegations regarding the text of what became Article 1 of the ICSFT, including the original proposal by France, expressed a focus on the issue of financial or monetary support.
52. A good-faith interpretation of the ICSFT must take into account the fact that the concern of States parties when drafting that Convention was not the means or military resources that terrorist groups might use to commit acts of terrorism, but rather the acquisition of financial resources that would enable them, inter alia, to acquire such means, including weaponry and training. In this regard, the travaux préparatoires reveal that one of the key problems identified by the States negotiating the ICSFT was the use by terrorist groups of real or spurious charitable institutions to collect funds for seemingly legitimate purposes.
53. In light of the foregoing, the Court concludes that the term “funds”, as defined in Article 1 of the ICSFT and used in Article 2 of the ICSFT, refers to resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps. Consequently, the alleged supply of weapons to various armed groups operating in Ukraine, and the alleged organization of training for members of those groups, fall outside the material scope of the ICSFT. In the present case, therefore, only monetary or financial resources provided or collected for use in carrying out acts of terrorism may provide the basis for the offence of terrorism financing, assuming that the other elements of the offence referred to in Article 2, paragraph 1, are also present.
(b) The offence of “terrorism financing” under Article 2, paragraph 1, of the ICSFT
54. Next, the Court turns to the interpretation of Article 2, paragraph 1, of the ICSFT, which provides as follows:
“1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or
(b) Any 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.”
55. The Court will address several issues relevant to determining the scope of the offence defined in Article 2, paragraph 1, of the ICSFT (hereinafter referred to as “terrorism financing”).
(i) The scope ratione personae of the offence of terrorism financing
56. The Court recalls its previous finding in the 2019 Judgment regarding the scope ratione personae of the ICSFT. The Court explained in relation to the phrase “any person” in Article 2, paragraph 1, that
“this term covers individuals comprehensively. The Convention contains no exclusion of any category of persons. It applies both to persons who are acting in a private capacity and to those who are State agents. As the Court noted . . ., State financing of acts of terrorism is outside the scope of the ICSFT; therefore, the commission by a State official of an offence described in Article 2 does not in itself engage the responsibility of the State concerned under the Convention. However, all States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person. Should a State breach such an obligation, its responsibility under the Convention would arise.” (I.C.J. Reports 2019 (II), p. 585, para. 61.)
Accordingly, while the financing of terrorism by a State, as such, is not covered by the ICSFT, that Convention does require States to act to suppress and prevent the commission of the offence of terrorism financing by all persons, including by State officials.
(ii) The scope ratione materiae of the offence of terrorism financing
57. Multiple provisions of the ICSFT refer to the commission of “offences set forth in article 2”, including Articles 4, 8, 9, 12 and 18. The Court notes that Article 2 sets out two kinds of offences. First, the offence of terrorism financing, which is addressed in the chapeau of Article 2, paragraph 1, and second, the two categories of underlying offences or acts, which are stipulated in Article 2, paragraph 1 (a) and (b) (hereinafter referred to as “predicate acts”).
58. In the view of the Court, the phrase “offences set forth in article 2” should be understood to refer only to the offence of terrorism financing set out in the chapeau of Article 2, paragraph 1. The predicate acts described in subparagraphs (a) and (b) of paragraph 1 are relevant only as constituent elements of the offence of terrorism financing. They are not themselves offences falling within the scope of the ICSFT. If the phrase “offences set forth in article 2” was interpreted to include the predicate acts referred to in subparagraphs (a) and (b) of paragraph 1, the obligations of States parties under the ICSFT would extend far beyond the prevention and suppression of the financing of terrorism and would apply, inter alia, to the suppression and prevention of those predicate acts themselves. Such an interpretation goes beyond the scope ratione materiae of the ICSFT.
(iii) The mental elements of the offence of terrorism financing
59. Article 2 of the ICSFT sets out two mental elements of the offence of terrorism financing (the mens rea). According to that provision, the commission of the offence of terrorism financing requires that the funds in question be provided or collected either “with the intention that they should be used or in the knowledge that they are to be used” in order to carry out the predicate acts defined in Article 2, paragraph 1 (a) or (b). As the use of “or” indicates, these are alternative mental elements. Accordingly, it suffices for the commission of the offence of terrorism financing that either “intention” or “knowledge” be present. In support of its claims, Ukraine relies entirely upon the mental element of “knowledge”. Accordingly, the Court will confine its analysis to the interpretation of the phrase “in the knowledge that they are to be used”, an element on which the Parties hold divergent views.
* *
60. Ukraine submits that proof of the mental element of “knowledge” may be satisfied where funds are provided or collected for the benefit of an organization or group that is “notorious” for the commission of terrorist acts. Ukraine emphasizes that it is not necessary to establish the funder's knowledge that the funds provided are to be used for specific acts of terrorism, and argues that Article 2, paragraph 3, of the ICSFT reinforces this interpretation. Ukraine also states that it is not necessary that any such group has previously been characterized by the international community as a terrorist organization.
61. The Russian Federation contends, regarding Article 2, paragraph 1, of the ICSFT, that the phrase “[i]n the knowledge that they are to be used”, in its ordinary meaning, refers to actual awareness that the funds are to be used to carry out a terrorist act. The Respondent argues that for the mental element of knowledge to be established, the Applicant must prove that the funder acted in the certain knowledge (and not merely with the risk) that the funds collected or provided would be used, in full or in part, to carry out a terrorist act referred to in Article 2, paragraph 1 (a) or (b), of the ICSFT, rather than for some other purpose. The Russian Federation adds that, contrary to what Ukraine asserts, the members of the DPR and LPR have never been characterized in the same way as “notorious terrorist groups . . . such as Al-Qaida”. The Russian Federation further argues that Ukraine has not met the high threshold required for establishing the “knowledge” element, in view of the fact that the DPR and LPR are not and have never been characterized as terrorist groups at the international level.
* *
62. The ordinary meaning of the term “knowledge” is an awareness of a fact or circumstance. For the mental element of “knowledge” to be established, it must be shown that, at the time of collecting or providing the funds in question, the funder was aware that they were to be used, in full or in part, in order to carry out a predicate act under Article 2, paragraph 1 (a) or (b), of the ICSFT.
63. Article 2, paragraph 3, stipulates that “[f]or an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs (a) or (b)”. Accordingly, the funder's knowledge may be established even where the funds collected or provided are not ultimately used to carry out a predicate act.
64. A determination of whether the element of “knowledge” is present must be made on the basis of objective factual circumstances. The element of “knowledge” may be established if there is proof that the funder knew that the funds were to be used for the commission of a predicate act. In this regard, it may be relevant to look to the past acts of the group receiving the funds in order to establish whether a group is notorious for carrying out predicate acts; for instance, where a group has previously been characterized as being terrorist in nature by an organ of the United Nations. The existence of the element of “knowledge” may be inferred from such circumstances. On the other hand, the characterization by a single State of an organization or a group as “terrorist” is insufficient, on its own, to displace the need for proof of the funder's knowledge that the funds in question are to be used to carry out a predicate act under Article 2, paragraph 1 (a) or (b).
(c) Article 2, paragraph 1 (a) and (b), of the ICSFT
65. Article 2, paragraph 1, of the ICSFT requires that for the offence of terrorism financing to be established, the funder must act with the intention or knowledge that these funds are to be used to carry out an act defined in Article 2, paragraph 1 (a) or (b). The Parties disagree regarding the scope and interpretation of these predicate acts.
* *
66. Ukraine contends that Article 2, paragraph 1 (a), identifies specific acts prohibited by prior conventions on terrorism. Ukraine submits that the question of whether an act amounts to a predicate act prohibited under Article 2, paragraph 1 (a) or (b), is to be determined objectively and does not require a determination of the subjective intent of the perpetrator of such an act. In this regard, Ukraine considers that the “purpose” of an act may be inferred from its “nature or context” in order to determine whether it constitutes a predicate act.
67. The Russian Federation does not dispute that Article 2, paragraph 1 (a), applies to acts falling within the scope of the treaties listed in the annex of the ICSFT. However, it disagrees with Ukraine as to the interpretation of Article 2, paragraph 1 (b). In the view of the Russian Federation, it is necessary that there be a finding of subjective direct intent that civilians be harmed or killed for a predicate act to have been committed. Furthermore, the Russian Federation submits that the act must have had the primary purpose of spreading terror or compelling a government that goes beyond the ordinary military goals of a party in an armed conflict.
* *
68. The Court recalls its prior conclusion that the predicate acts stipulated in Article 2, paragraph 1 (a) and (b), are themselves not offences falling within the scope of the ICSFT and are only relevant as constituent elements of the offence of terrorism financing (see paragraph 58 above). Indeed, it is not necessary that a predicate act should have occurred for the offence of terrorism financing to have been committed (see paragraph 63 above). Accordingly, the Court will only interpret the scope of Article 2, paragraph 1 (a) and (b), to the extent necessary to inform its conclusions regarding the alleged violations by the Russian Federation of its obligations with respect to co-operation in the prevention and suppression of the offence of terrorism financing.
69. The Court notes that the Parties agree that the category of predicate acts specified in Article 2, paragraph 1 (a), is defined by reference to the treaties listed in the annex to the ICSFT. With respect to the category of predicate acts specified in Article 2, paragraph 1 (b), the Court notes that it is not enough for deliberate killings or serious bodily injury to civilians to have occurred. It is also essential to demonstrate that “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”.
(d) Proof of predicate acts under Article 2, paragraph 1 (a) or (b), of the ICSFT
70. The Applicant claims that armed groups in eastern Ukraine supported by the Russian Federation have committed a variety of acts constituting predicate acts prohibited under Article 2, paragraph 1 (a) or (b), of the ICSFT. First, Ukraine alleges that Malaysia Airlines Flight 17 (hereinafter “Flight MH17”) was downed over eastern Ukraine by members of the DPR using a Buk-TELAR ground-to-air missile system in violation of Article 1, paragraph 1 (b), of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, thereby constituting a predicate act under Article 2, paragraph 1 (a), of the ICSFT. Secondly, Ukraine argues that armed groups in eastern Ukraine engaged in a series of kidnappings and extrajudicial killings of individuals who had provided support for, or were otherwise associated with, the Ukrainian Government, or had advocated for Ukrainian unity. Thirdly, Ukraine alleges that members of the DPR and LPR, supported by the Russian Federation, carried out a series of rocket attacks and shelling in eastern Ukraine intended to terrorize civilians and exert political pressure on the Government of Ukraine. These include the shelling of a civilian checkpoint in Volnovakha on 13 January 2015; the bombardment of a civilian area of the city of Mariupol on 24 January 2015; a rocket attack against a residential area of Kramatorsk on 10 February 2015; and the indiscriminate shelling of the city of Avdiivka in early 2017. Fourthly, Ukraine alleges that armed groups directly supported by officials of the Russian Federation committed bombing attacks in Ukrainian cities, making use of weapons provided by individuals in the Russian Federation.
71. Ukraine further contends that the support allegedly provided by officials of the Russian Federation and private persons within the jurisdiction of the Russian Federation, to the armed groups responsible for those incidents provides a basis for concluding that terrorism financing offences under Article 2 of the ICSFT have been committed by those officials and private persons.
*
72. The Russian Federation disputes that predicate acts set forth in Article 2, paragraph 1 (a) or (b), of the ICSFT have been committed and contests many of Ukraine's factual assertions. It argues that, by failing to prove the commission of the alleged predicate acts with “fully conclusive evidence”, Ukraine has failed to establish the requirements for the commission of an offence of terrorism financing under Article 2 of the ICSFT.
73. First, with respect to the shooting down of Flight MH17, the Russian Federation disputes that the aircraft was shot down by persons supported by the Russian Federation, or that it provided a Buk-TELAR missile system which was used for that purpose. Furthermore, the Respondent asserts that, in any event, there was no intent to shoot down a civilian aircraft and that the act therefore does not qualify as a predicate act prohibited under Article 2, paragraph 1 (a), of the ICSFT. Secondly, the Russian Federation denies Ukraine's allegations regarding killings conducted by armed groups, arguing that the evidence does not conclusively show that there was a political motivation behind any of the alleged killings, to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. Thirdly, the Respondent contests Ukraine's account of the shelling incidents. The Respondent puts forward evidence that, in its view, demonstrates that the attacks were aimed at military targets and did not have the purpose of terrorizing civilians or compelling political action. Fourthly, with respect to the alleged bombings, the Russian Federation suggests that many or all of the incidents may have been “staged” by Ukrainian security services and generally contests the evidence provided by Ukraine regarding both the nature of the attacks and the alleged support the alleged perpetrators received from individuals in the Russian Federation.
* *
74. Before turning to the examination of the alleged violation by the Russian Federation of its obligations under the ICSFT, the Court will make several preliminary observations. The question before the Court is whether the Respondent has violated its obligations under the ICSFT to take measures for, and to co-operate in, the prevention and suppression of terrorism financing, including by acting to freeze the accounts of suspected terrorism funders, assisting in the investigation of such offences, initiating prosecutions or otherwise taking practicable measures to prevent the financing of terrorism. Answering this question requires the Court to interpret and apply a series of obligations invoked by Ukraine under Articles 8, 9, 10, 12 or 18 of the ICSFT. While the Court will only examine allegations of offences of terrorism financing to the extent necessary to resolve the claims of Ukraine, its interpretation and analysis of the Parties' obligations under Articles 8, 9, 10, 12 and 18 of the ICSFT will be guided by its interpretation of Articles 1 and 2 of that Convention, in particular, its interpretation of the term “funds” as defined in Article 1 (see paragraph 53 above). Consequently, it is not necessary for the Court to evaluate alleged predicate acts the commission of which is sustained solely by the supply of weapons or other means used to commit such acts.
75. The Court further recalls that the offence of terrorism financing is distinct from the commission of predicate acts set out in Article 2, paragraph 1 (a) and (b), of the ICSFT (see paragraph 58 above). In order to decide on the alleged violation of the obligations invoked by Ukraine, it is not necessary for the Court to first determine whether the specific incidents alleged by Ukraine constitute predicate acts described in Article 2, paragraph 1 (a) or (b), of the ICSFT.
76. Finally, the Court notes that it does not have sufficient evidence before it to characterize any of the armed groups implicated by Ukraine in the commission of the alleged predicate acts as groups notorious for committing such acts. In the circumstances, the funder's knowledge that the funds are to be used to carry out a predicate act under Article 2 of the ICSFT cannot be inferred from the character of the recipient group (see paragraph 64 above). Accordingly, to establish the element of knowledge, it must be shown that, at the time the funds were allegedly collected or provided to the groups, the alleged funder knew that the funds were to be used to carry out predicate acts under Article 2, paragraph 1 (a) or (b), of the ICSFT.
3. Questions of proof
77. The Parties disagree regarding the standard of proof required to substantiate the Applicant's claims under the ICSFT. Referencing the jurisprudence of the Court, Ukraine argues that the Court should apply a standard of proof requiring “sufficient” or “convincing” evidence to establish the alleged violation of obligations under the ICSFT. Ukraine also argues in favour of a more liberal recourse to inferences of fact and circumstantial evidence in the present case where relevant evidence may be outside its “exclusive territorial control”.
78. The Russian Federation asserts that Ukraine must prove the commission of terrorism financing offences with evidence that is “fully conclusive”. In the view of the Respondent, this standard of proof must be met to show that it has violated its obligations under the ICSFT, and the Court should not draw any inferences of fact from an alleged “pattern of conduct” unless terrorism financing is the only reasonable inference to be drawn from the circumstances.
* *
79. It is well established that, “as a general rule, it is for the party which alleges a fact in support of its claims to prove the existence of that fact” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 54, para. 115, citing Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018 (I), p. 26, para. 33; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 660, para. 54).
80. The Court recalls that it has sometimes “allowed . . . a more liberal recourse to inferences of fact and circumstantial evidence” when a State lacks effective control over the territory where evidence is located (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 67, para. 157, citing Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 18). This practice may be relevant for certain allegations made in the present case regarding conduct that took place in areas over which Ukraine lacks effective control.
81. The Court further recalls that the standard of proof may vary from case to case, taking into account factors including the gravity of the allegation. In this regard, the Court has noted that “charges of exceptional gravity” such as the crime of genocide, require proof at “a high level of certainty” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 129-130, paras. 209-210). In other cases not involving allegations of exceptional gravity, however, the Court has applied a less exacting standard of proof.
82. Ukraine's claims concern the Russian Federation's alleged violation of obligations under Articles 8, 9, 10, 12 and 18 of the ICSFT. Those obligations relate to the taking of specific measures and co-operating in the prevention or suppression of the financing of terrorism. In the Court's view, the Applicant's claims, while undoubtedly serious, are not of the same gravity as those relating to the crime of genocide and do not require the application of a heightened standard of proof.
83. Thus, in deciding Ukraine's claims, the Court will, in addition to assessing the relevance and probative value of the evidence adduced by Ukraine, determine whether such evidence is convincing.
84. The Court also notes that each provision of the ICSFT invoked by the Applicant imposes a distinct obligation upon States parties to that Convention. In each case, the Court must first ascertain the threshold of evidence of terrorism financing that must be met for an obligation under that provision of the ICSFT to arise. Such an evidentiary threshold may differ depending on the text of the provision under examination and the nature of the obligation it imposes. If the Court finds that, for a given provision of the ICSFT, the relevant obligation did arise for the Russian Federation, the Court must then determine whether the Russian Federation has violated that obligation.
85. The Court will now turn to the examination of the alleged violations by the Russian Federation of its obligations under the ICSFT.
B. Alleged violations of obligations under the ICSFT
1. Alleged violation of Article 8, paragraph 1
86. Article 8, paragraph 1, of the ICSFT reads as follows:
“Each State Party shall take appropriate measures, in accordance with its domestic legal principles, for the identification, detection and freezing or seizure of any funds used or allocated for the purpose of committing the offences set forth in article 2 as well as the proceeds derived from such offences, for purposes of possible forfeiture.”
* *
87. Ukraine argues that by failing to take appropriate measures to identify, detect and freeze or seize funds used for terrorism financing, the Russian Federation has violated its obligations under Article 8 of the ICSFT. Ukraine contends that the obligation to take the preventive measure of freezing funds is triggered by a “reasonable suspicion” that the funds in question may be used or allocated for the financing of terrorist activity, a standard that, it notes, has been recommended by many international organizations and adopted by States when implementing relevant domestic legislation. In support of applying its “reasonable suspicion” standard, Ukraine emphasizes that the freezing of assets is a proactive measure taken to prevent terrorism financing before it occurs.
88. Ukraine relies upon a range of Notes Verbales and requests for mutual legal assistance that were provided to the Russian Federation between 2014 and 2017. It asserts that these documents contained the names of dozens of individuals and organizations along with information regarding corresponding bank accounts, bank card numbers, taxpayer identification numbers, tax-registration codes and other identifying administrative information. Ukraine further submits that it notified the Russian Federation in each of these instances that the identified individuals and associations had purposefully and knowingly used the specified accounts to collect and transfer money to finance terrorist activities in Ukraine. In Ukraine's view, this information, along with widely reported and known instances of fundraising for the DPR and LPR, was sufficient to give rise to reasonable suspicion that the funds in question would be used for terrorism financing, thereby obligating the Russian Federation to take action to freeze the funds. Ukraine argues that the Russian Federation, after receiving this information, failed to take any action to identify, detect, freeze or seize the funds at issue, in violation of its obligation under Article 8, paragraph 1, of the ICSFT.
*
89. The Russian Federation, for its part, denies any violation of its obligations under Article 8 of the ICSFT. It argues that Article 8 of the ICSFT only applies in circumstances where it has been established that offences under Article 2 of the ICSFT have been committed and with respect to funds that have been proved to be associated with the commission of such offences. It therefore disputes that Article 8 applies when there is merely “reasonable suspicion” that the funds in question may be used or allocated for the financing of acts of terrorism and it considers that the use of such a standard has no basis in the text of that provision.
90. The Russian Federation further argues that the Applicant has failed to establish either that predicate acts were committed or that the funds in the accounts referred to were used or allocated to be used for purposes of financing those acts. It contends that the communications cited by Ukraine provided no information whatsoever as to either how the alleged provision of financing to the specified individuals constituted financing of the DPR or LPR or how the alleged provision of financing to the DPR or LPR constituted financing of terrorism. In the view of the Russian Federation, Ukraine's allegations of terrorism and terrorism financing were made in bad faith and actually concerned peaceful campaigns of humanitarian assistance to the civilian population in eastern Ukraine. Finally, the Russian Federation also points out that several of the accounts referenced in the Ukrainian communications were located in Ukraine, not the Russian Federation. Accordingly, the Russian Federation denies that it had any obligation to freeze these funds or accounts.
* *
91. Article 8 of the ICSFT imposes upon States parties various obligations, inter alia, to identify, detect, freeze or seize funds used or allocated for the purpose of committing the offences set forth in Article 2 of the ICSFT. The Court will begin by considering the evidentiary threshold for an obligation under Article 8 of the ICSFT to arise. In the view of the Court, the applicable threshold under Article 8 of the ICSFT may differ depending on the scope and nature of the precise obligation at issue. For instance, the obligation to identify and detect funds allocated for the purpose of terrorism financing entails a lower threshold than the obligation to freeze such funds. Similarly, the decision to freeze funds may involve the application of a different evidentiary threshold than the more consequential decision of seizing funds. Ukraine has not pointed to any specific funds or accounts that the Russian Federation has allegedly failed to identify or detect. The Court notes that the Applicant is primarily concerned with the alleged non-compliance by the Russian Federation with its obligation to freeze certain funds belonging to individuals and organizations alleged to be involved in terrorism financing. It is therefore necessary to ascertain the evidentiary threshold required for a State party to the ICSFT to be required to freeze funds alleged to be used or allocated for terrorism financing.
92. The Court is of the view that the freezing of funds is a preventive measure that does not require that the commission of the offence of terrorism financing under Article 2 of the ICSFT be established. At the same time, the Court acknowledges that the freezing of funds is a serious step that can significantly limit the ability of the holder of those funds to use and dispose of them. In light of the foregoing, it is the Court's view that the obligation under Article 8 to freeze funds only comes into operation when the relevant State party has reasonable grounds to suspect that those funds are to be used for the purpose of terrorism financing.
93. The Court notes that this standard of reasonable grounds to suspect is in line with that adopted by the Financial Action Task Force (hereinafter the “FATF”) in its Special Recommendations on Terrorist Financing. The FATF is an intergovernmental body that takes action, inter alia, to tackle money laundering and terrorism financing, including by issuing recommendations to assist States in implementing and fulfilling their obligations under relevant international instruments, such as the ICSFT, and monitoring compliance with them. Although not all States parties to the ICSFT are members of the FATF, the practice of States within the FATF in the interpretation and application of the ICSFT is relevant when interpreting its provisions. The Court further notes that the Russian Federation is a member of the FATF, while Ukraine has co-operated with the FATF with respect to the issuance of mutual evaluation reports summarizing and evaluating Ukraine's implementation of anti-money laundering and anti-terrorism financing measures. The Court also observes that Article 8 provides that, for its implementation, “[e]ach State Party shall take appropriate measures, in accordance with its domestic legal principles”. In this regard, it is relevant that Russian domestic law allows for the freezing of assets where there are “sufficient grounds to suspect” their use in terrorism financing. The Court considers that the standard used in Russian domestic law is analogous to one of reasonable grounds to suspect.
94. The Court must next determine whether the information available to the Respondent was sufficient to oblige it to take action to freeze any particular funds. The obligations under Article 8 are not, by its terms, contingent on a State party receiving information from another State party. Accordingly, a State party may be required to take action under Article 8 regardless of the means by which it becomes aware of particular funds used or allocated for the purpose of committing the offences set forth in Article 2 of the ICSFT. In the present case, Ukraine's arguments primarily relate to the communications it submitted to the Russian Federation regarding the alleged use of certain funds and accounts for the purpose of committing offences under Article 2. The Court will therefore focus its analysis on these communications.
95. Of the Notes Verbales and requests for legal assistance submitted to the Court by Ukraine, only four contain descriptions of specific persons and accounts alleged to have been associated with the financing of predicate acts under the ICSFT. These include two Notes Verbales sent by the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of the Russian Federation on 12 August 2014 and 29 August 2014, respectively. Both Notes Verbales generally allege the transfer of funds from the Russian Federation to the DPR and LPR and include allegations concerning identified individuals and the use of specified bank accounts, bank cards and electronic wallets for such transfer of funds. In both Notes Verbales, Ukraine referred to Article 8 of the ICSFT and requested that the Russian authorities take action to identify, detect, freeze and seize all funds used or allocated for committing the alleged offences.
96. Also relevant are two requests for legal assistance made by the Central Investigations Department of the Ministry of Internal Affairs of Ukraine to the competent authorities of the Russian Federation on 11 November 2014 and 3 December 2014. Although these communications were less detailed than the Notes Verbales of August 2014, both requests contained allegations concerning the raising of funds for the LPR and provided the Russian Federation with information regarding specific bank accounts allegedly used for that purpose.
97. After examining the allegations and evidence contained in these documents, the Court concludes that they do not contain sufficiently specific and detailed evidence to give the Russian Federation reasonable grounds to suspect that the accounts, bank cards and other financial instruments listed therein were used or allocated for the purpose of committing the offences under Article 2 of the ICSFT. In particular, the documents provide only vague and highly generalized descriptions of the acts that were allegedly committed by members of the DPR and LPR and were alleged to qualify as predicate acts under Article 2, paragraph 1 (a) or (b), of the ICSFT. Accordingly, the evidence does not demonstrate the funders' “knowledge” that the funds being provided would be used to commit acts that qualify as predicate acts. Nor has Ukraine demonstrated that the Russian Federation should have been aware of this information from another source. In the absence of convincing evidence to the contrary, the Russian Federation had no reasonable grounds to suspect that the funds in question were to be used for the purpose of terrorism financing and, accordingly, was not required to freeze those funds.
98. In light of the foregoing, the Court concludes that it has not been established that the Russian Federation has violated its obligations under Article 8, paragraph 1, of the ICSFT. Therefore, Ukraine's claim under Article 8 cannot be upheld.
2. Alleged violation of Article 9, paragraph 1
99. Article 9, paragraph 1, of the ICSFT provides:
“Upon receiving information that a person who has committed or who is alleged to have committed an offence set forth in article 2 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domestic law to investigate the facts contained in the information.”
* *
100. Ukraine contends that the Russian Federation repeatedly failed to investigate alleged terrorism financing offences committed by individuals present in the territory of the Russian Federation and, in so doing, violated its obligations under Article 9. Ukraine alleges that it submitted numerous requests to undertake investigations and, in response, the Russian Federation made no serious attempt to investigate the individuals named in the Ukrainian communications or entirely ignored the Ukrainian requests. The Applicant considers that Article 9 is broadly worded and sets a relatively low evidentiary threshold for the obligation to arise. According to Ukraine, the obligation under Article 9 “to investigate the facts contained in the information” arises as soon as a State party receives information concerning an alleged terrorism financing offence and, if “the circumstances so warrant”, the State “shall take the appropriate measures to ensure [the suspect's] presence for the purposes of prosecution or extradition”. In its view, there is no requirement that a State should have received information identifying a specific person or providing detailed information establishing a reasonable suspicion that an offence of terrorism financing has been committed for it to be required to initiate an investigation.
101. The Russian Federation denies any violation of obligations under Article 9 of the ICSFT. In its view, Article 9 does not require a State party to examine every allegation of terrorism financing. The requesting State must provide sufficient information with respect to a specific person present in the requested State's territory, as well as evidence giving rise to a “reasonable suspicion” that an offence of terrorism financing under Article 2 of the ICSFT has taken place. The Russian Federation considers that the information it received from Ukraine did not contain sufficient or even credible allegations of terrorism financing by specific persons. In particular, the Respondent emphasizes that the Notes Verbales referred to by Ukraine contained little information other than conclusive statements. Furthermore, the Russian Federation notes that its request to Ukraine for additional information, including “factual data”, on Ukraine's criminal investigations received no response. The Russian Federation therefore submits that it was under no duty to investigate any individuals present in its territory and that Ukraine has failed to establish that there has been a breach of Article 9 of the ICSFT.
* *
102. Article 9 of the ICSFT concerns the obligation of a State party to the ICSFT to investigate allegations of the commission of terrorism financing offences by alleged offenders present in its territory.
103. The Court will once again begin by considering the evidentiary threshold for the obligation to investigate the facts of an alleged terrorism financing offence to arise. The threshold set by Article 9, paragraph 1, is relatively low. For the obligation to investigate to arise, Article 9, paragraph 1, requires only that a State party receive information that a person who has committed or who is “alleged” to have committed the offence of terrorism financing may be present in its territory. In circumstances where the information only “alleges” the commission of an offence under Article 2, it is not necessary that the commission of the offence be established. Indeed, it is precisely the purpose of an investigation to uncover the facts necessary to determine whether a criminal offence has been committed. All the details surrounding the alleged offence may not yet be known and the facts provided may therefore be general in nature. Moreover, for an obligation to investigate to arise, Article 9 does not require that a State party receive information from another State party. Credible information received from any other source may give rise to the obligation to investigate.
104. At the same time, however, the Court considers that Article 9 does not require the initiation of an investigation into unsubstantiated allegations of terrorism financing. Requiring States parties to undertake such investigations would not be in line with the object and purpose of the ICSFT.
105. If a State party has received sufficient information of alleged terrorism financing committed by an individual present on its territory, it is required to undertake a meaningful investigation into the alleged facts in accordance with the laws and procedures it would ordinarily follow when presented with information on the commission of a serious crime. Furthermore, in fulfilling its obligation to investigate, a State party must also endeavour to co-operate with any other interested States parties and must promptly inform them of the results of its investigation (see Article 9, paragraph 6, of the ICSFT). Such an obligation to co-operate in investigating terrorism financing offences is also informed by the object and purpose of the ICSFT, which is, as stated in its preamble, to “enhance international cooperation among States” in preventing and suppressing terrorism financing.
106. The Court will next consider whether the Russian Federation received sufficient information to require it to investigate any alleged offences under Article 2 of the ICSFT. Ukraine has pointed to several Notes Verbales sent from its Foreign Ministry to the Foreign Ministry of the Russian Federation which, it argues, contained credible allegations of terrorism financing by individuals in the territory of the Respondent. The Court will focus its attention on three of these documents: the Notes Verbales dated 12 August 2014, 29 August 2014 and 3 November 2014. The Court observes that the other Notes Verbales submitted to the Court concern only allegations of the provision of means to be used to commit predicate acts, including the supply of weapons, ammunition and military equipment. They therefore allege facts that fall outside the scope of Article 2 of the ICSFT (see paragraph 53 above).
107. In the view of the Court, the aforementioned three documents, in particular the Notes Verbales dated 12 August 2014 and 29 August 2014, contained sufficiently detailed allegations to give rise to an obligation by the Russian Federation to undertake investigations into the facts alleged therein. The information received included a summary of the types of conduct allegedly undertaken by members of armed groups associated with the DPR and LPR that Ukraine considered to constitute predicate acts under the ICSFT, the names of several individuals suspected of terrorism financing, and details regarding the accounts used and the types of items purchased with the funds transferred. The Court considers that such information met the relatively low threshold set by Article 9 and thus required investigation by the Respondent.
108. In light of the above conclusion, the Court must now determine whether the Russian Federation met its obligation to undertake a meaningful investigation into the facts alleged in the Notes Verbales. The Ministry of Foreign Affairs of the Russian Federation first responded to the Ukrainian communications in a Note Verbale dated 14 October 2014. In that communication, the Ministry informed Ukraine about the “need to provide the Russian side with factual data on the issues brought up” in the Ukrainian communications. However, the Russian Federation provided no clarification as to the precise additional information that was required.
109. Subsequently, on 31 July 2015, in response to the information received from Ukraine, the Ministry of Foreign Affairs of the Russian Federation sent Ukraine a Note Verbale that included further details on the actions taken by the Russian competent authorities. This included the results of investigations into two of the alleged offenders. In both cases, the Russian Federation concluded that the individuals were not involved in providing financial support to the DPR and LPR. However, no clear information was provided by the Respondent concerning the other alleged offenders described in the Ukrainian communications as being present in Russian territory. With regard to one allegation, the Russian Federation stated that it had issued orders to obtain the personal data and account information of the alleged offenders. With respect to several other alleged offenders, the Russian Federation responded that the persons either “d[id] not exist in the Russian Federation” or their location could not be identified. Finally, with respect to the information received in the Ukrainian Note Verbale of 29 August 2014, the Russian Ministry of Foreign Affairs merely responded that the “investigative and operational work to identify the persons mentioned . . . is being processed at [the] current time”.
110. The Court takes note of the amount of time that elapsed before the Russian Federation provided the aforementioned responses to the Ukrainian Notes Verbales. In this regard, the Court observes that the 2019 Mutual Evaluation Report issued by the FATF regarding the Russian Federation's anti-money laundering and counter-terrorist financing measures stated that the Russian Federation generally answers requests for mutual legal assistance “within one to two months” (Financial Action Task Force, Anti-money laundering and counter-terrorist financing measures – Russian Federation, Fourth Round Mutual Evaluation Report (December 2019), p. 203). It is therefore notable that, almost one year after receiving the Ukrainian allegations, the Russian Federation appeared to have failed even to identify several of the alleged offenders. Furthermore, to the extent the Respondent encountered difficulties ascertaining the location or identity of some of the individuals named in the Ukrainian communications, it was required to seek to co-operate with Ukraine to undertake the necessary investigations and specify to Ukraine what further information may have been required (see paragraph 105 above).
111. In light of the foregoing, the Court concludes that the Russian Federation has violated its obligations under Article 9, paragraph 1, of the ICSFT.
3. Alleged violation of Article 10, paragraph 1
112. Article 10, paragraph 1, of the ICSFT, reads:
“The State Party in the territory of which the alleged offender is present shall, in cases to which article 7 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.”
* *
113. Ukraine submits that the Russian Federation violated its obligations under Article 10, paragraph 1, of the ICSFT by failing to take any action to extradite or prosecute alleged offenders of terrorism financing offences present in its territory. The Applicant considers that the obligations under Article 10 apply regardless of whether another State provided information about the offence or whether a State party should have been aware of terrorism financing taking place in its territory. In addition, Ukraine asserts that the Russian Federation may not use its own failure to investigate terrorism financing offences as an excuse to avoid taking action to prosecute or extradite individuals suspected of engaging in terrorism financing.
114. The Russian Federation, for its part, argues that it has complied with its obligations under Article 10 of the ICSFT. It contends that the obligation to prosecute or extradite under Article 10 is only triggered in circumstances where information provided to the State party describes an offence of terrorism financing and identifies a specific alleged offender. The Respondent further emphasizes that Article 10, paragraph 1, does not impose an absolute obligation to prosecute or extradite and allows for a situation where the prosecuting authorities may decide that no sufficient basis for prosecution exists in light of the limited available evidence of terrorism financing offences. The Russian Federation asserts that it had no obligation to submit any cases for prosecution given the failure by Ukraine to establish even a reasonable suspicion that the persons it identified had engaged in terrorism financing.
* *
115. Article 10, paragraph 1, requires States parties to the ICSFT to either prosecute or extradite alleged offenders of terrorism financing offences under Article 2. The Court observes that the Applicant has not brought to its attention any requests for extradition concerning alleged offenders and that the Applicant's argument accordingly appears to be limited to an alleged violation by the Russian Federation of its obligation to prosecute.
116. The Court begins by noting that the wording of Article 10, paragraph 1, bears a strong resemblance to language found in many other international conventions, including Article 7, paragraph 1, of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereinafter the “Convention against Torture”). The Court had occasion to consider the scope of the latter provision in its Judgment in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (I.C.J. Reports 2012 (II), p. 422).
117. In that Judgment, the Court described the relevant provision as follows:
“As is apparent from the travaux préparatoires of the Convention, Article 7, paragraph 1, is based on a similar provision contained in the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970. The obligation to submit the case to the competent authorities for the purpose of prosecution (hereinafter the ‘obligation to prosecute’) was formulated in such a way as to leave it to those authorities to decide whether or not to initiate proceedings, thus respecting the independence of States parties' judicial systems. These two conventions emphasize, moreover, that the authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of the State concerned (Article 7, paragraph 2, of the Convention against Torture and Article 7 of the Hague Convention of 1970). It follows that the competent authorities involved remain responsible for deciding on whether to initiate a prosecution, in the light of the evidence before them and the relevant rules of criminal procedure.” (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 454-455, para. 90.)
118. Just as with the obligation to prosecute or extradite in the Convention against Torture, the obligations found in Article 10, paragraph 1, of the ICSFT are ordinarily implemented after the relevant State party has performed other obligations under the ICSFT, such as the obligation under Article 9 to conduct an investigation into the facts of alleged terrorism financing (see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 455, para. 91). Ordinarily, it is only after an investigation has been conducted that a decision may be taken to submit the case to the competent authorities for the purpose of prosecution. In addition, just as with the obligation discussed by the Court in Belgium v. Senegal, the aut dedere aut judicare obligation found in Article 10 of the ICSFT does not impose an absolute obligation to prosecute (ibid., p. 455, para. 90). The competent authorities of the States parties to the ICSFT retain the responsibility to determine whether prosecution is warranted, based on the available evidence and applicable legal rules, so long as such a decision is taken in the same manner as in the case of other grave offences under the law of that State.
119. The Court notes that the decision to submit a case to the competent authorities for purposes of prosecution is a serious one that requires, at a minimum, reasonable grounds to suspect that an offence has been committed. The Court recalls its finding that the information provided by Ukraine to the Russian Federation did not give rise to reasonable grounds to suspect that terrorism financing offences within the meaning of Article 2 of the ICSFT had been committed (see paragraph 97 above). In light of that finding, the Court does not consider that the Russian Federation was obligated under Article 10 of the ICSFT to submit any specific cases to the competent authorities for the purpose of prosecution.
120. Based on the foregoing, the Court concludes that it has not been established that the Russian Federation has violated its obligations under Article 10, paragraph 1, of the ICSFT. Therefore, Ukraine's claim under Article 10 of the ICSFT cannot be upheld.
4. Alleged violation of Article 12, paragraph 1
121. Article 12 of the ICSFT provides in part:
“1. States Parties shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings in respect of the offences set forth in article 2, including assistance in obtaining evidence in their possession necessary for the proceedings.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. States Parties shall carry out their obligations under paragraphs 1 and 2 in.conformity with any treaties or other arrangements on mutual legal assistance or information exchange that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law.”
* *
122. Ukraine contends that the Russian Federation has violated its obligations under Article 12, paragraph 1, of the ICSFT by failing to provide any assistance in relation to Ukraine's investigations of terrorism financing offences. Ukraine relies upon at least 12 requests for legal assistance received by the Russian Federation from Ukraine. The Applicant takes the position that it was not required, in these requests, to specifically refer to the ICSFT and submits that the Russian Federation was aware that Ukraine was seeking assistance related to terrorism financing.
123. Ukraine states that the Russian Federation has cited supposed “procedural formalities” and “technicalities” as reasons to withhold assistance. It also questions the Russian Federation's refusal to provide legal assistance on grounds of sovereignty and security, arguing that the Respondent was required to explain its reasons for refusal in more detail than it did and that its invocation of these exceptions was made in bad faith. Additionally, Ukraine highlights the lengthy delays of the Russian Federation in responding to its requests for mutual legal assistance, which it argues further demonstrate the bad faith of the Respondent and constitute a breach of its obligations under Article 12.
*
124. The Russian Federation, for its part, denies any violation of its obligations under Article 12, paragraph 1. It considers that the provision only applies where there are ongoing investigations and criminal proceedings, where those proceedings concern allegations that amount to an offence under Article 2 of the ICSFT, and where there are no reasons to deny mutual legal assistance under applicable treaties or legal arrangements between the parties. The Respondent argues that the requests for assistance referred to by Ukraine did not mention or relate to the offence of terrorism financing under Article 2 of the ICSFT, but instead pertained to distinct offences under Ukrainian law.
125. The Russian Federation submits that it rejected or postponed the performance of Ukraine's requests either because Ukrainian authorities failed to comply with applicable treaty requirements, including the translation of documents into the Russian language, or because the requests posed a risk to sovereignty or security. Finally, the Respondent considers that it was not required to provide a detailed explanation for its refusal of certain Ukrainian requests in light of the practice of both Parties of invoking sovereignty or security reasons to deny requests for legal assistance without a detailed explanation.
* *
126. Article 12 of the ICSFT requires States parties to the ICSFT to assist other States parties in their investigations into terrorism financing. In its oral arguments, the Applicant stated that, according to its data, 91 requests for legal assistance were made of the Russian Federation between 2014 and 2020, of which only 29 were executed. The Respondent, for its part, submits that, during the same period, Russian authorities in fact received 814 requests for legal assistance from Ukraine, of which 777 were fully executed. The Court is unable, based on the evidence before it, to verify the contentions of either Party. It may only assess those requests for legal assistance that were submitted to the Court, which are limited to the 12 above-mentioned requests made between September 2014 and November 2017.
127. The Court will now consider whether the evidence demonstrates that the Russian Federation failed to comply with its obligations under Article 12 with respect to these 12 requests for legal assistance. The Court must first determine whether the requests fall within the scope of Article 12. In this regard, the Court recognizes that States possess significant discretion in implementing the ICSFT into their domestic law. All that is necessary for an investigation to fall within the scope of Article 12 is that the subject-matter of the investigation pertain to offences covered by Article 2 of the ICSFT. The Court therefore does not consider that the ICSFT itself must be specifically mentioned in a request for legal assistance for the obligation under Article 12 to come into operation.
128. Of the 12 requests for legal assistance that have been submitted by Ukraine, only three involved investigations into the provision of funds to persons or organizations alleged to have engaged in the commission of predicate acts. These were the requests for legal assistance sent by Ukraine to the competent Russian authorities on 11 November 2014, 3 December 2014 and 28 July 2015, all of which concerned allegations that citizens of the Russian Federation were involved in fundraising for the DPR or LPR. The other nine requests for legal assistance concerned either allegations of the commission of possible predicate acts or allegations relating to the provision of means used to commit such acts, including the supply of weapons, ammunition and military equipment. In accordance with the Court's interpretation of Article 1, such conduct does not fall within the scope of Article 2 of the ICSFT and the requests containing such allegations therefore cannot give rise to a violation by the Russian Federation of its obligations under Article 12. The Court will therefore limit its analysis to whether the Respondent fulfilled its obligations under Article 12 with respect to the aforementioned three requests for legal assistance.
129. The Court observes that, pursuant to Article 12, paragraph 5, of the ICSFT, the obligations under paragraph 1 of Article 12 must be carried out in conformity with other treaties of mutual legal assistance in force between the relevant States parties. Applicable treaties in the present case include the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993.
130. The requests for legal assistance of 11 November 2014 and 3 December 2014 both involved allegations that members of the Russian State Duma were engaged in raising funds for the LPR and had posted public announcements online for that purpose. The request of 28 July 2015 contained allegations that the Chief of the General Staff of the Russian armed forces was implicated in the financing of “extra-legal armed groups” operating in eastern Ukraine and in the establishment of the DPR and LPR. However, none of the three requests described in any detail the commission of alleged predicate acts by the recipients of the provided funds. Nor did they indicate that the alleged funders knew that the funds provided would be used for the commission of predicate acts (see paragraph 64 above). Accordingly, the Court considers that the requests for legal assistance cited by Ukraine did not give rise to an obligation by the Russian Federation under Article 12 of the ICSFT to afford Ukraine “the greatest measure of assistance” in connection with the criminal investigations in question. In view of the above finding, the Court is not required to determine whether the Russian Federation's refusal of these requests for legal assistance fell within the permissible grounds for denying such assistance under the mutual legal assistance treaties in force between the Parties.
131. For the aforementioned reasons, the Court concludes that it has not been established that the Russian Federation has violated its obligations under Article 12, paragraph 1, of the ICSFT. Ukraine's claim under Article 12 of the ICSFT therefore cannot be upheld.
5. Alleged violation of Article 18, paragraph 1
132. Article 18, paragraph 1, of the ICSFT, reads as follows:
“States Parties shall cooperate in the prevention of the offences set forth in article 2 by taking all practicable measures, inter alia, by adapting their domestic legislation, if necessary, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories, including:
(a) Measures to prohibit in their territories illegal activities of persons and organizations that knowingly encourage, instigate, organize or engage in the commission of offences set forth in article 2;
(b) Measures requiring financial institutions and other professions involved in financial transactions to utilize the most efficient measures available for the identification of their usual or occasional customers, as well as customers in whose interest accounts
are opened, and to pay special attention to unusual or suspicious transactions and report transactions suspected of stemming from a criminal activity. For this purpose, States Parties shall consider:
(i) Adopting regulations prohibiting the opening of accounts the holders or beneficiaries of which are unidentified or unidentifiable, and measures to ensure that such institutions verify the identity of the real owners of such transactions;
(ii) With respect to the identification of legal entities, requiring financial institutions, when necessary, to take measures to verify the legal existence and the structure of the customer by obtaining, either from a public register or from the customer or both, proof of incorporation, including information concerning the customer's name, legal form, address, directors and provisions regulating the power to bind the entity;
(iii) Adopting regulations imposing on financial institutions the obligation to report promptly to the competent authorities all complex, unusual large transactions and unusual patterns of transactions, which have no apparent economic or obviously lawful purpose, without fear of assuming criminal or civil liability for breach of any restriction on disclosure of information if they report their suspicions in good faith;
(iv) Requiring financial institutions to maintain, for at least five years, all necessary records on transactions, both domestic or international.”
* *
133. Ukraine argues that Article 18, paragraph 1, of the ICSFT contains a wide-ranging obligation to “cooperate in the prevention of [terrorism financing] offences”, which includes “taking all practicable measures . . . to prevent and counter preparations” for the commission of such offences. It contends that this provision is not limited to the adoption of a regulatory framework for the prevention of terrorism financing and submits that it incorporates the obligation to take all practicable measures to prevent offences under Article 2 of the ICSFT from taking place. The Applicant further emphasizes that this obligation applies to the commission of terrorism financing offences by both private persons and State officials. It maintains that Article 18 imposes an obligation to “cooperate” in the prevention of terrorism financing and that, accordingly, this obligation is violated by the failure to take such measures when they are called for, regardless of whether acts of terrorism financing ultimately occur.
134. In Ukraine's view, the Russian Federation violated its obligations under Article 18 by failing to take at least four “practicable measures” to prevent terrorism financing. First, Ukraine submits that the Russian Federation failed to take measures to prevent its State officials from financing terrorism. It argues that the Respondent failed to direct its officials to refrain from providing assets to groups known to commit acts of terrorism in Ukraine. Second, the Applicant asserts that the Russian Federation took no steps to investigate private actors who were openly financing terrorism in eastern Ukraine or to prevent such financing from occurring. Third, Ukraine argues that the Russian Federation failed to take the practicable measure of policing its border to prevent the transfer of weapons or other forms of support to armed groups, despite Ukrainian requests for co-operation in border control. Finally, the Applicant alleges that the Russian Federation failed to monitor and disrupt financial and fundraising networks operating in Russian territory, including networks associated with the financing of the DPR and LPR.
*
135. The Russian Federation, for its part, contends that the obligations imposed by Article 18, paragraph 1, are far more limited than Ukraine suggests. In the view of the Respondent, this provision sets out only the obligation to create a regulatory framework aimed at blocking or hindering terrorism financing and providing for information sharing. It emphasizes that Article 18, paragraph 1, does not impose a strict obligation to prevent terrorism financing but only to “cooperate in the prevention of” offences under Article 2 of the ICSFT. The provision thus only imposes an obligation of conduct, not of result, that is fulfilled by a State party's adoption of a suitable regulatory framework. The Russian Federation also asserts that Article 18, paragraph 1, only imposes an obligation to prevent acts that actually constitute terrorism financing and that, accordingly, to uphold Ukraine's claim the Court must determine that acts of terrorism financing have taken place. In this regard, it relies on the Court's findings in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide that a breach of the obligation to prevent genocide requires that genocide has actually been committed (Bosnia and Herzegovina v. Serbia and Montenegro) (I.C.J. Reports 2007 (I), p. 221, para. 431).
136. The Russian Federation denies Ukraine's claim that it has breached its obligations under Article 18, paragraph 1. It maintains that Ukraine has failed to establish that the provision of funds to the DPR and LPR constituted an offence under Article 2 of the ICSFT. Furthermore, it argues that Ukraine's claim fails because it concerns the provision of weapons, which are not “funds” under the ICSFT, and because Ukraine has failed to identify any failure by the Russian Federation to adopt a regulatory framework to prevent terrorism financing. Finally, the Respondent submits that, even if Article 18 were construed broadly and applied to the incidents alleged by Ukraine, it could at most impose a due diligence obligation to prevent the transfer of funds, which Ukraine has not shown to have been violated.
* *
137. The Court will begin by considering the scope of the obligation imposed by Article 18, paragraph 1. This provision obliges States parties to
“cooperate in the prevention of the offences set forth in article 2 by taking all practicable measures, inter alia, by adapting their domestic legislation, if necessary, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories”.
138. The Court recalls its finding in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, which involved the interpretation and application of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention”) ((Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 43). In that case, the Court held that “a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed” (ibid., p. 221, para. 431). In the Court's view, this finding does not apply in the context of Article 18 of the ICSFT. Unlike Article I of the Genocide Convention, which imposes the obligation to “prevent” a harmful act from occurring, the obligation under Article 18, paragraph 1, refers to the obligation to “cooperate in the prevention” of terrorism financing. The object of Article 18, paragraph 1, is to foster co-operation in the prevention of offences under Article 2, rather than to directly prevent the commission of those offences. Accordingly, the Court considers that it is not necessary to find that the offence of terrorism financing has been committed for a State party to have breached its obligations under Article 18, paragraph 1, of the ICSFT.
139. The Court will next examine the types of measures encompassed by Article 18, paragraph 1. The Court considers that the ordinary meaning of the term “all practicable measures” supports a broader reading of Article 18, paragraph 1, than the Respondent suggests. The provision, by its terms, encompasses all reasonable and feasible measures that a State may take to prevent the commission of the offence of terrorism financing under Article 2 of the ICSFT. Such measures include, but are not limited to, the adoption of a regulatory framework to monitor and prevent transactions with terrorist organizations.
140. The Court acknowledges that Article 18, paragraph 1, refers specifically to the obligation of States parties to the ICSFT to “adapt[] their domestic legislation”. However, this reference to legislative measures is preceded by the term “inter alia”, showing that it is only intended to be an example of the types of measures States are required to take, rather than a firm limit on the scope of the obligations imposed by Article 18. The Court also notes that Article 18 is the only article in the ICSFT that specifically mentions the “prevention” of terrorism financing offences. This context suggests that the phrase “all practicable measures” should not be interpreted too restrictively. Thus, the Court considers that Article 18, paragraph 1, encompasses a certain range of possible measures to prevent terrorism financing, including, but not limited to, legislative and regulatory measures.
141. The Court will now turn to consider Ukraine's submission that the Russian Federation has violated its obligations under Article 18, paragraph 1. The Court will examine each of Ukraine's arguments in turn.
142. The Court recalls that the first of Ukraine's arguments referred to above (paragraph 134) concerns the allegation that the Russian Federation failed to instruct its officials not to engage in terrorism financing. The Court recalls its finding in its 2019 Judgment that “all States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person” (I.C.J. Reports 2019 (II), p. 585, para. 61). This includes actions taken to prevent terrorism financing by State officials (ibid.). At the same time, however, the Court also recalls its finding that “[t]he financing by a State of acts of terrorism is not addressed by the ICSFT” and consequently “lies outside the scope of the Convention” (ibid., p. 585, para. 59). In essence, Ukraine requests that the Court find that the Russian Federation violated its obligations under the ICSFT not because of actions taken by State officials in their individual capacity, but because of the Russian Federation's alleged policy of financing armed groups in eastern Ukraine. This request does not fall within the scope of Article 18 of the ICSFT and therefore cannot be upheld.
143. The Court will next address Ukraine's second argument, which concerns whether the Russian Federation breached its obligations under Article 18 by failing to investigate and prevent the financing of terrorism by private persons. With respect to the Russian Federation's alleged failure to investigate terrorism financing, the Court considers that these allegations are not covered by Article 18, but instead relate to Ukraine's claims of a violation of Articles 9, 10 and 12, which the Court has already addressed (see paragraphs 99-131 above). Moreover, as for Ukraine's argument that the Russian Federation took no steps to investigate private actors who were openly financing terrorism, the Court considers that Ukraine has not substantiated such allegations. Nor has Ukraine pointed to specific measures that the Russian Federation failed to take to prevent the commission of terrorism financing offences. Accordingly, the Court sees no basis for finding a violation of Article 18 as concerns the Russian Federation's alleged failure to investigate and prevent the financing of terrorism by private persons.
144. Regarding Ukraine's third argument, concerning the issue of the policing of the border between the Parties, the Court observes that Ukraine's evidence concerning the alleged flow of support for armed groups operating in Ukraine across the border is limited to allegations relating to the supply of weapons and ammunition. The Court recalls its finding that the supply of weapons and ammunition as a means for committing predicate acts falls outside the material scope of the ICSFT (see paragraph 53 above). In the circumstances, the Court finds no convincing evidence demonstrating a failure by the Russian Federation to take practicable measures to prevent the movement of “funds” into Ukraine for purposes of terrorism financing.
145. Finally, in relation to Ukraine's fourth argument, the Court will examine whether the Russian Federation violated its obligation under Article 18 by failing to monitor and disrupt certain fundraising networks operating in its territory and by declining to designate the DPR or LPR as extremist or terrorist in nature. With respect to the first component of Ukraine's argument, the Court recalls its finding that the Russian Federation had no reasonable grounds to suspect the funds in question were to be used for the purpose of terrorism financing and accordingly was under no obligation to freeze those funds (see paragraph 97 above). In the absence of such reasonable suspicion, the Russian Federation was likewise not obligated under Article 18 to restrict all funding for the DPR and LPR. With respect to the second component of Ukraine's argument, concerning the decision by the Russian Federation not to include the DPR and LPR on its list of known extremist and terrorist groups, the Court finds that, in the circumstances of this case, the Russian Federation was not under an obligation to designate a group as a terrorist entity under its domestic law, as a preventive measure.
146. In light of the foregoing, the Court concludes that it has not been established that the Russian Federation has violated its obligations under Article 18, paragraph 1, of the ICSFT. Ukraine's claim under Article 18 of the ICSFT therefore cannot be upheld.
6. General conclusions on the alleged violations of obligations under the ICSFT
147. On the basis of all the preceding considerations and findings, the Court concludes that the Russian Federation has violated its obligations under Article 9, paragraph 1, of the ICSFT.
C. Remedies
148. The Court recalls that, in respect of its claims under the ICSFT, Ukraine has requested, in addition to declaratory relief, the cessation by the Russian Federation of ongoing violations, guarantees and assurances of non-repetition, compensation and moral damages (see paragraph 27 above).
149. By the present Judgment, the Court declares that the Russian Federation has violated its obligations under Article 9, paragraph 1, of the ICSFT and continues to be required under that provision to undertake investigations into sufficiently substantiated allegations of acts of terrorism financing in eastern Ukraine.
150. The Court does not consider it necessary or appropriate to grant any of the other forms of relief requested by Ukraine.
III. The International Convention on the Elimination of All Forms of Racial Discrimination
151. The Court recalls that both Ukraine and the Russian Federation are parties to CERD. As the Court has already stated in its 2019 Judgment, the aspect of the Parties' dispute under CERD concerns allegations by Ukraine that the Russian Federation has breached its obligations under CERD through discriminatory measures taken against Crimean Tatars and ethnic Ukrainians in Crimea (see paragraph 30 above).
A. Preliminary issues under CERD
152. In addressing Ukraine's claims under CERD, the Court will first consider certain preliminary issues relevant to its decision on this aspect of the dispute.
1. Invocation of the “clean hands” doctrine in respect of CERD
153. The Russian Federation contends that the “clean hands” doctrine precludes Ukraine from making claims under CERD. The Russian Federation asserts that, since 1991, Ukraine has failed to protect certain ethnic groups in Crimea and that, prior to 2014, representatives of different ethnic groups, including Crimean Tatars, regularly protested against their situation in Crimea. The Respondent also asserts that, outside Crimea, Ukraine fails to protect certain ethnic groups from violence and hate speech, that objects of those groups' cultural heritage are being vandalized, and that some ethnic groups suffer from unemployment and lack of adequate housing. The Russian Federation further alleges that restrictions have progressively been imposed on the use of the Russian language and culture.
154. According to Ukraine, the Russian Federation seeks to distract from its own misconduct by asserting that Ukraine is mistreating ethnic minorities in its territory, including Crimean Tatars. Ukraine asserts that, before the Russian Federation's purported annexation, it undertook significant efforts to build a genuinely multi-ethnic society in Crimea. It maintains that the allegations by the Russian Federation that Ukrainians and the Ukrainian Government are oppressing Russian speakers are baseless. Finally, Ukraine underlines that the Russian Federation has refrained from raising any counter-claims challenging Ukraine's responsibility under the Convention. In its view, this omission demonstrates that the Russian Federation's invocation of the clean hands doctrine is not only false, but also legally irrelevant to the case.
* *
155. As indicated above, the Court does not consider that the “clean hands” doctrine is applicable in an inter-State dispute where the Court's jurisdiction is established and the application is admissible (see paragraph 38). Therefore, the Court cannot uphold the defence raised by the Respondent based on the “clean hands” doctrine with respect to Ukraine's claims under CERD.
2. Nature and scope of the alleged violations
156. The Parties disagree about the nature and scope of the alleged violations to be examined by the Court in the present case. The Court recalls that, in its 2019 Judgment, it stated that it would address, at the merits stage of the proceedings, “the question of whether the Russian Federation has actually engaged in the campaign of racial discrimination alleged by Ukraine, thus breaching its obligations under CERD” (I.C.J. Reports 2019 (II), p. 606, para. 131).
* *
157. Ukraine contends that the Russian Federation has committed numerous individual violations of CERD which, taken together, constitute a pattern and practice of discriminatory conduct directed against the Crimean Tatar and Ukrainian ethnic communities in Crimea. According to Ukraine, the Court's 2019 Judgment does not exclude arguments that the Russian Federation has committed multiple violations of CERD which, viewed in the aggregate, constitute a campaign of racial discrimination. In its view, a “pattern of conduct” and “campaign of racial discrimination” by the Russian Federation violates CERD, as demonstrated by illustrative, individual instances of acts that also constitute racial discrimination. According to Ukraine, the many individual violations of CERD that Ukraine has demonstrated, when viewed as a whole, support the conclusion that the Russian Federation has engaged in a systematic campaign of discrimination.
158. The Russian Federation, for its part, submits that the present case is limited in scope. It maintains that Ukraine has not brought before the Court a case concerning discrete incidents constituting alleged violations of CERD by the Russian Federation, but rather a claim that the Russian Federation has engaged in a “systematic campaign of racial discrimination” against Crimean Tatar and ethnic Ukrainian communities in Crimea. According to the Russian Federation, Ukraine tries to shift the focus of its claim to isolated and unconnected instances of alleged racial discrimination. However, in the Russian Federation's view, the Court's 2019 Judgment makes it plain that the sole claim that Ukraine may advance in this case is one of a “systematic racial discrimination campaign”, and not allegations of individual instances of racial discrimination. It was, after all, because of the particular formulation of Ukraine's claim that the Court rejected the Russian Federation's objection to the admissibility of Ukraine's Application on the ground of non-exhaustion of local remedies.
* *
159. The Court considers that the disagreement between the Parties regarding the nature and scope of the alleged violations to be examined by the Court is more apparent than real. Both Parties agree that the 2019 Judgment is determinative. In the 2019 Judgment, the Court rejected the objection of the Russian Federation, based on the requirement of exhaustion of local remedies, to the admissibility of Ukraine's Application. The Court held that this requirement does not apply to the claim submitted to the Court by Ukraine because
“Ukraine does not adopt the cause of one or more of its nationals, but challenges, on the basis of CERD, the alleged pattern of conduct of the Russian Federation with regard to the treatment of the Crimean Tatar and Ukrainian communities in Crimea” (I.C.J. Reports 2019 (II), p. 606, para. 130).
160. At the same time, the Court noted “that the individual instances to which Ukraine refers in its submissions emerge as illustrations of the acts by which the Russian Federation has allegedly engaged in a campaign of racial discrimination” (I.C.J. Reports 2019 (II), p. 606, para. 130).
161. Accordingly, the Court is not called upon to determine, in the operative part of its Judgment, whether violations of obligations under CERD have occurred in individual instances. This does not prevent the Court from examining, “as illustrations”, any “acts by which the Russian Federation has allegedly engaged in a campaign of racial discrimination” (I.C.J. Reports 2019 (II), p. 606, para. 130). In this regard, the Court notes that the expression “campaign of racial discrimination” has been used by Ukraine to characterize the Russian Federation's “overall pattern of conduct”. In its 2019 Judgment, the Court found admissible Ukraine's claim alleging a “pattern of conduct” of racial discrimination by the Russian Federation (ibid.). This may relate to each category of violations alleged by Ukraine. In order to arrive at the conclusion that a pattern of racial discrimination has occurred, the Court must be satisfied, first, that a significant number of individual acts of racial discrimination within the meaning of Article 1, paragraph 1, of CERD have taken place, and, secondly, that these acts together constitute a pattern of racial discrimination.
3. Questions of proof
162. Having established the nature and scope of the alleged violations to be examined in the present case, the Court notes that the Parties disagree with respect to a number of facts. The Court observes that the differences between the Parties relate less to the occurrence of certain factual situations than to the inferences to be drawn from them for the purpose of proving an act of racial discrimination and a “pattern” of racial discrimination.
163. The Court notes that the Parties disagree about various questions of proof. The Court will therefore address, in turn, the standard and methods of proof, and the weight to be given to certain forms of evidence, before applying the relevant rules of international law (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 53, para. 111; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 72, para. 167).
(a) Burden and standard of proof
164. Ukraine submits that the Russian Federation provides no justification for departing from the Court's usual requirement of “sufficient” or “convincing evidence” to prove serious claims falling short of genocide. It argues that the high threshold applied by the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) does not apply in the present case. While acknowledging that its allegations are serious in nature, Ukraine argues that the acts concerned are not of the same kind as those that were at issue in that Judgment. Ukraine further rejects the Russian Federation's assertion that Ukraine must meet a higher standard of proof as a result of Ukraine's characterization of the Russian Federation's conduct as a “systematic campaign” of racial discrimination.
165. Ukraine argues that it is not in a position to provide direct proof of certain facts owing to its lack of access to Crimea and that it should therefore be allowed a more liberal recourse to inferences of fact and circumstantial evidence, in accordance with the Court's Judgments in the Corfu Channel (United Kingdom v. Albania) and Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) cases. According to Ukraine, the Russian Federation has not only directly impeded Ukraine's ability to collect statistical data in Crimea, but it has also — in the words of the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”) — “refus[ed] . . . to discuss and respond to questions posed by the [CERD] Committee” on its conduct in Crimea.
*
166. According to the Russian Federation, Ukraine must meet a standard of proof that is appropriate to the gravity of its allegations. In its view, a claim that a State is involved in a systematic campaign of racial discrimination and cultural erasure is exceptionally grave. Citing the Court's Judgments in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) and the Corfu Channel cases, the Russian Federation contends that the gravity of Ukraine's claim — a “systematic racial discrimination campaign” — requires that the Applicant provide “proof at a high level of certainty appropriate to the seriousness of the allegation” that is “fully conclusive”. It contends that the same standard applies for the attribution of such acts.
167. The Russian Federation further argues that the proposition that Ukraine lacks access to Crimea is irrelevant in this case, because statistical data is publicly available. It points out that, in the Court's jurisprudence, the consideration of circumstantial evidence requires a high standard of proof.
* *
168. The Court recalls the general principle that it is for the party alleging a fact to demonstrate its existence (see paragraph 79 above). Consequently, it is for Ukraine to demonstrate the existence of the facts alleged in support of its claims.
169. While the burden of proof rests in principle on the party which alleges a fact, this does not relieve the other party of its duty to co-operate “in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 71, para. 163). The Court has also recognized that a State that is not in a position to provide direct proof of certain facts “should be allowed a more liberal recourse to inferences of fact and circumstantial evidence” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 18). Bearing in mind some of the obligations in question and the circumstances of the present case, including the lack of access of Ukraine to Crimea, the Court considers that the burden of proof varies depending on the type of facts which it is necessary to establish (see Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), pp. 660-661, paras. 55-56).
170. The Court notes that the Parties disagree on the applicable evidentiary standard for proving a “pattern” of racial discrimination. It recalls that the standard of proof may vary from case to case, inter alia, depending on the gravity of the allegation (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 129-130, paras. 209-210). In cases involving allegations of massive human rights violations, the Court has previously required “convincing” evidence (see e.g. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 241, para. 210, and p. 249, para. 237). In the present case, the Court will assess whether there is convincing evidence when considering the allegations made by Ukraine under CERD.
171. The Court will therefore examine whether there is convincing evidence that individual acts of racial discrimination have taken place and, if so, whether these acts together constitute a “pattern” of racial discrimination (see paragraph 161 above).
(b) Methods of proof
172. Responding to the Russian Federation's contention that it is necessary to prove its allegations with statistical data, Ukraine argues that neither the Court nor the CERD Committee have ever set forth a requirement for statistical data in order to prove discrimination under CERD. Ukraine further points out that the Ukrainian Government has been temporarily excluded from Crimea and is therefore in no position to compile statistics, although it has proffered such analyses where the data exists. Moreover, Ukraine emphasizes that statistical comparisons offered by the Russian Federation are inconclusive. In its view, these comparisons do not indicate if a specific ethnic group was more frequently affected than others within a specific region, nor do they account for the qualitative significance of the impact on the ethnic group in question.
173. According to the Russian Federation, “differentiation in treatment” must be demonstrated by comparison using “statistical data”. Regarding the weight to be attributed to the evidence presented, the Russian Federation is of the view that the evidence put forward by Ukraine stems from individuals who do not have first-hand knowledge of the situation in Crimea and that the reports by the Office of the High Commissioner for Human Rights (hereinafter the “OHCHR”) on the situation in Crimea can hardly be treated as compelling evidence because the OHCHR has not visited Crimea to collect evidence first-hand, in spite of the Russian Federation's invitations to do so.
* *
174. In order to rule on Ukraine's allegations, the Court must assess the relevance and probative value of the evidence proffered by the Parties in support of their versions of the facts in relation to the different claims (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 74, para. 180; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 200, para. 58). The Court recalls that it has applied various criteria to assess evidence (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 55, para. 120; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 129-130, paras. 209-210). It considers that racial discrimination may be proved by statistical evidence that is reliable and significant, as well as by any other methods of reliable proof.
175. As to the weight to be given to certain kinds of evidence, the Court recalls that it
“will treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source. It will prefer contemporaneous evidence from persons with direct knowledge. It will give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). The Court will also give weight to evidence that has not, even before this litigation, been challenged by impartial persons for the correctness of what it contains.” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 130-131, para. 213; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 55, para. 121.) The Court has also stated that the probative value of reports from official or independent bodies “depends, among other things, on (1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts)” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 76, para. 190; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 56, para. 122).
176. The Court will consider the probative value of such reports on a case-by-case basis, in accordance with these criteria.
177. Concerning statements by witnesses, the Court recalls that “witness statements which are collected many years after the relevant events, especially when not supported by corroborating documentation, must be treated with caution” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 63, para. 147). Moreover, the Court has noted that “any part of the testimony given which was not a statement of fact, but a mere expression of opinion as to the probability or otherwise of the existence of such facts, not directly known to the witness . . . cannot take the place of evidence” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 42, para. 68). In determining the probative value of evidence provided by a party, the Court also treats with caution statements by witnesses who are not disinterested in the outcome of the case, especially when not supported by corroborating documentation. In determining the evidentiary weight of any witness statement, the Court will take these considerations into account.
178. Finally, the Court has held that certain materials, such as press articles and extracts from publications, are regarded “not as evidence capable of proving facts, but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, i.e. as illustrative material additional to other sources of evidence” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62) or when they are “wholly consistent and concordant as to the main facts and circumstances of the case” (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p. 10, para. 13; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 204, para. 68). The Court sees no reason to depart from this approach when assessing the probative value of such materials.
4. Article 1, paragraph 1, of CERD
179. The Parties disagree about the meaning of “racial discrimination” as defined in Article 1, paragraph 1, of CERD.
* *
180. Ukraine submits that the definition of “racial discrimination” in Article 1, paragraph 1, of CERD comprises three elements: (i) a “distinction, exclusion, restriction or preference” that is
“based on” a protected ground, namely race, colour, descent, or national or ethnic origin, and that
has the “purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms”.
181. According to Ukraine, the first element, the requirement of a “distinction, exclusion, restriction or preference”, encompasses all forms of racial discrimination. It argues that this broad understanding is also supported by the travaux préparatoires of the Convention.
182. In Ukraine's view, the second requirement that discrimination be “based on” a protected ground is a broad concept encompassing not only restrictions that are expressly based on a protected ground, but also those that “directly implicate” a person or group on one or more of those grounds. In support of this interpretation, Ukraine points out that the CERD Committee has explained in its General Recommendation No. XIV that “the words ‘based on’ do not bear any meaning different from ‘on the grounds of’”. According to Ukraine, the fact that discriminatory conduct is also motivated by political reasons does not preclude such conduct from being “based on” a protected ground. The Applicant emphasizes that, if this were the case, a State could avoid responsibility under CERD by additionally asserting political reasons for its actions. Ukraine illustrates this argument by recalling that the deportation of the Crimean Tatars in 1944 was motivated by accusations of collaboration with Germany during World War II but that this measure would have had to be qualified as a distinction based on ethnic origin if CERD had been in force in 1944.
183. Regarding the third element, Ukraine argues that Article 1, paragraph 1, protects against conduct that can be demonstrated to have a discriminatory purpose, as well as effects-based discrimination. With respect to discriminatory purpose, Ukraine submits that such purpose may be deduced both from the stated purpose of a measure or inferred from circumstantial evidence. In its view, circumstantial evidence of racial animus may be drawn from the nature and context of a measure, or where a facially neutral measure targets in fact a protected group. Ukraine is of the view that there is no requirement that discrimination be intentional and that discrimination in effect — which it understands as being synonymous with the term “indirect discrimination” — is covered by Article 1, paragraph 1. Citing the CERD Committee's General Recommendation No. XIV on the definition of racial discrimination, Ukraine argues that a discriminatory effect exists if a facially neutral measure “results in a disproportionate prejudicial impact” or “has an unjustifiable disparate impact” on a protected group. In its view, a disparate impact is justifiable where it is based on a justification that is “legitimate” when “judged against the objectives and purposes of the Convention”. This, in turn, requires that the relevant measure is necessary, has a legitimate aim and is proportionate, in that the expected benefit in furtherance of the legitimate aim outweighs any adverse impact on human rights.
184. Ukraine claims that the prohibition of racial discrimination under CERD is absolute and that no derogation from it is permitted, whether the measure in question is discriminatory in purpose or in effect. Ukraine argues that, to the extent that the Russian Federation asserts that national security, anti-extremism or public order justify certain restrictions of substantive human rights, the Russian Federation has failed to meet the widely accepted legal requirements for such restrictions to be imposed.
*
185. The Russian Federation, in turn, contends that the term “racial discrimination” under Article 1, paragraph 1, of CERD contains four elements: (i) a “distinction, exclusion, restriction or preference” that is (ii) “based on” one or more criteria mentioned in Article 1, paragraph 1, having
the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise (iv) on an equal footing, of human rights and fundamental freedoms.
186. The Russian Federation agrees that the definition contained in Article 1, paragraph 1, of CERD encompasses discriminatory purpose, as well as discriminatory effect. However, it argues that Ukraine's broad understanding of “indirect discrimination” should be rejected. According to the Russian Federation, Ukraine's definition of “indirect discrimination”, as “equal treatment which has a disproportionate effect on a group defined by the enumerated grounds” or as a “disparate impact” arising from “inequality of results rather than inequality of treatment” is incompatible with the four elements which, in its view, define racial discrimination, as well as with the Court's Judgment in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates).
187. Regarding the first element, the Russian Federation emphasizes that the obligations under the Convention hinge upon “differential treatment”, i.e. a “distinction, exclusion, restriction or preference”. In its view, the concept of “indirect discrimination” as put forward by Ukraine is incompatible with this element since “equal treatment” cannot constitute racial discrimination.
188. With respect to the second element, the Russian Federation states that any differentiation of treatment must be “based on” one of the criteria enumerated in Article 1, paragraph 1, and that ethnicity cannot incorporate the protection of political opinions or religion. This means that “indirect discrimination” would only fall within the scope of CERD if the differential treatment “directly targeted or singled out Tatar and Ukrainian communities as such”.
189. As for the third element, the Russian Federation accepts that racial discrimination by effect can constitute a violation of CERD, but it argues that Ukraine's broad understanding of “indirect discrimination” is not covered by the Convention. In its view, a disparity of results between ethnic groups does not by itself constitute racial discrimination, unless it is an objective consequence of a distinction, exclusion, restriction or preference based on race, colour, descent, national origin or ethnic origin. According to the Russian Federation, not every disparity amounts to racial discrimination, especially where such disparity is just a secondary or collateral effect of a measure. The Russian Federation stresses that a “disparate” effect only amounts to racial discrimination if it can be causally linked to an act of differential treatment on racial grounds.
190. With respect to the fourth element, the Russian Federation argues that the wording “nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms” makes it plain that there must be an actual nullification or impairment (i.e. a violation) of an existing right, and not a mere possibility thereof. In its view, the definition of racial discrimination within the meaning of Article 1, paragraph 1, therefore necessarily presupposes a violation of a human right protected under international law.
191. The Russian Federation finally argues that a measure does not qualify as discriminatory in effect if it can be “reasonably justified” or deemed legitimate in the circumstances. In its view, possible justifications include, among others, reasonable limitations to human or civil rights as may be necessary in a democratic society, provided for under the applicable law and subject to due process, in order to protect public order from acts of terrorism and extremism.
* *
192. The Parties disagree on the meaning of “racial discrimination” in Article 1, paragraph 1, of CERD as well as on whether any conduct of the Russian Federation qualifies as racial discrimination within the meaning of that provision. The Court will, at the outset, interpret the term “racial discrimination” under Article 1, paragraph 1, of the Convention to the extent that it is necessary to determine whether the Russian Federation has violated substantive or procedural obligations under CERD.
193. Article 1, paragraph 1, of CERD provides that
“the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
194. The Convention prohibits all forms and manifestations of racial discrimination as set forth by this definition. Accordingly, any differentiation of treatment that is “based on” one of the prohibited grounds — race, colour, descent, or national or ethnic origin — is discriminatory in the sense of Article 1, paragraph 1, of the Convention, when the resulting impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms arises from its purpose or effect (see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, para. 112).
195. “Racial discrimination” under Article 1, paragraph 1, of CERD thus consists of two elements. First, a “distinction, exclusion, restriction or preference” must be “based on” one of the prohibited grounds, namely, “race, colour, descent, or national or ethnic origin”. Secondly, such a differentiation of treatment must have the “purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights”.
196. Any measure whose purpose is a differentiation of treatment based on a prohibited ground under Article 1, paragraph 1, constitutes an act of racial discrimination under the Convention. A measure whose stated purpose is unrelated to the prohibited grounds contained in Article 1, paragraph 1, does not constitute, in and of itself, racial discrimination by virtue of the fact that it is applied to a group or to a person of a certain race, colour, descent, or national or ethnic origin. However, racial discrimination may result from a measure which is neutral on its face, but whose effects show that it is “based on” a prohibited ground. This is the case where convincing evidence demonstrates that a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin, unless such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1. Mere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention (see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, para. 112).
197. When determining whether the Russian Federation has violated its obligations under CERD, the Court will be guided by the above interpretation of Article 1, paragraph 1, of CERD.
5. Crimean Tatars and ethnic Ukrainians as protected groups
198. According to Ukraine, both Parties agree that Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic groups protected under CERD and their differences over the precise definition of an ethnic group are legally irrelevant. Ukraine argues that a frequently observed characteristic of ethnic groups is a desire to live together within a common political State. Ukraine is of the view that the Court's Judgment in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) does not preclude this position, since the question at issue in that case was the meaning of the term “national origin”, rather than “ethnic origin”.
199. The Russian Federation agrees that Crimean Tatars and ethnic Ukrainians constitute ethnic groups protected under CERD. However, the Russian Federation insists that there is no room in CERD for political views or political identification to be incorporated into the concept of “ethnic origin”. Any such incorporation would distort this term beyond recognition, which in turn may diminish the effectiveness of the Convention as the “non-political and universal Convention” the drafters envisioned. According to the Russian Federation, the Court's Judgment in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) indicated in no unclear terms that “references to ‘origin’ denote, respectively, a person's bond to a national or ethnic group at birth”.
* *
200. The Court recalls that the Parties agree that Crimean Tatars and ethnic Ukrainians constitute ethnic groups protected under CERD (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 (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 595, para. 95). It sees no reason to call this characterization into question. The Court observes in this context “that the definition of racial discrimination in the Convention includes ‘national or ethnic origin”’ and that “[t]hese references to ‘origin’ denote, respectively, a person's bond to a national or ethnic group at birth”, as do “the other elements of the definition of racial discrimination, . . . namely race, colour and descent” (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, p. 98, para. 81). Accordingly, the political identity or the political position of a person or a group is not a relevant factor for the determination of their “ethnic origin” within the meaning of Article 1, paragraph 1, of CERD.
B. Alleged violations of Articles 2 and 4 to 7 of CERD
201. Before turning to the alleged violations of obligations under CERD, the Court recalls that its jurisdiction is limited by virtue of Article 22 of CERD to Ukraine's claims under that Convention. In the present case, the Court lacks jurisdiction to rule on alleged breaches of other obligations under international law, such as those deriving from other international human rights instruments. However, the fact that a court or tribunal does not have jurisdiction to rule on alleged breaches of those obligations does not mean that they do not exist. They retain their validity and legal force. States are required to fulfil their obligations under international law, and they remain responsible for acts contrary to international law which are attributable to them (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 46, para. 86; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 52-53, para. 127).
1. Disappearances, murders, abductions and torture of Crimean Tatars and ethnic Ukrainians
202. Ukraine submits that the Russian Federation violated its obligations under CERD, in particular Articles 2, paragraph 1 (a) and (b), 5 (b) and 6, by directly engaging in acts of physical violence against Crimean Tatars and ethnic Ukrainians in Crimea, by encouraging and tolerating such acts through its agents and, in any event, by failing to prevent and effectively investigate the alleged incidents.
203. Ukraine refers to 13 incidents of physical violence against named Crimean Tatars and ethnic Ukrainians as “illustrations” of what it considers to be the Russian Federation's “systematic pattern of violence and intimidation”. These incidents include the murder of Reshat Ametov, and the abduction and torture of Mykhailo Vdovchenko, Andrii Shchekun, Anatoly Kovalsky, Aleksandr Kostenko and Renat Paralamov. Ukraine emphasizes that these instances are not exhaustive. In its view, the Russian Federation is responsible for all these incidents, whether they occurred before or after 18 March 2014.
204. According to Ukraine, the acts of physical violence of which it complains were based on a racial or ethnic distinction. In support of its assertion, Ukraine contends that the acts targeted prominent activists, thereby depriving the Crimean Tatar and ethnic Ukrainian communities respectively of current or potential future leaders. Ukraine argues that these acts were designed to force into submission ethnic groups presumed to be opposing the Russian occupation.
205. To substantiate its allegations, Ukraine relies on reports by intergovernmental and non-governmental organizations showing, in its view, that Crimean Tatars and ethnic Ukrainians have been particularly hard hit by such physical violence. Referring to UN reports, Ukraine argues that nine out of ten persons who have disappeared and who are still missing are either Crimean Tatar or ethnic Ukrainian. According to Ukraine, these reports prove not just discriminatory effect, but also discriminatory purpose. In response to the Russian Federation's argument that Ukraine has failed to supply statistical data, Ukraine maintains that it has provided statistical evidence and that more detailed statistics are not required to prove a CERD violation. Ukraine points out that the Russian Federation has failed to offer credible data refuting Ukraine's claims despite having unfettered access to the relevant data.
206. Ukraine also asserts that the Russian Federation violated Article 6 of CERD by failing to investigate the disappearances and other acts of physical violence. In support of its allegations, Ukraine mainly relies on witness statements and reports by intergovernmental organizations, in particular on two reports by the OHCHR.
*
207. The Russian Federation argues that Ukraine has not proved that any of the alleged incidents are attributable to the Russian Federation. The Respondent asserts that none of the incidents alleged by Ukraine can be linked to the ethnicity of the respective victims and that it has complied with its obligations to investigate all these incidents. It points out that even the UN reports relied on by Ukraine attributed the incidents to the political views of the victims, rather than to their ethnicity. The Russian Federation further argues that Ukraine cannot rely on incidents that allegedly occurred prior to what the Respondent calls the “reunification” of Crimea with the Russian Federation on 18 March 2014, since they are not within the Court's jurisdiction ratione temporis as defined in the 2019 Judgment.
208. The Russian Federation also contends that these incidents cannot validly be said to have disproportionally affected any ethnic group. In its view, these incidents are unconnected and isolated and thus do not establish a pattern of physical violence directed against the Crimean Tatar and ethnic Ukrainian population. The Russian Federation argues that Ukraine has failed to provide a full-scale statistical analysis of the reported cases in comparison with other ethnic groups and with the population of Crimea as a whole. The Russian Federation refers to statistical information originating from the Office of the Russian Federation's Prosecutor General, which, in its view, proves that Crimean Tatars and ethnic Ukrainians were not disproportionately affected by disappearances. According to the Russian Federation, most of the disappeared persons in relation to whom criminal proceedings have been initiated are ethnic Russians, who account for almost 80 per cent of all missing persons in Crimea. The Russian Federation also emphasizes that the OHCHR reports relied on by Ukraine do not support its allegations and are, moreover, based on inadequate methodologies.
209. The Russian Federation also rejects the allegation of Ukraine that it violated its obligations under Article 6 of CERD by failing to investigate the alleged incidents of physical violence in a satisfactory manner. According to the Russian Federation, a proper criminal investigation is a matter of legal due process rather than achieving a particular result. The Respondent argues that Ukraine has not established the existence of any investigative irregularities. In support of its assertion, the Russian Federation provides documents which, in its view, prove that investigations were undertaken in a satisfactory manner.
210. The Russian Federation thus contends that its responsibility under CERD is not engaged by the incidents of physical violence alleged by Ukraine and that Ukraine's claims in this regard must be rejected.
* *
211. The Court notes that the Parties agree that several incidents of physical violence have occurred in Crimea since early March 2014. This includes the murder of Reshat Ametov in March 2014, the disappearances of Timur Shaimardanov and Seiran Zinedinov in May 2014, and the disappearance of Ervin Ibragimov in May 2016. Further, the Court takes note of reports by the OHCHR stating that “from 3 March 2014 to 30 June 2018 . . . at least 42 persons were victims of enforced disappearances” (OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (13 September 2017 to 30 June 2018), UN doc. A/HRC/39/CRP.4, para. 32; see also OHCHR, United Nations Human Rights Monitoring Mission in Ukraine, Briefing Paper: “Enforced Disappearances in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, Temporarily Occupied by Russian Federation”, 31 March 2021, pp. 3-12). These reports also support Ukraine's allegations regarding the ill-treatment of abducted persons in Crimea, indicating that “[p]erpetrators have used torture and ill-treatment to force victims to self-incriminate or testify against others” (ibid., p. 1; see also OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), para. 101).
212. The Court observes that it must determine whether an act of racial discrimination as defined in Article 1 of the Convention has occurred before it can decide whether the Russian Federation has violated its obligations under Articles 2, paragraph 1 (a) and (b), and 5 (b) of CERD. Therefore, the Court must first examine whether the acts of physical violence alleged by Ukraine constitute instances of racial discrimination within the meaning of Article 1, paragraph 1, of CERD.
213. The Court notes that Ukraine relies on two main arguments to substantiate its claim that the alleged acts of physical violence were based on the ethnic origin of the targeted individuals. First, with respect to the 13 alleged incidents of physical violence concerning named persons, Ukraine asserts that the targeted individuals were prominent Crimean Tatar and ethnic Ukrainian activists representing their respective ethnic communities. Secondly, Ukraine refers to reports of intergovernmental and non-governmental organizations to show that individuals affected by acts of physical violence in Crimea were disproportionately of Crimean Tatar and ethnic Ukrainian origin.
214. With respect to Ukraine's first argument, the Court observes that reports by the OHCHR confirm that several targeted persons were pro-Ukrainian activists, as well as members and affiliates of the Mejlis (OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), para. 81 and note 105 (Ametov), paras. 86, 98, 101 and 104; OHCHR, United Nations Human Rights Monitoring Mission in Ukraine, Briefing Paper: “Enforced Disappearances in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, Temporarily Occupied by Russian Federation”, 31 March 2021, p. 8 (Shaimardanov, Zinedinov and Ibragimov)). The reports of intergovernmental organizations and other publications relied on by Ukraine further indicate that the victims were attacked for their political and ideological positions, in particular for their opposition to the March 2014 referendum held in Crimea and their support for the Ukrainian Government. For example, one report noted that these acts constituted “retaliation for their political affiliation or position” (ibid., p. 1). Another report referred to “[c]ircumstances which may suggest political motives” (OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), para. 104). The Court recalls that the political identity or the political position of a person or a group is not a relevant factor for the determination of their “ethnic origin” within the meaning of Article 1, paragraph 1, of CERD (see paragraph 200 above). The Court therefore considers that the prominent political role and views of these persons within their respective communities do not, as such, establish that they were targeted on the basis of their ethnic origin.
215. The Court notes that, according to Ukraine's second argument, a large proportion of Crimean Tatars and ethnic Ukrainians were among the persons affected by physical violence, demonstrating discriminatory treatment based on ethnic origin. The limited statistical evidence furnished by Ukraine is mainly derived from reports of intergovernmental organizations (see paragraph 205 above). While the Court generally ascribes particular weight to reports by international organizations that are specifically mandated to monitor the situation in a given area (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 125, para. 360), it must also take into consideration the lack of access to Crimea of the Human Rights Monitoring Mission in Ukraine on whose observations the relevant reports are based (OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), paras. 2 and 35).
216. Bearing these considerations in mind, the Court observes that the above-mentioned reports confirm that physical violence in Crimea was not only suffered by Crimean Tatars and ethnic Ukrainians, but also by persons of Russian and Central Asian origin (OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), para. 102; OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine), 13 September 2017 to 30 June 2018, UN doc. A/HRC/39/CRP.4, para. 33; OHCHR, United Nations Human Rights Monitoring Mission in Ukraine, Briefing Paper: “Enforced Disappearances in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, Temporarily Occupied by Russian Federation”, 31 March 2021, p. 4).
217. The Court acknowledges that Ukraine is not in a position to provide further evidence owing to its lack of access to Crimea. However, even when allowing a more liberal recourse to inferences of fact and circumstantial evidence for that reason (see paragraph 169 above), the Court is not convinced by the evidence placed before it that Crimean Tatars and ethnic Ukrainians were subjected to acts of physical violence based on their ethnic origin. In fact, any disparate adverse effect on the rights of Crimean Tatars and ethnic Ukrainians can be explained by their political opposition to the conduct of the Russian Federation in Crimea and not by considerations relating to the prohibited grounds under CERD (see paragraph 196 above). Since the conditions set forth in Article 1, paragraph 1, of CERD are not met, it is not necessary for the Court to examine whether any of the acts in question are attributable to the Russian Federation, nor to determine the precise date on which the Russian Federation started to exercise territorial control over Crimea.
218. With respect to Ukraine's claim that the Russian Federation did not effectively investigate the acts of physical violence involving Crimean Tatar and ethnic Ukrainian persons, the Court recalls that Article 6 provides that
“States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention”.
219. The Court observes that Article 6 constitutes a procedural safeguard for the prohibition of racial discrimination by establishing an obligation for States to provide effective protection and remedies through judicial and other State organs against any acts of racial discrimination. This obligation encompasses a duty to investigate allegations of racial discrimination where there are reasonable grounds to suspect that such discrimination has taken place. In this regard, a violation of Article 6 does not require that a violation of any of the substantive guarantees under CERD has occurred. Article 6 may also be violated if, in a given case, there were reasonable grounds to suspect that racial discrimination occurred and measures to effectively investigate the incident in question were not taken at the relevant time, even if these suspicions proved to be unfounded at a later stage.
220. The Court takes note of the Russian Federation's contention that it has conducted investigations into the incidents of physical violence alleged by Ukraine. At the same time, the Court observes that doubts regarding the effectiveness of these investigations have been expressed in reports of intergovernmental organizations. For example, the OHCHR, in its report on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) covering the period from 22 February 2014 to 12 September 2017, stated that
“[t]he [contact] group [focusing on the disappearances] convened for the first time on 14 October 2014 in.the presence of investigative authorities and the relatives of five missing Crimean Tatar men but achieved little beyond information-sharing and the decision to transfer the investigations to the central Investigation Department of the Russian Federation. Of the 10 disappearances mentioned, criminal investigations were still ongoing in only one case as of 12 September 2017. They were suspended in six cases due to the inability to identify suspects, and in three cases no investigative actions have been taken as the disappearances were allegedly not reported.” (UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), para. 103.)
However, the evidence does not establish that the Russian Federation failed to effectively investigate whether the acts complained of by Ukraine amount to racial discrimination. Ukraine has not demonstrated that, at the relevant time, reasonable grounds to suspect that racial discrimination had taken place existed which should have prompted the Russian authorities to investigate. Consequently, Ukraine has failed to substantiate its allegation that the Russian Federation has violated its duty to investigate under Article 6 of CERD.
221. The Court concludes that it has not been established the Russian Federation has violated its substantive or procedural obligations under CERD on account of the incidents of physical violence alleged by Ukraine.
2. Law enforcement measures, including searches, detentions and prosecutions
222. According to Ukraine, the Russian Federation violated CERD, in particular Articles 2, paragraph 1, 4, 5 (a) and 6, by singling out and subjecting both the Crimean Tatar leadership and the wider Crimean Tatar population to manifestly disproportionate law enforcement measures based on its anti-extremism laws, in particular in the form of arbitrary searches, detentions and prosecutions. It contends that the Russian Federation's anti-extremism laws are in themselves evidence of the discriminatory purpose of these law enforcement measures. In its view, the broad and vague character of these laws makes them prone to be abused to arbitrarily silence groups vulnerable to discrimination, such as ethnic minorities.
223. The Russian Federation maintains that it did not violate CERD through what it considers to be law enforcement measures adopted against members of the Crimean Tatar leadership and against certain other members of the Crimean Tatar community in response to extremist, separatist and terrorist activities in Crimea. It contends that its domestic legal framework on which the law enforcement measures are based, consisting of Federal Law No. 114-FZ of 25 July 2002 “On counteracting extremist activities” (hereinafter the “Anti-Extremism Law”), Federal Law No. 35-FZ of 6 March 2006 “On combatting terrorism” (hereinafter the “Anti-Terrorism Law”) and the Decree of the Head of the Republic of Crimea No. 26-U of 30 January 2015 “On approval of the Comprehensive Plan countering the ideology of terrorism in the Republic of Crimea, for 2015-2018”, complies with the standards enshrined in many international legal instruments.
* *
224. The Court will first determine whether the law enforcement measures taken by the Russian Federation constitute acts of racial discrimination in the sense of Article 1, paragraph 1, of CERD before deciding whether the Respondent has violated its obligations under the Convention to prevent, protect against and remedy such acts.
225. Accordingly, the Court will first consider the question of whether the legislation adopted by the Russian Federation in itself constitutes racial discrimination, and then turn to the allegations concerning the application of such legislation. In this regard, the Court takes note of Ukraine's claim that the measures undertaken by the Russian Federation were based on anti-extremism legislation which, according to Ukraine, is in itself evidence of racial discrimination.
226. The Court notes that the conformity of the relevant laws of the Russian Federation, in particular the provisions on “extremist activities”, with the human rights obligations of that State has been called into question by international judicial and monitoring bodies. In this regard, it notes that the European Court of Human Rights (hereinafter the “ECtHR”) found that
“the extremely broad definition of ‘extremist activities’ in section 1 of [the Anti- Extremism Law] which does not require any elements of violence or hatred opens up the possibility of having individuals and organisations prosecuted on extremism charges for entirely peaceful forms of expression or worship, such as those pursued by the applicants in the instant case. That broad definition of ‘extremism’ not only could — and did — lead to arbitrary prosecutions, but also prevented individuals or organisations from being able to anticipate that their conduct, however peaceful and devoid of hatred or animosity it was, could be categorised as ‘extremist’ and censured with restrictive measures.” (ECtHR, Taganrog LRO and Others v. Russia, Apps. Nos. 32401/10 and 19 others, Judgment (merits and just satisfaction) of 7 June 2022, paras. 158; ECtHR, Ibragim Ibragimov and Others v. Russia, Apps. Nos. 1413/08 and 28621/11, Judgment of 28 August 2018, para. 85.)
227. The Court further takes note of the Opinion of the Venice Commission of the Council of Europe according to which the Anti-Extremism Law, “on account of its broad and imprecise wording”, gives “too wide discretion in its interpretation and application, thus leading to arbitrariness” and carries “potential dangers to individuals and NGOs” and “can be interpreted in harmful ways” (European Commission for Democracy through Law (Venice Commission), Revised Draft Opinion on the Federal Law “On combating extremist activity” of the Russian Federation, doc. CDL(2012)011rev, 1 June 2012, paras. 77-78).
228. The Court observes that it is not called upon to review the compatibility of the domestic legislation of States parties to CERD with their international human rights obligations generally. Instead, the Court's role is limited to examining whether such legislation either has the purpose of differentiating between persons or groups of persons distinguished by one of the prohibited grounds contained in Article 1, paragraph 1, of CERD, or is likely to produce a disparate adverse effect, in this case, on the rights of Crimean Tatars or ethnic Ukrainians.
229. In this regard, no evidence has been put before the Court which would suggest that the purpose of the relevant domestic law is to differentiate between persons, based on one of the prohibited grounds contained in Article 1, paragraph 1, of CERD. Instead, the above-referenced domestic legal framework regulates the prevention, prosecution, and punishment of certain broadly defined criminal offences. Moreover, Ukraine has not provided evidence that this legal framework is likely to produce a disparate adverse effect on the rights of Crimean Tatars or ethnic Ukrainians. Therefore, the Court is of the view that the domestic legal framework in and of itself does not constitute a violation of CERD. However, this finding is without prejudice to the question whether the application of such domestic legislation is in breach of obligations under CERD. The Court notes that both Parties distinguish between the application of these domestic laws to the wider Crimean Tatar population, on the one hand, and to persons forming part of the Crimean Tatar leadership, on the other. It will therefore address these two categories separately and in turn.
(a) Measures taken against persons of Crimean Tatar origin
230. Ukraine argues that the Russian Federation has subjected the wider Crimean Tatar community to arbitrary searches and detentions in order to unsettle the entire community. According to Ukraine, since the referendum in March 2014, these practices have included conducting searches of Crimean Tatar mosques, schools and private homes, which have continued after the filing of the Application by Ukraine. It claims that these searches have been based mainly on allegations of religious extremism, which had not been part of the history of Crimea before its control by the Russian Federation, suggesting that they are a pretext for discrimination. Ukraine also points to “blockades” of roads leading to villages, to searches of public spaces including markets, restaurants and cafés favoured by Crimean Tatars, and to the targeting of Crimean Tatars on the basis of their appearance.
231. To substantiate its claim that these acts amount to racial discrimination, Ukraine refers to United Nations General Assembly resolution 75/192, reports by the United Nations Secretary- General, reports by the OHCHR, observations by the CERD Committee, statements by intergovernmental organizations and reports by non-governmental organizations.
232. Ukraine asserts that the Russian Federation's compliance with its own domestic law does not justify the acts of which the Applicant complains, and that these laws are in themselves evidence of racial discrimination. It emphasizes that international courts and monitoring bodies have expressed concern that these laws do not contain clear and precise criteria for defining “extremist” conduct.
233. Ukraine maintains that, in any event, the application by the Russian Federation of its domestic law was discriminatory. In this regard, Ukraine points out that the measures of the Russian Federation against “religious” extremism, including against members of Hizb-ut Tahrir or Tablighi Jamaat, were pretextual and disproportionately affected the predominantly Muslim Crimean Tatar community. Ukraine also argues that the Russian Federation violated Article 4 by targeting Crimean Tatars as religious extremists, thereby fuelling mutual distrust between ethnic communities and making racial discrimination more likely.
*
234. With respect to Ukraine's allegations concerning a pattern of discriminatory searches and detentions against the wider Crimean Tatar population, the Russian Federation maintains that these measures were mostly directed against “religious extremism”, “Muslim radicalism” and “Islamic terrorism”, and were not based on the ethnic origin of the Crimean Tatar community. In its view, the said measures were based on objective and reasonable grounds and taken in accordance with the applicable domestic law, excluding any possibility of racial discrimination under CERD. The Russian Federation underlines that the relevant legislation, such as the Anti-Extremism Law and the Anti-Terrorism Law, complies with international law, in particular with human rights standards.
235. The Russian Federation maintains that the evidence relied on by Ukraine lacks probative value. With respect to measures adopted against members of Hizb-ut Tahrir or Tablighi Jamaat, the Russian Federation points out that these are justified and constitute legitimate limitations and that the ECtHR has confirmed the legality of the ban of these organizations, in other countries as well as in the Russian Federation. It contends that the fact that some of the persons subjected to searches and detentions were Crimean Tatars is not sufficient to establish racial discrimination. Rather, it argues that the domestic legal framework concerning suspected extremist activities and banned organizations is applied in the same way to everyone, including non-Crimean Tatar individuals and organizations, and that a differentiation of treatment based on ethnic origin cannot thus be established. The high number of Crimean Tatars concerned is, according to the Russian Federation, a reflection of the fact that Muslims in Crimea mostly happen to be Crimean Tatars, and not ethnic Russians or ethnic Ukrainians. The Respondent points out that religious extremism had been identified as a security concern in Ukraine before the referendum in March 2014.
236. The Russian Federation asserts that the fact that Ukraine only referred to Crimean Tatars and not to ethnic Ukrainians in its allegations of racially-discriminatory law enforcement measures demonstrates that such measures were not based on unlawful distinctions on the grounds of ethnic origin, but served to fight extremism in Crimea in accordance with the law.
* *
237. The Court begins by emphasizing that law enforcement measures that are applied to persons or groups solely on the basis of an assumption that they are prone to commit certain types of criminal offences because of their ethnic origin are unjustifiable under CERD. In the present case, Ukraine has provided evidence suggesting that persons of Crimean Tatar origin have been particularly exposed to law enforcement measures taken by the Russian Federation. The Court must therefore examine whether these measures had either the purpose of targeting Crimean Tatars or a disparate adverse effect on the rights of members of this group.
238. In this regard, the Court attributes considerable weight to reports of several UN organs and monitoring bodies according to which the measures in question disproportionately affected Crimean Tatar persons. This is the case, in particular, with respect to reports by the United Nations Secretary-General and the OHCHR, which state that “Crimean Tatars were disproportionately subjected to police and FSB raids of their homes, private businesses or meeting places, often followed by arrests” (OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (13 September 2017 to 30 June 2018), UN doc. A/HRC/39/CRP.4 (21 Sept. 2018), para. 31; see also United Nations, General Assembly, Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, Report of the Secretary-General, doc. A/74/276 (2 Aug. 2019), para. 18). The disproportionate number of persons of Crimean Tatar origin who were subjected to abusive raids has been reported by the Commissioner for Human Rights of the Council of Europe. Moreover, the Court notes that the United Nations General Assembly, in its resolution 75/192 concerning the “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine”, stated that it was
“[d]eeply concerned about continued reports that the law enforcement system of the Russian Federation conducts searches and raids of private homes, businesses and meeting places in Crimea, which disproportionally affect Crimean Tatars”.
In light of these materials, the Court finds that Ukraine has sufficiently demonstrated that the law enforcement measures concerned produced a disparate adverse effect on the rights of persons of Crimean Tatar origin. It is therefore necessary to consider whether such effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1, of CERD (see paragraph 196 above).
239. The Court notes that the Russian Federation has described the circumstances that motivated the law enforcement measures taken against persons of Crimean Tatar origin in certain individual cases. In this regard, the Court observes that the Russian Federation justifies many of the law enforcement measures as being part of its fight against religious “extremism” and “terrorism”. The Russian Federation links a large number of its law enforcement measures to the affiliations of the persons concerned with religious groups that have been banned throughout the Russian Federation and in other countries, and recalls that the bans of these organizations have been considered lawful by international judicial bodies.
240. With respect to other individual cases, the Russian Federation points to circumstances which, in its view, gave rise to the belief that the persons in question were involved in criminal activities, notably attacks on law enforcement officials, disrupting the public order, trading in stolen goods, weapons, ammunition and drugs, and extorting money. Other measures were, according to the Russian Federation, undertaken as part of a “large-scale strategic training exercise” which was conducted at six different locations at the same time across the whole territory over which the Russian Federation exercises control. With respect to some searches, the Russian Federation cites “public health” concerns linked to the sale of spoilt food.
241. The Court notes that the stated purpose of certain measures appears to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security. However, the Court is of the view that Ukraine has not presented convincing evidence to establish that persons of Crimean Tatar origin were subjected to such law enforcement measures based on their ethnic origin. Therefore, the Court does not consider that these measures are based on the prohibited grounds contained in Article 1, paragraph 1, of CERD.
242. With respect to Ukraine's claim that the Russian Federation violated Article 4 of CERD, the Court notes that Article 4 (a) and (b) requires States parties to adopt immediate and effective measures for the prevention, eradication and punishment of speech that seeks to promote or justify racial hatred or to incite discrimination based on one or more of the prohibited grounds contained in Article 1, paragraph 1. Moreover, Article 4 (c) specifically provides that States parties shall not permit “public authorities or public institutions, national or local, to promote or incite racial discrimination”. However, in the present case, the Court is not convinced that Ukraine has presented convincing evidence that statements have been made by State officials of the Russian Federation that were directed against Crimean Tatars based on their ethnic or national origin. Nor did Ukraine prove its allegation that the Russian Federation failed to comply with its obligation to prevent, eradicate and punish speech by private persons seeking to promote or justify racial hatred against Crimean Tatars and ethnic Ukrainians based on their national or ethnic origin.
243. Turning to Ukraine's claims that the Russian Federation violated Article 6 by failing to investigate effectively allegations of discriminatory law-enforcement measures taken against Crimean Tatars and ethnic Ukrainians, the Court considers that Ukraine failed to demonstrate that there were, at the relevant time, reasonable grounds to suspect that racial discrimination had taken place, which should have prompted the Russian authorities to investigate (see paragraphs 219-220 above). Therefore, the Court is not persuaded that Ukraine has established that the Russian Federation violated its obligation to investigate.
244. For these reasons, the Court is not convinced that the Russian Federation has engaged in law enforcement measures that discriminate against persons of Crimean Tatar origin based on their ethnic origin.
(b) Measures taken against the Mejlis
245. As far as persons belonging to the Crimean Tatar leadership are concerned, Ukraine asserts that the Russian Federation has restricted the movements of Crimean Tatar leaders, banning them from entering Crimea or preventing them from leaving Crimea. Ukraine further contends that the Russian Federation took measures against the Mejlis and its leaders prior to the ban on the Mejlis in April 2016, including searching its building and seizing assets from entities associated with it. Ukraine adds that the Russian Federation has resorted to discriminatory prosecutions and convictions of certain Mejlis leaders, including two of its Deputy Chairmen, namely Akhtem Chiygoz, for his participation in a demonstration in front of the Crimean Parliament building on 26 February 2014, and Ilmi Umerov, on charges of separatism. Ukraine alleges that both were mistreated in detention before being released. According to Ukraine, the measures taken against these leading figures of the Crimean Tatar community served “to intimidate the wider Crimean Tatar community” and to deprive them of their political leadership and their ability to advocate for their rights. To substantiate its claim that these acts amount to racial discrimination, Ukraine points to reports by intergovernmental and non-governmental organizations and to witness statements of the individuals concerned. Moreover, Ukraine asserts that, rather than protecting the Crimean Tatar and ethnic Ukrainian communities from racial discrimination, the courts have actively participated in the discriminatory conduct by convicting Crimean Tatar leaders on “trumped-up” charges. In the Applicant's view, the Russian Federation has thus also violated its obligations under Article 6 of CERD.
246. The Russian Federation argues that these measures adopted against the Mejlis and persons belonging to the Crimean Tatar leadership were taken in application of its own domestic law, were directed against political extremism and separatism and were thus not based on ethnic origin. With respect to the restrictions on the movements of Crimean Tatar leaders, the Russian Federation argues that entry to Crimea was validly denied to some individuals on the ground that they were not Russian citizens and that CERD does not apply to distinctions between citizens and non-citizens. With respect to the remaining cases, the Russian Federation submits that Ukraine has failed to establish that these restrictions were based on the ethnic origin of those involved. Regarding the measures taken against the Mejlis and against persons and organizations affiliated with the Mejlis prior to its ban, the Russian Federation argues that these were based on the non-compliance with the law by the person or entity concerned and not on ethnic grounds. The Russian Federation maintains that the retroactive prosecutions and convictions of Akhtem Chiygoz, Ilmi Umerov and others relating to demonstrations on 26 February 2014 were not based on ethnic grounds, but on the involvement of those persons in extremist activities and in undermining “the territorial integrity of the Russian Federation”. The Russian Federation rejects Ukraine's allegation that the individuals in question were mistreated during their detention. The Respondent also maintains that the measures adopted against members of the Mejlis were based on objective and reasonable grounds, complied with the standard procedure applicable in such cases, and had nothing to do with racial discrimination.
* *
247. The Court notes that the Russian Federation does not contest the occurrence of the alleged measures taken against the Mejlis prior to its ban and against Crimean Tatar leaders, but disputes that they constitute acts of racial discrimination within the scope of Article 1, paragraph 1, of CERD. According to the Russian Federation, these measures were not based on the ethnic origin of the persons concerned, but rather on their involvement in what the Russian Federation considers to be “extremist” and “separatist” conduct.
248. The Court recalls that the fact that targeted persons belong to the leadership of an ethnic group does not, in and of itself, suffice to establish that measures which adversely affect such persons amount to racial discrimination (see paragraph 214 above). Ukraine would also need to demonstrate that the relevant measures were “based on” the ethnic origin of the persons or the ethnically representative character of the institutions subjected to these measures. The Court considers that the context in which the measures were taken indicates that they were in response to the political opposition that these persons and institutions displayed against the exercise of territorial control by the Russian Federation in Crimea.
249. In the Court's view, Ukraine has not substantiated the claim that Crimean Tatar leaders who had engaged in political opposition against the control of Crimea by the Russian Federation were disproportionately affected by law enforcement measures compared with other persons who were engaged in similar conduct. The Court thus considers that the measures concerned were not based on the ethnic origin of the targeted persons and thus do not fall within the scope of Article 1, paragraph 1, of CERD.
250. The Court notes Ukraine's allegation that the measures taken against the Crimean Tatar leadership served to intimidate and unsettle the entire Crimean Tatar population. Ukraine invokes witness statements and reports by intergovernmental and non-governmental organizations in support of that allegation. The Court recalls its observation that witness statements which are collected many years after the relevant events, especially when not supported by corroborating documentation, must be treated with caution (see paragraph 177 above). Given their lack of specificity with respect to that allegation by Ukraine, the Court finds that the reports relied on by Ukraine are of limited value in confirming that the relevant measures are of a racially discriminatory character.
251. Taking all these considerations into account, the Court concludes that it has not been established that the measures taken by the Russian Federation against the members of the Mejlis were based on the ethnic origin of the persons concerned.
3. Ban on the Mejlis
252. Ukraine alleges that the Russian Federation violated CERD, in particular its Articles 2, paragraph 1 (a), 4, 5 and 6, by imposing a ban on the Mejlis on 26 April 2016.
253. Ukraine argues that the Mejlis was the representative body of the Crimean Tatars. It contends that the Mejlis, a body indirectly elected by the entire Crimean Tatar population, has long been recognized by international organizations as representing the Crimean Tatar population. In its view, none of the alternative bodies referred to by the Russian Federation share its legitimacy and representativeness. In response to the Russian Federation's claim that the Crimean Tatar population and other Crimean Tatar institutions have distanced themselves from the Mejlis and expressed support for the ban, Ukraine argues that these institutions either do not possess the same electoral legitimacy or have been installed by the Russian Federation's “occupation authorities” in order to undermine the Mejlis. The Applicant also emphasizes that, in its Order on provisional measures, the Court recognized that none of these organizations can claim the same role as the Mejlis as the legitimate representative institution of the Crimean Tatar people.
254. In Ukraine's view, the ban on the Mejlis forms part of a sustained campaign aimed at dismantling the Crimean Tatar community's central political and cultural institution. Ukraine argues that its claim is not premised on the argument that CERD grants minorities a right to a representative body. Rather, it asserts that, first, the ban on the Mejlis exemplifies the Russian Federation's concerted discriminatory attack on the political and civil rights of Crimean ethnic groups, including the rights to equal treatment before tribunals, freedom of opinion and expression, and freedom of association and of peaceful assembly, and, secondly, that the ban on the Mejlis indicates that the Crimean Tatar community itself is being singled out for discriminatory treatment.
255. According to Ukraine, the Russian Federation cannot justify the ban on the Mejlis on grounds of national security. Ukraine claims that the prohibition of racial discrimination is absolute and, accordingly, cannot be justified on the basis of the Russian Federation's domestic law. Ukraine asserts that even if CERD allows for restrictions based on national security reasons, the ban did not comply with the strict requirements for such restrictions. Relying on expert reports, Ukraine argues that the Russian Federation's domestic anti-extremism laws as such have a discriminatory impact. It maintains that the outright ban on the Mejlis was, in any event, disproportionate. It contends that it targets the Crimean Tatar community, relying on a statement by the OHCHR according to which the ban could be perceived as a collective punishment against the Crimean Tatar community. Ukraine also cites statements by the United Nations General Assembly, the CERD Committee, and the European Parliament calling for a lifting of the ban.
256. Ukraine maintains that the reasons given for the ban on the Mejlis are without any factual basis. In its view, that ban was a collective punishment of the Crimean Tatar people for opposing the Russian Federation's aggression. It rejects the Russian Federation's assertion that the Mejlis has historically been an extremist group, highlighting instead the lingering effects of the persecution of the Crimean Tatar people by Stalin in 1944. Moreover, Ukraine points out that the Mejlis has never been banned by the Ukrainian Government. Ukraine maintains that the allegations of extremist and violent activities attributed by the Russian Federation to the Mejlis are factually inaccurate and pretextual. Specifically with respect to the 2015 “civil blockade”, Ukraine argues that the blockade was a peaceful and principled protest which was open to the public, which took place within the territory of Ukraine and which was directed against Ukrainian legislation that was understood as facilitating trade with Crimea. Ukraine asserts that, in any event, the blockade does not justify a ban on the Mejlis because the Mejlis did not initiate, organize or participate in the blockade. In its view, the participating Mejlis members, Mr Chubarov and Mr Dzhemilev, did so in their personal capacity. Moreover, Ukraine points out that all the attempts undertaken by members of the Mejlis to achieve a lifting of the ban have failed.
257. In Ukraine's view, the ban of the Mejlis forms part of the Russian Federation's “disinformation campaign” designed to dismantle the Crimean Tatar community's central political and cultural institution and to vilify Crimean Tatars and thus violates Article 4. Ukraine further alleges that the courts of the Russian Federation participated in the discriminatory conduct by brushing off applications by Crimean Tatar litigants seeking review of the ban of the Mejlis and that the Russian Federation therefore also violated its obligation under Article 6 of CERD.
*
258. The Russian Federation, for its part, contends that the ban on the Mejlis does not violate CERD.
259. The Russian Federation argues that its ban on the Mejlis was not directed at the Crimean Tatar community as such. In its view, the Mejlis has never been, de jure or de facto, the representative body of the Crimean Tatars in Crimea, but rather an executive body responsible to the Qurultay. The Respondent points out that the Crimean Tatar community is represented by many organizations and associations in Crimea. It emphasizes that among all existing institutions, organizations and associations that purport to defend the interests of the Crimean Tatar community, including the Qurultay, the Mejlis was the only organization that was banned, due to its violent activities. The Russian Federation also points out that the majority of members of the Crimean Tatar community does not feel represented by the Mejlis and expressed support for restrictions against it.
260. The Russian Federation claims that, in any event, the ban on the Mejlis falls outside the scope of CERD. It argues that CERD does not provide for a right of minorities to have and maintain a representative body. It claims that the ban did not violate its obligations under Article 2, paragraph 1 (a), of CERD as this provision applies to institutions like the Mejlis only to the extent that it represents the Crimean Tatar community, which is, according to the Russian Federation, not the case. Regarding Article 4 of CERD, the Respondent maintains that Ukraine has not demonstrated how the ban could possibly infringe this provision. It contends that the ban does not violate its obligations under Article 5 (a) of CERD, arguing that this provision cannot be understood to grant a substantive right, but only a procedural one. The Russian Federation points out that representatives of the Mejlis were provided with means to request a judicial review and appeal the decisions on the ban, that they were heard and allowed to be represented in court. It asserts that the ban on the Mejlis does not violate its obligations under Article 5 (c) of CERD since the Crimean Tatars have not been prevented from participating in government or in public affairs on the basis of their ethnicity. With respect to Article 5 (d) (ix) of CERD, the Russian Federation contends that this right is not applicable to the Mejlis since the Mejlis was neither an “assembly” nor “peaceful”.
261. The Russian Federation argues that, in any event, the ban on the Mejlis was based on security reasons, due to concerns over extremist activities, which in its view constitute a “valid ground” for restrictive measures under the applicable domestic and international rules. Relying on expert reports, the Respondent emphasizes that in banning the Mejlis, it did not treat the Mejlis differently from other extremist organizations. Referring to the list of extremist organizations kept by the Government which currently contains 101 entities, it states that these entities are composed of individuals belonging to different ethnicities, including primarily pseudo-Russian nationalists.
262. To substantiate its allegations regarding the violent activities of the Mejlis, the Russian Federation points, firstly, to the trade and transport blockades of Crimea in 2015 which, in its view, severely affected the population and environment of Crimea. It rejects Ukraine's claim that the members of the Mejlis participating in the blockade did so in their personal capacity and insists that they acted as representatives of the Mejlis. The Russian Federation also argues that the Mejlis did not dissociate itself from the actions of Mr Dzhemilev and Mr Chubarov, chairpersons of the Mejlis. In support of its allegations regarding the Mejlis' involvement in the blockade, the Respondent refers to reports by UN organizations and to the decision of the Supreme Court of the Russian Federation upholding the ban on appeal on 29 September 2016.
263. Apart from the alleged involvement of the Mejlis in the blockade, the Russian Federation argues that the Mejlis was involved in a series of violent and extremist activities stretching over an extensive period of time which were considered in detail by the Supreme Court of the Russian Federation in its decision to uphold the ban and were not addressed by Ukraine. The Russian Federation maintains that the ban was proportionate as it was preceded by several warnings to members of the Mejlis. It also points out that the Mejlis and its leaders continue to incite and engage in violent activities despite the ban. In response to Ukraine's allegations that all attempts to appeal the ban after the decision of the Supreme Court of the Russian Federation have failed, the Respondent underlines that the severe threat to national security and public order emanating from the Mejlis continues to exist.
264. The Russian Federation rejects Ukraine's allegation that the ban of the Mejlis violates Article 4 and points out that Ukraine has not explained how Article 4 could possibly be relevant in this context. With respect to the violation of Article 6 alleged by Ukraine, the Russian Federation maintains that the representatives of the Mejlis had the opportunity to appeal the decision on the ban, that their positions were heard, and their attorneys allowed to present their position in full, as reflected in the text of the judgments, and thus the Russian Federation did not violate its obligations under CERD.
* *
265. The Court notes at the outset that various intergovernmental organizations and monitoring bodies have called upon the Russian Federation to lift the ban on the Mejlis because of its negative impact on civil and political rights (United Nations General Assembly resolution 71/205, Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) adopted on 19 December 2016, doc. A/RES/71/205 (1 Feb. 2017), para. 2 (g); CERD, Concluding observations on the combined twenty-fifth and twenty-sixth periodic reports of Russian Federation (25 April 2023), para. 24 (d)). However, the Court does not have jurisdiction, in the present case, to examine the conformity of the ban on the Mejlis with the international human rights obligations of the Russian Federation generally. Instead, its jurisdiction is confined by Article 22 of CERD to assessing the conformity of the ban on the Mejlis with the Russian Federation's obligations under CERD (see paragraph 201 above).
266. The Court must determine whether an act of racial discrimination as defined in Article 1, paragraph 1, of the Convention has occurred before it can decide whether the Russian Federation violated its obligations under Articles 2, paragraph 1 (a) and (b), and 5 (a) and (c) of CERD. It thus has to assess whether the ban on the Mejlis constitutes an act of racial discrimination within the meaning of Article 1, paragraph 1, of CERD (see paragraph 212 above). To this end, the Court will examine whether the ban on the Mejlis amounts to a differentiation of treatment that is based on a prohibited ground and whether it has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by the Crimean Tatars of their human rights and fundamental freedoms.
267. The ban entails the exclusion of the Mejlis from public life in Crimea. However, for the ban to amount to racial discrimination, Ukraine would also need to demonstrate that this exclusion was based on the ethnic origin of the Crimean Tatars as a group or of the members of the Mejlis, and that it had the purpose or effect of nullifying or impairing the enjoyment of their rights.
268. The Court takes note of the OHCHR Report on the human rights situation in Ukraine (16 May to 15 August 2016), according to which “the ban on the Mejlis, which is a self-government body with quasi-executive functions, appears to deny the Crimean Tatars — an indigenous people of Crimea — the right to choose their representative institutions” (para. 177 of the Report). It also notes the subsequent OHCHR Report on the human rights situation in Ukraine (16 August to 15 November 2016) according to which “none of the Crimean Tatar NGOs currently registered in Crimea can be considered to have the same degree of representativeness and legitimacy as the Mejlis, elected by the Crimean Tatars' assembly, namely the Kurultai” (para. 188 of the Report).
269. The Court acknowledges that the Mejlis has historically played an important role in representing the interests of the Crimean Tatar community since that community resettled in Crimea in 1991, after being deported to Central Asia in 1944. At the same time, the Court is of the view that the Mejlis is neither the only, nor the primary institution representing the Crimean Tatar community. The Court does not need to decide whether the Crimean Tatar institutions that were established after 2014 also play a role in genuinely representing the Crimean Tatar people. It suffices for the Court to observe that the Mejlis is the executive body of the Qurultay by which its members are elected and to which they remain responsible (Organization for Security and Co-operation in Europe (OSCE), High Commissioner on National Minorities (HCNM), “The Integration of Formerly Deported People in Crimea, Ukraine: Needs Assessment” (August 2013), p. 16). The Qurultay is, in turn, elected directly by the Crimean Tatar people and, as Ukraine acknowledges, it is “regarded by most Crimean Tatars as their representative body”. The Qurultay has not been banned, nor is there sufficient evidence before the Court that it has been effectively prevented by the authorities of the Russian Federation from fulfilling its role in representing the Crimean Tatar community. Therefore, the Court is not convinced that Ukraine has substantiated its claim that the ban on the Mejlis deprived the wider Crimean Tatar population of its representation. It follows that it is not necessary in this case for the Court to determine under which circumstances the treatment of institutions representing groups that are distinguished by their national or ethnic origin may violate obligations under CERD.
270. The ban on the Mejlis, by its very nature, also produces a disparate adverse effect on the rights of persons of Crimean Tatar origin in so far as the members of the Mejlis are, without exception, of Crimean Tatar origin. However, the Court needs to assess whether this effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1 (see paragraph 196 above).
271. Based on the evidence before it, it appears to the Court that the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin. This was confirmed by Ukraine in its Reply, according to which, “[t]he real reason for the ban is the opposition of the Crimean Tatar people, voiced by the Mejlis, to Russia's illegal acts of aggression”.
272. The Court thus concludes that Ukraine has not provided convincing evidence that the ban of the Mejlis was based on the ethnic origin of its members, rather than its political positions and activities, and would therefore constitute an act of discrimination within the meaning of Article 1, paragraph 1, of CERD.
273. With respect to Ukraine's claim that the Russian Federation violated Article 4 of CERD, the Court is not satisfied that Ukraine has convincingly established that, by adopting the ban of the Mejlis, authorities or institutions of the Russian Federation promoted or incited racial discrimination (see paragraph 242 above). The Court is thus not persuaded that the Russian Federation violated its obligations under this provision.
274. Turning to Ukraine's claim that the Russian Federation violated its obligations under Article 6 of CERD by failing to provide effective redress against the ban on the Mejlis, the Court observes that Ukraine did not establish that effective redress was denied by the Russian Federation.
275. For these reasons the Court concludes that it has not been established that the Russian Federation has violated its obligations under CERD by imposing a ban on the Mejlis.
4. Measures relating to citizenship
276. Ukraine claims that the Russian Federation violated its obligations under CERD, in particular Articles 5 (c), 5 (d) (i), 5 (d) (ii), 5 (d) (iii), 5 (e) (i) and 5 (e) (iv), through the introduction of its own nationality and immigration framework into Crimea, as part of the Federal Constitutional Law No. 6-FKZ of 21 March 2014 “On the Admission of the Republic of Crimea into the Russian Federation and the Formation of New Constituent Entities of the Russian Federation: The Republic of Crimea and the Federal City of Sevastopol” (also known as the “Law on Admission”).
277. Ukraine argues that the exclusions contained in Article 1, paragraph 2, and Article 1, paragraph 3, of CERD do not apply to the special citizenship régime imposed by the Russian Federation. Ukraine points out that the Court concluded, in its 2019 Judgment, that the measures of which Ukraine complains, including forced citizenship, “fall within the provisions of the Convention”. Moreover, it submits that the Russian Federation's position is incompatible with a pronouncement of the CERD Committee.
278. Ukraine further asserts that the Russian Federation “weaponized” its citizenship law to advance a policy and practice of racial discrimination against the Crimean Tatar and ethnic Ukrainian communities. In its view, this facially neutral citizenship law served to facilitate discrimination against Crimean Tatars and ethnic Ukrainians. Accordingly, Ukraine argues, this citizenship régime had the purpose or effect of suppressing the core civil rights of the two communities.
279. In Ukraine's view, discrimination stems from the fact that the Russian Federation has forced members of the Ukrainian and Crimean Tatar ethnic groups to choose between receiving Russian citizenship and swearing allegiance to the Russian Federation or retaining Ukrainian citizenship and accepting restrictions on their civil and political rights on the territory of Crimea. Ukraine argues that this choice does not represent a voluntary, informed or free choice. Ukraine further contends that Crimean Tatars and ethnic Ukrainians were disproportionately affected compared with ethnic Russians residing in Crimea.
280. Ukraine submits that the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) did not address the discriminatory “downstream effects” of a forced citizenship régime on a group protected under CERD. In its view, the Court addressed a distinct question in that case, namely whether discrimination based on a person's current nationality falls within the scope of the prohibition of racial discrimination within the meaning of the Convention.
*
281. The Russian Federation contends that its citizenship régime in Crimea does not violate CERD and that Ukraine's claims should thus be rejected.
282. In the Russian Federation's view, the introduction and implementation of its citizenship laws in Crimea, including the grant of citizenship, restrictions of citizenship and restrictions based on citizenship, do not fall within the scope of Article 1, paragraph 1, of CERD. The Russian Federation argues that distinctions, restrictions or preferences based on citizenship are excluded from the scope of CERD by Article 1, paragraphs 2 and 3. It refers to the Court's Judgment in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) in support of its contention that citizenship, as pertaining to “nationality”, is not covered by any of the criteria mentioned in Article 1, paragraph 1, including the criterion of “national origin”.
283. The Russian Federation further argues that, even if Ukraine's claim fell within the scope of Article 1, paragraph 1, of CERD, it could only concern the question whether the grant of citizenship and the associated régime constituted discrimination against any particular nationality, or any particular group as enumerated in Article 1, paragraph 1, of the Convention. The Russian Federation maintains that its citizenship régime is not discriminatory against any particular nationality or group. It points out that the provisions in question apply to all residents of Crimea without distinction based on their ethnicity.
284. The Russian Federation contends that the so-called “downstream” effects of its citizenship régime are of a “collateral or secondary” character and are thus not capable of falling within the scope of Article 1, paragraph 1. The Russian Federation further alleges that its citizenship régime is consistent with longstanding international practice. It emphasizes that inhabitants of Crimea, including ethnic Ukrainians and Crimean Tatars, were not forced to receive Russian citizenship but were merely given an option in that respect.
* *
285. The Court must determine whether the citizenship régime introduced by the Russian Federation in Crimea and the measures based thereon fall within the scope of Article 1 of CERD.
286. The Court notes that differential treatment “between citizens and non-citizens” (Article 1, paragraph 2) and “legal provisions of States Parties concerning nationality, citizenship or naturalization” (Article 1, paragraph 3) are per se excluded from the scope of the Convention. These paragraphs imply that CERD is not concerned with the grounds on which, or the way in which, nationality is granted. However, they cannot be understood as excluding from the scope of CERD any application of citizenship laws that results in an act of discrimination based on national or ethnic origin by purpose or effect.
287. In the present case, the Court does not find that Ukraine has convincingly established that the application of the Russian citizenship régime in Crimea amounts to a differentiation of treatment based on ethnic origin. To establish discrimination against Crimean Tatars and ethnic Ukrainians based on their ethnic origin, Ukraine mainly relies on the difficulty faced by the persons concerned when choosing between the legal consequences of adopting Russian citizenship or retaining Ukrainian citizenship. However, the Court is of the view that those legal consequences flow from the status of being either a Russian citizen or a foreigner. The respective status applies to all persons over whom the Russian Federation exercises jurisdiction regardless of their ethnic origin. While the measures may affect a significant number of Crimean Tatars or ethnic Ukrainians residing in Crimea, this does not constitute racial discrimination under the Convention (see Application of the international Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, para. 112).
288. For these reasons, the Court concludes that it has not been established that the Russian Federation has violated its obligations under CERD through the adoption and application of its citizenship régime in Crimea.
5. Measures relating to culturally significant gatherings
289. Ukraine contends that the Russian Federation violated its obligations under CERD, in particular Articles 2, paragraph 1 (a), 5 (d) (ix) and 5 (e) (vi), by suppressing gatherings that are of cultural importance to both the Crimean Tatar and the ethnic Ukrainian communities.
290. Ukraine asserts that, in the Crimean peninsula, the Russian Federation has unlawfully replaced Ukraine's régime for public assemblies with its own more restrictive laws. In its view, these laws represent a “precondition” for a multitude of infringements by the Russian Federation of its obligations under CERD, as they give officials of the Russian Federation wide discretion to arbitrarily restrict the rights of freedom of expression and assembly. In support of its claim, Ukraine relies on two cases decided by the ECtHR in which that court held that the powers granted under these laws “are often used in an arbitrary and discriminatory way”.
291. Moreover, Ukraine claims that the Russian Federation violated its obligations under CERD by applying those laws in a discriminatory manner to deny the Crimean Tatar and ethnic Ukrainian communities the ability to commemorate culturally important events. In this regard, Ukraine refers to examples of restrictions applied to culturally significant gatherings of both communities, which constitute, in its view, a pattern of discrimination. Regarding Crimean Tatar gatherings, Ukraine refers, inter alia, to the restrictions on commemorating the Sürgün between 2014 and 2017 and International Human Rights Day. With respect to ethnic Ukrainian gatherings, Ukraine points to the persecution of Sergei Dub for celebrating Ukrainian Flag Day in 2014 and the interference with the commemoration of Taras Shevchenko's birthday in 2015.
292. According to Ukraine, both the high number and the culturally significant character of ethnic Ukrainian and Crimean Tatar cultural gatherings blocked by the Russian Federation indicate a discriminatory effect. In support of its argument that Crimean Tatars and ethnic Ukrainians were disproportionately affected, Ukraine relies on reports of intergovernmental and non-governmental organizations. Ukraine further relies on an expert report by Professor Magocsi to establish that the commemoration of historical figures and events is central to the Crimean Tatar cultural identity, and on witness statements and correspondence relating to the various applications made, and rejections received, for culturally significant events. In response to the Russian Federation's argument that the Crimean Tatars were not treated less favourably than ethnic Russians, Ukraine argues that several applications by ethnic Russians to commemorate culturally significant events were successful.
293. Ukraine asserts that the justifications which the Russian Federation advances for restricting the public gatherings in question cannot constitute a defence to a violation of CERD given that CERD's prohibition on racial discrimination is absolute and permits no exceptions on national security or other grounds. It points out that while the International Covenant on Civil and Political Rights and the European Convention on Human Rights may allow for limitations and derogations in narrow circumstances, those treaties make equally clear that such limitations and derogations may not be applied in a racially discriminatory manner.
*
294. According to the Russian Federation, all the measures of which Ukraine complains were taken because the applicants had failed to comply with the requirements of Russian law for the holding of such events and thus do not violate any of its obligations under CERD.
295. The Russian Federation argues that the Russian laws apply uniformly throughout the entire territory of the Russian Federation and without any discrimination based on national or ethnic origin. The Russian Federation further points out that the legal framework governing the holding of public events in Crimea relies on a system of prior notification of intended events by their organizers to the competent authorities. It notes that the holding of a notified public event may be refused, suspended or terminated and that the reasons therefore, provided for by statutory law, constitute legitimate limitations on the exercise of the right to freedom of peaceful assembly. The Respondent maintains that the question whether these requirements are too strict in light of international standards is beyond the scope of the Court's jurisdiction under CERD.
296. According to the Russian Federation, Ukraine has not shown that the measures were taken on the basis of ethnicity and not for other reasons, namely security considerations. It points out that Ukraine failed to provide comparative statistics that would prove that the events of Crimean Tatars and ethnic Ukrainians were specifically targeted or were treated differently from those organized by Russians.
297. The Russian Federation states that its review of the individual incidents relied on by Ukraine reveals that Ukraine has not established that the law has been applied in a discriminatory or arbitrary manner against any ethnic group in Crimea, including the Crimean Tatars and ethnic Ukrainians, when compared with ethnic Russians. In its view, the “culturally significant” nature of the gatherings was used by the Mejlis as a pretext to organize events of a political nature. The Russian Federation points out that gatherings by Crimean Tatars and ethnic Ukrainians were allowed by the authorities and relies on witness statements to this effect.
298. In the Respondent's view, the two cases decided by the ECtHR and cited by Ukraine, Lashmankin v. Russia and Navalnyy v. Russia, as well as statistical data from Crimea on public events, demonstrate that the two communities were not disproportionately affected by the regulation of public gatherings. In response to Ukraine's reliance on several cases in which events organized by ethnic Russians were permitted, the Russian Federation argues that these permissions were based on their compliance with the applicable requirements under Russian domestic law. It further maintains that the pro-Russian attitude of the Crimean Tatar organization whose gatherings were permitted does not undermine the value of these events as evidence of the lack of racial discrimination.
299. The Russian Federation emphasizes that both the freedom of expression and the freedom of assembly are subject to limitations. It contends that the facts confirm that the measures in question were based on an objective and reasonable justification, were legitimate and lawful, and bore no link to racial discrimination.
* *
300. The Court will first determine whether an act of racial discrimination as defined in Article 1 of the Convention has occurred before deciding whether the Respondent has violated its obligations under the Convention to prevent, protect against and remedy such acts. The determination of a violation of the Russian Federation's obligations under Articles 2, paragraph 1 (a), 5 (d) (ix) and 5 (e) (vi) of CERD thus requires that the restrictions of gatherings by Crimean Tatars and ethnic Ukrainians constitute acts of racial discrimination in the sense of Article 1, paragraph 1, of CERD.
301. In this regard, the Court takes note of Ukraine's claim that the measures undertaken by the Russian Federation were based on legislation which is prone to being abused for discriminatory treatment. The Court observes that the conformity of the relevant laws of the Russian Federation, notably the provisions on “extremism”, with that State's human rights obligations has been called into question by international judicial and expert bodies owing to the risk of arbitrary interpretation and abuse (see Lashmankin and Others v. Russia, ECtHR App. No. 57818/09, Judgment (merits) of 7 February 2017, para. 415; Navalnyy v. Russia, ECtHR App. No. 29580/12, Judgment of 15 November 2018, para. 118; Venice Commission, Opinion on the Federal Law No. 54-FZ of 19 June 2004, “On assemblies, meetings, demonstrations, marches and picketing” of the Russian Federation (adopted 16-17 Mar. 2012) para. 49).
302. The domestic legal framework regulates the prevention, prosecution, and punishment of certain broadly defined criminal offences. There is no evidence that would suggest that the purpose of the relevant domestic legislation is to differentiate based on one of the prohibited grounds contained in Article 1, paragraph 1, of CERD. Moreover, Ukraine has not provided evidence that this legal framework is likely to produce a disparate adverse effect on the rights of persons of Crimean Tatar or ethnic Ukrainian origin. Therefore, the Court is of the view that the domestic legal framework does not, in and of itself, constitute a violation of an obligation under CERD. However, this finding is without prejudice to the question whether the application of the relevant domestic legislation constitutes an act of discrimination based on one of the prohibited grounds under Article 1, paragraph 1, of CERD by its effect (see paragraph 196 above).
303. The Court observes that reports by intergovernmental and non-governmental organizations suggest that prohibitions and other restrictions imposed on gatherings commemorating certain events produced a disparate adverse effect on the rights of Crimean Tatars. The Court notes in particular the observation made in a report of the OHCHR that: “Crimean Tatars were particularly affected, receiving such warnings in advance of commemorative dates for Crimean Tatars” (OHCHR, Civic Space and Fundamental Freedoms in Ukraine, 1 November 2019 – 31 October 2021 (7 Dec. 2021), para. 77).
304. As far as restrictions on culturally significant gatherings by ethnic Ukrainians are concerned, the Court considers it to be proved that the Russian Federation imposed restrictive measures regarding the celebration of Ukrainian Flag Day and the birthday of Taras Shevchenko, and that these measures produced a disparate adverse effect on the rights of persons of ethnic Ukrainian origin involved in the organization of and wishing to participate in culturally significant events.
305. However, the Court notes that the Russian Federation has provided explanations for these restrictions that do not relate to one of the prohibited grounds contained in Article 1, paragraph 1, of the Convention. There is evidence that certain ethnic Ukrainian and Crimean Tatar organizations have in fact been successful in applying to hold events and that multiple events organized by ethnic Russians have been denied. Moreover, given the context of these restrictions, and the fact that the ECtHR has in several decisions confirmed that the approach of the Russian Federation towards public gatherings is generally restrictive (see e.g. Lashmankin and Others v. Russia, ECtHR App. No. 57818/09, Judgment (merits) of 7 February 2017, paras. 419-420; Navalnyy v. Russia, ECtHR App. No. 29580/12, Judgment of 15 November 2018, para. 118), Ukraine has not, in the Court's view, sufficiently substantiated its assertion that the restrictions were based on one or more of the prohibited grounds referred to in Article 1, paragraph 1. Accordingly, the Court is not convinced that Ukraine has sufficiently established that Crimean Tatars and ethnic Ukrainians have been discriminated against based on their ethnic origin.
306. For these reasons, the Court concludes that it has not established that the Russian Federation has violated its obligations under CERD by imposing restrictions on gatherings of cultural importance to the Crimean Tatar and the ethnic Ukrainian communities.
6. Measures relating to media outlets
307. Ukraine claims that the Russian Federation violated its obligations under CERD, specifically Articles 2, paragraph 1, 5 (d) (viii) and 5 (e) (vi), by imposing restrictions on persons and institutions representing the media serving the Crimean Tatar and ethnic Ukrainian communities in Crimea (hereinafter the “Crimean Tatar and Ukrainian media”).
308. Ukraine submits that the Russian Federation has enforced a registration requirement as a “means of excluding potentially critical voices” in the media, in particular those of Crimean Tatars and ethnic Ukrainians. According to Ukraine, the Russian Federation has further imposed its own anti-extremism laws in Crimea which allow it to arbitrarily interfere with freedom of expression.
309. Ukraine further asserts that the Russian Federation has applied its legal framework in a way which discriminates against Crimean Tatar and Ukrainian media organizations and journalists. According to Ukraine, the Court's Judgment in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) does not preclude Ukraine's allegations concerning restrictions on media organizations falling within the scope of CERD where the discriminatory impact of the restrictions falls on protected groups, rather than just the media corporations themselves. In this regard, Ukraine argues that Crimean Tatars and ethnic Ukrainians have been disproportionately disadvantaged by the Russian Federation's application of its re-registration requirements. In support of its allegations, Ukraine further points to individual instances of denial of registration and re-registration, and harassment of media organizations and journalists. To substantiate its allegation of discriminatory treatment of Crimean Tatar and Ukrainian media outlets, Ukraine refers to reports of international and non-governmental organizations.
310. Ukraine argues that, as a result of the discriminatory application of the Russian Federation's laws in Crimea, the number of media outlets serving the Crimean Tatar and ethnic Ukrainian communities has significantly decreased since the introduction of the media laws and anti- extremism legislation in Crimea in 2014. Moreover, the content offered by the remaining media outlets does not compare, in its view, to the authentic and diverse content offered by Crimean Tatar and Ukrainian media outlets previously active and accessible in Crimea.
*
311. The Russian Federation claims that Ukraine's allegations with respect to the treatment of Crimean Tatar and Ukrainian media are unfounded and that its claims in this regard should thus be rejected.
312. The Russian Federation submits that Ukraine has failed to establish that the legal framework applicable to the activities of the media in Crimea is discriminatory. The Russian Federation points out that its legal framework governing media activities is similar to Ukraine's own legal framework in this regard.
313. With respect to allegations concerning media restrictions, the Russian Federation recalls that the Court confirmed, in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), that CERD “concerns only individuals or groups of individuals” and that legal entities such as media corporations fall outside its scope. The Russian Federation further contends that Ukraine has not established that the measures taken against media corporations were specifically directed at the Crimean Tatar or ethnic Ukrainian communities as such, or that Crimean Tatar and Ukrainian media outlets were treated in a manner that qualifies as discrimination under CERD. It points out that Ukraine itself has not claimed that any of the alleged discriminatory treatment was based on any of the grounds contained in Article 1, paragraph 1, of CERD, but rather that it was based on the political opinions of the persons or entities concerned.
314. With respect to the individual instances of harassment and denial of re-registration alleged by Ukraine, the Russian Federation maintains that the small number of cases raised does not reflect the general situation of the media in Crimea and, in any event, does not evidence discriminatory treatment based on national or ethnic grounds. The Russian Federation claims that the measures taken against the media organizations and journalists in question were based on their non-compliance with the registration rules and on the conduct, qualifying as extremist under Russian laws, of the persons and entities in question.
315. The Russian Federation asserts that the media landscape in Crimea allows all cultural and ethnic groups, including Crimean Tatars and ethnic Ukrainians, to preserve and promote their history, language and culture. With respect to the alleged closure of Crimean Tatar and Ukrainian media outlets, the Russian Federation argues that the majority of them continue to operate. As for the closed outlets, the Russian Federation asserts that they were either closed by the owners themselves or in accordance with Russian media laws. The Russian Federation points to statistical data comparing the closure of Crimean Tatar media outlets and the closure of media outlets in the Russian Federation generally, which, in its view, confirms that “far fewer Crimean Tatar media were closed by judicial decisions in Crimea compared with the rest of the Russian Federation”.
* *
316. The Court will determine at the outset whether an act of racial discrimination as defined in Article 1, paragraph 1, of the Convention has occurred in relation to media outlets before deciding whether the Respondent has violated its obligations under the Convention to prevent, protect against and remedy such acts. The determination whether violations of the Respondent's obligations under Articles 2, paragraph 1, 5 (d) (viii) and 5 (e) (vi) of CERD have occurred requires that the restrictions imposed by the Russian Federation on persons and institutions representing Crimean Tatar and Ukrainian media constitute acts of racial discrimination in the sense of Article 1, paragraph 1, of CERD.
317. The Court notes Ukraine's claim that the measures taken by the Russian Federation are based on legislation that can be abused for discriminatory treatment. In this regard, the Court observes that the conformity of the Russian laws in question, notably its anti-extremism legislation, with its obligations under international human rights has been called into question by international judicial and monitoring bodies owing to the risk of their arbitrary interpretation and abuse (see paragraphs 226-227 above).
318. The Court recalls that restrictions imposed on media organizations fall within the scope of CERD only in so far as these media organizations are “collective bodies or associations, which represent individuals or groups of individuals” and the measures imposed on them are based on national or ethnic origin by purpose or effect (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, p. 107, para. 108). It is, however, not necessary to determine whether the media organizations concerned represent individuals or groups of individuals if the measures imposed on these organizations are not based on national or ethnic origin.
319. The domestic legal framework regulates the activities of mass media and the prevention, prosecution and punishment of certain broadly defined criminal offences. The Court observes that there is no convincing evidence which would suggest that the purpose of the relevant domestic legislation is to differentiate between media outlets affiliated with persons of Crimean Tatar or ethnic Ukrainian origin and other such outlets based on one of the prohibited grounds contained in Article 1, paragraph 1, of CERD. Ukraine has also not provided evidence that this legal framework is likely to produce a disparate adverse effect on the rights of persons of Crimean Tatar or ethnic Ukrainian origin. Therefore, the Court considers that the domestic legal framework does not, in and of itself, constitute a violation of the Russian Federation's obligations under CERD. However, this finding is without prejudice to the question whether the application of the relevant domestic legislation constitutes an act of discrimination based on one of the prohibited grounds under Article 1, paragraph 1, of CERD by its effect (see paragraph 196 above).
320. The Court is of the view that the reports of international organizations referred to by Ukraine lend some support to Ukraine's allegation that Crimean Tatar and Ukrainian media outlets have been severely affected by the application and implementation of the Russian Federation's laws on mass media and the suppression of extremism (see OSCE, Office for Democratic Institutions and Human Rights (ODIHR) and the High Commissioner on National Minorities (HCNM), Report of the Human Rights Assessment Mission on Crimea (6-18 July 2015) (17 Sept. 2015), paras. 75-79; OHCHR, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/ 36/CRP.3 (25 Sept. 2017), paras. 156-157).
321. The Court also observes that some of these reports suggest the existence of a link between the measures taken with respect to Crimean Tatar media outlets and the ethnic origin of their owners or those concerned (see OSCE, ODIHR and HCNM, Report of the Human Rights Assessment Mission on Crimea (6-18 July 2015), p. 7, para. 17). At the same time, the Court notes that statements made in the said reports of intergovernmental and non-governmental organizations are vague and not corroborated by further evidence with respect to the existence of racial discrimination.
322. On the evidence submitted by Ukraine, the Court cannot find that the measures taken against Crimean Tatar and Ukrainian media outlets were based on the ethnic origin of the persons affiliated with them. The Court is of the view that the explanations given by the Russian Federation, particularly the statistically substantiated comparison between the closure of media outlets in Crimea and other territories (see paragraph 315 above), suggest that the restrictions were not based on national or ethnic origin. For the same reason, the Court is not convinced that Ukraine has established that the measures taken against persons affiliated with Crimean Tatar media outlets were based on the national or ethnic origin of those persons.
323. For these reasons, the Court concludes that it has not been established that the Russian Federation violated its obligations under CERD by imposing restrictions on Crimean Tatar and Ukrainian media and by taking measures against persons affiliated with Crimean Tatar and Ukrainian media organizations.
7. Measures relating to cultural heritage and cultural institutions
324. Ukraine submits that the Russian Federation violated its obligations under CERD, specifically Articles 2, paragraph 1, 5 (e) (vi) and 6, by undertaking a “general assault” on the cultural heritage of Crimean Tatar and ethnic Ukrainian communities, particularly through the destruction, demolition, failure to preserve and closure of historically and culturally significant sites and institutions.
325. As far as Crimean Tatar heritage is concerned, Ukraine alleges that the historical site of the Palace of the Crimean Khans (the “Khan's Palace”) is being partly destroyed by “a culturally insensitive renovation commissioned and managed by the Crimean authorities”. Citing the Court's jurisprudence, Ukraine states that “a State's vandalization of cultural heritage sites can constitute a violation of the CERD”. Ukraine also refers to other examples of degradation of Crimean Tatar cultural heritage, including the demolition of Muslim burial grounds and of archaeological sites at the Palace of Kalga-Sultan Akmejitsaray. Moreover, Ukraine argues that the Russian Federation violated Article 6 of CERD by denying relief to protect Crimean Tatar cultural heritage.
326. Regarding Ukrainian cultural heritage, Ukraine refers, inter alia, to the closure of a Ukrainian-language drama school and to the reduction of the space available for the Lesya Ukrainka museum. It also refers to harassment of persons affiliated with Crimea-based non-governmental organizations which, in its view, are instrumental in promoting Ukrainian-language media, and harassment of staff at the Ukrainian Cultural Centre in Simferopol.
*
327. The Russian Federation, in turn, argues that none of the measures adopted by the Russian authorities of which Ukraine complains amount to racial discrimination and that Ukraine's claims should therefore be rejected.
328. Regarding allegations concerning the preservation of the cultural heritage of Crimean Tatars, the Russian Federation asserts that Ukraine is attempting to portray measures aimed at preserving sites of cultural and historical significance to the Crimean Tatar community as an assault on that community's cultural heritage. The Russian Federation maintains that works in the Khan's Palace were necessary. It considers that, in any event, the record contradicts Ukraine's allegations of defective repair and restoration of that building. The Russian Federation points to a series of photographs which, in its view, show improvements made to the condition of the Palace.
329. Regarding the alleged demolition of Muslim burial grounds and other sites, the Russian Federation contends that these allegations are unfounded and ought to be dismissed. It notes that, contrary to Ukraine's allegations, the Russian authorities have taken numerous measures with a view to maintaining and promoting the cultural heritage of the Crimean Tatar community.
330. In respect of Ukraine's invocation of Article 6 of CERD, the Russian Federation submits that the Crimean Tatar applicants whose claims were dismissed by domestic courts lacked standing under the relevant domestic law.
331. The Russian Federation further maintains that Ukraine's factual allegations regarding the closure of Ukrainian cultural institutions are incorrect. Concerning the alleged harassment of persons affiliated with cultural institutions, the Russian Federation contends that the measures taken against certain activists were connected to inspections and to investigations of violations of anti-extremism laws, not to the activity of those persons within the Ukrainian Cultural Centre in Simferopol. Moreover, it argues that the centre itself was never closed.
* *
332. The Court recalls that it will first determine whether an act of racial discrimination as defined in Article 1, paragraph 1, of the Convention has occurred before deciding whether the Respondent has violated its obligations under the Convention to prevent, protect against and remedy such acts.
333. The Court notes that the Russian Federation denies that there has been any differentiation of treatment of Crimean Tatar cultural heritage that would put the Crimean Tatar community at a disadvantage. On the contrary, the Russian Federation submits, based on legislation, documents and photographic evidence, that it has undertaken measures to preserve the cultural heritage of the Crimean Tatar community. At the same time, the Court takes note of the Concluding Observations of the CERD Committee of 1 June 2023, referred to by Ukraine, according to which
“the Committee is deeply concerned about . . . [r]eports of the destruction of and damage to Crimean Tatar cultural heritage, including tombstones, monuments and shrines, and the lack of information on investigations carried out into such allegations and on other measures to prevent such vandalism . . . recommend[ing] that the State party . . . [e]ffectively investigate reports on the destruction of and damage to Crimean Tatar cultural heritage and adopt measures to prevent such acts” (CERD Committee, Concluding observations on the combined twenty-fifth and twenty-sixth periodic reports of the Russian Federation, doc. CERD/C/RUS/CO/25-26 (1 June 2023), paras. 23 (b) and 24 (b)).
334. The Court observes, however, that the CERD Committee does not take a position as to whether the respective reports are accurate and does not rely on first-hand evidence. Moreover, even if the preservation works undertaken by the Russian Federation with respect to the Khan's Palace were carried out negligently, the Court is not convinced that such negligence would amount to discrimination based on the ethnic origin of Crimean Tatars. The Court further finds that Ukraine has not sufficiently substantiated the alleged degradation of two other Crimean Tatar cultural sites. For these reasons, the Court is not convinced, based on the evidence provided by Ukraine, that the measures undertaken by the Russian Federation regarding the sites in question discriminate against the Crimean Tatars as a group.
335. With respect to the alleged violation of Article 6 of CERD, the Court notes that a challenge made in domestic courts by a member of the Crimean Tatar community against the use of certain contractors for the renovation works at the Khan's Palace was unsuccessful, while another court found that the same contractors had violated renovation standards when working on an object of cultural importance to the ethnic Russian community. However, the Russian Federation has given a plausible explanation for this differentiation of treatment, namely the lack of standing of the Crimean Tatar applicants, which is unrelated to the grounds contained in Article 1, paragraph 1, of CERD.
336. With respect to Ukraine's allegations concerning the degradation of certain aspects of the cultural heritage of ethnic Ukrainians, the Court is of the view that Ukraine has not established that any differentiation of treatment of persons affiliated with cultural institutions in Crimea was based on their ethnic origin. The Court notes that the Russian Federation has provided explanations for the measures taken against the persons in question that are unrelated to the prohibited grounds contained in Article 1, paragraph 1, of CERD. The Court also notes that the Russian Federation has produced evidence substantiating its attempts at preserving Ukrainian cultural heritage and has provided explanations for the measures undertaken with respect to that heritage. Ukraine, in turn, has not substantiated how the closure of certain institutions would amount to discrimination based on ethnic origin.
337. For these reasons, the Court concludes that it has not been established that the Russian Federation has violated its obligations under CERD by taking measures relating to the cultural heritage of the Crimean Tatar and the ethnic Ukrainian communities.
8. Measures relating to education
338. Ukraine asserts that the Russian Federation has used changes to the educational system in Crimea to promote Russian language and culture at the expense of Ukrainian and Crimean Tatar languages and cultures and has taken measures impeding the education of school children from the two communities, thereby violating the prohibition of acts and practices of racial discrimination under Article 2, paragraph 1 (a), of CERD, as well as the obligation under Article 5 (e) (v) of CERD to guarantee equality before the law in the enjoyment of the right to education and training.
339. Ukraine submits that the Russian Federation has pursued a strategy of cultural erasure by taking measures to prevent the culture of the Crimean Tatar and Ukrainian ethnic groups from being passed on to future generations through the educational system. The Applicant maintains that the radical shift in the Crimean educational system towards Russian language and culture will deprive Crimean Tatars and ethnic Ukrainians of future educational and job opportunities in their preferred country, forcing many Crimean families to relocate to mainland Ukraine in order to preserve the vestiges of their native culture. According to Ukraine, the Russian Federation's “occupation authorities” have worked overtly and covertly to limit opportunities for Crimean children to be taught in the Crimean Tatar or Ukrainian languages, accompanied by a new emphasis on Russian as the dominant language of tuition, and have reoriented both the curriculum and educational qualifications towards the Russian Federation. According to Ukraine, the changes that the Russian Federation has introduced to the Crimean education system have had a disparate impact on access to education and training in general across ethnic lines.
340. Ukraine explains that its claim does not presuppose a right to education in a minority language. To establish racial discrimination in violation of CERD, it is sufficient to show that the Russian Federation has removed access to minority language education for some ethnic groups and not others. In support of its claim, Ukraine refers to the Advisory Opinion in Minority Schools in Albania case in which the Permanent Court of International Justice applied the principle that “equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations” in a comparable situation.
341. Ukraine maintains that the Russian Federation has imposed restrictions on education in the Ukrainian and Crimean Tatar languages in Crimea since 2014. It alleges that many Crimean parents have found that their requests for Ukrainian- or Crimean Tatar-language instruction have been ignored by the “occupation authorities” and that other parents have felt unsafe even making such requests or under pressure to choose Russian-language education and have been harassed when daring to advocate for education in their children's native language.
342. Ukraine submits that, as a result of the Russian Federation's actions, the number of schools in Crimea serving the Ukrainian population and the number of ethnic Ukrainians in Crimea currently enrolled in Ukrainian-language schools have significantly decreased. Thus, according to Ukraine, in the 2013-2014 school year, general education in the Ukrainian language was provided to 12,694 children, however, in the following school year, the number of children receiving Ukrainian-language education fell to 2,154. In the 2015-2016 school year, that number was cut in half, reduced to less than 1,000 students. Of the seven Ukrainian-language educational institutions that existed in Crimea until 2014, only one remains in operation, and even this school had ceased instruction in Ukrainian in the first and second grades.
343. Regarding school education in the Crimean Tatar language, Ukraine claims that although the number of students receiving education in Crimean Tatar schools has remained relatively steady, the quality of education provided at these schools has decreased significantly since 2014. Until the 2017-2018 school year, textbooks were provided late, presented a heavily Russified version of history and portrayed Stalin as a hero — despite his deportation of Crimean Tatars in 1944. According to Ukraine, one tenth-grade history textbook depicted Crimean Tatars as Nazi collaborators in World War II, rehabilitating the stereotype propounded by Stalin as an excuse to deport Crimean Tatars from the Crimean peninsula in 1944. Finally, Ukraine alleges that the Russian “occupation authorities” have disrupted Ukrainian and Crimean Tatar education in Crimea by carrying out intrusive searches of the schools and educators serving those communities.
344. Ukraine alleges that, taken together, the evidence demonstrates not only the discriminatory effect of the Russian Federation's measures, but also their clear discriminatory purpose. According to Ukraine, that discriminatory purpose was made clear in June 2014, when the so-called Crimean Ministry of Education declared that studying the Crimean Tatar and Ukrainian languages “must not be conducted at the expense of instruction and study of the official language of the Russian Federation”.
*
345. The Russian Federation maintains that the right to education and training under Article 5 (e) (v) of CERD does not encompass a right to education in a minority language. It states that the prohibition of discrimination in relation to education refers to “the right of everyone regardless of ethnic origin to have access to a national educational system without discrimination”. It observes that Ukraine does not allege the existence of a right to education in a minority language under CERD and has not explained how its claim that the introduction of Russian-language education in Crimea has had a disparate impact on access to education and training across ethnic lines can stand if a specific right to education in a minority language does not exist.
346. The Russian Federation contends that the invocation by Ukraine of the Advisory Opinion of the Permanent Court of International Justice in Minority Schools in Albania is unfounded. It maintains that non-discriminatory access to public education is guaranteed in Crimea not only in the Russian language but also in Crimean Tatar and Ukrainian which are both recognized as official languages of the Republic of Crimea and which have been incorporated into the educational system.
The Respondent also argues that its legislation gives all Russian citizens the right to receive basic general education, which lasts for nine years, in one of the languages of the peoples of the Russian Federation, including the Ukrainian and Crimean Tatar languages. This length of general education reflects a policy choice of the Russian Federation. The Russian Federation contends that the decline in the demand for education in Ukrainian in Crimea does not in any event constitute a breach of CERD since the option to receive general education in the Ukrainian language has been maintained in the Crimean education system for everyone at all times since 2014. It presents witness statements by officials, including teachers and headmasters, according to whom schools are ready to provide education in Ukrainian should there be a demand, as well as other evidence seeking to demonstrate the accessibility of education in Ukrainian and Crimean Tatar languages in Crimea.
347. The Russian Federation does not contest that there has been a decline in the number of students opting to receive general education in the Ukrainian language since 2014, as alleged by Ukraine. However, it asserts that this decline was not due to any legal measure or constraint imposed by the Russian Federation. The Respondent presents several witness statements according to which the decrease in demand was caused by other reasons, including the reduced need for citizens to have their children receive education in the Ukrainian language, a utilitarian or pragmatic relationship to the Ukrainian language based on higher education opportunities, and restrictions on access to Ukrainian institutions of higher education established by Ukraine itself. Other factors included, according to the Russian Federation, the policy carried out by Ukraine before 2014, which consisted in forcibly imposing the Ukrainian language on students in education programmes, and the fact that some ethnic Ukrainians left Crimea after March 2014, mostly for Ukraine. The Russian Federation considers that Ukraine's allegations that requests from parents were ignored or that the parents were pressured into not choosing Crimean Tatar or Ukrainian as teaching languages are rebutted by the Russian Federation's explanations and unsupported by Ukraine's evidence.
348. With respect to education in the Crimean Tatar language, the Russian Federation maintains that it has significantly improved the conditions for those wishing to study in that language. It points out that 16 schools continue to offer full education in Crimean Tatar until the ninth grade and this number is not lower than it was before 2014. The Russian Federation disputes that the quality of education in the Crimean Tatar language is lower since 2014, offering different indicators in support, including with respect to funding.
349. The Russian Federation maintains that Ukraine's contention that textbooks “perpetuate Russian propaganda and hateful narratives, instead of historical fact” relies on only one textbook that mentioned that there were collaborators among Crimean Tatars at the time of World War II, just as there were collaborators among other ethnicities, including Russians. It adds that this element of the textbook was withdrawn after an appeal by the Crimean Tatar community.
350. With respect to the alleged discriminatory searches of Crimean Tatar and Ukrainian schools, the Russian Federation maintains that Ukraine has not established that these searches were discriminatory. The materials cited by Ukraine indicate that the operations took place mainly in religious schools and that the law enforcement authorities were looking for extremist literature as part of a preventive strategy against extremist religious organizations active in Crimea.
351. Finally, according to the Russian Federation, the point made in a letter of the Crimean Ministry of Education that studying the Crimean Tatar and Ukrainian languages “must not be conducted at the expense of instruction and study of the official language of the Russian Federation” was nothing more than a reminder of what the applicable federal law provides.
* *
352. The Court will examine whether the conduct of the Russian Federation with regard to education in Crimea qualifies as racial discrimination in the sense of Article 1, paragraph 1, of CERD and violates the obligations contained in Articles 2, paragraph 1 (a), 5 (e) (v) and 7.
353. Article 2, paragraph 1 (a), provides that
“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation”.
Article 5 (e) (v) provides that
“[i]n compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Economic, social and cultural rights, in particular:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(v) The right to education and training”.
354. The Court considers that, even if Article 5 (e) (v) of CERD does not include a general right to school education in a minority language, the prohibition of racial discrimination under Article 2, paragraph 1 (a), of CERD and the right to education under Article 5 (e) (v), may, under certain circumstances, set limits to changes in the provision of school education in the language of a national or ethnic minority. For those provisions to apply, the Court must first determine whether the conduct in question qualifies as racial discrimination within the meaning of Article 1, paragraph 1, of CERD.
355. Most of the measures complained of by Ukraine concern limitations to the availability of Ukrainian or Crimean Tatar as the language of instruction in primary schools. Language is often an essential social bond among the members of an ethnic group. Restrictive measures taken by a State party with respect to the use of language may therefore in certain situations manifest a “distinction, exclusion, restriction or preference based on . . . descent, or national or ethnic origin” within the meaning of Article 1, paragraph 1, of CERD.
356. States parties possess a broad discretion under CERD with respect to school curricula and with respect to the primary language of instruction. However, in designing and implementing a school curriculum, a State party may not discriminate against a national or ethnic group. The fact that a State chooses to offer school education in only one language does not, in and of itself, give rise to discrimination under CERD against members of a national or ethnic minority who wish to have their children educated in their own language.
357. Structural changes with respect to the available language of instruction in schools may constitute discrimination prohibited under CERD if the way in which they are implemented produces a disparate adverse effect on the rights of a person or a group distinguished by the grounds listed in Article 1, paragraph 1, of CERD, unless such an effect can be explained in a way that does not relate to the prohibited grounds in that Article (see paragraph 196 above). This would be the case, in particular, if a change in the education in a minority language available in public schools is implemented in such a way, including by means of informal pressure, as to make it unreasonably difficult for members of a national or ethnic group to ensure that their children, as part of their general right to education, do not suffer from unduly burdensome discontinuities in their primary language of instruction.
(a) Access to education in the Ukrainian language
358. With respect to school education in the Ukrainian language, the Court notes, and the Parties agree, that there was a steep decline in the number of students receiving their school education in the Ukrainian language between 2014 and 2016. According to the OHCHR,
“[t]he number of students undergoing instruction in Ukrainian language has dropped dramatically. In the 2013-2014 academic year, 12,694 students were educated in the Ukrainian language. Following the occupation of Crimea, this number fell to 2,154 in.2014-2015, 949 in.2015-2016, and 371 in.2016-2017 . . . Between 2013 and 2017, the number of Ukrainian schools decreased from seven to one, and the number of classes from 875 to 28.” (OHCHR report, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017), UN doc. A/HRC/36/CRP.3 (25 Sept. 2017), para. 197.)
359. There was thus an 80 per cent decline in the number of students receiving an education in the Ukrainian language during the first year after 2014 and a further decline of 50 per cent by the following year. It is undisputed that no such decline has taken place with respect to school education in other languages, including the Crimean Tatar language. Such a sudden and steep decline produced a disparate adverse effect on the rights of ethnic Ukrainian children and their parents.
360. The Russian Federation exercises full control over the public school system in Crimea, in particular over the language of instruction and the conditions for its use by parents and children. However, it has not provided a convincing explanation for the sudden and radical changes in the use of Ukrainian as a language of instruction, which produces a disparate adverse effect on the rights of ethnic Ukrainians. Here, the Parties disagree about the reasons for the decline in the number of students receiving their school education in the Ukrainian language after 2014.
361. The explanations put forward by the Russian Federation for the decline are not fully convincing. It is true that, in its report, the OHCHR considers “that the main reasons for this decrease include a dominant Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean residents to mainland Ukraine.” However, even considering that many ethnic Ukrainian families left Crimea after 2014, the Court is not convinced that this, together with the “reorientation of the Crimean school system towards Russia”, can alone account for a reduction of more than 90 per cent of genuine demand in Crimea for school instruction in the Ukrainian language.
362. Both Parties have submitted evidence to the Court regarding the degree of freedom of parents to choose Ukrainian as the principal language of instruction for their children. Ukraine has submitted witness statements according to which a significant number of parents and children have been subjected to harassment and manipulative conduct with a view to deterring them from articulating or pursuing their preference. The Russian Federation, on the other hand, has submitted witness statements according to which parents' choice of the language of instruction was genuine and not subject to pressure, as confirmed by a general unresponsiveness on the part of parents to some teachers' active encouragement to continue having their children receive instruction in Ukrainian.
363. The Court observes that the witness statements presented by both Parties were made by persons who are not disinterested in the outcome of the case. They are also not corroborated by reliable documentation. It should, however, be noted that the OHCHR has observed that “[p]ressure from some teaching staff and school administrations to discontinue teaching in Ukrainian language has also been reported”. Although the Court is unable to conclude, on the basis of the evidence presented, that parents have been subjected to harassment or manipulative conduct aimed at deterring them from articulating their preference, the Court is of the view that the Russian Federation has not demonstrated that it complied with its duty to protect the rights of ethnic Ukrainians from a disparate adverse effect based on their ethnic origin by taking measures to mitigate the pressure resulting from the exceptional “reorientation of the Crimean educational system towards Russia” on parents whose children had until 2014 received their school education in the Ukrainian language.
(b) Access to education in the Crimean Tatar language
364. With respect to school education in the Crimean Tatar language, the Court notes that Ukraine's claims concern the quality of the education available in that language, rather than its actual availability or a significant change in the number of students. The Court is unable to conclude, based on the evidence submitted by the Parties, that the quality of the education in the Crimean Tatar language has significantly deteriorated since 2014.
365. The Court notes with concern that there has been one instance of a textbook which referred to the history of the Crimean Tatar community in a discriminatory way. However, the Court considers that Ukraine has not refuted the assertion of the Russian Federation that this was an isolated case which was remedied following an appeal by representatives of the Crimean Tatar community.
366. The Court notes that Ukraine provided some evidence that religious schools attended by Crimean Tatar children were repeatedly searched by agents of the Russian Federation. The Court also takes note of the explanation given by the Russian Federation for these searches according to which they were undertaken for the purpose of identifying “extremist literature” distributed by “extremist religious organizations”. However, Ukraine has not convincingly established a disparate adverse effect on religious schools attended by Crimean Tatar persons as compared to religious schools attended by other ethnic groups of Muslim faith.
367. Regarding the alleged violation of the obligation under Article 7 of CERD, the Court recalls that this provision sets forth that
“States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention”.
368. The Court notes that Ukraine has alleged that some incidents took place which demonstrate, in its view, that the Russian Federation did not meet its obligations under Article 7. Such incidents include the use of the textbook described in paragraph 365 above and statements by teachers justifying the deportation of Crimean Tatars in 1944. The Court recalls that Article 7 requires States parties to take immediate and effective measures to prevent incidents such as those alleged by Ukraine. However, the evidence before the Court does not demonstrate that the Russian Federation failed to adopt immediate and effective measures against racial discrimination. The Court concludes that it has not been established that the Russian Federation has violated its obligation under Article 7 of CERD.
(c) Existence of a pattern of racial discrimination
369. To find whether the Russian Federation violated its obligations under CERD in the present case, the Court needs to determine if the violations found constitute a pattern of racial discrimination (see paragraph 161 above). The legislative and other practices of the Russian Federation with regard to school education in the Ukrainian language in Crimea applied to all children of Ukrainian ethnic origin whose parents wished them to be instructed in the Ukrainian language and thus did not merely concern individual cases. As such, it appears that this practice was intended to lead to a structural change in the educational system. The Court is therefore of the view that the conduct in question constitutes a pattern of racial discrimination. On the other hand, the Court is not convinced, based on the evidence before it, that the incidents with regard to school education in the Crimean Tatar language constitute a pattern of racial discrimination.
(d) Conclusion
370. In light of the above, the Court concludes that the Russian Federation has violated its obligations under Article 2, paragraph 1 (a), and Article 5 (e) (v) of CERD by the way in which it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language.
C. Remedies
371. Having established that the Russian Federation has violated its obligations under Article 2, paragraph 1 (a), of CERD and Article 5 (e) (v) of CERD (see paragraph 370 above), the Court now turns to the determination of remedies for this internationally wrongful conduct.
372. The Court recalls that, in respect of its claims under CERD, Ukraine has requested, in addition to a declaration of violations, the cessation by the Russian Federation of ongoing violations, guarantees and assurances of non-repetition, compensation and moral damages (see paragraph 27 above).
373. By the present Judgment, the Court declares that the Russian Federation has violated its obligations under Article 2, paragraph 1 (a), of CERD and Article 5 (e) (v) of CERD. It considers that the Russian Federation 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.
374. The Court does not find it necessary or appropriate to order any other remedy requested by Ukraine.
IV. Alleged violation of obligations under the Order on provisional measures of 19 April 2017
A. Compliance with provisional measures
375. In its final submissions, Ukraine requests the Court to adjudge and declare that:
“(l) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by maintaining limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.
(m) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by failing to ensure the availability of education in the Ukrainian language.
(n) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by aggravating and extending the dispute and making it more difficult to resolve by recognizing the independence and sovereignty of the so-called DPR and LPR and engaging in acts of racial discrimination in the course of its renewed aggression against Ukraine.”
376. The Court indicated the following provisional measures in its Order of 19 April 2017 (I.C.J. Reports 2017, pp. 140-141, para. 106):
“(1) With regard to the situation in Crimea, the Russian Federation must, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,
(a) Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis;
(b) Ensure the availability of education in the Ukrainian language;
(2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
377. The Parties disagree about whether the Russian Federation complied with the Court's Order of 19 April 2017.
* *
378. Ukraine alleges that the Russian Federation has violated the Court's Order of 19 April 2017 by failing to lift its ban on the Mejlis, by failing to ensure that education in the Ukrainian language is available in Crimea, and by aggravating the dispute and making it more difficult to resolve.
379. According to Ukraine, the Order clearly required the Russian Federation to revoke its ban on the Mejlis, which is necessarily a “limitation[] on the . . . Mejlis”. It points out that the Russian Federation has not lifted the ban. Ukraine rejects the interpretation put forward by the Russian Federation which would be tantamount to treating the obligations under the first provisional measure as self-judging. In its view, this reading is incompatible both with the precise text of the first provisional measure, as well as with the binding character of provisional measures generally. Ukraine argues that if the Court were to follow this interpretation, any State before the Court would be free to ignore a provisional measures order solely based on its belief that it might someday prevail on the merits.
380. Ukraine also submits that the Russian Federation has violated the Order as far as language education is concerned. It claims that since the Russian Federation took control of Crimea, the number of students receiving Ukrainian-language education has declined by nearly 100 per cent. More specifically, Ukraine maintains that of the seven Ukrainian-language education institutions that existed in 2014, only one remains and that even in this school Ukrainian is only taught as a subject to a few classes in specific grades. According to Ukraine, this sharp decline is not due to a lack of demand, but to the fact that parents are harassed and discouraged from selecting a Ukrainian- language education for their children and that resources for Ukrainian-language education in Crimea are dwindling sharply.
381. Finally, Ukraine submits that the Russian Federation, through its conduct subsequent to the adoption of the Order of 19 April 2017, aggravated the dispute between the Parties both in respect of the ICSFT and of CERD.
382. Regarding the ICSFT, Ukraine argues that the dispute is defined by the Application filed by Ukraine, which requests the Court to declare that the Russian Federation must
“immediately provide full co-operation to Ukraine in all pending and future requests for assistance in the investigation and interdiction of the financing of terrorism relating to illegal armed groups that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals”.
In its view, the Russian Federation aggravated the dispute by formally and retrospectively endorsing the acts undertaken by armed groups in eastern Ukraine, by recognizing the DPR and LPR, by providing them with financial and military assistance and by invading Ukraine's territory in 2022.
383. Regarding CERD, Ukraine claims that the Russian Federation has aggravated the dispute by various statements and other efforts subsequent to the adoption of the Order of 19 April 2017 which have perpetuated and aggravated racial discrimination against ethnic Ukrainians and Crimean Tatars. Ukraine points, inter alia, to a statement by the CERD Committee of June 2023 criticizing the Russian Federation for its “[i]ncitement to racial hatred and propagation of racist stereotypes against ethnic Ukrainians, in particular on State-owned radio and television networks, . . . as well as by public figures and government officials”. Ukraine also refers to recent statements made by President Putin, who characterized Ukrainians as Nazis and denied the existence of a separate Ukrainian people and the right of Ukrainians to their own State.
*
384. The Russian Federation denies that it has violated the Court's Order indicating provisional measures.
385. The Russian Federation is of the view that the first measure does not necessarily require it to lift or suspend the ban on the activities of the Mejlis, since this measure only requires that it take measures in keeping with its obligations under CERD. Consistent with the fact that rights under CERD are not unlimited, it would be difficult, according to the Russian Federation, to imagine that the Court would demand that States parties to CERD renounce their right to maintain their national security and public order. The Russian Federation maintains that, it has genuinely been addressing the situation of the Mejlis without at the same time hampering the principle of the rule of law and undermining the protection of national security.
386. Regarding the measure concerning access to education in the Ukrainian language, the Russian Federation does not dispute the fact that there has been a decline in the number of students being taught in Ukrainian. In its view, this decline stems from the low demand for education in the Ukrainian language subsequent to what it considers the change in sovereignty in Crimea. It maintains that, despite the low demand for teaching in Ukrainian, the Russian Federation has never restricted that possibility or obstructed students' wishes to study in Ukrainian. The Russian Federation maintains that such access is not denied to those who wish to pursue it and that Ukrainian can be the language of instruction for students upon request. The Respondent asserts that possibilities to study Ukrainian at various Crimean universities continue to exist.
387. Finally, as far as the third measure is concerned, the Russian Federation is of the view that the case before the Court is limited in scope and that events that have unfolded since February 2022, which Ukraine invokes, bear no relation to the present proceedings. In its view, this is illustrated by the fact that Ukraine brought a separate Application invoking the Genocide Convention with respect to the events occurring since February 2022. Moreover, the Respondent claims that the Russian Federation has actively sought a negotiated settlement between the Parties in the context of the present case, which was rejected by Ukraine as inappropriate. In this regard, the Russian Federation points out that the Court has previously held that “pending a decision of the Court on the merits, any negotiation between the Parties with a view to achieving a direct and friendly settlement is to be welcomed”.
* *
388. The Court recalls that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109).
389. The Court will address the question of compliance with each of the provisional measures contained in its Order of 19 April 2017 in.turn.
With respect to the first provisional measure, the Court recalls that it ordered that
“(1) With regard to the situation in Crimea, the Russian Federation must, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,
(a) Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis”.
390. Ukraine claims that the Russian Federation has violated this measure by not lifting the ban on the Mejlis. It is uncontested between the Parties that the Russian Federation has neither suspended nor lifted the ban on the Mejlis. However, the Parties disagree about whether the chapeau of the provisional measure, by its reference to CERD, can be interpreted as leaving a margin of discretion for the Russian Federation as to how to implement its obligations under the measure.
391. The Court recalls that obligations arising from provisional measures bind the parties independently of the factual or legal situation which the provisional measure in question aims to preserve (see Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015 (II), p. 665, para. 129). The Court is of the view that the reference in the Order of 19 April 2017 to the obligations of the Russian Federation under CERD does not provide any scope for the Russian Federation to assess, for itself, whether the ban on the Mejlis and the confirmation of the ban by the Russian courts were, and remain, justified. The formulation in the chapeau “in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination” refers to the source of the rights which the measure seeks to preserve and does not qualify the measure nor confers discretion upon the Party addressed to decide whether or not to implement the measure indicated.
392. The Court therefore finds that the Russian Federation, by maintaining the ban on the Mejlis, has violated the Order indicating provisional measures. The Court notes that this finding is independent of the conclusion set out above (see paragraph 275 above) that the ban on the Mejlis does not violate the Russian Federation's obligations under CERD.
393. With respect to the second provisional measure, the Court recalls that it ordered that
“(1) [w]ith regard to the situation in Crimea, the Russian Federation must, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) [e]nsure the availability of education in the Ukrainian language”.
394. The Court notes that the Order of 19 April 2017 required the Russian Federation to ensure that education in the Ukrainian language remains “available”. In this regard, the Court takes note of a report by the OHCHR, according to which “instruction in Ukrainian was provided in one Ukrainian school and 13 Ukrainian classes in Russian schools attended by 318 children” (OHCHR, Report on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and city of Sevastopol, Ukraine, 13 September 2017 to 30 June 2018, UN doc. A/HRC/39/CRP.4, para. 68), which confirms that instruction in the Ukrainian language was available after the adoption of the Order. While Ukraine has shown that a sharp decline in teaching in the Ukrainian language took place after 2014, it has not been established that the Russian Federation has violated the obligation to ensure the availability of education in the Ukrainian language contained in the Order indicating provisional measures.
395. The Court therefore concludes that the Russian Federation has not violated the Order in so far as it required the Respondent to ensure the availability of education in the Ukrainian language.
396. In the Order indicating provisional measures, the Court also stated that “[b]oth Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
397. The Court observes that, subsequent to the Order indicating provisional measures, the Russian Federation recognized the DPR and LPR as independent States and launched a “special military operation” against Ukraine. In the view of the Court, these actions severely undermined the basis for mutual trust and co-operation and thus made the dispute more difficult to resolve.
398. For these reasons, the Court concludes that the Russian Federation violated the obligation under the Order to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
B. Remedies
399. In its final submissions, Ukraine also requests the Court to adjudge and declare that the Russian Federation is required to:
“(l) Provide full reparation for the harm caused for its actions, including restitution, financial compensation and moral damages, in its own right and as parens patriae for its citizens, for the harm Ukraine has suffered as a result of Russia's violations of the Court's Order of 19 April 2017, with such compensation to be quantified in a separate phase of these proceedings.
(m) Regarding restitution: restore the Mejlis' activities in Crimea and its members and all their rights, including their properties, retroactive elimination of all Russian administrative and other measures contrary to the Court's Order and release of members of Mejlis currently in jail.”
400. The Court recalls that orders indicating provisional measures create a legal obligation for the States involved (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 110) and that it is well established in international law that “the breach of an engagement involves an obligation to make reparation in an adequate form” (Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21).
401. The Court considers that its declaration that the Russian Federation has breached the Order indicating provisional measures by maintaining the ban on the Mejlis and has breached its obligations under the non-aggravation measure contained in the same Order provides adequate satisfaction to Ukraine.
402. Regarding Ukraine's requests for restitution with respect to the Mejlis, the Court finds that, since it has concluded that the ban on the Mejlis does not violate the Russian Federation's obligations under CERD (see paragraph 275 above), no restitution can be due after the date of this finding, the assessment at the provisional measures stage having not been confirmed on the merits.
403. The Court does not find it necessary or appropriate to order any other remedy requested by Ukraine.
*
* *
404. For these reasons,
The Court,
(1) By thirteen votes to two,
Finds that the Russian Federation, by failing to take measures to investigate facts contained in information received from Ukraine regarding persons who have allegedly committed an offence set forth in Article 2 of the International Convention for the Suppression of the Financing of Terrorism, has violated its obligation under Article 9, paragraph 1, of the said Convention;
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Pocar;
AGAINST: Judge Xue; Judge ad hoc Tuzmukhamedov;
(2) By ten votes to five,
Rejects all other submissions made by Ukraine with respect to the International Convention for the Suppression of the Financing of Terrorism;
IN FAVOUR: Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Salam, Iwasawa, Nolte, Brant;
Judge ad hoc Tuzmukhamedov;
AGAINST: President Donoghue; Judges Sebutinde, Bhandari, Charlesworth; Judge ad hoc Pocar;
(3) By thirteen votes to two,
Finds that the Russian Federation, by the way in which it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language, has violated its obligations under Articles 2, paragraph 1 (a), and 5 (e) (v) of the International Convention on the Elimination of Racial Discrimination;
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Xue, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Pocar;
AGAINST: Judge Yusuf; Judge ad hoc Tuzmukhamedov;
(4) By ten votes to five,
Rejects all other submissions made by Ukraine with respect to the International Convention on the Elimination of Racial Discrimination;
IN FAVOUR: Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Salam, Iwasawa, Nolte, Brant;
Judge ad hoc Tuzmukhamedov;
AGAINST: President Donoghue; Judges Sebutinde, Bhandari, Charlesworth; Judge ad hoc Pocar;
(5) By eleven votes to four,
Finds that the Russian Federation, by maintaining limitations on the Mejlis, has violated its obligation under paragraph 106 (1) (a) of the Order of 19 April 2017 indicating provisional measures;
IN FAVOUR: President Donoghue; Judges Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Pocar;
AGAINST: Judges Tomka, Xue, Brant; Judge ad hoc Tuzmukhamedov;
(6) By ten votes to five,
Finds that the Russian Federation has violated its obligation under paragraph 106 (2) of the Order of 19 April 2017 indicating provisional measures to refrain from any action which might aggravate or extend the dispute between the Parties, or make it more difficult to resolve;
IN FAVOUR: President Donoghue; Judges Tomka, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Pocar;
AGAINST: Judges Abraham, Bennouna, Yusuf, Xue; Judge ad hoc Tuzmukhamedov;
(7) By eleven votes to four,
Rejects all other submissions made by Ukraine with respect to the Order of the Court of 19 April 2017 indicating provisional measures.
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Salam, Iwasawa, Brant; Judge ad hoc Tuzmukhamedov;
AGAINST: Judges Sebutinde, Nolte, Charlesworth; Judge ad hoc Pocar.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this thirty-first day of January, two thousand and twenty-four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of Ukraine and the Government of the Russian Federation, respectively.
(Signed) Joan E. DONOGHUE,
President.
(Signed) Philippe GAUTIER,
Registrar.
President DONOGHUE appends a separate opinion to the Judgment of the Court; Judges TOMKA, ABRAHAM, BENNOUNA and YUSUF append declarations to the Judgment of the Court; Judge SEBUTINDE appends a dissenting opinion to the Judgment of the Court; Judges BHANDARI, IWASAWA and CHARLESWORTH append separate opinions to the Judgment of the Court; Judge BRANT appends a declaration to the Judgment of the Court; Judge ad hoc POCAR appends a separate opinion to the Judgment of the Court; Judge ad hoc TUZMUKHAMEDOV appends a separate opinion, partly concurring and partly dissenting, to the Judgment of the Court.
(Initialled) J.E.D.
(Initialled) Ph.G.
Ban on Mejlis violated obligations under CERD — Violation of obligations under Article 12 ICSFT — Agreement with Court's decisions regarding alleged violations of obligations created by Provisional Measures Order of 19 April 2017.
1. I submit this separate opinion to indicate the reasons why I voted against two subparagraphs in the dispositive paragraph of the Judgment. I also comment on the Court's decision regarding the alleged violations of the obligations created by the Order on the indication of provisional measures of 19 April 2017 (hereinafter the “Order”).
I. The ban on the Mejlis
2. I consider that the Court should have held that, by banning the Mejlis, the Russian Federation violated its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “CERD”).
3. Article 1, paragraph 1, of CERD provides that
“the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
Pursuant to Article 2, paragraph 1 (a), of CERD, each State party “undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions”.
4. Read together, and focusing on the elements of Articles 1 and 2 that are of particular relevance to the ban on the Mejlis, these two provisions obligate State parties, inter alia, not to impose on a group of persons or an institution any restriction based on ethnic origin that has the purpose or effect of nullifying or impairing the enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political or any other field of public life.
5. While Ukraine asserts that the ban on the Mejlis violated obligations set out in Articles 2, 4, 5 and 6, I consider that the ban has particular implications for the rights of the members of the Mejlis to equality before the law, without distinction as to ethnic origin, in the enjoyment of civil and political rights, including the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association (Article 5, paragraph (d) (viii) and (ix)).
6. I set out here three comments on the application of CERD to the ban on the Mejlis.
7. My first comment is that the question whether the ban on the Mejlis violated the obligations of the Russian Federation under CERD must be answered in light of the legal framework on which the ban was based.
8. The Russian Federation banned the Mejlis through a series of measures imposed on the basis of Articles 9 and 10 of the Russian Federation's Law on Combatting Extremist Activity (Federal Law 114-FZ of 2002 (as amended)) (hereinafter the “Anti-Extremism Law”). In particular, in February 2016, the Prosecutor of the Republic of Crimea applied to the Supreme Court of the Republic of Crimea for recognition of the Mejlis as an extremist organization and for banning its activities. On 12 April 2016, the Prosecutor decided to suspend the activities of the Mejlis pending the decision of the Supreme Court of Crimea and, on 18 April 2016, the Ministry of Justice of the Russian Federation ordered the inclusion of the Mejlis in the “List of public associations and religious organizations whose operation is suspended in view of their extremist activities”. The Supreme Court of Crimea ruled, on 26 April 2016, that the Mejlis was an extremist organization and banned its activities pursuant to Article 9 of the Anti-Extremism Law, a decision that was upheld on 29 September 2016 by the Supreme Court of the Russian Federation.
9. In today's Judgment, the Court concludes that the domestic legal framework on the basis of which the Russian Federation took certain measures towards members of the Crimean Tatar community, which includes the Anti-Extremism Law, does not in and of itself constitute a violation of CERD. Even if this conclusion is formally correct, the Court's analysis of the ban on the Mejlis fails to take into account the ways in which an anti-extremism law can facilitate violations of human rights, including the rights protected by CERD. In this regard, I note that the notions of “terrorism” and “extremism” cannot be equated. Although there is no internationally accepted definition of either term, the notion of “terrorism” usually connotes concrete violent acts, such as the predicate acts that are identified in the International Convention for the Suppression of the Financing of Terrorism (hereinafter the “ICSFT”). “Extremism” is a broader term that includes the expression and manifestation of certain views, which means that anti-extremism laws are well suited to the suppression of civil and political rights, including freedom of expression and freedom of assembly.
10. The Respondent argues that the ban on the Mejlis on the basis of the Anti-Extremism Law was a “legitimate limitation to the exercise of a right” for security reasons. According to the Russian Federation, such “limitations provided for in Russian law comply with the principle of legality in international law: the applicable domestic law offers a clear and specific understanding of the targeted offences” (Counter-Memorial of the Russian Federation, Part II, paras. 153-163).
11. There is, however, no clarity or specificity in the “offences” targeted by the Anti-Extremism Law. As the CERD Committee has observed, this law is vague and broad, lacks clear and precise criteria and contains far-reaching definitions that can be “used arbitrarily to silence individuals, in particular those belonging to groups vulnerable to discrimination, such as ethnic minorities, indigenous peoples or non-citizens” (Committee on the Elimination of Racial Discrimination, Concluding observations on the twenty-third and twenty-fourth periodic reports of the Russian Federation, 20 September 2017, p. 2, para. 11; see also Human Rights Committee, Concluding observations on the seventh periodic report of the Russian Federation, 28 April 2015, p. 9). Of particular relevance to the measures imposed on ethnic minorities, this law includes in the definition of extremism the “stirring up of social, racial, ethnic or religious discord”.
12. I therefore consider that, in light of its vague, open-ended and far-reaching provisions, the use of the Anti-Extremism Law to ban an organization with an unquestionably ethnic character, such as the Mejlis, must be subjected to particularly close scrutiny.
13. My second comment relates to the assertion by the Russian Federation, which was embraced by the Court, that the ban on the Mejlis was adopted in response to political positions and activities of the leaders of the Mejlis and its members, rather than on grounds of their ethnic origin, and was thus not an act of racial discrimination (Judgment, paras. 271-272). The Court has previously observed, in applying a treaty provision that calls for consideration of the “purposes” of a State's measure, that “a State often seeks to accomplish more than one goal when it pursues a particular policy” (Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014, p. 260, para. 97). This observation, while made in a very different context, rings true in the present case.
14. Even if one accepts the Court's conclusion that the ban on the Mejlis was based on the political activities of the leaders and members of the Mejlis in opposition to the Russian Federation, this conclusion does not foreclose the possibility that the ban was also based on race and had the purpose or the effect of nullifying or impairing the enjoyment or exercise of certain rights and freedoms by persons of Crimean Tatar ethnic origin.
15. This possibility is illustrated by an observation made by Professor Sandra Fredman in her second expert report (Reply of Ukraine, Annexes, Vol. I, Ann. 5, Second expert report of Professor Sandra Fredman, 21 April 2022, para. 27), in which she noted that the Soviet Union's expulsion of the Crimean Tatars from Crimea in 1944, based on an assertion that they had collaborated with the Nazis, could have been characterized as having a political motivation, but, had CERD been in force at that time, the expulsion would have been contrary to its provisions since it also had the purpose or effect of nullifying the rights of the affected Crimean Tatars.
16. For these reasons, a conclusion that the ban on the Mejlis was imposed in response to the political activities of the group or its leaders, in particular the opposition to the change in status of Crimea, even if established by evidence, would be insufficient to exclude a finding that the ban also amounted to racial discrimination.
17. In relation to the Crimean Tatars, it is especially problematic to insist that their ethnic identity can be isolated from their “political” views. I call attention to a point that the Court made in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), where the Court found that the term “national or ethnic origin” in Article 1, paragraph 1, of CERD did not encompass current nationality (I.C.J. Reports 2021, p. 106, para. 105). To substantiate this conclusion (with which I agree) the Court distinguished the concept of current nationality from “national or ethnic origin”, stating that the latter term (which appears in Article 1, paragraph 1, of CERD) refers to characteristics that are inherent at birth (ibid., p. 98, para. 81).
18. In considering the situation of ethnic Ukrainians and Crimean Tatars in Crimea, I have come to recognize the extent to which this observation by the Court may be an oversimplification. As Professor Fredman observes, human rights instruments have recognized that “ethnic minorities have political concerns which are closely bound up with their ethnic identity” (Second expert report of Professor Sandra Fredman, 21 April 2022, para. 50). The distinct ethnic identity of a particular group goes beyond shared physical characteristics and can be forged or strengthened by a variety of forces, including the way in which that group is characterized and treated by governmental authorities (see e.g. International Criminal Tribunal for Rwanda, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, Judgment of 2 September 1998, para. 702).
19. In order to appreciate the reasons for the strong opposition of many Crimean Tatars to events in 2014 that placed their homeland once again under the control of Russian authorities in Moscow, it is necessary to recall the history of the group. The Russian Empire encouraged emigration by Crimean Tatars in the nineteenth century. In May 1944, the State Defense Committee of the Soviet Union ordered the expulsion of Crimean Tatars from Crimea, in the exile known as the Sürgün, an event that one former leader of the Mejlis described as “the most horrible catastrophe in the history” of the Crimean Tatar people (Memorial of Ukraine, Annexes, Vol. I, Ann. 16, Witness statement of Mr Mustafa Dzhemiliev, 31 May 2018, para. 4). After the deportation and expulsion of Crimean Tatars from Crimea, Soviet authorities also abolished the ethnonym “Crimean Tatar” and thereafter issued internal passports listing the nationality of members of that group as “Tatar”, making them indistinguishable from other Tatars living in the Soviet Union (Memorial of Ukraine, Annexes, Vol. I, Ann. 21, Expert report of Professor Paul Magocsi, 4 June 2018, para. 34).
20. As Professor Magocsi explains, during their exile from Crimea, Crimean Tatars depended on cultivating historical memory as the primary means to sustain their ethnic identity. He observes that the purpose of the annual commemoration of the Sürgün was to “embed in the hearts and minds of the living that there was nothing more tragic than May 18 in.the modern history of Crimea and its Crimean Tatars” (Expert report of Paul Magocsi, 4 June 2018, para. 76).
21. It is thus unsurprising that many persons of Crimean Tatar ethnic origin have opposed the reassertion of control over their Crimean homeland by Moscow in 2014. The Mejlis played a central role in mobilizing the Crimean Tatar community to oppose what Ukraine calls the “purported referendum” on Crimea's future, held on 16 March 2014. For example, it organized a rally in Simferopol on 26 February 2014 for the “preservation of Ukraine's territorial integrity” (Memorial of Ukraine, para. 367) and appealed to all Crimean Tatars to boycott the “so-called ‘referendum’” (Memorial of Ukraine, Annexes, Vol. I, Ann. 16, Witness statement of Mr Mustafa Dzhemiliev, 31 May 2018, para. 28). The Office of the United Nations High Commissioner for Human Rights stated that, according to Crimean Tatar representatives, no more than 1,000 Crimean Tatars voted in the referendum, out of a total population of 290,000-300,000 (Memorial of Ukraine, para. 373, footnote 785; Memorial of Ukraine, Annexes, Vol. III, Ann. 44, Office of the High Commissioner for Human Rights: Report on Human Rights Situation in Ukraine, 15 April 2014, para. 6, fn. 2). These events and others validate the assertion by Ukraine that a characteristic of many members of the Crimean Tatar community after the events of early 2014 was their “loyalty to the principle of Crimea as part of independent Ukraine” (Memorial of Ukraine, para. 382). The Mejlis was the central body espousing this position on behalf of the Crimean Tatar ethnic group until it was suspended and ultimately banned.
22. Against this background, I find particularly problematic that the Judgment insists on a bright-line distinction between the political views espoused by the Mejlis and the ethnic origin of its members. In light of the background and history of the Crimean Tatar ethnic group explained above, I cannot agree with this distinction.
23. My third comment arises from the Court's conclusion that the ban on the Mejlis did not violate CERD by depriving the wider Crimean Tatar population of its representation because the Mejlis is neither the only nor the primary institution representing the Crimean Tatar community, and other such institutions have not been banned. The Court sees no need to consider whether the Crimean Tatar institutions established after 2014 genuinely represent the Crimean Tatar people (Judgment, para. 269).
24. It is to be expected that all members of an ethnic minority do not hold identical views on government decisions that affect the ethnic group and that some organizations representing an ethnic group will stridently oppose the authorities in power, while others will adopt a more accommodationist approach towards those authorities. I do not accept the proposition that a ban on one particular organization representing an ethnic group would not amount to racial discrimination so long as other organizations comprised of members of that ethnic group have not been banned.
25. I therefore do not agree that the continued existence of other organizations of Crimean Tatars supports the conclusion that the Russian Federation did not engage in racial discrimination when it banned the Mejlis.
26. The Anti-Extremism Law, through its vagueness and breadth, authorizes the imposition of highly intrusive measures on persons and groups on the basis, inter alia, of “stirring up . . . ethnic . . . discord”. It is a tool exceptionally well suited for discrimination against groups that espouse views on behalf of members of an ethnic minority that clash with the policies of the Government of the Russian Federation. The Russian Federation invoked this Law to ban the continued existence of an entity comprised entirely of members of one ethnic group. As the Court acknowledges, the ban had the effect of excluding the Mejlis from public life (Judgment, para. 267). Even if the ban had the purpose of silencing the “political” views of the Mejlis, its leaders and its members, those views cannot be isolated from the ethnicity of its members. The ban must be seen as having been based, at least in part, on their ethnic origin. The evidence available to the Court establishes that the ban had the purpose or effect of nullifying or impairing the enjoyment on equal footing of the rights of the Crimean Tatar members of the group, in particular their rights to freedom of expression and of association. The Court should have found that the ban on the Mejlis was an act of racial discrimination in violation of the obligations of the Russian Federation under CERD.
II. The failure to provide the greatest measure of assistance as required by Article 12 of the ICSFT
27. I consider that the Court should have found a violation by the Russian Federation of its obligations under Article 12, paragraph 1, of the ICSFT. For this reason, I voted against subparagraph (2) of the dispositive paragraph of the Judgment.
28. The Judgment identifies three requests by Ukraine for mutual legal assistance concerning persons identified as nationals of or present in the territory of the Russian Federation who were allegedly involved in fundraising for the benefit of the “Donetsk People's Republic” (“DPR”) or the “Lugansk People's Republic” (“LPR”). The Court concludes that these requests did not give rise to an obligation by the Russian Federation under Article 12 because none of the three requests described in any detail the commission of alleged predicate acts by the recipients of the provided funds, nor did the requests indicate that the alleged funders knew that the funds provided would be used for the commission of predicate acts (Judgment, para. 130).
29. I disagree with this conclusion and the reasoning leading to it. I instead consider that the Russian Federation violated its obligations under Article 12 in.relation to at least one of the requests for mutual legal assistance. In the overall context of the present case, one violation of a procedural requirement may seem unworthy of a dissenting vote and separate opinion. However, I feel compelled to set out my views here because I consider that the Judgment sets out criteria for the application of Article 12 that are neither stated nor suggested in the ICSFT, fails to apply other relevant treaty provisions and ignores relevant jurisprudence of the Court.
30. Article 12, paragraph 1, requires a State party to afford another State party “the greatest measure of assistance” in connection, inter alia, with criminal investigations or criminal proceedings in respect of the offences set forth in Article 2. This obligation is not conditioned on the provision by the requesting State of any of the information that the Court found to be required, such as evidence of the knowledge of alleged funders or of the commission of predicate acts. The Judgment gives no justification for grafting such requirements onto a mutual legal assistance provision.
31. In common with mutual legal assistance provisions in many multilateral treaties calling for co-operation in certain international criminal matters, Article 12 does not set out either the conditions under which mutual legal assistance must be granted or any exceptions to the obligation to provide the “greatest measure of assistance”. Instead, Article 12, paragraph 5, of the ICSFT specifies that States parties shall do so in conformity with other applicable treaties or arrangements on mutual legal assistance. The Parties pointed to two treaties on mutual legal assistance that are in force between the Russian Federation and Ukraine (both of which are cited in the three requests by Ukraine and the responses thereto of the Russian Federation), so it is necessary to consider the provisions of those treaties in order to determine whether the Russian Federation met its obligations under Article 12.
32. The first of these treaties is the 1959 European Convention on Mutual Assistance in Criminal Matters. It requires States parties to provide “the widest measure of mutual assistance” and specifies that assistance may be refused in two circumstances: first, if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence or a fiscal offence and, secondly, if the requested Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests of its country. The European Convention provides that a request for mutual assistance shall contain certain information, such as identifying details of the person concerned and person to be served. It also specifies that “[r]easons shall be given for any refusal of mutual assistance”.
33. The second mutual legal assistance treaty is the 1993 Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, as amended by a 1997 Protocol, which requires the judicial institutions of the Contracting Parties to provide legal assistance in accordance with the provisions of the Convention. The Minsk Convention sets out certain requirements for requests for legal assistance, including identification of the matter for which assistance is being requested and the names and identifying details of persons who are the subject of the request. It also requires, for criminal matters, that the request include “a description and classification of the committed act and information regarding the amount of any damage caused by the act”. The Minsk Convention further provides that a request for legal assistance “may be refused in part or in full if granting such assistance may prejudice the sovereignty or security of, or contradict the legislation of, the requested Contracting Party. In the event that a request for legal assistance is denied, the requesting Contracting Party shall immediately be notified of the reasons for refusal.”
34. Article 12 of the ICSFT, read together with the two mutual legal assistance treaties, therefore requires a requested party to afford to a requesting party the “greatest measure of assistance”. The requested party is not required to provide such assistance if one of the exceptions applies but, if it refuses to provide assistance, it is obligated to inform the requesting party of the reasons for its refusal.
35. The Court had occasion to address very similar mutual legal assistance provisions in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), in which the applicant alleged that the respondent had violated certain obligations under the Convention on Mutual Assistance in Criminal Matters between France and Djibouti. That convention obligates the parties to afford each other “the widest measure of mutual assistance”. Article 2, paragraph (c), of the convention permits a requested State to refuse to provide assistance in certain circumstances. The convention also specifies that “[r]easons shall be given for any refusal of mutual assistance” (Article 17).
36. Applying these provisions to a failure by France to provide assistance to Djibouti, the Court said that a “bare reference” to Article 2, paragraph (c) would not meet the obligation to provide reasons set out in Article 17, stating that “[s]ome brief further explanation was called for. This is not only a matter of courtesy. It also allows the requested State to substantiate its good faith in refusing the request. It may also enable the requesting State to see if its letter rogatory could be modified so as to avoid the obstacles to implementation enumerated in Article 2” (Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 231, para. 152). I note that the Court was prudent in not requiring more than a “brief” explanation of the reasons why a request for assistance was refused. The level of detail sufficient to meet a requirement to give reasons for a refusal may vary, depending on the particular exception invoked by a requested party.
37. I turn now to the three requests that the Court highlights in the Judgment and as to which it considers that no obligation arose for the Russian Federation under Article 12.
38. On 11 November 2014, Ukraine presented a request for mutual legal assistance in a specified pre-trial investigation, referring to both the Minsk Convention and the European Convention. The request indicated that a particular individual had, inter alia, raised funds for the LPR. It sought various forms of assistance, including the questioning of witnesses and the provision of information related to bank accounts and identity documents. The Russian Federation responded over nine months later, on 17 August 2015, stating that the request could not be executed based on Article 2, paragraph (b), of the European Convention and Article 19 of the Minsk Convention, “because the requested assistance may harm the sovereignty, security and other vital interests of the Russian Federation”.
39. Ukraine filed the second request on 3 December 2014, once again citing the Minsk Convention and the European Convention. It stated that Ukraine was conducting a pre-trial investigation into a particular person suspected of funding the LPR. Ukraine requested, inter alia, assistance in the questioning of witnesses and information regarding a bank account and identity documents. The 17 August 2015 response of the Russian Federation was identical to the response to the first request.
40. Ukraine made the third request addressed by the Court on 28 July 2015, citing the European Convention and the Minsk Convention. The request stated that a particular individual had been involved, inter alia, in the provision of financing to extralegal armed groups operating in Ukraine. The request asked for assistance, inter alia, in determining the place of residence of this individual (and others) and in delivering the written charge sheet to him. The Russian Federation responded seven months later, stating that the request “has been found impossible to satisfy due to the grounds provided” in Article 2, paragraph (b), of the European Convention and Article 19 of the Minsk Convention.
41. Thus, in each case, there was a significant delay in the response of the Russian Federation. The first two responses did not indicate the factual basis for the invocation of exceptions in the European Convention and the Minsk Convention, but did identify the particular exceptions invoked by the Russian Federation. The third response by the Russian Federation did not even mention the particular exceptions, containing only what the Court had previously called “bare references” to article and paragraph numbers in the mutual legal assistance treaties. Even if the first two responses might be considered sufficient to meet the requirement of setting out reasons, the third response would not have satisfied the test that the Court set out in Certain Questions of Mutual Assistance in Criminal Matters.
42. The Financial Action Task Force stated in 2019 that “[the] Russia[n] [Federation] generally provides [mutual legal assistance] in a constructive and timely manner” (Anti-money laundering and counter-terrorist financing measures — Russian Federation, Fourth Round Mutual Evaluation Report, para. 607). These general practices stand in sharp contrast to the manner in which the Russian Federation responded to the three requests for assistance addressed in the Judgment, which was neither timely nor constructive. The Russian Federation cannot be said to have met its obligation to provide the greatest measure of assistance to Ukraine. The Court therefore should have concluded that the Russian Federation violated its obligations under Article 12 of the ICSFT.
III. Alleged violations of obligations under the Order of 19 April 2017
43. Ukraine alleges that the Russian Federation violated three obligations set out in the Order.
44. The Order explicitly and specifically required the Russian Federation to refrain from maintaining limitations on the ability of the Crimean Tatar community to conserve its representative institutions, “including the Mejlis”. The fact that the Russian Federation instead maintained the ban is not in dispute. For me, the conclusion that the Russian Federation violated the obligation set out in the Order is not in doubt.
45. I reach the opposite conclusion with respect to the alleged violation of the measure requiring the Russian Federation to “[e]nsure the availability of education in the Ukrainian language”. I share the view of Judge ad hoc Skotnikov, who voted in favour of this measure in 2017, observing that it was a measure of a “general and non-controversial nature” (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 (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, separate opinion of Judge ad hoc Skotnikov, p. 223, para. 3). In the Order (para. 97), the Court referred to reports that showed, prima facie, that there had been restrictions in terms of the availability of Ukrainian-language education in Crimean schools. However, unlike the measure related to the Mejlis, the Court did not indicate that the Russian Federation was required to reverse actions that it had taken between 2014 and the adoption of the Order three years later.
46. The third measure imposed in the Order required both Parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”. Relations between the Parties were strained when the Order was issued in 2017. I am convinced that the two actions of the Russian Federation to which the Judgment refers (para. 397) — the launch in 2022 of the “special military operation” and the recognition as independent States of the DPR and LPR — had such a sharp and negative impact on the Parties' relationship as to undermine severely the prospects for them to resolve the dispute in the present case. It is the impact of these actions that leads me to believe that the Russian Federation violated its obligation not to make the dispute more difficult to resolve, wholly apart from the question whether these actions complied with the obligations of the Russian Federation under international law (which, in any event, the Court has no basis to address in the present case).
(Signed) Joan E. DONOGHUE.
I.
1. In its Order on provisional measures, adopted on 19 April 2017, the Court indicated, among others, the following provisional measure:
“(1) With regard to the situation in Crimea, the Russian Federation must, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,
(a) Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis” (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 (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 140, para. 106 (1) (a)).
2. I did not support the indication of that provisional measure for the reasons provided in the declaration I appended to the Order (ibid., declaration of Judge Tomka, pp. 150-154). In particular, I considered that the Court was “going too far when it require[d] the Russian Federation to ‘refrain from maintaining . . . limitations on the ability of the Crimean Tatar community to conserve . . . the Mejlis’” (ibid., p. 150, para. 1). I noted that the ban on the activities of the Mejlis had been confirmed — on appeal — by the Supreme Court of the Russian Federation for a number of reasons brought to the attention of the Court by the Respondent (ibid., pp. 150-151, paras. 2 and 3). Furthermore, I expressed my concern at “the cavalier approach of the Court in requiring the Russian Federation to alter the decision adopted by a judicial body, and affirmed on appeal by its highest judicial authority, without any consideration having been given to [the reasons for those judicial decisions]” (ibid., p. 151, para. 4). I further stressed that “[w]hen considering requests for provisional measures the Court is expected to weigh and balance the respective rights of the parties in light of their arguments” (ibid., p. 152, para. 6).
3. In today's Judgment on the merits, the Court takes the view that “the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin” (Judgment, para. 271; see also para. 272). The Court thus “concludes that it has not been established that the Russian Federation has violated its obligations under CERD by imposing a ban on the Mejlis” (ibid., para. 275). I agree.
4. The ban on the Mejlis thus did not constitute a breach of any obligation of the Russian Federation under CERD. The Court, however — and in my view somewhat surprisingly — finds that “the Russian Federation, by maintaining limitations on the Mejlis, has violated its obligation under paragraph 106 (1) (a) of the Order of 19 April 2017 indicating provisional measures” (Judgment, para. 404 (5)).
5. Article 41 of the Statute gives the Court “the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party”. The same provision was already contained in the Statute of the Permanent Court of International Justice adopted in 1920. It took some 80 years for the Court to clarify that “orders on provisional measures under Article 41 have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109). The purpose of a provisional measure is “to preserve the respective rights of either party”. The Court, having considered the evidence submitted by the Parties, concluded that the Russian Federation did not violate its obligations under CERD by imposing a ban on the Mejlis (Judgment, para. 275). If no obligation under CERD was violated by the ban, it necessarily follows that the rights claimed by Ukraine were not affected by the ban; in other words, those rights were “preserved”. The purpose sought by the measure indicated was thus achieved even without lifting or suspending the ban; in other words, by maintaining the ban on the Mejlis, the Russian Federation has not breached any obligation under CERD.
6. States have not granted to the Court the power to create and impose on them independent obligations. The Court, when indicating the provisional measure under consideration, clearly stated that this measure was to be taken “in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination” (I.C.J. Reports 2017, p. 140, para. 106 (1)). Although, according to the Court, this formulation “refers to the source of the rights which the measure seeks to preserve” (Judgment, para. 391), it also necessarily refers to the source of the obligation, in view of the correlation between the rights of one party and the obligations of the other party.
7. For the reasons stated above, I am unable to support the Court's finding.
II.
8. In today's Judgment, the Court provides an interpretation of the term “funds” as defined in Article 1 and used in Article 2, paragraph 1, and other provisions of the ICSFT. Applying the rules on interpretation codified in the Vienna Convention on the Law of Treaties (Judgment, paras. 46-52), the Court holds that the term “funds” refers to “resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps” (ibid., para. 53). And the Court draws the conclusion that “the alleged supply of weapons to various armed groups operating in Ukraine . . . fall[s] outside the material scope of the ICSFT” (ibid., emphasis added). I agree with this conclusion. I expressed that view already in my separate opinion appended to the Court's 2019 Judgment on preliminary objections (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 (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), separate opinion of Judge Tomka, p. 618, para. 11). The Court in its 2019 Judgment admitted that determining the scope of the Convention “may require the interpretation of the provisions that define [it]” (ibid., p. 584, para. 57), but it refrained in that Judgment from interpreting the term “funds”. I did not consider that to be the right approach, arguing that “[t]he ascertainment of the scope of the term ‘funds’ is a distinctly legal issue which is a matter of interpretation of the Convention” which relates to the scope of the ICSFT and thus has a “direct bearing on the scope of the Court's jurisdiction ratione materiae” (ibid., p. 617, para. 8). Had the Court followed my approach and the principle of procedural economy (see Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), declaration of Judge Tomka, p. 899, para. 8), it could have spared the Parties unnecessary submissions (including extremely voluminous evidence presented in the course of the proceedings) on claims which it now declares “fall outside the material scope of the ICSFT” (Judgment, para. 53).
(Signed) Peter TOMKA.
1. J'ai voté en faveur de tous les points du dispositif du présent arrêt, à l'exception du point 6, par lequel la Cour dit que la Fédération de Russie a manqué à l'obligation de respecter la disposition de l'ordonnance en indication de mesures conservatoires du 19 avril 2017 qui lui ordonnait de s'abstenir de tout acte risquant d'aggraver ou d'étendre le différend ou d'en rendre la solution plus difficile.
Je ne suis pas convaincu, en effet, par le motif que donne l'arrêt au soutien d'une telle conclusion, et je n'aperçois aucun autre motif qui pourrait la justifier.
2. Le motif retenu par la Cour se trouve énoncé au paragraphe 397. Ce paragraphe relève que, postérieurement à l'ordonnance portant mesures conservatoires, la Fédération de Russie a reconnu les deux entités dites « république populaire de Donetsk » et « république populaire de Louhansk » comme des États indépendants et a lancé contre l'Ukraine l'« opération militaire spéciale » qui a déclenché la guerre toujours en cours. Ce sont là des faits indiscutables. Mais la Cour ajoute que « ces actes ont gravement fragilisé le socle de confiance mutuelle et de coopération et ainsi rendu la solution du différend plus difficile ».
3. C'est sur ce dernier point que porte mon désaccord. Il n'est pas douteux qu'en reconnaissant l'indépendance de deux entités territoriales qui étaient jusqu'alors partie intégrante du territoire ukrainien — et qui selon l'Ukraine en font toujours partie en droit — et en déclenchant une guerre contre l'Ukraine, la Fédération de Russie n'a pas contribué au renforcement de la « confiance mutuelle » et de la « coopération » entre les deux États parties au présent différend, la situation nouvelle résultant de ces événements excluant toute possibilité réaliste de « coopération » et de « confiance ».
Mais j'ai peine à voir comment ces faits, totalement étrangers au différend soumis à la Cour dans la présente affaire, pourraient avoir « rendu la solution du différend plus difficile ». Ils n'ont aucun effet ni sur l'aspect du différend qui concerne l'application de la convention sur l'élimination de toutes les formes de discrimination raciale en Crimée, ni sur celui qui concerne les manquements allégués de la Fédération de Russie à ses obligations en vertu de la convention pour la répression du financement du terrorisme. Il est vrai que ce dernier aspect, qui met en cause des activités ayant eu lieu dans la partie orientale de l'Ukraine et qui, selon celle-ci, auraient eu un caractère terroriste, paraît avoir un certain rapport avec le statut des territoires concernés : mais c'est un rapport très indirect. En réalité, la solution judiciaire du différend soumis à la Cour, qui est donnée par le présent arrêt, n'a pas été rendue plus difficile (ni, est-il besoin de le préciser, plus facile) par les événements dramatiques qui se sont produits dans cette partie du monde depuis février 2022. L'obligation résultant de l'ordonnance du 19 avril 2017 n'étant pas de faciliter la solution du différend mais de ne pas rendre cette solution plus difficile, je ne vois aucune raison de conclure que la Fédération de Russie a manqué à une telle obligation.
4. Le paragraphe 397 de l'arrêt comporte, à mes yeux, une faiblesse supplémentaire. L'obligation de s'abstenir de tout acte qui risquerait d'aggraver le différend ou d'en rendre la solution plus difficile énoncée par l'ordonnance s'adressait aux deux Parties. Il est clair que la Cour ne pouvait pas retenir la violation de cette obligation à la charge des deux Parties, puisqu'elle n'était saisie sur ce point que de conclusions de la demanderesse dirigées contre la défenderesse. Mais en faisant droit à ces conclusions, la Cour pourrait paraître porter un jugement sur les événements de février 2022, en distribuant d'une certaine manière les responsabilités à cet égard. Chaque juge peut avoir, en son for intérieur, son opinion en ce qui concerne les torts respectifs des Parties dans la situation ayant donné lieu aux événements de février 2022 et à leurs suites. Mais la Cour, dans la fonction judiciaire
qu'elle exerce en la présente affaire sur la base des deux conventions applicables, doit s'en tenir à l'objet du différend.
5. Le paragraphe 397 ne se prononce pas sur la licéité des mesures prises, à l'époque considérée, par la Fédération de Russie au regard du droit international général. Mais, en déclarant que la défenderesse a manqué à ses obligations découlant de l'ordonnance en accomplissant les actes en question, la Cour tient nécessairement ceux-ci pour illicites à un autre point de vue. Il est vrai que les conséquences de cette illicéité sont, pour la défenderesse, d'une portée réduite, puisqu'elles se limitent au simple constat par la Cour de la violation de l'ordonnance, qui constitue « une satisfaction appropriée » en l'espèce (paragraphe 401).
6. Par ailleurs, on peut se demander comment il pourrait se faire que les actes en cause (reconnaissance des deux « républiques » et déclenchement des opérations militaires) entraînent la violation de l'ordonnance s'ils sont conformes, pour le reste, au droit international. Je ne conteste pas que, en règle générale, un acte peut méconnaître une mesure conservatoire prescrite par la Cour sans être contraire à aucune règle de droit international autre que celle qui oblige les États parties à une affaire à se conformer aux ordonnances en indication de mesures conservatoires. Mais, dans le cas présent, il me paraît assez délicat de se tenir à une telle distinction : si, par hypothèse, un État agit dans le cadre de la légitime défense (et j'insiste sur le fait que je n'affirme pas que tel ait été le cas de la Fédération de Russie en l'espèce), il est difficile, pour ne pas dire logiquement impossible, de dire qu'il a, ce faisant, aggravé un différend ou en a rendu la solution plus difficile.
7. La Cour introduit, par le paragraphe 397, une ambiguïté gênante, et qu'elle aurait pu facilement éviter en adoptant une interprétation plus rigoureuse de la mesure conservatoire dont elle considère, à tort selon moi, qu'elle a été méconnue.
(Signé) Ronny ABRAHAM.
[Original English Text]
Non-aggravation measure — Complementary measure — No violation — The Court has stepped outside its jurisdiction given the subject-matter of the dispute in the present case.
1. In paragraph 404 (6) of the operative part of the present Judgment, the Court has found that the Russian Federation “has violated its obligation under paragraph 106 (2) of the Order of 19 April 2017 indicating provisional measures to refrain from any action which might aggravate or extend the dispute between the Parties, or make it more difficult to resolve”.
2. In paragraph 103 of the Order of 19 April 2017 indicating provisional measures, the Court recalled that “Ukraine ha[d] requested it to indicate measures aimed at ensuring the non-aggravation of the dispute with the Russian Federation”. It added that,
“[w]hen it is indicating provisional measures for the purpose of preserving specific rights, the Court also possesses the power to indicate provisional measures with a view to preventing the aggravation or extension of a dispute whenever it considers that the circumstances so require”.
3. The Court has always considered that it cannot order non-aggravation as a sole provisional measure: such a measure is intended to accompany substantive or specific measures aimed at the preservation of certain rights, when the circumstances so require. Accordingly, while under Article 41 of the Statute of the Court substantive measures are aimed directly at preserving the rights of the parties, the “non-aggravation” measure was conceived as a mere exhortation, to the parties, to respect their international obligations. Thus, a “non-aggravation” measure is a complementary measure recommending, in general terms, that the parties respect international law. That is why, in my view, this measure does not have the same binding character of specific measures that are intended to preserve the rights of the parties.
4. That is why, in its jurisprudence, the Court has never ventured to sanction alleged non-compliance with the “non-aggravation” measure. Moreover, the question may be asked whether it had jurisdiction to do so in the present case. In other words, can it pronounce on the “special military operation” against Ukraine and on the recognition of the “Donetsk People's Republic” (DPR) and of the “Luhansk People's Republic” (LPR) as independent States? These questions do not fall within the dispute submitted to the Court.
5. For these reasons, I regret that the majority has decided, in the present case, that the Russian Federation has violated the “non-aggravation” measure, besides which it has not determined any practical consequence. By departing from its jurisprudence in this matter, the Court risks falling foul of Article 41 of its Statute.
(Signed) Mohamed BENNOUNA.
Nature and function of non-aggravation clauses in provisional measures — Non-aggravation clauses cannot extend jurisdiction of the Court — Nor the scope of application of provisional measures — The Court has never indicated a freestanding non-aggravation measure — The Court only indicated provisional measures in respect of rights claimed by Ukraine under CERD — Factual mistake regarding the scope and legal basis of the Order on provisional measures — The Court erroneously establishes a relationship between the non-aggravation and the recognition of the DPR and LPR and conflict in Ukraine — Those matters pertain to another dispute currently pending before the Court — They have nothing to do with this case.
I. Introduction
1. I disagree with the conclusions of the Court in paragraphs 396, 397 and 398 of the Judgment, as well as subparagraph 6 of the dispositif reflecting these conclusions. I have therefore voted against this operative paragraph. In the section on “General Background” in the Judgment, the Court states the following in paragraph 28 thereof:
“The situation in Ukraine is very different today than it was when Ukraine submitted its Application in January 2017. The Parties are presently engaged in an intense armed conflict that has led to a tremendous loss of life and great human suffering. Nevertheless, with regard to the situation in eastern Ukraine and in the Crimean peninsula, the case before the Court is limited in scope and is brought only under the provisions of the ICSFT and CERD. The Court is not called upon to rule in this case on any other issue in dispute between the Parties” (emphasis added).
2. The last sentence of this paragraph makes it very clear that the Court will not rule in this case on any issue other than those described as the subject-matter of the dispute between the Parties (see 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 (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 577, paras. 29-32). However, the Court does so in paragraphs 397 and 398, first by observing that the Russian Federation recognized the DPR and LPR as independent States and launched a “special military operation” against Ukraine, and secondly, by concluding, on the basis of this observation, that the Russian Federation violated the obligation in the Order of 19 April 2017 to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. By doing so, the Court has, as a matter of fact, ruled on issues that are unrelated to the dispute in this case, contrary to what was affirmed by it in paragraph 28 of the Judgment. Two questions might be raised in this connection. First, does the non-aggravation clause in the Court's Order on provisional measures of 19 April 2017 allow it to extend its jurisdiction to cover issues outside the ICSFT and CERD, such as the recognition by the Russian Federation of the DPR and LPR and the ongoing armed conflict between Russia and Ukraine? My answer is negative. Secondly, is it legally tenable to find that the Russian Federation violated its obligations under provisional measures indicated in respect of claims of Ukraine under CERD and the treatment of Crimean Tatars and ethnic Ukrainians due to the recognition of the DPR and LPR and the armed conflict with Ukraine? My answer here again is negative. I will elaborate on these answers below.
II. Misconception of the nature and function of non-aggravation clauses in provisional measures
3. The Court has, in its jurisprudence on provisional measures, pointed out on several occasions that, “when it is indicating provisional measures for the purpose of preserving specific rights, the Court, independently of the parties' requests, also possesses the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require” (e.g. Request for Interpretation of the Judgment of 15 June 1962 in.the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), pp. 551-552, para. 59). It is clear from this statement of the Court, which may be found in several orders on provisional measures, that non-aggravation measures are to be distinguished from other provisional measures which are meant to preserve and protect the specific rights of the parties in accordance with Article 41 of the Statute of the Court.
4. Non-aggravation measures are subordinate to the substantive measures indicated by the Court. They have an ancillary character with respect to the main provisional measures which are specifically indicated for the purpose of preserving the rights of the parties pending a final judgment. Their function is to calm down tensions, avoid escalating and extending the dispute between the parties and allow the Court to settle such a dispute through the law. As such, they are an addendum to the main provisional measures and their function is auxiliary in nature. They are not free-standing and have never been indicated by the Court by themselves in an order on provisional measures. Even in the interim measures Order issued by the PCIJ on 5 December 1939, which is mistakenly referred to as a non-aggravation order, such a clause was not free-standing but was accompanied by a measure which called upon the State of Bulgaria, pending the judgment of the Court, to “ensure that no step of any kind is taken capable of prejudicing the rights claimed by the Belgian Government” (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J., Series A/B, No. 79, p. 199). It was therefore, even in that case, subsidiary to a measure aimed at preserving the rights claimed by Belgium until such time as a final judgment was given by the Court.
5. Thus, non-aggravation measures never refer to rights to be preserved pending a final judgment nor are they meant to perform such a function. They refer to the dispute between the parties in general and require such parties to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. In the present case, the non-aggravation clause contained in the Order on provisional measures of 19 April 2017 was indicated in support of two provisional measures relating to alleged violations of obligations under CERD in Crimea. The Court did not indicate any provisional measures in respect of the rights alleged by Ukraine on the basis of the ICSFT. It did so only in respect of the rights claimed by Ukraine on the basis of CERD. Therefore, the non-aggravation clause contained in that Order was subordinate to the provisional measures indicated by the Court in respect of the rights claimed by Ukraine on the basis of CERD. It had nothing to do with the dispute between the Parties relating to the provisions of the ICSFT or to eastern Ukraine.
6. It is therefore surprising, to say the least, that a non-aggravation clause which was included in an order on provisional measures relating to alleged violations of obligations under CERD in Crimea is now interpreted and applied as a measure which created obligations for the Russian Federation with regard to the recognition of the DPR and LPR and to the launching of a “special military operation” against Ukraine. The jurisdictional basis for the Order indicating provisional measures, including its non-aggravation clause, was CERD and did not and could not extend to cases of recognition of territorial entities as States or to armed conflict between two States. These issues were and remain outside the jurisdiction of the Court in the present case.
III. Factual mistakes regarding the scope and legal basis of the Order on provisional measures
7. In its Order of 19 April 2017, the Court concluded that the conditions required for the indication of provisional measures in respect of the rights alleged by Ukraine on the basis of the ICSFT were not met (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 (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 132, para. 76). It therefore refrained from indicating any provisional measures in relation to the allegations of terrorism financing in eastern Ukraine and to the activities of the DPR and LPR in that area. However, the Court found that the conditions required by the Statute for it to indicate provisional measures in respect of the claims of Ukraine under CERD were met. It was, therefore, in connection with these claims that, as an addendum to the measures indicated by the Court to preserve specific rights under CERD, the Court included in its Order a non- aggravation clause.
8. In the present Judgment, it is stated in paragraph 382, which summarizes the arguments of the Parties with respect to alleged violations of the Order of 19 April 2017, that Ukraine argued that “the Russian Federation aggravated the dispute by formally and retrospectively endorsing the acts undertaken by armed groups in eastern Ukraine, by recognizing the DPR and LPR, by providing them with financial and military assistance and by invading Ukraine's territory in 2022”. It is in connection with this argument that the Court observes, in paragraph 397 of the Judgment, that, subsequent to the Order on provisional measures, the Russian Federation recognized the DPR and the LPR as independent States and launched a “special military operation” against Ukraine.
9. It then draws two conclusions from this: first, for the Court, these actions of the Russian Federation “severely undermined the basis for mutual trust and co-operation and thus made the dispute more difficult to resolve”. Secondly, and as a result of those actions, the Court concludes that the Russian Federation violated its obligations under the Order not to aggravate the dispute. The Court, however, offers no evidence whatsoever on how the dispute was made more difficult to resolve in the present case.
10. By referring to the events which took place in February 2022 and which were argued by Ukraine as having aggravated the dispute between the Parties, and by identifying them as the basis of a violation by the Russian Federation of its obligation under the Order to refrain from any action which might aggravate the dispute, the Court establishes a relationship between the non-aggravation clause contained in that Order and the claims made by Ukraine with respect to the ICSFT, which concerned the DPR and LPR in eastern Ukraine. It should, however, be recalled that the Court did not indicate any provisional measures in respect of the rights claimed by Ukraine on the basis of the ICSFT because it was of the view that the conditions required for such indication were not met.
11. Moreover, the DPR and LPR, whose recognition by the Russian Federation has aggravated, according to the Judgment, the dispute between the Parties, are territorial entities that were created in eastern Ukraine and not in Crimea. Thus, the raison d'être, the legal basis and the scope of the non-aggravation clause indicated in the Order of 19 April 2017 had nothing to do with the claims made by Ukraine with respect to the ICSFT or with respect to the DPR and LPR or eastern Ukraine. Consequently, one may be forgiven for having the impression that the conclusions of the Court and the operative paragraph of the Judgment on the non-aggravation clause are based on mistaken identities, with Crimea and CERD being misunderstood for eastern Ukraine and the ICSFT, and non- aggravation measures being confused with provisional measures aimed at preserving specific rights.
IV. Conclusion
12. In light of the above analysis and considerations, I am of the view that there was no legal basis for the Court to conclude that the Russian Federation violated the obligation under the Order of 19 April 2017 to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. The events of February 2022, including the recognition of the DPR and LPR by the Russian Federation and the armed conflict between the Parties, to which the Judgment refers in support of its finding of such a violation, have nothing to do with the dispute before the Court in the present case. As a matter of fact, Ukraine has instituted proceedings before the Court on the dispute between the Parties relating to those specific events. That dispute is still under consideration by the Court and is being dealt with in a separate case entitled Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). It should also be observed that there is no evidence that the violation which the Court has found with regard to the non-aggravation clause has in any way extended the dispute before the Court in this case or made it more difficult to resolve. Indeed, if this was the case, the Court would not have been able to issue the present Judgment, which addresses all aspects of the dispute submitted to it, or would have at least indicated the nature of any obstacles created by one of the Parties in the resolution of the dispute. It is therefore difficult to fathom the basis for asserting that there is a violation of the non-aggravation clause contained in the Order of 19 April 2017. Such an assertion contradicts not only paragraph 28 of this Judgment on the scope of jurisdiction of the Court in the present case, but it also misreads and misunderstands the nature and function of non-aggravation clauses, as well as the scope and legal basis of the provisional measures indicated in the Order of 19 April 2017. It might also undermine the credibility and effectiveness of provisional measures, as well as non-aggravation clauses, in the future.
(Signed) Abdulqawi Ahmed YUSUF.
In my opinion, the Russian Federation has violated its obligations under Articles 12 and 18 of the ICSFT. The Russian Federation is also in violation of its obligations under the CERD with respect to measures taken against the Mejlis and its law enforcement measures — The evidentiary threshold applied by the Court under Article 12 is unnecessarily stringent and imposes an impracticable burden upon States requesting mutual assistance — The Russian Federation by failing to provide Ukraine with any assistance at all in relation to the Applicant's investigation of possible terrorism financing offences, acted in violation of its obligation under Article 12 of the ICSFT — With respect to Article 18, the Russian Federation failed to take “practicable measures” that were within its disposal to prevent terrorism financing — By endorsing the fundraising activities of officials and private persons under its jurisdiction, for the benefit of the DPR and LPR and failing to take “practicable measures” that were at its disposal to prevent, restrict or limit such fundraising activities, the Russian Federation acted in violation of its obligation under Article 18 of the ICSFT — The Russian Federation's indiscriminate enforcement of its anti-extremism legislation against members of the Crimean Tatar community had the effect of discriminating against Crimean Tatars on the basis of their ethnic or national origin — The Russian authorities undertook raids directed against businesses and religious sites without any apparent specific basis for determining that the men detained may have been linked to criminal activity, thus impairing the rights of members of this ethnic minority protected under Articles 2 and 5 (d) (viii) and (ix) of CERD — The ban of the Mejlis constituted an act of racial discrimination — The representative role uniquely played by the Mejlis as the executive body of the Crimean Tatar people is neither equivalent to that played by the Qurultay, nor can it be replaced by that of any other representative body in Crimea, including the “Qurultay of Muslim of Crimea” and the “Shura” — The ban had the effect of impairing not only the civil rights of the individual members of the Mejlis, but also the civil and cultural rights of the Crimean Tatar community to determine their cultural leaders, in violation of the CERD — The conduct of the Russian Federation manifestly violated its obligation to refrain from action that might aggravate or extend the dispute before the Court or render it more difficult to resolve.
Introduction
1. Although I agree with some of the Court's conclusions regarding the violation by the Russian Federation of some of its international obligations and have voted in favour of operative paragraphs 404 (1), (3), (5) and (6), I disagree with several of the Court's findings in other respects and have voted against operative paragraphs 404 (2), (4) and (7). In particular, I disagree with the Court's conclusion that Ukraine has failed to establish the violation by the Russian Federation of its obligations under Articles 12 and 18 of the ICSFT and under CERD with respect to measures taken against the Mejlis and in relation to the law enforcement measures directed at members of the Crimean Tatar population. Furthermore, I elaborate upon the Court's interpretation and conclusion with respect to the measure indicated in the Court's provisional measures Order, which required the Parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”. The following are my reasons.
I. Alleged violation of obligations under the ICSFT
2. In large part, I agree with the Court's interpretation of the applicable provisions of the ICSFT. In particular, I agree that the term “funds” as defined in Article 1, paragraph 1, of the ICSFT does not encompass the provision of weapons or other forms of support used as means of committing predicate acts referred to in Article 2, paragraph 1 (a) or (b), of the ICSFT.
3. I also agree with the Court's conclusion in paragraph 111 of the Judgment that the Russian Federation has violated its obligations under Article 9, paragraph 1, of the ICSFT through its failure to investigate credible allegations made by Ukraine concerning the financing of terrorism by persons present in Russian-controlled territory.
4. However, in my view, the conduct of the Russian Federation also demonstrates a violation of its obligations under Article 12, paragraph 1, and Article 18, paragraph 1. In this regard, I disagree with the conclusions of the Court in paragraphs 131 and 146 of the Judgment for the following reasons.
A. Article 12 of the ICSFT
5. As stated by the Court in paragraph 126 of its Judgment, Article 12 of the ICSFT obligates States parties to afford one another the greatest assistance in their investigations into the commission of terrorism financing offences. Specifically, Article 12, paragraph 1, provides that States parties “shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings” in respect of the offence of terrorism financing and its predicate acts, “including assistance in obtaining evidence in their possession necessary for the proceedings”. I am of the view that in the present case, the Russian Federation has violated this obligation.
6. Although Ukraine claimed having sent over 91 requests to Russia between 2014 and 2020, the Court rightly only considered the 12 requests for mutual legal assistance (hereinafter “MLA”) produced before the Court by Ukraine (paragraph 126 of the Judgment). Furthermore, the Court was correct to limit its analysis to those requests that specifically mentioned the provision of financial support to persons or organizations alleged to have engaged in acts of terrorism (paragraph 128 of the Judgment). However, I disagree with the Court's reasoning in paragraph 130 of the Judgment, which led to its conclusion that these requests for legal assistance did not meet the evidentiary threshold required to give rise to the Russian Federation's obligation under Article 12 to assist Ukraine in its investigations.
7. The Court considers that the requests for legal assistance provided by Ukraine to the Russian Federation were insufficient to trigger the obligation under Article 12 because they did not describe in sufficient detail the commission of alleged predicate acts by the recipients of the funds and because they failed to substantiate the fact that the alleged funders knew that the funds would be used to commit such acts (paragraph 130 of the Judgment). In my view, the evidentiary threshold applied by the Court is unnecessarily stringent and imposes an impracticable burden upon States requesting assistance with investigations into terrorism financing. The State requesting legal assistance is often not in possession of such detailed information regarding the precise nature of the predicate acts, prior to submitting its request, and that is the very reason for the request for legal assistance in the first place.
8. When making a request for legal assistance, it is not necessary for a State to demonstrate that the alleged funders “knew” what the funds provided were to be used for. It is precisely this information concerning the mens rea of the funders that the requesting State seeks to uncover during its investigation. At the stage of requesting legal assistance, the requesting State should not be expected to be in possession of all the relevant facts concerning the alleged offence. It is sufficient that the request contains credible allegations that a terrorism financing offence may have been committed. This is an analogous standard to that applied in the context of Article 9 of the ICSFT, which concerns the obligation to undertake investigations. In my opinion, the obligation under Article 9 to conduct a criminal investigation and the obligation under Article 12 to assist with an investigation are two sides of the same coin. Ordinarily, if the requesting State has met the evidentiary threshold required for the trigger of an obligation under Article 9, as Ukraine did in the present case, the same will be true with respect to the evidentiary threshold required to trigger an obligation under Article 12.
9. In the present case, the Court concluded with respect to Article 9 that the communications made by Ukraine to the Russian Federation contained sufficiently detailed allegations of terrorism financing to obligate the Russian Federation to undertake investigations into the facts alleged therein (paragraph 107 of the Judgment). For the same reasons, the Court should have concluded that the Russian Federation was obligated to provide Ukraine with the “greatest measure of assistance” in respect of Ukraine's own criminal investigations or extradition proceedings in respect of individuals alleged to have committed terrorism financing offences. The requests for legal assistance provided by Ukraine credibly alleged that individuals present on the territory of the Russian Federation provided financing to armed groups associated with armed groups involved in attacks on civilians in Ukraine. For example, the requests included information regarding fundraising websites set up by members of the Russian State Duma and bank accounts used to finance LPR operations. At the time, the Russian Federation had also been made aware by Ukraine, of conduct allegedly undertaken by armed groups associated with the DRP and LPR that Ukraine considered to constitute predicate acts under the ICSFT (see paragraph 107 of the Judgment). In my view, this information was sufficient to meet the evidentiary threshold for triggering the obligation of the Russian Federation under Article 12.
10. In my view, the Russian Federation failed to fulfil its obligation to provide Ukraine with such assistance. As noted, the most relevant requests for legal assistance are those made by Ukraine on 11 November 2014, 3 December 2014, and 28 July 2015. The Russian Federation entirely rejected each of these requests. In all three cases, it cited Article 2 (b) of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (hereinafter the “European Convention”) and Article 19 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993, as amended by Protocol of 28 March 1997 (hereinafter the “Minsk Convention”) to justify its rejection of the requests. These articles concern the rejection of requests for legal assistance on grounds of sovereignty or security. In the circumstances, I do not consider that the Russian Federation's rejection of Ukraine's requests for MLA was justified for two reasons.
11. First, the Russian Federation did not adequately explain its reasons for rejecting Ukraine's request. Even if the security exceptions invoked by the Russian Federation applied in the present case, which is far from clear, the Russian Federation was required to substantiate that ground. Article 19 of the European Convention and Article 19 of the Minsk Convention both require that the Russian Federation notify Ukraine of the reasons for its refusal when denying a request for legal assistance. As the Court has explained in the past, a “bare reference” to a treaty provision does not suffice to satisfy a requirement that a State give reasons for a refusal for mutual assistanceFootnote 1. But that is precisely what the Russian Federation did here. Its rejection of the Ukrainian requests contained little more than a reference to the treaty provisions it invoked without any further explanation. This, in my view, was insufficient to sustain an exception to the obligation under Article 12 of the ICSFT.
12. Secondly, it is notable that even though its response rejecting Ukraine's requests for MLA were little more than a paragraph long, the Russian Federation took many months to send its response to Ukraine. The Russian Federation did not respond to the request dated 11 November 2014 until 31 August 2015, entailing a delay of over nine months. Similarly, the Russian Federation took over eight months to respond to the request dated 3 December 2014 and over seven months to respond to the request dated 28 July 2015. This is despite the fact that, as the Court notes in the present Judgment, “the Russian Federation generally answers requests for mutual legal assistance ‘within one to two months’” (paragraph 110 of the Judgment). These inordinate delays, coupled with the failure to substantiate the reasons for declining Ukraine's MLA requests, clearly demonstrate a failure by the Russian Federation to meet its obligations under Article 12.
13. In short, the Russian Federation not only failed to provide Ukraine with “the greatest measure of assistance” in its investigations into terrorism financing, but it also failed to provide Ukraine with reasons for declining the Applicant's MLA requests. I therefore cannot agree with the Court's finding that Ukraine has failed to establish a violation by the Russian Federation of Article 12, paragraph 1, of the ICSFT.
B. Article 18 of the ICSFT
14. I also cannot agree with the Court's conclusion in paragraph 146 of the Judgment concerning the compliance by the Russian Federation with its obligation pursuant to Article 18 of the ICSFT. In my view, the Russian Federation violated its obligations under this provision.
15. As the Court notes, Article 18, paragraph 1, obligates States parties to take “all practicable measures” to prevent and counter preparations for the commission of terrorism financing offences. I agree that for a violation of this obligation to occur, it is not necessary that the offence of terrorism financing should have occurred (paragraph 138 of the Judgment). I also agree that the provision is a broad one encompassing all reasonable and feasible measures that a State may take to combat terrorism financing, including but not limited to adoption of a regulatory framework to monitor and prevent transactions with terrorist organizations (paragraphs 139-140 of the Judgment). However, I disagree that Ukraine has failed to demonstrate that the Russian Federation failed to meet this obligation.
16. As the Court explains in the present Judgment, Ukraine submitted multiple Notes Verbales and requests for mutual legal assistance to the Russian Federation alleging that Russian officials and private persons were engaged in the financing of acts of terrorism. Indeed, some of these individuals made no attempt to hide the fact that they were fundraising for activities carried out by armed groups whose overall aim was to compel Ukraine to accept the demands of the DPR and LPR. Upon receiving this information, it was incumbent upon the Russian Federation to investigate these persons in their individual capacity and, where necessary, to take “all practicable measures” to counter any preparations by those individuals to commit the offence of terrorism financing.
17. I am of the view that the Russian Federation failed to take such “practicable measures” that were within its disposal. I agree with the Court that the direct financing by the Russian Federation of acts of terrorism does not fall within the scope of the ICSFT (paragraph 142 of the Judgment). However, this does not absolve the Russian Federation of the obligation to take actions to counter the financing of terrorism by its officials or other private actors on its territory, in their individual capacity. The evidence shows that the Russian Federation did not take such actions. To the contrary, it appeared to endorse and even encourage the financing of armed groups associated with the DPR and LPR.
18. Similarly, I believe that the Russian Federation did not do all that it could to discourage and counter fundraising by private individuals for armed groups operating in Eastern Ukraine alleged to have committed acts of terrorism. The Russian Federation has a robust framework for the prevention of terrorism financingFootnote 2. However, it chose not to make use of that framework to in any way restrict or limit fundraising for the DPR and LPR while investigations were ongoing into the possible complicity of both entities in the commission of acts of terrorism.
II. Alleged violation of obligations under CERD
19. I have voted against operative paragraph 404 (4) in which the Court generally rejects all submissions of Ukraine relating to CERD not addressed in the preceding paragraph. In my view, the Russian Federation, in addition to the violations of CERD described in operative paragraph 404 (3), has violated its CERD obligations in relation to its law enforcement measures taken against persons of Crimean Tatar origin and in relation to the measures taken against their leaders known as the Mejlis. The following are my reasons.
A. Law enforcement measures
20. One of Ukraine's claims under CERD is that the law enforcement measures implemented by the Russian Federation in relation to members of the Crimean Tatar community and its leadership in Ukraine, violated CERD, in particular Articles 2 (1), 4, 5 (a) and 6 (paragraphs 222-224 of the Judgment). Having examined the law enforcement measures, and the manner in which they were implemented, the Court rightly concluded that the measures regulating the prevention, prosecution and punishment of certain broadly defined criminal offences — whilst in and of themselves not possessing a discriminatory purpose — were nonetheless implemented and enforced in a manner that had a disparate adverse effect on the rights of Crimean Tatars (paragraphs 226-238 of the Judgment).
21. However, the Court having noted that the stated purpose of certain law enforcement measures appears to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security, went on to conclude that it has not been established that “persons of Crimean Tatar origin were subjected to such law enforcement measures based on their ethnic origin” (paragraph 241 of the Judgment). It is this finding with which I disagree.
22. In my view, there is sufficient evidence to conclude that the Russian Federation's enforcement of its anti-extremism legislation against members of the Crimean Tatar community amounted to racial discrimination under CERD because it had the effect of discriminating against Crimean Tatars on the basis of their ethnic or national origin. Besides, even if there was credible evidence showing that the Crimean Tatar community was targeted because they espoused political views opposed to the presence of the Russian Federation in Crimea after the events of 2014, this would not be sufficient to exclude the possibility that they were also targeted because of their racial or ethnic origin. This is particularly so where, as in this case, the political views or concerns of an ethnic minority are inextricably intertwined with its ethnic identity. Furthermore, it is also not inconceivable that a given measure may have more than one objective. Thus, while it may be true that the law enforcement measures against the Crimean Tatars were based on the political positions and views they espoused, this does not exclude the possibility that the measures also had a discriminatory purpose or effect on the rights of that protected group.
23. The Court correctly finds that the law enforcement measures undertaken by the Russian Federation in Crimea had a disproportionate effect upon Crimean Tatars, a fact that has also been noted by the OHCHR and the UN General Assembly (paragraph 238 of the Judgment). Accordingly, such measures constitute acts of racial discrimination unless they can be credibly justified by reasons unrelated to race, colour, descent or national or ethnic origin. I do not believe that the Russian Federation has advanced such a credible alternative rationale for its treatment of Crimean Tatars. The Russian Federation's purported justification for its conduct is that individuals of Crimean Tatar heritage are linked to religious extremism and other criminal activities. However, the evidence it supplies in support of this assertion is far from persuasive.
24. In essence, the Russian Federation appears to consider that, because some persons of Crimean Tatar heritage have been linked to acts of religious extremism and crimes such as drug trafficking, this provided a general justification for searches and other law enforcement measures directed against Crimean Tatars more generally and the places in which they socialize and worship. Indeed, the Court notes in its Judgment that “the stated purpose of certain measures appears to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security” (paragraph 241 of the Judgment). In my view, the evidence also shows that such measures were targeted against Crimean Tatars on the basis of their ethnic and national origin. Such acts of racial profiling are impermissible under CERD. The evidence before the Court, including reports by the OHCHR, demonstrates that the Russian authorities undertook raids directed against businesses and religious sites, resulting in the detention of large numbers of Crimean Tatars, without any apparent specific basis for determining that the men detained may have been linked to criminal activityFootnote 3. In many cases, no charges were brought against those detained. Such disproportionate targeting of members of a particular ethnic group, with no justified basis, constitutes an act of racial discrimination under Articles 2 and 5 of CERD.
B. Ban against the Mejlis
25. I do not agree with the conclusion of the Court that the ban against the Mejlis was only politically motivated and that, consequently, the Russian Federation did not violate its obligations under CERD (paragraph 275 of the Judgment). In my view, the ban constituted an act of racial discrimination. In particular, I take issue with two aspects of the Court's reasoning regarding this issue.
26. First, I disagree that because the Mejlis is not the only institution representing the Crimean Tatar community, the ban did not deprive the Crimean Tatar population of its representation (paragraph 269 of the Judgment). The majority's conclusion that the cultural rights of the Crimean people were not affected by the ban of the Mejlis is based upon the mistaken assumption that the representative role formerly played by the Mejlis can be ably carried out by the current Qurultay. However, the role played by the Mejlis as the executive body of the Crimean Tatar people is not equivalent to that played by the Qurultay. The two bodies are not equivalent but are distinct and complementary. Furthermore, there is evidence that the Mejlis is considered by many Crimean Tatars as a traditional organ of an indigenous people that enjoys a high degree of representative legitimacyFootnote 4.
There is also uncontroverted evidence that the current body known as the “Qurultay of Muslims of Crimea” is not representative of the Crimean Tatar community.
27. Ukraine argues that both the Mejlis and the Qurultay are legitimate representative institutions of the Crimean Tatar people. Ukraine explains the Mejlis is the “traditional organ of the Crimean Tatar people”, which is elected by the Qurultay. It notes that in June 1991, the Crimean Tatars organized the election of the Qurultay, a “democratic body, whose name recalls an ancient institution of the Crimean Khanate that governed Crimea from the fifteenth to the eighteenth centuries”. The delegates of the Qurultay are elected directly by the Crimean Tatar people at large every five years. The Qurultay in turn elects a Mejlis, “an executive body to be the legitimate representative voice for the Crimean Tatar community when the Qurultay is out of session”. Ukraine also cites an OHCHR report noting that “[w]hile approximately 30 Crimean Tatar NGOs are currently registered in Crimea, none can be considered to have the same degree of representativeness and legitimacy as the Mejlis and Qurultay”.
28. According to Ukraine, the relationship between the Qurultay and the Mejlis (before the Russian measures banning the Mejlis) was as follows. The Qurultay was the highest representative body of Crimean Tatars and was composed of 250 delegates elected by secret ballots cast by Crimean Tatars and their families. The Qurultay was elected for a period of five years, although it did not sit permanently, but only temporarily for sessions. For example, the Qurultay, elected in 1991, sat for five days. The Mejlis was composed of 33 people elected by the Qurultay. It operated as the sole authorized representative executive body between sessions of the Qurultay. For most of the time, when the Qurultay was not in session, the Mejlis operated to represent Crimean TatarsFootnote 5. The Mejlis was given the authority to represent Crimean Tatars in all negotiations with the governing authorities.
29. Ukraine also states that “the new pro-Russia organizations that Russia deems to have replaced the Mejlis [do not] represent the Crimean Tatar community at large”Footnote 6. For its part, Russia refers to an “extraordinary session of the extended Qurultay of the Muslims of Crimea” that took place on 17 February 2018, and which elected the so-called “Council” of the Crimean Tatar People, or Shura. Ukraine responds that this “Qurultay”, whose delegates are appointed by local religious organizations, is a distinct organization with a religious focus and not a representative institution elected by the Crimean Tatar people. Ukraine further claims that Mr Ablayev, a leading member of this supposed “Qurultay” and now the head of the Shura, is well known within the Crimean Tatar community as a renegade outlier who has chosen to work with the Russian authorities in Crimea.
30. The Russian Federation emphasizes that “[n]o restrictions or bans have been imposed against the Qurultay in the Russian Federation”. However, the Respondent appears to acknowledge that there has been some change to the make-up of the original Qurultay, stating that “currently the functions of the Qurultay of the Crimean Tatar People are performed by the Qurultay of Muslims of Crimea that has delegated representatives of the Crimean Tatar community to the Council of Crimean Tatars”.
31. Based on the uncontroverted facts presented by both Parties, it is clear that while the original Qurultay has traditionally been elected by the Crimean Tatar people themselves, by contrast, the “Qurultay of the Muslims of Crimea” is made up of delegates chosen by local religious organizations. It is also clear that the “Shura” chosen by the Qurultay of Muslims of Crimea is clearly a distinct body from that of the Mejlis. Consequently, the ban of the Mejlis had the effect of impairing the cultural rights of the Crimean Tatar community to elect their representatives, in violation of Articles 2 and 5 (d) (viii) and (ix) of CERD.
32. Secondly, I disagree that the ban of the Mejlis was based purely or exclusively upon the political positions and activities of its members in opposition to the Russian Federation rather than on their ethnicity (paragraphs 271-272 of the Judgment). As stated above, where the political views and activities of an ethnic minority or group are inextricably intertwined with its ethnic identity, one cannot preclude the possibility that a measure may also have been based upon ethnicity and national origin and was therefore discriminatory in effect. The same measure may have multiple rationales and these different bases of motivation are not mutually exclusive. The political opposition of the Mejlis to Russian control over Crimea is linked with their ethnic identity, given the history of persecution of the Crimean Tatar community by the Soviet authorities. Thus, the ban had the effect of impairing the civil rights of the individual members of the Mejlis, including their right to freedom of opinion, freedom of expression, freedom of association and freedom of peaceful assembly. Furthermore, even to the extent that the activities of individual members of the Mejlis may have justified measures being taken against them as individuals, there is no reason why such activities required the full-scale dissolution of the institution of the Mejlis as such. Instead, measures could have been taken against the individual members of the Mejlis alleged to have engaged in criminal activities and the Qurultay could have been permitted to elect new members to replace them, thereby maintaining the operation and activities of the Mejlis as an institution. I am therefore of the view that the Russian Federation violated its CERD obligations including under Article 2 and Article 5 (d) (viii) and (ix) by banning the institution of the Mejlis.
III. Alleged breach of obligations under the provisional measures Order
33. I agree with the Court's conclusion that the Russian Federation has violated its obligations under the provisional measures indicated by the Court in paragraphs 106 (1) (a) and 106 (2) of the Order of 19 April 2017.
34. In my opinion, the non-aggravation measure contains two aspects, in that it encompasses both conduct that aggravates the dispute between the parties more broadly and conduct that is more precisely directed against hampering the Court's ability to resolve the dispute with which it is seised in a particular case. In my view, where such a measure has been indicated by the Court in the operative clause of a provisional measures order, both aspects create binding obligations upon a party to which the order is directed. The obligation not to aggravate the dispute has its roots in Article 2 (3) of the Charter of the United Nations, which states that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”. As the use of the word “shall” makes clear, Article 2 (3) is likewise a legally binding obligation.
35. It has long been clear since the Court's Judgment in LaGrand that the Court's orders on provisional measures under Article 41 have binding effectFootnote 7. This conclusion applies equally to all provisional measures indicated by the Court. The Parties' obligation not to “aggravate or extend the dispute before the Court” was not merely a suggestion or exhortation, but a binding obligation that may be enforced by the Court.
36. In the present case, the conduct of the Russian Federation manifestly violated its obligation to refrain from action that might aggravate or extend the dispute before the Court or render it more difficult to resolve. In February 2022, weeks after the Court had indicated the provisional measures in question, the Russian Federation recognized the DPR and LPR as sovereign States and launched a large-scale military invasion of Ukraine, in support of their autonomy. It is difficult to imagine a more serious form of conduct with the potential to aggravate the tensions between the Parties than what the Respondent has done in Ukraine since the Court's Order on provisional measures. The Respondent's conduct not only dramatically worsened the relations between the Parties, almost entirely eliminating the possibility that the dispute could be peacefully settled, but concretely affected Ukraine's ability to prepare its case before the Court, including its ability to collect evidence located in the territory now under Russian control, thereby making the dispute more difficult to resolve.
(Signed) Julia SEBUTINDE.
Interpretation of Article 1 (1) of the International Convention for the Suppression of the Financing of Terrorism — Definition of “funds” — Meaning of “assets of every kind” — Term “assets of every kind” includes weapons.
1. I disagree with the Court's interpretation of Article 1 (1) of the International Convention for the Suppression of the Financing of Terrorism (“ICSFT”). In my opinion, the term “funds”, as defined in that provision, includes weaponsFootnote 1, and the Court errs in finding that the definition does not include them. As the Judgment makes clear, the interpretation of this term is determinative of parts of Ukraine's claims under Articles 9 (1), 12 (1), and 18 (1) of the ICSFTFootnote 2. I reach my conclusion for the following reasons.
2. Article 1 (1) of the ICSFT provides:
“For the purposes of this Convention:
1. ‘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.”
3. Article 31 (1) of the Vienna Convention on the Law of Treaties (“VCLT”) provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Article 31 (4) of the VCLT provides that “[a] special meaning shall be given to a term if it is established that the parties so intended”.
4. Here, the parties to the ICSFT intended to give a special meaning to the term “funds” because they provided a definition of that term in Article 1 (1) “for the purposes of this Convention”Footnote 3. Indeed, Article 1 (1) uses the verb “means”. That special meaning must consequently be the starting point for any interpretation of the term “funds”, given that an intended special meaning “shall be given to a term”Footnote 4. The focus of interpretation must therefore be on the parties' intended special meaning, which is the text following the verb “means” in Article 1 (1).
5. The Court collapses the term “funds” and the special meaning that the parties to the ICSFT give to that term. The Court refers to Article 31 (4) of the VCLT, but it subsequently interprets the term “funds” when in fact it should be interpreting the special meaning the parties to the ICSFT intended to give to that term. The Court variously interprets the terms “funds” and “assets of every kind”, demonstrating the conflation of the defined term and its special meaningFootnote 5.
6. Article 1 (1) provides that “funds means assets of every kind”. One could stop here. The term “assets of every kind” means assets of every kind. An interpretation “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” within the meaning of Article 31 (1) of the VCLT leads to this conclusion. In paragraph 48 of the Judgment, the Court itself refers to the “ordinary meaning of the definition of ‘funds’ under the ICSFT”. Yet the Court is departing from this ordinary meaning. It is difficult to see how even the context of the term “assets of every kind” or the object and purpose of the ICSFT could justify a wholesale departure from the ordinary meaning of those wordsFootnote 6. An asset is a resource or possession with economic value. Airplanes and cars are assets. Industrial equipment and company inventory are assets. It is therefore no surprise that defence contractors and firearm manufacturers, for example, list inventory (including raw materials, works-in-progress and finished goods, which in the case of such companies obviously comprise weapons) under the heading of “total assets” on their annual balance sheets. The Court here is not deciding between competing meanings but is rather seeking to narrow a single meaning. However, the Judgment offers no satisfactory explanation for its highly selective conclusion that weapons, of all economically valuable goods, are not assets for the purpose of Article 1 (1).
7. The Court concludes that the definition of funds in Article 1 (1) only includes limited categories of assets and does not include weapons. However, the Court's interpretation is misguided. In paragraph 47 of the Judgment, the Court states, referring to the types of assets listed in Article 1 (1):
“Thus, while the phrase ‘assets of every kind’ is an expansive one, the documents or instruments listed in the definition are ordinarily used for the purpose of evidencing title or interest only to certain types of assets, such as currency, bank accounts, shares or bonds.”
8. The paragraph represents an attempt to fit an interpretation into a text that cannot support it. “Funds” is defined as “assets of every kind, whether tangible or intangible, movable or immovable”. The definition of funds also includes “legal documents or instruments in any form . . . evidencing title to, or interest in, such assets [i.e. assets of every kind]”. The list of financial and other instruments that follows provides examples of documents or instruments evidencing title or interest in assets of every kind. These examples do not, by contrast, limit or determine the scope of the term “assets of any kind”. Moreover, it makes little sense to speak of “assets retained for their monetary value”, since an asset is defined as a resource with an economic value that can be possessed or owned.
9. The Court's interpretation of the list in Article 1 (1) is similarly questionable. In paragraph 48, after addressing the list of financial and other instruments noted above, the Court states:
“The Court notes that the use of the phrase ‘but not limited to’ in Article 1, paragraph 1, suggests that the term ‘funds’ covers more than traditional financial assets. The term also extends to a broad range of assets that are exchangeable or used for their monetary value. For instance, precious metals or minerals such as gold or diamonds, artwork, energy resources such as oil, and digital assets such as cryptocurrency may fall within the ordinary meaning of the definition of ‘funds’ under the ICSFT where such assets are provided for their monetary value and not as means of committing acts of terrorism. In addition, the definition in Article 1 specifically refers to ‘immovable’ assets, suggesting that ‘funds’ may include the provision of land or real estate.”
10. The above interpretation of the phrase “but not limited to” does not seem correct. The text of paragraph 47 makes it clear that the list of financial and other instruments provides examples of “documents or instruments” rather than examples of “assets of every kind”. The words “but not limited to” introduce the list of “legal documents or instruments” evidencing title or interest. It is therefore inconsistent with the wording of Article 1 (1) and the Court's own understanding of this list to suggest, as the Court does, that the phrase “but not limited to” relates to “assets of every kind”, let alone to “funds”, rather than to “legal documents or instruments”. The positioning of the phrase “but not limited to” makes its meaning clear: “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” (emphasis added).
11. The Court states in paragraph 48: “[T]he term ‘funds’ covers more than traditional financial assets. The term also extends to a broad range of assets that are exchangeable or used for their monetary value”. The passage provides no definition of “traditional financial assets”. More importantly, the Court's interpretation is ultimately self-defeating. Weapons are also assets that can be sold and thereby exchanged for their monetary value. To suggest that weapons cannot be exchanged for their monetary value is incorrect. A car can be sold and thereby exchanged for its monetary value. The same is true of industrial equipment, furniture, and many other goods. The same is also true of weapons. The Court's conclusion in paragraph 49 that “the term ‘funds’ as used in Article 1, paragraph 1, of the ICSFT, is confined to resources that possess a financial or monetary character and does not extend to the means used to commit acts of terrorism” is therefore not defensible. Weapons would obviously fall within the category of “assets of every kind” even as that term is understood by the Court.
12. In fact, weapons in particular could conceivably even have more value to a terrorist organization than their cash equivalent, because owning and possessing the weapons eliminates transaction costs associated with sourcing weapons or with possible restrictions on obtaining them. Yet, despite the fact that weapons could, for these reasons, have greater value to terrorists than their cash equivalent, the Court treats only the provision of the latter as terrorist financing. Providing weapons could, however, also be payment in kind that frees up existing resources for other uses. It seems arbitrary that a transfer of barrels of oil could amount to terrorist financing, as paragraph 48 suggests when referring specifically to oil, but that a transfer of crates of ammunition cannot.
13. This is not an outlier view. For example, the Financial Action Task Force, to the work of which the Court refers with approval in paragraph 93 of the Judgment in a different context, stated in its 2019 Terrorist Financing Risk Assessment Guidance: “While assessments may take different forms, a [terrorist financing] risk assessment should generally cover all aspects of raising, moving, storing and using funds or other assets (including goods, vehicles, weapons etc.) to meet the needs of a terrorist or terrorist organisation.”Footnote 7 The Organisation for Economic Co-operation and Development has similarly stated: “The [Financial Action Task Force] defines terrorist financing as the ‘financing of terrorist acts, and of terrorists and terrorist organisations.’ It can also involve the facilitation of terrorist acts using other assets or stores of value (such as oil and natural resources, property, legal documents, financial instruments, etc.). The financing can also take place indirectly by storing value in different types of non-financial tangible or intangible assets.”Footnote 8
14. The Court in paragraph 48 has referred to a selective list of commodities and goods. Unfortunately, the Court overlooks the fact that commodities are not only frequently traded in the form of derivative contracts on financial markets but are also underlying physical goods. Certain commodities, in particular crude oil, can be traded on more liquid markets than others. That, however, cannot be a distinguishing criterion, and the Court does not refer to it as one. Pricing is not uniform, either. There are different benchmarks for pricing crude oil, and there are few well-established benchmarks for diamonds (whether rough or cut). When it comes to artwork, to which the Court also specifically refers as an example of an asset falling within Article 1 (1), valuation and pricing can be extraordinarily difficult or arbitrary, or even impossible. To suggest, therefore, that oil, diamonds, and artwork have a well-defined value that can easily be converted into money at a well-defined price, whereas weapons do not and cannot, reflects a very basic and incomplete understanding of economic value in particular and of the concept of an asset in general.
15. The Court at best glosses over and at worst ignores one of the most critical parts of the definition in Article 1 (1). The words “whether tangible or intangible, movable or immovable” should prove the death knell for any suggestion that the phrase “assets of any kind” does not include weapons. It strains the text to suggest that “funds”, as defined in Article 1 (1), cannot include weapons when the definition specifically includes “tangible” and “moveable” assets — terms that typically refer to chattel property. Equally importantly, though, an “immovable” asset refers to real estate or land. If “assets of any kind” can include a house, an apartment or land, no matter what its value or what liabilities or burdens might be associated with it, why can it not include weapons? In any event, the reference in Article 1 (1) to “immovable” assets does not merely “suggest[]”, as the Court states in paragraph 48, that “funds” can include land or real estate. It says so specifically.
16. In its Judgment on preliminary objections, the Court already proceeded on the basis of a broad interpretation of Article 1 (1), stating that “[t]his definition [in Article 1 (1)] covers many kinds of financial instruments and includes also other assets” (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 (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 586, para. 62). The Court made no qualification to what these “other assets” might or might not include.
17. The phrase “where such assets are provided for their monetary value and not as means of committing acts of terrorism” in paragraph 48 introduces a new, unsupported dimension. The words “where such assets are provided for” suggest that one and the same asset could either be “funds” or not be “funds” depending on the intention of the providing party. That is in tension with the text of Article 1 (1), which provides an objective definition of “funds”, and with Article 2 (1), which treats funds and intention separately. Article 2 (1) refers to a person who “provides or collects funds with the intention that they should be used or in the knowledge that they are to be used” (emphasis added) in specified ways.
18. There is an additional conceptual problem in the Court's overall conclusion, in paragraphs 52 and 53. In paragraph 53, the Court “concludes that the term ‘funds’, as defined in Article 1 of the ICSFT and used in Article 2 of the ICSFT, refers to resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps”. However, this passage assumes that the categories of resources provided for their monetary and financial value, on the one hand, and means used to commit acts of terrorism, on the other, are mutually exclusive. The Judgment does not establish this. An asset can be provided or collected for its monetary and financial value and at the same time be a means to commit an act of terrorism. For example, gasoline is a commodity, like crude oil, and it is traded on commodities exchanges according to benchmark prices. Gasoline would therefore, on the Court's understanding, be an asset that falls within the scope of Article 1 (1) that could be provided for its “monetary or financial value”. This is because it is what the Court calls an “energy resource”. At the same time, a terrorist group could use gasoline in vehicles where those vehicles are a “means used to commit acts of terrorism”. Further, Article 1 (1) does not define weapons. Some commodities traded on financial markets, such as certain petroleum products or steel, for example, could serve as components for weapons. Examples such as these lay bare the rickety foundations of the purported dichotomy between assets provided for their monetary or financial value and those provided as a means to commit an act of terrorism.
19. The Court states in paragraph 49 of the Judgment that the context in which the term “funds” is used in certain other provisions of the ICSFT “suggests that the term ‘funds’ covers different forms of monetary or financial support” and that the ICSFT “is concerned with financial or monetary transactions”. As indicated above, the context is relevant to the meaning of a term, but it cannot change that meaning entirely. Again, it is hard to see how “assets of every kind” could mean anything other than assets of every kind. Moreover — even on the Court's own interpretation and, again, as noted above — the transfer of weapons could constitute payment in kind and fall under the rubric of financial or monetary transactions. In fact, if anything, the context suggests the opposite to the Court's interpretation. Where the term “assets of every kind” appears as the definition of “funds” in a treaty designed to prevent the transfer of funds to terrorists, who carry out their acts with weapons, the context suggests that “assets of every kind” should precisely include weapons.
20. The Court states, in paragraph 50 of the Judgment, that the ICSFT's object and purpose support its conclusion. That does not seem correct. Under Article 31 of the VCLT, any construction of Article 1 (1) should be in accordance with the ICSFT's object and purpose, which, according to its preamble, appears to be to “prevent and counteract . . . the financing of terrorists and terrorist organizations”. The Court's statement in paragraph 50 that “the object of the ICSFT is not to suppress and prevent support for terrorism in general, but rather to prevent and suppress a specific form of support, namely its financing” seems wide of the mark. The more defensible understanding of the ICSFT's object and purpose — again, this is a treaty concerned with preventing the funding of terrorists — is that the Convention covers not only financial instruments or certain categories of assets but also weapons that a terrorist group would otherwise have to purchase and that might even be of greater value to terrorists than their cash equivalent. The Court states in paragraph 50 that “[t]he title of the ICSFT, which refers to ‘the Suppression of the Financing of Terrorism’, also suggests that that Convention specifically concerns the financing aspect of terrorism”. It refers to similar wording in the preamble. However, the choice of the word “financing” in the title of the treaty and its preamble does not and cannot change the meaning of Article 1 (1). Indeed, the word financing does not appear a single time in the operative part of the ICSFT. The treaty uses the word “funds” throughout its operative provisions, which, of course, the parties specifically define to mean “assets of every kind”.
21. The Court states in paragraph 51 that “[t]he travaux préparatoires confirm [its] interpretation of the term ‘funds’”. They do not “confirm” this interpretation. At best, they could point either way. The Court states in paragraph 51 that “[t]he record of the negotiations appears to indicate that the concern of the drafters was that international law did not provide means for tracing and effectively punishing those who contribute finances to terrorist organizations”. The Court also states in paragraph 51 that “[p]roposals made by delegations regarding the text of what became Article 1 of the ICSFT . . . expressed a focus on the issue of financial or monetary support”. However, certain delegations' proposals on the definition of funds or financing at certain stages in the negotiations reflected a broader focus, given that some such proposals referred to support that was broader than financial or monetaryFootnote 9.
(Signed) Dalveer BHANDARI.
The Court rejects the clean hands doctrine as a defence on the merits in a situation where the respondent State argues that the applicant State has engaged in unlawful conduct — The Court does not address the applicability of the clean hands doctrine in investment arbitration.
A measure based on a prohibited ground listed in Article 1, paragraph 1, of CERD is inherently suspect — A State bears a very heavy burden of demonstrating that the measure pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved — The scrutiny must be most rigorous — The Court has laid down a framework for analysing indirect discrimination — The reference to “mere collateral and secondary effects” is unnecessary — In the present case, the Russian Federation does not deny the notion of indirect discrimination as such.
1. In the present Judgment, the Court has made important decisions on two points, in particular. First, it has rejected the clean hands doctrine as a defence on the merits. Second, it has laid down a framework for analysing indirect discrimination. The purpose of this opinion is to elaborate on these two points.
I. Clean hands doctrine
2. The Court has previously not accepted arguments based on the clean hands doctrine either as a ground for the inadmissibility of a claim or as a defence on the merits. Nor has the Court denied the applicability of the clean hands doctrine before it entirely.
3. For example, in its 2019 Judgment on preliminary objections in Certain Iranian Assets, the Court stated:
“[w]ithout having to take a position on the ‘clean hands’ doctrine, the Court considers that, even if it were shown that the Applicant's conduct was not beyond reproach, this would not be sufficient per se to uphold the objection to admissibility raised by the Respondent on the basis of the ‘clean hands’ doctrine”.
It then noted that “the United States has not argued that Iran, through its alleged conduct, has violated the Treaty of Amity” (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), p. 44, para. 122). In Jadhav, the Court stated that “[it] does not consider that an objection based on the ‘clean hands’ doctrine may by itself render an application based on a valid title of jurisdiction inadmissible” (Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019 (II), p. 435, para. 61). In its 2023 Judgment on the merits in Certain Iranian Assets, the Court observed that “[a]s a defence on the merits, [it] has always treated the invocation of ‘unclean hands’ with the utmost caution”. It recalled that in its 2019 Judgment, it had not taken a position on the clean hands doctrine, “reserving its position on the legal status of the concept itself in international law”. It then rejected the respondent's defence on the merits based on the doctrine, noting that, in any case, one of the conditions put forward by the respondent for the doctrine to be applicable was not met (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment of 30 March 2023, paras. 81-83)Footnote 1.
4. Some arbitral tribunals have suggested that in order for the State of nationality to exercise diplomatic protection in respect of a national who has suffered an injury, that national must not have caused or amplified that injury through his or her unlawful or reprehensible conductFootnote 2. However, John Dugard, the Special Rapporteur on Diplomatic Protection of the International Law Commission (hereinafter the “ILC”), has pointed out that the cases involving diplomatic protection in which the clean hands doctrine has been raised are few. In his view, where an internationally wrongful act is committed by a State in response to the misconduct of an alien, the clean hands doctrine cannot bar a claim brought by the State of nationality on behalf of that individual, because as a consequence of the fiction that an injury to a national is an injury to the State itself, the claim becomes an international claim and the clean hands doctrine cannot be raised against the injured individual for its misconduct. For these reasons, he took the view that “the clean hands doctrine has no special place in claims involving diplomatic protection”Footnote 3. At his recommendation, the ILC did not include clean hands as a condition for the exercise of diplomatic protection in the 2006 Draft Articles on Diplomatic ProtectionFootnote 4.
5. Some investment arbitral tribunals, however, have been receptive to the clean hands doctrine operating as a bar to a claim. For example, in Littop v. Ukraine, the tribunal stated that
“this Tribunal . . . finds that the doctrine of clean hands, just like the concept of good faith, is now a principle of international law. In several cases tribunals have made clear that a party cannot come to investment arbitration with unclean hands . . . The doctrine has been recognised as a principle of general international law by arbitral tribunals and a number of academic authorities.”Footnote 5
The tribunal cited another award, in which the tribunal concerned had stated:
“Investment treaty cases confirm that such treaties do not afford protection to illegal investments either based on clauses of the treaties . . . or, absent an express provision in the treaty, based on rules of international law, such as the ‘clean hands’ doctrine or doctrines to the same effect.”Footnote 6
6. In the present Judgment, the Court rejects the Respondent's defence on the merits based on the clean hands doctrine, stating “the Court considers that the ‘clean hands’ doctrine cannot be applied in an inter-State dispute where the Court's jurisdiction is established and the application is admissible” (Judgment, paragraph 38). The Court thus rejects the clean hands doctrine as a defence on the merits in a situation where the respondent State argues in proceedings before the Court that the applicant State has engaged in unlawful conduct. The Court does not address the applicability of the clean hands doctrine in investment arbitration.
II. Racial discrimination
7. In this section, I will offer my views on the tests for determining racial discrimination, in particular, indirect discrimination.
1. The level of scrutiny required
8. Article 26 of the International Covenant on Civil and Political Rights provides:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Other international human rights treaties of a general nature, such as the European Convention on Human Rights (Art. 14 of the Convention and Art. 1 of Protocol No. 12) and the American Convention on Human Rights (Art. 1), contain analogous non-discrimination provisions.
9. The international courts and monitoring bodies established under these international human rights treaties have used similar frameworks for interpreting these non-discrimination provisions and for determining whether a differentiation of treatment constitutes discrimination. A differentiation of treatment is generally considered to constitute discrimination, “unless the criteria for such a differentiation are reasonable and objective”; in other words, “unless [the differentiation] pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved”Footnote 7.
10. Article 1, paragraph 1, of CERD defines “racial discrimination” as follows:
“In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
The definition of racial discrimination in this provision comprises two elements. First, a measure must constitute a distinction, exclusion, restriction or preference based on one of the prohibited grounds, namely “race, colour, descent, or national or ethnic origin”. Second, the measure must have the “purpose or effect” of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights. The Court makes a statement to the same effect (Judgment, paragraph 195).
11. In its General Recommendation XIV on Article 1, paragraph 1, of the Convention, the CERD Committee states that “a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention”Footnote 8. The Committee seems to be of the view that a differentiation of treatment based on race, colour, descent, or national or ethnic origin can be justified “if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate”. This test does not appear to require rigorous scrutiny and is thus questionable.
12. Racial discrimination is one of the most invidious forms of discrimination. A measure based on a prohibited ground listed in Article 1, paragraph 1, of CERD (“race, colour, descent, or national or ethnic origin”) is inherently suspect and must be subjected to the most rigorous scrutiny. The ECtHR has stated that “[w]here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”Footnote 9. The ECtHR has gone so far as to declare that “[n]o difference in treatment based exclusively or to a decisive extent on a person's ethnic origin is capable of being justified in a contemporary democratic society”Footnote 10. In my view, where a measure is based on “race, colour, descent, or national or ethnic origin”, a State bears a very heavy burden of demonstrating that the measure pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The level of scrutiny must be most rigorous and the threshold must be especially high. In particular, a measure based on race, colour or ethnic origin is hardly justifiable in a democratic society, unless it qualifies as a temporary special measure taken for the sole purpose of securing the adequate advancement of certain racial or ethnic groups or individuals (Art. 1 (4) and Art. 2 (2) of CERD; also commonly referred to as “affirmative action”).
2. Indirect discrimination
13. According to the definition of racial discrimination set out in Article 1, paragraph 1, of CERD, if a measure has the “purpose or effect” of discrimination based on one of the prohibited grounds, it constitutes racial discrimination. The object and purpose of CERD is to eliminate racial discrimination “in all its forms and manifestations” (preamble, paras. 4, 5 and 10; see also Arts. 2 (1) and 5). It is consistent with this object and purpose that CERD seeks to eliminate all forms of racial discrimination, including those that not only have the “purpose” but also the “effect” of racial discrimination.
14. Effects-based discrimination, often referred to as indirect discrimination, can be explained in relation to racial discrimination as follows. If a rule, measure or policy that appears on its face to be neutral has an unjustifiable disproportionate prejudicial impact on a group distinguished by race, colour, descent, or national or ethnic origin, it constitutes racial discrimination, even if it is not specifically aimed at that group. The analysis of disproportionate impact requires a comparison to be made between different groups. A disproportionate prejudicial impact on a group is unjustifiable, unless such an impact can be justified by a legitimate reason that does not implicate any of the prohibited grounds under Article 1, paragraph 1, of CERD. The context and circumstances in which the differentiation was introduced must be taken into account in determining whether it amounts to racial discrimination.
15. International human rights courts and treaty bodies have adopted the notion of indirect discrimination. For example, the CERD Committee states in its General Recommendation XIV on Article 1, paragraph 1, of the Convention that, “[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin”Footnote 11. In L. R. v. Slovakia, it recalled that
“the definition of racial discrimination in article 1 expressly extends beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect, that is, if they amount to indirect discrimination. In assessing such indirect discrimination, the Committee must take full account of the particular context and circumstances of the petition, as by definition indirect discrimination can only be demonstrated circumstantially”Footnote 12.
16. Other human rights treaty bodies have explained the notion of indirect discrimination in analogous terms. The Human Rights Committee has recalled that
“article 26 prohibits both direct and indirect discrimination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons”Footnote 13.
The Committee on Economic, Social and Cultural Rights has declared that “[b]oth direct and indirect forms of differential treatment can amount to discrimination under article 2, paragraph 2, of the Covenant”, defining indirect discrimination as “laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination”Footnote 14. The Committee on the Elimination of Discrimination against Women has also stated that “States parties shall ensure that there is neither direct nor indirect discrimination against women”, adding:
“Indirect discrimination against women occurs when a law, policy, programme or practice appears to be neutral in so far as it relates to men and women, but has a discriminatory effect in practice on women because pre-existing inequalities are not addressed by the apparently neutral measure. Moreover, indirect discrimination can exacerbate existing inequalities owing to a failure to recognize structural and historical patterns of discrimination and unequal power relationships between women and men.”Footnote 15
17. International human rights courts have explained the notion of indirect discrimination in a similar manner. For example, the ECtHR has stated that “a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group”Footnote 16. The IACtHR has also considered that
“a violation of the right to equality and non-discrimination also occurs in situations and cases of indirect discrimination reflected in the disproportionate impact of norms, actions, policies or other measures that, even when their formulation is or appears to be neutral, or their scope is general and undifferentiated, have negative effects on certain vulnerable groups”Footnote 17.
18. In the present case, even though the Court has refrained from using the term “indirect discrimination”, it has embraced the notion and laid down a framework for analysing indirect discrimination under CERD in the following terms:
“[R]acial discrimination may result from a measure which is neutral on its face, but whose effects show that it is ‘based on’ a prohibited ground. This is the case where convincing evidence demonstrates that a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin, unless such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1.” (Judgment, paragraph 196.)
This framework is consistent with the notion of indirect discrimination adopted by other international human rights courts and treaty bodies.
19. After laying down the framework for indirect discrimination, the Court adds that “[m]ere collateral and secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention” (Judgment, paragraph 196, referring to Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, para. 112). This addition is wholly unnecessary, because the framework adopted by the Court can fully explain why “collateral and secondary effects” do not constitute racial discrimination. “Collateral and secondary effects” do not constitute racial discrimination because “such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1”. Indeed, the Court does not refer to the concept of “collateral or secondary effects” when analysing the Russian citizenship régime in Crimea (see Judgment, paragraph 287).
20. In the present case, the Russian Federation does not deny the notion of indirect discrimination as such. Indeed, during the oral proceedings, it stated that, “contrary to what is claimed by our opponents, Russia in no way denies that racial discrimination in effect can constitute a violation of the Convention”Footnote 18. Rather, it challenges the “very broad notion” as put forward and defined by UkraineFootnote 19. It takes issue with the idea, set out in an expert report submitted and adopted by Ukraine, that “[i]ndirect discrimination recognises that equal treatment which has a disproportionate effect on a group defined by the enumerated grounds is itself discriminatory”Footnote 20. The Respondent argues that this notion, “which eliminates differentiation of treatment”, is not compatible with the definition of racial discrimination in CERD, which requires a “distinction, exclusion, restriction or preference”, and it maintains that “equality of treatment cannot . . . constitute racial discrimination”Footnote 21.
21. Article 1, paragraph 1, of CERD defines racial discrimination as “any distinction, exclusion, restriction or preference” based on one of the prohibited grounds. Normally, it is differential treatment based on a prohibited ground that falls within this definition. However, a measure that appears on its face to be neutral and equal can have an unjustifiable disproportionate prejudicial impact on a protected group and can thus constitute racial discrimination. Indeed, the CERD Committee has acknowledged that “to treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same”Footnote 22. Therefore, in accordance with the notion of indirect discrimination, equal treatment can also constitute racial discrimination if it has an unjustifiable disproportionate prejudicial impact on a protected group under CERD.
(Signed)
IWASAWA Yuji.
Concept of “funds” in the International Convention for the Suppression of the Financing of Terrorism — Function of non-financial assets — Mental elements of the offence of terrorism financing.
Article 12 of the ICSFT — Unjustified delay as a failure to afford the greatest measure of assistance — Justification of a refusal to provide assistance.
Scope of Ukraine's case under the International Convention on the Elimination of All Forms of Racial Discrimination — No requirement for a pattern of racial discrimination under CERD.
Concept of racial discrimination — Measures producing disparate adverse effect — Justification — Burden of proof.
Law enforcement measures — Ban on the Mejlis — Justification.
Provisional measure relating to the availability of education — Obligation to ensure that demand for instruction in Ukrainian is met.
Provisional measure relating to the non-aggravation of the dispute — Obligation against aggravation as a manifestation of the obligation of peaceful settlement of disputes — Incompatibility of the use of force with the obligation against aggravation.
Table of contents
Paragraphs
I. International Convention for the Suppression of the Financing of Terrorism....................[2-17]
1. The concept of “funds”....................[2-12]
2. The obligation to afford assistance under Article 12....................[13-17]
II. International Convention on the Elimination of All Forms of Racial Discrimination....................[18-33]
1. Scope of the case....................[19-21]
2. The concept of racial discrimination....................[22-25]
3. Application in the present case....................[26-33]
III. Provisional measures....................[34-43]
1. Aggravation of the dispute....................[35-41]
2. Availability of education in the Ukrainian language....................[42-43]
1. I agree with much of the Court's reasoning and many of the Court's conclusions in this case. This opinion explains the points on which I differ from the majority and the basis of my negative votes on some clauses of the dispositif. I address in turn Ukraine's claims concerning the International Convention for the Suppression of the Financing of Terrorism (section I), the International Convention on the Elimination of All Forms of Racial Discrimination (section II) and the Court's Order of 19 April 2017 indicating provisional measures (section III).
I. International Convention for the Suppression of the Financing of Terrorism
1. The concept of “funds”
2. Many of the incidents where, according to Ukraine, the Russian Federation breached its obligations under the International Convention for the Suppression of the Financing of Terrorism (“ICSFT”) involve the provision or collection of such items as weapons or training camps. Do such items constitute “funds” within the meaning of the ICSFT so that their provision or collection may constitute the offence under Article 2 if all other conditions are fulfilled?
3. The Court concludes that the term “funds” “refers to resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps” (Judgment, para. 53). I do not subscribe to this conclusion. Under the applicable customary rules of treaty interpretation, means used to commit acts of terrorism may come within the scope of the concept of “funds” under the ICSFT.
4. The Court accepts that the term “funds” is not confined to financial assets. This is clear from the wording of the definition, which covers “assets of every kind”, including immovable assets. It is also consistent with the drafting history of the Convention, which suggests that the term “funds” was understood as synonymous to “property”Footnote 1.
5. The Court thus considers that the term “funds” in principle extends to a broad range of assets, from precious metals to artwork (Judgment, para. 48). However, the Court insists that such assets are only covered by the definition where they “are provided for their monetary value and not as a means of committing acts of terrorism” (Judgment, para. 48).
6. There is a certain appeal in the Court's view, in so far as it captures the main focus of the Convention. The title and preamble of the Convention indicate that the primary concern behind its adoption was the aim to deprive groups committing acts of terrorism of their financial resources (Judgment, para. 50). This is also reflected in the fact that some of the obligations under the Convention apply primarily, if not exclusively, in situations where the “funds” in question are financial or monetary in character (Judgment, para. 49).
7. It is unsurprising that the focus of the ICSFT is on assets that are traded and transferred with little trace of their origin. But a treaty's focus is not the same thing as its scope. So, the fact that some provisions of the Convention are not applicable unless the assets in question are financial is of limited interpretative value. In Oil Platforms, the Court had to grapple with the meaning of “commerce” under Article X, paragraph 1, of the Treaty of Amity, Economic Relations, and Consular RightsFootnote 2 between the parties to that case. The Court gave
“due weight to the fact that, after Article X, paragraph 1, in which the word ‘commerce’ appears, the rest of the Article clearly deals with maritime commerce. Yet this factor [wa]s not, in the view of the Court, sufficient to restrict the scope of the word to maritime commerce”Footnote 3.
This logic applies with even greater force where the term in question is defined under the applicable treaty. For example, Article 37, paragraph 1, of the Vienna Convention on Diplomatic RelationsFootnote 4 assumes that the diplomatic agent is accompanied by family members and only applies in such situations, but few would rely on Article 37 to argue that persons not accompanied by family members do not qualify as “diplomatic agents” under Article 1 (e) of the Vienna Convention. Likewise, the fact that some provisions of the ICSFT apply to some types of “funds” and not to others does not detract from a broader interpretation of “funds”. Indeed, some of the provisions the Court relies on — for example, Article 18, paragraph 2 (b) — are equally inapplicable to assets that are covered by the Court's interpretation — for example, energy resources provided for their monetary value.
8. It seems artificial to include non-financial assets in the concept of “funds” when they are used “for their monetary and financial value” but to exclude them when they serve as the means used to commit acts of terrorism. An asset does not lose its financial value when it serves as the means for the commission of an act of terrorism. Following the Court's reasoning, provision by a sponsor of a building will be considered provision of “funds” where the sponsored entity (the “terrorist group”, for want of a better term) rents out the building and uses the proceeds to rent a hideout for its activities. But provision of the same building will not be considered provision of “funds” where the terrorist group uses that building as its hideout. In both cases the building has improved the financial situation, or the equity, of the terrorist group; whether it has done so directly or indirectly is not legally relevant.
9. The Court's complicated delineation of the concept of “funds” with reference to the function of the relevant assets is further obscured by the fact that, under the terms of Article 2, the critical function is the one intended or perceived by the sponsor. So, a person who provides a building in the knowledge that it will be used “for [its] financial value” — for example, that it will be rented out by the sponsored terrorist group — commits an offence. This is so even if the sponsored terrorist group eventually decides to use the building as a hideout: under Article 2, paragraph 3, of the ICSFT, the actual fate of the funds provided is not decisive for the purpose of establishing an offence. By contrast, a person who provides a building in the knowledge that it will be used as a hideout does not commit an offence even if the sponsored terrorist group eventually decides to rent out the building instead and to use the proceeds to finance other acts. Thus, the function of the assets provided, and consequently the question whether they constitute “funds” within the meaning of the ICSFT, is relegated to the mental state of the person who provides them — it is part of the requisite mental elements for the establishment of the offence under Article 2.
10. There is a more fundamental point about the scope of the term “funds” and thus about the scope of the offence under Article 2. As the Court observes, the question whether a party to the ICSFT is required to perform its obligations thereunder will depend on the applicable threshold evidence of terrorism financing (Judgment, para. 84). The obligations invoked in the present case arise regardless of whether the offence of terrorism financing has been proved (see, for example, Judgment, paras. 92, 103 and 138). Yet the function of an asset in a specific situation — whether or not it is provided or collected “for [its] monetary and financial value” — is one of the elements that will be ascertained on the basis of the relevant evidence. On occasion, the existing evidence may leave no doubt as to the function of a non-financial asset provided to a terrorist group. Often, however, the function will not emerge so clearly — even less so the function intended or perceived by the sponsor. Preliminary evidence may indicate that a non-financial asset, such as a building or a weapon, was provided for its financial value, namely in order to be traded to support acts of terrorism. But upon further investigation and closer assessment of the evidence, it may emerge that the asset was provided to be used as a means for the commission of acts of terrorism. The opposite may of course also be true: a non-financial asset that initially seemed to have been provided as a means for the commission of acts of terrorism may turn out to have been provided for its financial value.
11. Following the logic of the Judgment, a party's obligations under the ICSFT may arise in the former situation, where there is some evidence that a non-financial asset is used for its financial value, even if this evidence is eventually rebutted, thereby precluding the commission of the offence. By contrast, in the latter situation, where preliminary evidence indicates that a non-financial asset is used as a means for the commission of an act of terrorism, then the obligations under the ICSFT do not arise, even if it eventually turns out that this asset is used for its financial value (and perhaps even if it turns out that the offence of terrorism financing was actually committed).
12. This counter-intuitive conclusion complicates the application of the ICSFT in practice, because it creates confusion as to the situations in which the parties are to take action under the Convention. I think that this fact alone undermines the object and purpose of suppressing terrorism financing.
2. The obligation to afford assistance under Article 12
13. The Court concludes that it has not been established that the Russian Federation violated its obligations under Article 12, paragraph 1, of the ICSFT (Judgment, para. 131). It considers that the evidence accompanying Ukraine's requests was insufficient to require the Russian Federation to attend to them by affording its assistance (Judgment, para. 130). I do not share this conclusion. Article 12 requires States parties to “afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings” in respect of offences under Article 2. In addition to my doubts, expressed above, that obligations under Article 12 only come into play in the context of the provision of financial assistance, I do not agree with the Court's analysis of the type of obligation imposed by Article 12.
14. The obligation to afford assistance in another State party's investigations under Article 12 bears some similarities to the obligation to investigate under Article 9, which the Court finds to have been violated in the present case. Similarly to the obligation to investigate, the obligation to afford assistance is to be performed with a view to ascertaining whether an offence has been committed. Assistance in investigations, like investigations themselves, is most valuable at a point when the details surrounding the alleged offence are not yet known and the facts provided are general in nature (see Judgment, paragraph 103). With respect to the obligation to investigate under Article 9, the Court notes that unsubstantiated allegations do not give rise to a duty to initiate an investigation (Judgment, para. 104). This proposition is based on the terms of Article 9 (“shall take such measures as may be necessary under its domestic law”; emphasis added). It is not clear however that the same qualification applies to the obligation to afford assistance to another State party in its investigations: the text of Article 12 does not hint at it, nor is it warranted by the character of the obligation to assist another State in its investigations, which is normally significantly less onerous than the obligation to initiate one's own investigation.
15. Even if a State party to the ICSFT has no obligation to provide assistance to another State's investigations unless there is sufficient evidence of the offence in question, Ukraine's two requests were detailed enough to require action by the Russian Federation. For example, the request of 11 November 2014 recounts in some detail an alleged decision by the suspect (deputy of the State Duma of the Russian Federation and head of a political party faction) to fund the Luhansk People's Republic, and the contemporaneous launch by the political party of a fundraiser for the benefit of an organization otherwise unknown to the Ukrainian authoritiesFootnote 5. In its request, Ukraine documented the alleged decision and the launch of the fundraiser (including the bank details of the beneficiary organization), and it requested the Russian Federation's assistance in questioning officials of the organization as witnesses and in providing details concerning the suspectFootnote 6. Similar details with reference to a different suspect were provided in Ukraine's request of 3 December 2014Footnote 7. In my view, the obligation under Article 12 to afford the greatest measure of assistance to Ukraine in its criminal investigations entailed a duty of the Russian Federation to react to these requests. Given that one of the Convention's aims is to enhance international co-operation among States parties for the effective punishment of terrorism financing, as stated in the preamble of the ICSFTFootnote 8, such a reaction should be timely, especially if it consists in the refusal rather than the provision of assistance. Unjustified delay in responding to a request for assistance hampers the requesting State's efforts to suppress terrorism financing and thus thwarts the performance of its own obligations under the ICSFT.
16. The Russian Federation responded to Ukraine's requests more than eight months later in each caseFootnote 9. Such a delay contrasts to the promptness with which the Russian Federation has responded to requests for legal assistance generally (see Judgment, paragraph 110). The Russian Federation did not provide any grounds for its delay in its responses to Ukraine or in its pleadings before the Court. This conduct alone would sustain a breach of the Russian Federation's obligation to afford Ukraine the greatest measure of assistance under Article 12.
17. It is in principle possible under the conventions of mutual legal assistance in force between the Parties, which are to be observed in such situations pursuant to Article 12, paragraph 5, of the ICSFT. Specifically, the European Convention on Mutual Assistance in Criminal Matters and the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases permit the refusal of legal assistance where granting such assistance may prejudice the sovereignty, security or essential interests of the requested StateFootnote 10. In its responses, the Russian Federation invoked these provisions to refuse assistance to Ukraine. While reliance on such grounds as sovereignty and security may entail a certain measure of discretion, the refusing State is still expected to state the reasons for its refusal. This is not only mandated under the terms of one of the conventions but, as the Court observed in a similar context, “[i]t also allows the requested State to substantiate its good faith in refusing the request”Footnote 11. Against this background, I think that the Russian Federation's terse reference to the permissible grounds of refusal under the applicable conventions does not discharge its obligations under those conventions and, by extension, under the ICSFT. Relatedly, I do not think that this explicit obligation of justification has somehow been extinguished because it may have been breached by both Parties in the pastFootnote 12.
II. International Convention on the Elimination of All Forms of Racial Discrimination
18. This is the first Judgment of the Court dealing with the interpretation and application of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) on the merits of a dispute. For this reason, it may be useful to situate the Court's analysis in existing international jurisprudence. In this section, I also explain why, in my view, some acts of the Respondent should have been found to be inconsistent with its obligations under CERD.
1. Scope of the case
19. As the Judgment recalls, Ukraine's claim under CERD consists in an allegation that the Russian Federation has engaged in a pattern of conduct that is in breach of its obligations under CERD (Judgment, para. 159). To address Ukraine's claim concerning the existence of “a pattern of racial discrimination”, the Court framed the appropriate enquiry, stating that a significant number of individual acts together would constitute a pattern of racial discrimination (Judgment, para. 161).
20. So, in the present case, the Court does not examine whether individual instances have given rise to violations of the Respondent's obligations under CERD for the simple reason that it was not called upon to do so by the Applicant in this case (Judgment, para. 161). It is therefore important to emphasize that the conduct giving rise to racial discrimination does not need to consist of multiple actsFootnote 13. An individual act of racial discrimination against one victim is wrongful under CERD, regardless of whether it forms part of a pattern of racial discrimination. Moreover, a pattern of racial discrimination may emerge from a single measure to the extent that it introduces changes affecting an undefined number of persons — as regulatory measures usually do. The Judgment accepts this when it finds that legislative and other practices applying to an undefined number of persons constitute a pattern of racial discrimination (Judgment, para. 369).
21. I should also clarify that the pattern of racial discrimination need not in all cases be composed of acts having the same character or belonging to the same “category of violations” (Judgment, para. 161). As with the decision to ascertain the existence of a pattern of racial discrimination, the structure of the Court's reasoning on the basis of the different types of alleged acts — physical violence, law enforcement measures, etc. — is simply a result of the manner in which the Applicant presented and argued its case. I do not read the Judgment as suggesting that a pattern of racial discrimination cannot emerge from a series of acts that are of a diverse character.
2. The concept of racial discrimination
22. Article 1, paragraph 1, of CERD defines the term “racial discrimination” as
“any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
23. The text of the Convention thus clarifies that prohibited racial discrimination may arise from the purpose of particular acts as well as from their effect. Effects-based discrimination may occur when laws, policies and practices (which the Judgment refers to collectively as “measures”), while generally applicable (or “neutral”), can be shown to have a disparate adverse effect on the human rights of persons of a particular protected group.
24. A finding that a measure produces a disparate adverse effect on the rights of members of a protected group does not in itself amount to a finding of racial discrimination. It does, however, call for close scrutiny. As the Judgment emphasizes, the disparate adverse effect must be explicable in a way that does not relate to the prohibited grounds (Judgment, para. 196). This requirement for explanation, or justification, has been identified by the Committee on the Elimination of Racial Discrimination (“CERD Committee”), the independent body established specifically to supervise the interpretation and application of CERDFootnote 14. When addressing comparable provisions prohibiting discrimination, other treaty monitoring bodies and international courts have similarly affirmed the need for an objective and reasonable justification of measures that produce a disparate adverse effect on a given person or groupFootnote 15.
25. Once it has been established that a measure has produced a disparate adverse effect on members of the protected group, the burden will normally fall on the State imposing (or tolerating) the measure, which is expected to show that this effect is justified, in the sense that it is unrelated to the prohibited grounds (see Judgment, paragraph 196)Footnote 16. When the group experiencing the disparate adverse effect of a measure is identified with reference to the characteristics protected under CERD, the justification given must be subjected to rigorous scrutiny. As observed by the European Court of Human Rights (“ECtHR”), “[w]here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”Footnote 17. In this regard, the measures producing the disparate adverse effect ought to be applied pursuant to a legitimate aim, and they ought to be proportional to the achievement of this aimFootnote 18. Only in such circumstances will the explanation of the disparate adverse effect produced by the measure in question be deemed unrelated to the prohibited grounds under CERD (see Judgment, para. 196).
3. Application in the present case
26. Against this background, the Court's assessment of Ukraine's claims in the present case is not fully consistent, especially with regard to the question of proof for the justification of measures that produce a disparate adverse effect. On occasion, the Court, upon affirming that a given measure produces such an effect, thoroughly inspects the explanations given by the Respondent. This is the case with the measures relating to education (Judgment, paras. 338-370). At times, however, in my view, the majority is too quick to conclude that the Respondent has discharged its duty for justification of measures producing a disparate adverse effect. This is best illustrated by the Court's approach to the Russian Federation's law enforcement measures and its ban of the Mejlis which, I consider, both give rise to discrimination against persons of Crimean Tatar ethnic origin.
27. As the Judgment acknowledges, the Russian Federation's application of measures of law enforcement produced a disparate adverse effect on persons of Crimean Tatar ethnic origin (Judgment, para. 238). This has been extensively documented in reports by the Secretary-General and by the Office of the High Commissioner for Human Rights and noted with deep concern by the General Assembly (see ibid.). This being so, the Russian Federation is expected to explain this effect, and its justification ought to be rigorously scrutinizedFootnote 19. The Judgment states that the application of law enforcement measures to persons solely on the basis of an assumption that they are prone to specific types of behaviour owing to their ethnic origin is unjustifiable (Judgment, para. 237). For its part, the CERD Committee has condemned the practice of racial profiling as a violation of CERD and has warned that the practice is committed through such acts as arbitrary searches, investigations and arrestsFootnote 20.
28. The Russian Federation justifies its conduct with reference to considerations of security (notably, the “fight against religious ‘extremism’ and ‘terrorism’”) and of public health (Judgment, paras. 239-240). However, reports of the Office of the High Commissioner for Human Rights paint a different picture. They express concern “about the growing number of large-scale ‘police’ actions conducted with the apparent intention to harass and intimidate Crimean Tatars”Footnote 21, and they document that some searches against Crimean Tatars “were conducted without presenting any authorization”Footnote 22. The reports observe that “[t]he raids often involved excessive use of force and an extent of searches not warranted by circumstances, going beyond the lawful objective of preventing crime and protecting the rights and freedoms of others”Footnote 23.
29. In these circumstances, invocation of grounds of security and public health does not suffice to discharge the burden on the Russian Federation to provide an objective and reasonable explanation for its conduct. In fact, the Court acknowledges that the “stated purpose of certain measures appears [in some cases] to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security” (Judgment, para. 241). Crucially, the religious or political affiliation in question (and thus the risk to national security) may itself not be manifested but instead conjectured on account of the individual's ethnic origin as a Crimean Tatar.
30. Against this background, I think that the Court should have required more convincing evidence from the Russian Federation that its law enforcement measures were indeed justified. In the absence of such a convincing explanation, I think that a finding of violation was warranted.
31. Similar considerations apply with respect to the Russian ban on the Mejlis. The ban, by its very nature, produces a disparate adverse effect on persons of Crimean Tatar originFootnote 24. Although the Court acknowledges such an effect (Judgment, para. 270), it then proceeds to find that “the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin” (Judgment, para. 271).
32. In so doing, the Judgment seems to regard the various justifications for differential treatment as mutually exclusive: if differential treatment is “due to . . . political activities”, it cannot also be based on grounds of ethnic origin. Yet a common feature of measures that produce a disparate adverse effect on specific groups is that they rely on a variety of justifications. This accords with human experience that almost all actions have multiple motives. So, a finding that differential treatment is based on political grounds does not preclude it being also based on prohibited grounds, such as ethnic origin. In this sense, the Court did not comprehensively examine whether the explanation provided by the Russian Federation relates to one of the prohibited grounds under CERD.
33. Still less persuasive is the ensuing reversal of the burden of proof back to the Applicant, which is expected to provide convincing evidence that the measure was based on prohibited grounds (Judgment, para. 272). This move may in part be the result of the way in which Ukraine itself described the measure in this case (see Judgment, para. 271). However, the shift of the burden of proof from the applicant to the respondent and then back to the applicant can be criticized as a matter of principle. In my view, the Russian Federation has not successfully discharged its burden of establishing that the ban on the Mejlis is justified. Neither the domestic court decisions nor the pleadings of the Russian Federation convincingly explain why an outright ban of the entire institution was the appropriate measure in the circumstances. One can easily imagine, for example, measures prosecuting the individual members of the Mejlis who are accused of extremism, and even banning their participation in the activities of the Mejlis, while preserving the operation or activities of the institution and ensuring that the prosecuted members are replaced by new members elected by the Qurultay Footnote 25.
III. Provisional measures
34. As my votes indicate, I agree that the Russian Federation has violated the Court's Order of 19 April 2017 in.relation to the ban on the Mejlis and to the aggravation of the dispute before the Court. In this section, I offer my views, first, on the basis for the latter violation and, second, on the remaining provisional measure indicated by the Court's Order of 19 April 2017.
1. Aggravation of the dispute
35. In its Order of 19 April 2017, the Court indicated that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”Footnote 26. The Court explains only briefly why the Russian Federation violated this obligation.
36. In my view, this obligation is an aspect of the obligation to use exclusively peaceful means for the settlement of disputes. Elaborating on the principle of the peaceful settlement of international disputes, which the Court considers “essential in the world of today”Footnote 27, the Friendly Relations Declaration explains:
“States parties to an international dispute . . . shall refrain from any action which may aggravate the situation so as to endanger the maintenance of international peace and security, and shall act in accordance with the purposes and principles of the United Nations.”Footnote 28
Accordingly, provisional measures of non-aggravation reflect a pre-existing general duty of litigant parties that stems from the very purpose of dispute settlementFootnote 29. Several Members of this Court have described non-aggravation measures as a means to contribute to the purpose of maintaining international peace and security, which is entrusted to the United Nations and to the Court as its principal judicial organFootnote 30.
37. Therefore, conduct that is incompatible with the obligation to use peaceful means for the settlement of disputes is in principle likely to aggravate a dispute pending before the Court. On occasion, the Court has linked the risk of aggravation of the dispute with ongoing or probable use of forceFootnote 31. The Chamber of the Court in Frontier Dispute explicitly treated the use of force as incompatible with the duty not to aggravate the dispute. Specifically, the Chamber observed that some types of conduct “not merely are likely to extend or aggravate the dispute but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes”Footnote 32.
38. In the same vein, the Court has suggested that the use of force by litigant parties undermines the ongoing judicial proceedings. In Tehran Hostages, the Court expressed its concern with respect to the United States' intrusion into Iran after the Court's hearings in the case but before the delivery of the Judgment. Recalling its order of provisional measures, whereby it “had indicated that no action was to be taken by either party which might aggravate the tension between the two countries”, the Court felt “bound to observe that an operation undertaken in those circumstances [in which the Court was deliberating upon the pending dispute], from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations”Footnote 33.
39. So, conduct amounting to the use of force undermines the dispute settlement proceedings pending before the Court and, in doing so, aggravates the ongoing disputeFootnote 34. As recorded in the Judgment, since the Court's Order of 19 April 2017 the Russian Federation has launched a “special military operation”, which entails the use of force. In my view, this conduct is incompatible with the Russian Federation's obligation to use peaceful means for the settlement of its dispute with Ukraine in the present case, and therefore is incompatible with its obligation to refrain from actions that might aggravate the dispute submitted to the Court.
40. This conclusion does not bear on the compatibility of the Russian Federation's “special military operation” with international law in general. Rather, the Court's task here is confined to examining its compatibility with the very specific obligation imposed on it under the terms of the Court's Order of 19 April 2017. In this regard I note that, at least before the Court, the Russian Federation has not invoked any circumstance that might preclude the wrongfulness of the conduct that breaches its obligations under the Order, including self-defenceFootnote 35.
41. Under the terms of the Court's Order, the obligation to refrain from actions that might aggravate the dispute was addressed to both Parties. However, the Russian Federation has not claimed that Ukraine has breached the obligation through its own conduct. For this reason, the Court's finding concerning the Russian Federation's violation is without prejudice to the question as to whether Ukraine also failed to comply with this provisional measureFootnote 36.
2. Availability of education in the Ukrainian language
42. Unlike the majority, I consider that the Russian Federation has also breached the provisional measure relating to ensuring the availability of education in the Ukrainian languageFootnote 37. In order to ascertain the scope of the provisional measure indicated by the Court, it is important to appreciate the context in which it was indicated, and specifically the risk of irreparable prejudice to which this provisional measure responded. In the Order of 19 April 2017, the Court had regard to two reports that documented a decline in the use of Ukrainian as a language of instruction, coupled with allegations of pressure for its discontinuanceFootnote 38. Relying on these reports, the Court concluded, on a prima facie basis, that there might have been restrictions in terms of the availability of Ukrainian-language education in Crimean schoolsFootnote 39. In directing the Russian Federation to “[e]nsure the availability of education in the Ukrainian language”, the Court aimed at mitigating the risk posed by such restrictions.
43. Seen against this background, the measure does more than provide for simply making education in Ukrainian available in some areas pending the Court's final decision in the case. Rather, this measure obliges the Russian Federation to ensure that students in Crimea wishing to be educated in the Ukrainian language are able to do so. There is evidence indicating that the demand for instruction in Ukrainian was not always met. Specifically, the Secretary-General has documented in consecutive reports that the availability of instruction in Ukrainian has not always satisfied demandFootnote 40. In addition, he has raised doubts as to the extent to which Ukrainian, while formally available as a language of instruction, is used in practice in the curriculumFootnote 41. To this, one can add the reported indifference, if not discouragement, from school administrations in the face of requests for enrolment in Ukrainian-language curriculaFootnote 42. The limited availability in practice of Ukrainian has raised concern as to the impact that it could have on the well-being and development of children belonging to the Ukrainian ethnic minorityFootnote 43. In my view, this evidence points towards a violation by the Russian Federation of its relevant obligation under the Court's Order.
(Signed) Hilary CHARLESWORTH.
1. Je suis généralement en accord avec le raisonnement et les conclusions de la Cour tels qu'ils ressortent du présent arrêt. Cependant, je ne peux pas me rallier à la décision qui figure au point 5 du dispositif, par lequel la Cour conclut à la violation, par la Fédération de Russie, de l'ordonnance en indication de mesures conservatoires du 19 avril 2017 en raison de la mesure d'interdiction prise à l'encontre du Majlis. Je souhaite donc brièvement exposer les raisons de mon désaccord avec la majorité de la Cour sur cet aspect de l'arrêt.
2. Au point 5 du dispositif, la Cour « [d]it que la Fédération de Russie, en maintenant l'imposition de limitations au Majlis, a manqué à l'obligation que lui imposait le point 1 a) du dispositif (paragraphe 106) de l'ordonnance en indication de mesures conservatoires du 19 avril 2017 » (paragraphe 404 de l'arrêt). Ledit point 1 a) du dispositif de l'ordonnance en indication de mesures conservatoires a la teneur suivante :
« 1) En ce qui concerne la situation en Crimée, la Fédération de Russie doit, conformément aux obligations lui incombant au titre de la convention internationale sur l’élimination de toutes les formes de discrimination raciale,
a) S'abstenir de maintenir ou d'imposer des limitations à la capacité de la communauté des Tatars de Crimée de conserver ses instances représentatives, y compris le Majlis »Footnote 1.
D'après la Cour, la conclusion relative à la violation par la défenderesse de l'ordonnance en indication de mesures conservatoires est « indépendante » de celle selon laquelle l'interdiction du Majlis prononcée par les autorités de la Fédération de Russie « n'emporte pas manquement aux obligations incombant à la Fédération de Russie au titre de la CIEDR » (paragraphe 392).
3. Je ne partage pas ce point de vue. Il me semble que la formulation utilisée par la Cour dans l'ordonnance du 19 avril 2017, dans laquelle elle fait référence « aux obligations … incombant [à la Fédération de Russie] au titre de la convention internationale sur l’élimination de toutes les formes de discrimination raciale », montre clairement que les obligations découlant de la CIEDR constituaient la base juridique de la mesure ainsi indiquée. Autrement dit, les droits plausibles de l'Ukraine que l'ordonnance visait à protéger trouvaient leur source plausible dans la CIEDR.
4. Il y a lieu de souligner que les mesures ont la fonction de préserver les droits des parties dans l'attente d'une décision au fond (article 41 du Statut de la Cour). Dès le moment où, dans le présent arrêt, la Cour est arrivée à la conclusion — à laquelle j'adhère — que les mesures prises par la Fédération de Russie à l'encontre du Majlis n'emportent pas violation desdites obligations (paragraphe 275 de l'arrêt), j'estime donc que la mesure telle qu'elle a été indiquée dans l'ordonnance du 19 avril 2017 s'en trouve dépourvue d'objet. S'il n'y a pas de droit, il n'y a rien à protéger. L'arrêt a établi que la mesure en question ne pouvait pas avoir la fonction de préserver les droits de l'Ukraine en vertu de la CIEDR, étant donné que l'interdiction du Majlis n’était pas constitutive d'une violation des obligations de la Fédération de Russie au titre de ladite convention. L'article 41 du Statut de la Cour, pris d'une manière isolée, ne suffit pas à créer des obligations à la charge de la défenderesse dès le moment où il est devenu clair que la mesure était dépourvue de fondement dans la CIEDR.
Il n'y avait donc pas lieu pour la Cour de faire droit à la demande de l'Ukraine, qui, à l'instar de la mesure elle-même, s'en est trouvée dépourvue d'objet.
(Signé) Leonardo Nemer Caldeira BRANT.
Disagreement with the Court's interpretation of the term “funds” — The Court ignores the special meaning of “funds” as “assets of every kind” — The exclusion of weapons and other items used operatively in terrorist attacks contravenes the object and purpose of the ICSFT — Dismissal of predicate acts involving the transfer of weapons is unjustified — The Russian Federation has breached its co-operation obligations under Articles 10 and 12 of the ICSFT — Disagreement with the Court's definition of racial discrimination under Article 1 (1) of the CERD — The Court fails to shift the burden of proof to the Russian Federation after Ukraine has established a prima facie case of discrimination — The ban of the Mejlis creates a disparate adverse effect on Crimean Tatars that was unjustified and disproportional — Protection of minority language education under the CERD is broader than admitted by the Court — The Russian Federation has breached the Court's provisional measures Order in relation to the availability of Ukrainian-language education.
1. I regret that I am unable to join the majority in several key aspects of today's Judgment. In particular, I strongly disagree with the Court's methodological approach to the interpretation of the term “funds” in the International Convention for the Suppression of the Financing of Terrorism (hereinafter the “ICSFT”), which I believe is incompatible with the rules of interpretation laid down by the Vienna Convention on the Law of Treaties (hereinafter the “VCLT”) and their customary law equivalents. Moreover, I retain some concerns as to the Judgment's analysis of the co-operation obligations under Articles 10 and 12 of the ICSFT. I also dissent on the conclusion that the ban of the Mejlis, as an important representative body of the Crimean Tatar population, did not constitute a violation of the International Convention for the Elimination of All Forms of Racial Discrimination (hereinafter the “CERD”). Finally, I concurred with the majority's conclusion that the Russian Federation has violated its obligations under the CERD in relation to the availability of Ukrainian- language education. However, I do not agree with the Court's conclusion that the Russian Federation did not violate the provisional measure indicated by the Court in its Order of 19 April 2017, namely, to ensure the availability of education in the Ukrainian language. The reasons for my dissent are set out below.
I. Ukraine's claims under the International Convention for the Suppression of the Financing of Terrorism (ICSFT)
1. Application of the Vienna Convention on the Law of Treaties and interpretation of the term “funds”
2. A significant part of Ukraine's claims in this case depends on the question of whether the term “funds” under the ICSFT encompasses items used operatively to carry out terrorist acts, in particular weapons, ammunition and explosives. In its Judgment, the Court concludes that
“the term “funds”, as defined in Article 1 of the ICSFT and used in Article 2 of the ICSFT, refers to resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps”Footnote 1.
3. I cannot support this conclusion. The interpretation of the term “funds” must be undertaken in accordance with the rules of interpretation laid down in Articles 31 to 33 of the VCLT, which, in addition, are reflective of customary international lawFootnote 2. Under Article 31 (1), a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. However, according to Article 31 (4) of the VCLT, a special meaning shall be given to a term if it is established that the parties so intended. Such a special meaning is clearly expressed in Article 1 (1) of the ICSFT, which defines “funds” as
“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”.
4. The ordinary meaning of “assets” is already quite broad, sometimes defined in dictionaries as “all the property of a person”Footnote 3. As such, it would clearly encompass weapons or other property used operatively by terrorist groups. This broad scope is further emphasized by the addition of the phrase “of every kind”. Nevertheless, the Judgment seems to suggest that the meaning of “assets of every kind” — in direct contrast to its ordinary meaning — is in fact “assets of some kind”. In doing so, the Judgment highlights the list of documents or instruments in Article 1 (1) that may evidence title to or interest in assets, such as “bank credits, traveller's cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit”Footnote 4. The Judgment then concludes:
“Thus, while the phrase “assets of every kind” is an expansive one, the documents or instruments listed in the definition are ordinarily used for the purpose of evidencing title or interest only to certain types of assets, such as currency, bank accounts, shares or bonds.”Footnote 5
5. As I have already pointed out in my separate opinion to the 2019 Judgment on preliminary objections, the focus of the definition of “funds” in Article 1 (1) lies on the term “assets” and refers to legal documents and instruments only in so far as may evidence title to such “assets”Footnote 6. Therefore, the list of documents and instruments included in Article 1 (1) — which is expressly defined as non-exhaustive by the words “but not limited to” — can by no means be used to circumscribe the type of assets included under that provision.
6. The Court's reductive interpretation of the term “assets” can also not be explained with a reference to the apparent context of the Convention. The Judgment stipulates that the fact that certain provisions of the Convention explicitly deal with “bank secrecy”, “cross-border transactions” or “fiscal offences” must mean that the term “funds” (or “assets of every kind” for that matter) is limited to “resources that possess a financial or monetary character”Footnote 7. At the same time, however, the Judgment acknowledges that the definition of “funds” enshrined in Article 1 (1) explicitly lists immovable and intangible property, for example real estate or patents, which do not possess a monetary character and could equally not be the subject of these specific provisions.
7. The Court also aims to find further support for its narrow interpretation by invoking the object and purpose of the Convention. The Judgment asserts that “the object of the ICSFT is not to suppress and prevent support for terrorism in general, but rather to prevent and suppress a specific form of support, namely its financing”Footnote 8. But this argument is circular. The meaning of “financing” is “to raise or collect funds”Footnote 9. “Funds”, however, are explicitly defined in Article 1 (1), namely as “assets of every kind”.
8. Ultimately, the Court acknowledges that the term “funds” under the Convention encompasses assets other than “traditional financial assets”, for example oil, artworks or precious metals, and therefore implicitly accepts that financing can occur “in-kind”Footnote 10. However, the Judgment also stipulates that such other assets are included only to the extent that they are “provided for their monetary value and not as means of committing acts of terrorism”Footnote 11. By excluding the transfer of assets used operatively from the scope of the Convention, the Court introduces — in essence — an unwritten additional element of intent. It is well known that weapons and ammunition (just like oil or precious metals) have an inherent monetary value and are subject to a large black market all over the world. This means an individual can commit the offence of terrorism financing by transferring weapons to a terrorist group with the knowledge that the group will sell the weapons; but that person will not commit the offence if he or she knows that the group aims to use these weapons directly. Similarly, the offence of terrorism financing would be completed if an individual transfers real estate to a terrorist group in the knowledge that the group will trade the property for weapons, but not if the group sets up its command centre in said property or uses it to hold hostages.
9. This outcome lacks any basis in the text of the ICSFT. Indeed, Article 2 (1) prescribes that the perpetrator intends or knows that the “funds” are to be used to “carry out” the acts defined in subparagraphs (a) or (b). Nowhere does it say that the “funds” must first be used to purchase or acquire equipment or used as a reward for those carrying out such acts. This leads to an absurd incentive for terrorism supporters to directly acquire and transfer weapons and other goods used operatively for terrorist acts rather than to “only” provide “monetary” assistance. Therefore, the Court's conclusion squarely contravenes the object and purpose of the Convention.
10. Finally, the Judgment aims to justify its conclusion by a selective survey of the travaux préparatoires. It notes that the record of the negotiations “expressed a focus on the issue of financial or monetary support”Footnote 12. However, the initial draft prepared by the ad hoc Committee defined “funds” as “cash, assets or any other property, tangible or intangible, however acquired”Footnote 13. The informal summary of the working group recorded that
“[s]uggestions were . . . made to delete the phrase “or other property” as being superfluous. Another view was expressed in favour of the deletion of the word “assets”. Still others preferred retaining both terms as distinct notions. Some preferred interpreting “property” as covering only arms, explosives and similar goods.”Footnote 14
Ultimately, the term “other property” was deleted from the text. However, this was not done in order to remove arms and explosives but because “property” was already encompassed by the phrase “assets of every kind”:
“During the debate in the Working Group on the Bureau's proposed text, it was noted that the word “property” was redundant, since it was already envisaged in the concept of “funds”, as defined in article 1. Thus, it could be deleted.”Footnote 15
Therefore, while it may well be that the focus of the negotiations was on “monetary support”, including through “real or spurious charitable institutions”Footnote 16, these extracts show that this was certainly not the sole concern of the drafters, and that the provision of weapons and arms was explicitly discussed. Rather than to confirm the narrow interpretation adopted by the Court, the travaux thus indicate that the term “property” was associated with “arms, explosives and similar goods”, and that “property” was also considered as encompassed by the ultimate definition of “funds” as “assets of every kind”.
11. In conclusion, I am convinced that the Court has erred in its interpretation of the term “funds”. As a result, the Court put itself in the position not to be able to evaluate predicate acts the commission of which was solely sustained by the supply of weapons or other means to commit such actsFootnote 17, among others the shooting down of MH17 that has been widely litigated by the PartiesFootnote 18. Consequently, it dismissed a significant number of complaints and requests for assistance submitted by Ukraine to the Russian Federation under Articles 9, 12 and 18 as outside the scope of the ConventionFootnote 19. In addition, the Court's interpretation will likely have considerable impact beyond the present case as domestic courts may rely on today's decision in interpreting domestic legislation aimed to implement the ICSFT. Regrettably, this could lead to a significant gap in the legal framework aimed at preventing terrorism.
2. Relationship between Articles 9 and 10 of the ICSFT
12. In its Judgment, the Court found that the Russian Federation has failed to co-operate with Ukraine and to undertake the necessary investigations prescribed by Article 9 of the ICSFTFootnote 20. I agree with this conclusion. However, the decision then proceeds to analyse the obligation to prosecute or extradite found in Article 10, paragraph 1, of the ICSFT. The Court notes that this obligation is
“ordinarily implemented after the relevant State party has performed other obligations including the obligations provided for in other provisions under the ICSFT, such as the obligation under Article 9 to conduct an investigation into the facts of alleged terrorism financing (see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 455, para. 91). Ordinarily, it is only after an investigation has been conducted that a decision may be taken to submit the case to the competent authorities for the purpose of prosecution.”Footnote 21
13. The Judgment then continues to dismiss Ukraine's claim under Article 10 on the basis that the information provided by Ukraine to the Russian Federation did not give rise to “reasonable grounds to suspect that terrorism financing offences within the meaning of Article 2 of the ICSFT had been committed”Footnote 22. However, the Judgment also acknowledges the Court's prior findings in the case of the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), in which the Court has dealt with an obligation similar to the one contained in Article 10 (1) of the ICSFT (commonly known as the principle of aut dedere aut iudicare). In that case, the Court found that the similarly worded Article 6 (1) of the Convention against Torture
“obliges the State to make a preliminary inquiry immediately from the time that the suspect is present in its territory. The obligation to submit the case to the competent authorities, under Article 7, paragraph 1, may or may not result in the institution of proceedings, in the light of the evidence before them, relating to the charges against the suspect.”Footnote 23
14. Therefore, irrespective of whether the evidence submitted by Ukraine was sufficient or not to prosecute the accused individuals, Article 10 nevertheless requires that the matter at least be brought to the attention of the relevant prosecutorial authorities, who, after making preliminary inquiries, will then decide whether the evidence warrants the filing of charges against the suspects. In the present case, it appears that the matter was not even submitted to the relevant authorities and that no genuine preliminary inquiry was made. The lack of action appears sufficient to justify a breach of Article 10, irrespective of whether a State has previously complied with its obligation to investigate under Article 9.
3. The Court's dismissal of Ukraine's claims under Article 12 of the ICSFT
15. In its assessment of Ukraine's claims under Article 12 of the ICSFT, the Judgment concludes that
“none of the three requests described in any detail the commission of alleged predicate acts by the recipients of the provided funds. Nor did they indicate that the alleged funders knew that the funds provided would be used for the commission of predicate acts (see paragraph 64 above). Accordingly, the Court considers that the requests for legal assistance cited by Ukraine did not give rise to an obligation by the Russian Federation under Article 12 of the ICSFT to afford Ukraine ‘the greatest measure of assistance’ in connection with the criminal investigations in question.”Footnote 24
16. This conclusion is problematic for several reasons. First, Article 12 (1) does not stipulate that the State requesting assistance must submit any specific information regarding the commission of predicate acts, or the intention of the funders, it simply obliges each State to provide “the greatest measure of assistance” in connection with criminal investigations in relation to the offence of terrorism financing. It is therefore not clear to me where the Court takes the above-mentioned evidentiary requirements from.
17. Second, Article 2 (3) of the ICSFT makes clear that it is not necessary that predicate acts are actually carried out by the recipients of the funds in order to complete the offence of terrorism financing. Accordingly, information relating to the commission of predicate acts cannot be an indispensable requirement to trigger the obligation of another State to assist with investigations. Nor can a State be expected to provide detailed information about the intention of suspected funders. It is in the nature of criminal investigations that certain elements of a potential crime, in particular the mental element, have yet to be established. It is precisely for this reason that Articles 9 and 12 provide for assistance by other States who might be in a position to supply information establishing such elements. This becomes even more pertinent in the case of terrorism financing, which is per definition a cross-border offence (see Article 3 of the ICSFT).
18. Third, and most importantly, Articles 9 and 12 represent two sides of the same coin. Whereas Article 9 deals with investigations to be carried out by the requested State, Article 12 regulates assistance to be given to the requesting State in relation to its own investigations. It makes no sense to conclude that the evidentiary basis was sufficient to trigger one obligation (Article 9) but not the other (Article 12). Indeed, such difference in relation to the applicable threshold finds no support in the text of Articles 9 and 12.
19. Finally, I note that the Court dismissed nine out of twelve relevant requests for legal assistance that have been submitted by Ukraine on the basis that they concerned the alleged transfer of weapons, ammunition or military equipment and therefore fall outside the scope of the ConventionFootnote 25. In this regard, I reiterate my strong dissent from the Court's erroneous interpretation of the term “funds” discussed above. Moreover, even under the Court's own definition of funds, the transfer of weapons would be encompassed by the Convention as long as such weapons are not intended to be used operatively but for their monetary value. The precise intention of the suspected individuals mentioned in these nine additional requests for legal assistance, however, can only be established by criminal investigations, including those foreseen by Articles 9 and 12. Therefore, the Court erred in summarily dismissing these requests without further analysis.
II. Ukraine's claims under the International Convention for the Elimination of All Forms of Racial Discrimination (CERD)
20. In relation to Ukraine's claims under the CERD, I agree with most of the Court's findings. However, there are some points that I would like to address more critically.
1. The definition of discrimination under the CERD
21. At the outset, I would like to address the Court's definition of racial discrimination in paragraph 196 of the Judgment. There, the Court states that
“[a]ny measure whose purpose is a differentiation of treatment based on a prohibited ground under Article 1, paragraph 1, constitutes an act of racial discrimination under the Convention. A measure whose stated purpose is unrelated to the prohibited grounds contained in Article 1, paragraph 1, does not constitute, in and of itself, racial discrimination by virtue of the fact that it is applied to a group or to a person of certain race, colour, descent, or national or ethnic origin. However, racial discrimination may result from a measure which is neutral on its face, but whose effects show that it is ‘based on’ a prohibited ground. This is the case where convincing evidence demonstrates that a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin, unless such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1.”
22. In my view, the phrase “unless such an effect can be explained in a way that does not relate to the prohibited grounds” remains ambiguous. It seems to suggest that prohibited discrimination must always contain an intentional element, whether concealed or not. However, as confirmed by the CERD Committee, requiring proof of “discriminatory intent is inconsistent with the Convention's prohibition of conduct having a discriminatory effect”Footnote 26. Even a measure that is entirely neutral and implemented in good faith can nevertheless produce a disparate adverse effect on the rights of a group distinguished by race, colour, descent, or national or ethnic origin. In such a case, the State in question must demonstrate that the measure was taken for a legitimate aim and is proportionate in relation to the achievement of that aimFootnote 27. For example, where measures create a disparate adverse effect on the civil rights protected by Article 5 (d) of the CERD, restrictions may be imposed under the same requirements as prescribed by the International Covenant on Civil and Political Rights (“ICCPR”)Footnote 28.
23. The general principle in proceedings before the Court is onus probandi actori incumbit, meaning that it is the party seeking to establish a fact who bears the burden of proving itFootnote 29. However, this principle is not absolute. Once a prima facie case of discrimination is established by demonstrating the disparate adverse impact on a group distinguished by race, colour, descent, or national or ethnic origin, it is up to the respondent to demonstrate that the measure in question was taken for a legitimate aim and in a proportionate manner. This practice is well established in the case law of international courts and quasi-judicial bodies. The European Court of Human Rights, for example, has noted that once an applicant establishes “a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory”Footnote 30. A similar practice can be found in the case law of the CERD CommitteeFootnote 31, the UN Human Rights CommitteeFootnote 32 and the European Court of JusticeFootnote 33.
24. I believe that the Court should have applied this principle to Ukraine's claims under the CERD, in particular in relation to the law enforcement measures taken by the Russian Federation against the Crimean TatarsFootnote 34, as well as to the ban of the Mejlis discussed below.
2. The ban of the Mejlis
25. The present Judgment dismisses Ukraine's claims in relation to the ban of the Mejlis instituted by the Russian authorities in Crimea. First, the Court distinguishes between the Mejlis, which can be described as a self-government body with quasi-executive functions, and the Qurultay, the highest representative body of the Crimean Tatar people, which is composed of directly elected representativesFootnote 35. The Judgment then notes that since only the Mejlis but not the Qurultay has been banned, the Court is “not convinced that Ukraine has substantiated its claim that the ban on the Mejlis deprived the wider Crimean Tatar population of its representation”Footnote 36. This statement is problematic as it assumes that only measures that deprive a protected group of all representation can constitute a violation of the CERD. This cannot be correct. Article 1 (1) of the Convention explicitly recognizes that prohibited racial discrimination can be brought about by restrictions that have the purpose or effect of “nullifying or impairing” the rights protected under the Convention.
26. Ultimately, the Judgment admits that the ban of the Mejlis produces “a disparate adverse effect on the rights of persons of Crimean Tatar origin”, even though it acknowledges such effect only “in so far as the members of the Mejlis are, without exception, of Crimean Tatar origin”Footnote 37. However, the Court then concludes “that Ukraine has not provided convincing evidence that the ban of the Mejlis was based on the national or ethnic origin of its members, rather than its political positions and activities” and, therefore, that the ban cannot “constitute an act of discrimination within the meaning of Article 1, paragraph 1, of CERD”Footnote 38. This statement is at odds with the above- mentioned shift of the burden of proof once an applicant has made a prima facie case of racial discrimination. Since Ukraine had convincingly demonstrated that the ban of the Mejlis has a disparate adverse effect on Crimean Tatars, it should have been the duty of the Russian Federation to provide evidence that the ban was not based on race or ethnicity but pursued for a legitimate aim and in a proportionate manner.
27. The Judgment also notes that the evidence shows that “the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin”. Even if this was correct and the main reason for measures against Crimean Tatars was their political opposition to Russia's occupation and annexation of Crimea, this does not automatically exclude the deliberate targeting of Crimean Tatars to the extent that their political opinion is presumed on the basis of their ethnicity. In my view, the Russian Federation has not produced sufficient evidence to dispel this presumption.
28. Finally, even assuming that the ban was based exclusively on the political opinion of certain Crimean Tatars rather than their ethnicity, this alone is not sufficient to justify the disparate adverse impact on the Crimean Tatar community as a whole. As mentioned above, any measure creating such adverse impact must pursue a legitimate aim and be implemented in a proportionate manner. The Russian Federation has argued that multiple Mejlis leaders were engaged in “extremist acts” such as the setting up of trade and transport blockades of Crimea, and that the Mejlis was banned for security reasons under neutral anti-extremism lawsFootnote 39. Public security and the combat against terrorism and extremism are, in principle, legitimate aims. However, the Russian Federation never claimed that the Mejlis as a collective was responsible for such acts. Rather, it only mentioned that the Mejlis “failed to disassociate itself” from these actionsFootnote 40. Neither the Russian Federation nor its domestic courts convincingly explained why it was necessary and proportionate to dissolve the Mejlis as such, rather than to take measures against the three individual members alleged to have orchestrated the blockade of Crimea (in particular, Mr Chubarov, Mr Dzhemilev and Mr Islyamov). I therefore conclude that the ban constitutes a violation of the Russian Federation's obligations under the CERD.
3. The right to minority language education under the CERD
29. The present Judgment concludes that the Russian Federation has violated its obligations under Article 2 (1) (a) and Article 5 (e) (v) of the CERD by the way in which “it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language”Footnote 41. I concur with this conclusion. However, some of the statements made by the Court in relation to the protection of language education under the CERD warrant additional remarks.
30. At the beginning of its analysis, the Court notes that
“even if Article 5 (e) (v) of CERD does not include a general right to school education in a minority language, the prohibition of racial discrimination under Article 2 (1) (a) of CERD and the right to education under Article 5 (e) (v), may, under certain circumstances, set limits to changes in the provision of school education in the language of a national or ethnic minority”Footnote 42.
The wording chosen by the Court gives the impression that the protection of language rights under the CERD is rather limited. While the Convention does indeed not explicitly mention a right to education in a minority language, I believe that it does protect minority language education more broadly than acknowledged in the present Judgment.
31. In particular, I think that the relevant provisions of the CERD must be interpreted in the light of the relevant subsequent practice and agreements in relation to States' obligations with regard to education in minority languages. In this regard, it is appropriate to draw attention to the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic MinoritiesFootnote 43. The Declaration was adopted by consensus by the United Nations General Assembly and aims to promote, inter alia, “the principles contained in the . . . Convention on the Elimination of All Forms of Racial Discrimination”. Therefore, it arguably constitutes a subsequent agreement, or at least subsequent practice to the Convention under Article 31 (3) (a) and (b) of the VCLTFootnote 44.
32. Article 1 (1) of the Declaration stipulates that “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities” (emphasis added). The use of the word “shall” points towards more than a mere recommendation. In addition, Article 4 (3) indicates that States should take “appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue”. In the light of this language, I do not believe that a State enjoys the type of “broad discretion” indicated by the Court in relation to changes in school curricula and the primary language of instructionFootnote 45.
4. Compliance by the Russian Federation with the Court's provisional measures in relation to the availability of Ukrainian-language education
33. In its Order of 19 April 2017, the Court instructed the Russian Federation to ensure the availability of education in the Ukrainian languageFootnote 46. As mentioned above, in the present Judgment, the Court found that “the Russian Federation has violated its obligations under Article 2 (1) (a) and Article 5 (e) (v) of CERD by the way in which it has implemented its educational system in Crimea after 2014 with regard to the school education in the Ukrainian language”Footnote 47. Simultaneously, the Court found that the Russian Federation has not violated its obligations under the Order of 19 April 2017, in so far as it was obliged to ensure the availability of education in the Ukrainian languageFootnote 48. The Court reaches this conclusion by noting that the Order of 19 April 2017 required the Russian Federation only to ensure that education in the Ukrainian language remains “available”Footnote 49 and that Ukraine has not sufficiently established that education in the Ukrainian language was unavailable for those who wish to choose this possibilityFootnote 50.
34. I cannot concur with this finding. Ukraine has submitted as evidence credible reports by the United Nations Secretary-General and the Office of the United Nations High Commissioner for Human Rights (“OHCHR”), which noted, inter alia, the “rapid decline”Footnote 51 of institutions offering instruction in the Ukrainian language, the failure to meet the demand for Ukrainian-language educationFootnote 52, as well as intimidation of parents wishing to enrol their children in Ukrainian language classesFootnote 53. In my view, this shows that access to such education has been impeded to an extent that constitutes a violation of the Court's Order of 19 April 2017. Moreover, a State cannot escape its obligation to ensure the availability of language education by artificially reducing demand, including by displacement and intimidation. For these reasons, I believe the Court should have held that the Russian Federation has breached its obligations “to ensure the availability of education in the Ukrainian language”.
(Signed) Fausto POCAR.
Lack of evidence of terrorism financing — Lack of proof of terrorist intent.
No violation of Article 9 of ICSFT in light of absence of terrorism financing — Threshold adopted by the Majority for Article 9 of ICSFT too low — The Respondent fulfilled its obligations under Article 9 of ICSFT.
The meaning of “funds” excludes weapons — Treaty interpretation — Judicial practice. The “clean hands” doctrine — Conditions met to apply the doctrine for ICSFT and CERD.
Political views not an element of ethnic origin — Scope and limits of “indirect discrimination”.
Dynamic in preference of language of school education in Crimea as an objective phenomenon — Lack of policy of racial discrimination.
Provisional measures Order — Ban on “Mejlis” not in contravention of CERD.
Provisional measures Order on non-aggravation — Outside of the scope of the dispute and addressed to both Parties.
Introduction
1. While I find myself in agreement with most of the Judgment's findings, there are several matters on which, much to my regret, I cannot agree with the Majority and/or their reasoning, as well as some instances where I believe additional elucidation should be in order, with regard to the case's history, the positions of the Parties or the approach of the Court. Hence, my opinion is in part dissenting, in part concurring and to a degree declaratory.
2. To begin with, I feel obliged to note the complexity of this case, which is effectively two cases rolled into one, each of those being uniquely broad, covering not only all conceivable aspects of the relevant conventions, but also reaching well beyond into other matters of international law — including humanitarian law, human rights law, counter-terrorism law — as well as innumerable questions of fact. This might well be the single most massive case in ICJ history — in its complexity, entanglement and reach well beyond the scope of the two conventions.
3. Another important aspect of the case is its primacy: this is the first time that the Court pronounces itself on the merits regarding interpretation and application of the ICSFT and of CERD. Considering also the scope of the case — which is nothing short of all-encompassing — it is a landmark decision that will undoubtedly shape a significant part of the international legal landscape. Of course, this put a special burden of responsibility on judges, acting as pioneers without the guidance of prior decisions while exploring terra incognita.
4. I personally found all of this to be acutely true, having only entered these complex and lengthy proceedings at their final stage, thus arriving at a disadvantage. At the same time, perhaps it gave me an opportunity to look at the case from the viewpoint of common sense rather than being constrained by the intricacies of law and fact woven over the years of deliberations — before unavoidably immersing myself in those intricacies.
5. My conclusion, grounded in this common sense almost as much as in legal and factual considerations to be outlined below, is that there have been no instances of terrorism financing or of racial discrimination, nor any breach of the ICSFT or CERD. By and large, this conclusion was supported by the Court in its final Judgment, and I am privileged to have been part of the Bench that dealt with the case with impartiality and integrity regarding most of the issues involved.
6. As to the couple of rather minor “violations” which the Majority have elected to discover, in my view they are more of a symbolic nature, since they do not seem to be adequately supported by legal or factual grounds and fail to even pass the test of common sense. It is unfortunate to have to express myself in such terms; however, I firmly believe in the need to preserve and protect the World Court from “slings and arrows”Footnote 1 of political pressure, that Court being the primary international institution on whose impartiality, to a significant extent, hinges the fundamental principle of peaceful resolution of international disputes.
PART I — ICSFT
1. The Court has found no evidence of terrorism or financing of terrorism in this case, and rejected Ukraine's claim that DPR and LPR were “notorious terrorist organizations”
7. From the very beginning, Ukraine's ICSFT case seemed incredibly far-fetched. Of course, attempting to cast political and military opponents as “terrorists” is nothing new; but defending these claims in the World Court turned out to be a whole different matter.
8. As early as in 2017, at the provisional measures stage, the Court had stated that Ukraine's allegations regarding the ICSFT were implausibleFootnote 2. Ukraine's attempt to make the case about “State-sponsored terrorism”Footnote 3 did not even pass the preliminary objections phase and was rejected in 2019 for lack of jurisdiction. Now, after six years of litigation, and having considerably scaled down its allegations, Ukraine still failed to provide any evidence of “acts of terrorism” attributable to DPR/LPR and “terrorism financing” by the Russian State or Russian persons.
9. One quote cited during the proceedings quite succinctly summarizes the essence of the case:
“It is important to understand what precisely is at stake in this debate: nothing less than the distinction between the terrorist and the soldier. Although it is frequently said that one nation's freedom fighter is another's terrorist, neither ordinary morality nor international law takes this position. There are morally and legally relevant distinctions to be made between these actions, and failure to understand these distinctions risks undermining the very foundations of jus in bello . . . it is imperative that we continue to insist upon distinguishing between terrorists who deliberately target civilians and soldiers who foresee that civilians will be killed as collateral damage while striking a military target. The former is a war crime, while the latter represents lawful conduct.”Footnote 4
10. The Donetsk and Lugansk People's Republics were not “terrorist organizations”, but entities created by the people of Donbass to implement their right to self-determination, in response to the nationalistic régime seizing power in Kiev through an armed and violent coup in 2014. It was this new unelected Kiev Government, relying on neo-Nazi groupsFootnote 5, which launched a military operation against Donbass to suppress the self-determination movement, thus igniting the internal armed conflict which served as the backdrop for this case.
11. The main incidents cast by Ukraine as “acts of terrorism” allegedly triggering the ICSFT occurred in the course of these hostilities and involved attacks against military targets (real or perceived). This fact presented a major obstacle for Ukraine to prove the necessary elements of a terrorism financing offence — the special terrorist intent to harm civilians for the purpose of spreading terror, and the intent or knowledge on behalf of the financier that the financing will go towards those goals.
12. The Court has steadfastly rejected all attempts by Ukraine to unduly expand the scope of the Convention through misinterpretation of its provisions regarding intent and knowledge. The relevant parts of the Judgment are very illustrative and leave little to add.
13. Failing to prove actual intent and knowledge, Ukraine resorted to claiming that DPR and LPR were “notorious terrorist organizations” and thus Russia was obliged to act against them, even if Ukraine itself never supplied the relevant evidence of their “terrorist” nature. It is with regard to this claim that the Court made its fundamental finding on the absence of evidence that DPR and LPR were engaged in terrorist activity:
“[T]he Court notes that it does not have sufficient evidence before it to characterize any of the armed groups implicated by Ukraine in the commission of the alleged predicate acts as groups notorious for committing such acts. In the circumstances, the funder's knowledge that the funds are to be used to carry out a predicate act under Article 2 of the ICSFT cannot be inferred from the character of the recipient group”Footnote 6.
14. This conclusion is well founded. Out of all the fighting which took place in Donbass from 2014 (the start of the conflict between Kiev's unelected new Government and its opponents in Donbass) to 2017 (when Ukraine submitted its Application to the Court), only four combat-related incidents were portrayed by Ukraine as “acts of terrorism”: the downing of Flight MH17 and three episodes of shelling, respectively, of the Ukrainian military checkpoint at Volnovakha, the city of Mariupol and the city of Kramatorsk. Much of the case revolved around whether these incidents constituted predicate acts under the ICSFT.
15. Firstly, the Court did not determine that these attacks were even attributable to Donbass forces. Secondly, in all cases, there was a distinct lack of terrorist intent, even if proceeding from Ukraine's own materials.
16. The MH17 incident was, of course, Ukraine's “flagship case”. However, its very prominence acted against Ukraine's efforts to paint it as a “terrorist attack”. Ukraine's reliance on the findings of the Dutch investigation, the JIT group and the Hague District Court backfired, as none of these entities found evidence of terrorism or even a war crime in the event, but rather viewed it as a mistake of targeting in the heat of an ongoing armed conflict between Ukrainian and Donbass forcesFootnote 7.
17. Had the Court chosen to examine this incident more deeply, it would have had to confront the numerous gaps and inconsistencies in the reports of the Dutch authorities and JIT, which seemed all too keen to put the blame on DPR while exonerating Ukrainian forces. One such apparent lapse by those authorities was how utterly oblivious they were to evidence pointing towards possible Ukrainian involvement in the disaster, ranging from the decision not to close the airspace over the conflict zone, to the deployment of multiple active Ukrainian BUK anti-aircraft systems in that zone, including in the vicinity of the crash area (confirmed, inter alia, by the Netherlands' own intelligence service report on radar activity)Footnote 8, as well as the fact that the markings on the missile fragments allegedly found at the crash site indicated that it had been part of the Ukrainian armed forces inventoryFootnote 9.
18. The JIT also ignored Ukraine's own notoriety for shooting down civilian airliners: in 2001 its armed forces, engaged in military exercises and firing live missiles, destroyed a Russian civilian airliner en route from Tel Aviv to Novosibirsk with a stopover in Sochi, killing all 77 passengers and crew on board. Back then, Ukraine's President Kuchma had said: “We are not the first, nor the last; let's not make a tragedy out of this”Footnote 10. Whether inadvertently or not, Mr Kuchma may have been referring to the shooting down of the Iranian civilian airliner by the USS Vincennes over the Gulf, killing all 290 people aboardFootnote 11. Neither Ukraine, nor the United States have ever faced any international responsibility for these acts. Incredibly, during the hearings Ukraine's counsel made the argument that Ukraine did not act unlawfully and its forces acted under “legal authority” when shooting down the Russian civilian airlinerFootnote 12.
19. If Ukrainian air defence had previously managed to shoot down a civil aircraft in the perfect conditions of military exercises, how much more probable would such an event be in the fog of an actual ongoing armed conflict, with multiple BUK units actively seeking enemy targets in an airspace where warplanes mingled with civilian aircraft? This is exactly the reason why civil air traffic is normally shut down over conflict zones; but Ukraine chose not to do so to continue garnering payments for the use of its airspace by international civil aviation, hence airliners entering danger zones unbeknownst to their crews and likely becoming civilian shields for the Ukrainian air force against DPR's air defences. Other combat-related incidents referred to by the Applicant were even more clear-cut due to the presence of obvious military targets (the militarized checkpoint at frontline Buhas, which Ukraine chose to task with civilian traffic control; the Kramatorsk military airfield hosting a staff headquarters; the Ukrainian military positions in Mariupol and Avdeevka). Furthermore, even Ukraine's own evidence, such as alleged intercepts of communications and witness statements, pointed towards the absence of terrorist intent on behalf of DPR forces. Moreover, the attribution of the attacks to DPR remained in doubt.
20. The same can be said regarding the rest of the incidents (so-called “bombings”, “killings” and “disappearances”): Ukraine has failed to prove both their attribution to DPR/LPR and their allegedly “terrorist” nature. In fact, not a few of the incidents bore distinct hallmarks of staged operations by the Ukrainian Security Service (SBU), whose notoriety for such “false flags” is illustrated by the case of a journalist being reportedly “assassinated” by “Russian spies” only to emerge afterwards safe and sound, publicly declaring the entire stint to be an SBU operationFootnote 13. One alleged “terrorist attack” involved a purported firing of an incendiary grenade launcher at a bank building — which for some reason happened at night, when the bank was closed and there were no people in the vicinity to be harmed by the act or witness it; moreover, the grenade did not even explode and was “extracted” by Ukrainian special services on the next day (something technically impossible according to a munitions expert report presented to the Court)Footnote 14. Other acts were blamed on Russia because the arms used were allegedly of Russian manufacture; however, they turned out to be generic Soviet-era weaponry now part of Ukrainian military inventory.
21. For the Court to go deep into an examination of all these incidents would undoubtedly have proven embarrassing to the Applicant. The Judgment merely glosses over them. Nevertheless, the fact remains that none of the incidents were found to be acts of terrorism, nor any evidence of terrorism financing was discovered by the Court.
22. The frivolity of the Applicant's allegations was further illustrated by reports of the Financial Action Task Force (FATF), the world's leading body charged with combating terrorism financing. FATF had brushed aside Ukraine's complaints about Russia's alleged lack of co-operation concerning DPR and LPR as pertaining to a “political dispute”Footnote 15 and rejected Ukraine's calls to “black-list” Russia. At the same time, FATF criticized Ukraine for not providing sufficient evidence in its requests for assistance and co-operationFootnote 16. Would it not follow that FATF did not accept Ukraine's characterization of the DPR and LPR as terrorist organizations, nor was it aware of their “notoriety” as suchFootnote 17?
2. Absence of terrorism financing should have excluded a violation of ancillary obligations to co-operate under Article 9
23. This is one of the Judgment's most puzzling parts: the decision to find a violation of an ancillary obligation of a treaty in the absence of a violation of the treaty's principal obligation.
24. The ICSFT, and by extension the agreement of the Respondent to be subject to ICJ jurisdiction with regard to the ICSFT, covers terrorism financing. Therefore, in matters unrelated to terrorism financing, the Convention does not apply. Yet the Majority has decided that, in this case, the Convention should apply and, moreover, be capable of being breached, even though the Court has not found a single instance of terrorism financing allegations advanced by Ukraine to be true, nor established any reason to expect that such allegations were true, since DPR and LPR were not “notorious terrorist organizations”.
25. Presumably a treaty cannot be rendered applicable simply on the basis of a claim by one State party that it is applicable — a claim that is later proven to be false. Apparently, the Majority believed otherwise.
26. It has been a long-standing staple of the Court's case law that fulfilment of subsidiary (ancillary, accessory) obligations, such as those on co-operation or prevention, is hinged upon the existence of predicate offences. The seminal example was provided by the Court in Bosnia Genocide:
“[A] State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs.”Footnote 18 (Emphasis added.)
27. The Court then clarified the difference between circumstances when an obligation of prevention may be considered breached and circumstances when it merely arises:
“This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State's obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent.”Footnote 19 (Emphasis added.)
28. This is in line with the International Law Commission's Articles on State Responsibility, according to which “[t]he breach of an international obligation requiring a State to prevent a given event occurs when the event occurs”Footnote 20.
29. All of the co-operation obligations in the ICSFT are ultimately aimed at preventing and punishing terrorism financing. They are, in effect, obligations to co-operate in order to prevent and punish. This is made clear not only from their wording and context, but directly from the explicit provision in the preamble of the Convention specifying its object and purpose:
“The States Parties to this Convention,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Being convinced of the urgent need to enhance international cooperation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators,
Have agreed as follows . . .” (emphasis added).
30. As such, these provisions all hinge upon the offence of terrorism financing, which in turn depends upon commission, or at least planning of, actual acts of terrorism (the criteria of intent and knowledge). To put it simply, if no terrorism financing occurred, then no obligations for its prevention or suppression could have been breached. Article 9, paragraph 1, specifically only covers situations involving “an offence set forth in article 2”; the absence of such an offence should have excluded the possibility of a breach of this provision.
31. Even if, quod non, it appeared that terrorism financing might have occurred (which was not the case, as Ukraine failed to provide such evidence by any standard of sufficiency), the mere fact that it had not occurred in reality should have excluded the possibility of a breach of the co-operation obligation, due to the absence of the subject-matter of said co-operation.
32. In the present case, Ukraine has failed to produce convincing evidence of terrorism or terrorism financing. Normally, that would mean that no breach of subsidiary obligations by the respondent could be established. There can be no breach of the obligation to prevent or punish a crime, or to co-operate in order to prevent or punish, if no crime has been committed and the allegations were false from the outset.
33. Nevertheless, in the present case the Judgment states that
“each provision of the ICSFT invoked by the Applicant imposes a distinct obligation upon States parties to that Convention. In each case, the Court must first ascertain the threshold of evidence of terrorism financing that must be met for an obligation under that provision of the ICSFT to arise. Such an evidentiary threshold may differ depending on the text of the provision under examination and the nature of the obligation it imposes.”Footnote 21
34. By stating that, the Judgment divorced the obligations to co-operate from the primary goal of the Convention to prevent and punish terrorism financing — in other words, from the very subject-matter of the Convention, making those obligations an end in themselves. The Court, rather its Majority, also seems to have stepped away from the previously drawn distinction between the arising of an obligation (quod non, as in my view no obligation has ever arisen under the ICSFT in the present case) and its capacity of being breached. Furthermore, by introducing a variable threshold of evidence, and by setting its bar so low as to be basically non-existent for triggering certain obligations, the Court has effectively held that obligations under a treaty may arise and be breached even in the absence of a violation of the treaty's subject-matter.
35. Summing up, the Court, by a majority, found a breach of an obligation ancillary to the principal obligation to combat terrorism financing, even though there had been no terrorism financing — or, in fact, terrorism — to combat. This decision appears to be at a significant deviation from the previous approach of the Court and it is not unlikely that it will have serious consequences for the future of international dispute resolution.
3. The threshold adopted by the Court with regard to Article 9 was far too low
36. Article 9, paragraph 1, of the ICSFT does not contain an unconditional obligation to investigate a person who has committed, or is alleged to have committed, a terrorism financing offence. It is, in fact, explicitly conditional upon the following factors:
1. the offence should fall under Article 2, which contains the definition of terrorism financing — i.e. it is not sufficient to simply allege terrorism financing, the criteria of the definition should actually be met;
2. measures to be taken are those that may be necessary under domestic law of the requested party;
3. these measures only concern investigation of facts contained in the information.
37. All of these factors are required for Article 9 to be triggered; in my view, none of them have been shown to exist in the present case.
38. None of Ukraine's allegations met the requirements of Article 2for the simple reason of absence of any terrorism financing in the first place.
39. Russia's domestic law required sufficient evidence to launch an investigationFootnote 22; no such evidence was provided by Ukraine (and as these proceedings have demonstrated, Ukraine was never in possession of such evidence).
40. No facts were provided by Ukraine, rather there were only unsubstantiated claims regarding “terrorist activities” of DPR and LPR — which were not accepted by this Court.
41. Furthermore, there was an important additional factor specific to the circumstances of the present case: the context of Ukraine's allegations suggested that they had a political rather than terrorism-combating purpose. After all, the allegations were aimed at DPR, LPR and people supporting them — i.e. persons in direct political opposition to the Government in Kiev. International monitors such as the United Nations Office of the Human Commissioner for Human Rights (hereinafter OHCHR) have repeatedly raised concerns about the Ukrainian Government creating a “climate of fear” through repeated human rights violations, including enforced disappearances and false allegations of “terrorism financing”, conducted by the Security Service of Ukraine (SBU)Footnote 23, the so-called “volunteer battalions” (of neo-Nazi leaning), and other entities under the control of the Government in KievFootnote 24.
42. Due to the real danger of trumped-up charges of terrorism and terrorism financing being used as tools for political persecution, exercise of caution was not merely justified but required, in particular under human rights obligations. The European Court of Human Rights, specifically, on numerous occasions adjudicated that international legal assistance in the criminal law field was subordinate to human rights guarantees (rulings on cases involving the Russian Federation and other States parties to the European Convention on Human Rights)Footnote 25. The Organization for Security and Co-operation in Europe (hereinafter the OSCE) warned that to ensure protection of human rights, the decision to start an investigation “must be based on reasonable suspicion that a terrorism-related offence, as defined in domestic law, has been committed” (emphasis added)Footnote 26. In addition, United Nations, General Assembly resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (doc. A/RES/62/148)) reads as follows:
“The General Assembly,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Urges States not to expel, return (‘refouler’), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement”.
43. In this context, regard should be had to a noteworthy and prudent statement in the Judgment that “[c]redible information . . . may give rise to the obligation to investigate” under Article 9, and that “Article 9 does not require the initiation of an investigation into unsubstantiated allegations of terrorism financing. Requiring States parties to undertake such investigations would not be in line with the object and purpose of the ICSFT”Footnote 27 (emphasis added).
44. I am in complete agreement with this position of the Court. However, the Majority veered away from this legally impeccable approach when formulating the level of evidence required to trigger Article 9 in.the present case:
“The threshold set by Article 9, paragraph 1, is relatively low. For the obligation to investigate to arise, Article 9, paragraph 1, requires only that a State party receive information that a person who has committed or who is ‘alleged’ to have committed the offence of terrorism financing may be present in its territory. In circumstances where the information only “alleges” the commission of an offence under Article 2, it is not necessary that the commission of the offence be established. Indeed, it is precisely the purpose of an investigation to uncover the facts necessary to determine whether a criminal offence has been committed. All the details surrounding the alleged offence may not yet be known and the facts provided may therefore be general in nature.”Footnote 28
45. Hence, in the opinion of the Majority, it is sufficient to merely “allege” the commission of the offence under Article 2, and it is not necessary to present “facts” except those of a “general nature” (whatever that may mean). Whether these allegations are “credible” or “substantiated” does not seem to factor in anymore.
46. And then we come to the actual information provided by Ukraine. According to the Court, it included
“a summary of the types of conduct allegedly undertaken by members of armed groups associated with the DPR and LPR that Ukraine considered to constitute predicate acts under the ICSFT, the names of several individuals suspected of terrorism financing, and details regarding the accounts used and the types of items purchased with the funds transferred”Footnote 29.
In other words, Ukraine simply claimed that the DPR and LPR were engaged in terrorist activity, named certain people whom it accused of financing the Republics, and gave their bank account data. Neither “substantiation” nor “credibility” of these claims was taken into account by the Majority conclusion that “such information met the relatively low threshold set by Article 9”Footnote 30. The Majority also did not properly weigh in Ukraine's known practice of using trumped-up allegations of terrorism as a tool against political opponents.
47. To sum up and to reiterate:
— while the Court believes that only substantiated allegations of terrorism financing supported by credible evidence are capable of triggering Article 9;
— while the Court found no evidence of terrorism financing with regard to DPR and LPR after six years of proceedings;
— while the Court found no grounds to consider DPR and LPR to be “notorious terrorist organizations”, so the mere reference to them as such could not have been sufficient;
— while Ukraine's Government was, in fact, notorious for using false allegations of terrorism and terrorism financing to persecute its political opponents;
— the Court, rather its Majority, has nevertheless found, in this case, that Ukraine's allegations which contained nothing more than claims that certain persons were engaged in financing terrorism — and provided no substantiation of those claims — were sufficient to trigger Article 9 of the ICSFT.
48. In other words, by merely accusing certain persons of terrorism financing, in a situation when neither a terrorist act nor terrorism financing has actually occurred, Ukraine, in the opinion of the Majority, has managed to meet the threshold for engaging Article 9 for purposes of State responsibility.
49. In light of the Court's previously held position that the level of certainty should be appropriate to the seriousness of the allegationFootnote 31, I can only conclude that due to a practically non-existent level of certainty threshold adopted by the Court, the latter perceived Ukraine's allegation to be not at all serious. It is unfortunate that this was still considered by the Majority as sufficient to decide there was a breach of the ICSFT; however, the level of seriousness attributed by the Court to the allegation will surely colour this decision, as well.
50. This aspect of the Judgment may well lead to negative consequences, as lowering the threshold of State responsibility under Article 9 to a level that requires every State party to arrest its citizens and freeze their assets on the basis of manifestly unsubstantiated allegations from a foreign country creates a real danger of anti-terrorism provisions being abused for political persecution and harms genuine inter-State co-operation in the field of combating terrorism.
51. An impartial reader should be perplexed by a laconic narration of the positions of the Parties and the Court's reasoning in this part of the Judgment. Considering the importance of the case, and that this is the only part of the case where the Majority have actually discovered some kind of violation, its treatment deserved to be more meticulous. However, the part of the Judgment devoted to this sole “violation” is not even 1,700 words long, with the Respondent's counter-arguments summarized in a single paragraph and confined to only 220 words. Apparently, going deeper into the arguments of the Parties would have exposed the flimsy foundations of this decision.
4. In any event, the Respondent did engage in adequate co-operation with the Applicant under Article 9
52. No less baffling would appear the Majority's apparent reluctance to consider the full spectrum of materials submitted by the Parties — materials which show that the Russian Federation had in fact engaged in sufficient co-operation with Ukraine in respect of Article 9. The Judgment fails to even properly summarize the arguments of the Respondent, electing to omit or making a mishmash of some of them, perhaps in order to decrease the visibility of challenges to its own position.
53. To begin with some context: in the relevant period of 2014-2017, Russia received around 1,000 requests from Ukraine for international legal co-operation, the vast majority of which were properly executedFootnote 32. Of these requests, at least 91 (as claimed by Ukraine) were related to terrorism financing. Of these 91, Ukraine only brought 12 to the CourtFootnote 33. Of these 12, 9 were rejected by the CourtFootnote 34. The remaining three Notes Verbales concerned 19 individuals, but Russia has supplied Ukraine with relevant information on most of those individuals, which leaves, by my estimate, only about five persons who could not be found or otherwise remained unidentified. It is therefore evident that the entire issue represented only a minuscule part of legal co-operation between Russia and Ukraine on criminal matters, even if limited to the field of combating terrorism financing. Furthermore, the Ukrainian Notes Verbales, neither by their form, content or channel of communication, represented proper requests for assistance under the relevant mutual legal assistance (MLA) treaties applicable in accordance with Article 12 (5) of the ICSFTFootnote 35.
54. This entire issue appears to boil down to Russia's alleged failure to identify some of the persons from a list of alleged offenders sent by Ukraine in two Notes Verbales in August 2014. While the Court confirms that Russia did respond to these Notes and did perform certain investigative measures, there are two aspects where the Court found Russia's conduct at odds with requirements of the ICSFT.
55. First, the Judgment noted
“the amount of time that elapsed before the Russian Federation provided the aforementioned responses to the Ukrainian Notes Verbales. In this regard, the Court observes that the 2019 Mutual Evaluation Report issued by the FATF regarding the Russian Federation's anti-money laundering and counter-terrorist financing measures stated that the Russian Federation generally answers requests for mutual legal assistance ‘within one to two months’” (Judgment, para. #110).
56. Second, the Judgment opined that
“to the extent the Respondent encountered difficulties ascertaining the location or identity of some of the individuals named in the Ukrainian communications, it was required to seek to co-operate with Ukraine to undertake the necessary investigations and specify to Ukraine what further information may have been required” (Judgment, para. #110).
57. However, Russia did send requests to Ukraine for additional information and Russia's first response containing such a request came precisely “within one to two months” of the August 2014 Ukrainian NotesFootnote 36. Specifically, in the Note Verbale of 14 October 2014 responding, inter alia, to Ukraine's Notes Verbales of 12 and 29 August 2014, Russia had asked for “factual data”, information on Ukrainian criminal investigations, as well as stressing the need to observe proper channels and requirements under the applicable MLA treatyFootnote 37. These requests were repeated in Russia's follow-up Note of 31 July 2015.
58. Importantly, these requests by Russia could very well be considered a form of investigation of Ukraine's alleged facts. Since Ukraine claimed that acts of terrorism and financing of terrorism had occurred, but did not substantiate these claims, it was all too logical for Russia to request further information, precisely to investigate these claims or to gather enough evidence for launching an investigation.
59. However, Ukraine did not respond to this or other requests for information, neither through diplomatic channels, nor MLA channels, nor during bilateral consultations between the Parties on this subjectFootnote 38.
60. Thus, it was actually Ukraine which deliberately stalled co-operation with Russia by refusing to provide substantiating information that might have helped to identify the alleged perpetrators and investigate their alleged misdeeds. Russia reported to Ukraine on its inability to identify or locate some of the persons due to lack of data, which should be considered an effort to move forward representing a sufficient amount of co-operation, given the particular circumstances of the case.
61. In this light, even from a factual perspective, I cannot agree with the decision regarding a “breach” of obligation under Article 9 by the Respondent.
5. The Court was correct in finding an absence of violation of Article 12
62. I agree with the Court's decision that there has been no violation of Article 12 by the Respondent. I should offer a few additional comments to that general statement.
63. Firstly, all three of the Ukrainian MLA requests addressed by the Court (dated 11 November 2014, 3 December 2014 and 28 July 2015) did not refer to terrorism financing offences, nor to the ICSFT, but rather cited Article 258-3 of the Ukrainian Criminal Code, which covered “creation of terrorist organizations” — a matter outside the scope of the ICSFT. Neither did these requests conform to the requirements of applicable MLA treatiesFootnote 39, such as the need for translation into the Russian languageFootnote 40.
64. Secondly, while in Djibouti v. France the Court did note the insufficiency of a bare reference to an exception clause and the need for a “brief further explanation”, it was not unconditional, but dependent upon the goal of allowing “the requested State to substantiate its good faith in refusing the request” and “enabl[ing] the requesting State to see if its letter rogatory could be modified so as to avoid the obstacles to implementation”Footnote 41. In the case of France, the refusal was on the obscure grounds of “contravention to France's fundamental interests”. Doubtlessly, such refusal needed further elucidation to be considered in good faith. In Russia's case, however, the refusals were on the basis of sovereignty and national security, and the applicability of these exceptions was self-evident: Ukraine's requests concerned the actions of deputees of the Russian State Duma (i.e. parliamentarians) and of the Chief of the General Staff of the Russian armed forces. There can be little doubt that such persons are directly related to the exercise of sovereign power and/or matters of national security, and there is little space for any further elucidation. Whereas in cases when grounds for refusal were less clear, the Russian authorities have provided more detailed explanationsFootnote 42.
65. Thirdly, established practice between the Parties should be taken into account. Ukraine itself has repeatedly rejected Russian requests for legal assistance with essentially the same terse formulations when referring to the same grounds for refusal under MLA treatiesFootnote 43.
66. Finally, regarding the timing of the replies, the scale of MLA correspondence between the two countries needs to be taken into account. Considering the amount of MLA requests Ukraine has been sending to Russia, including those allegedly concerning terrorism financing, and the complexity of the matters involved, it is not surprising that delays occasionally occurred.
6. The Court was correct in establishing the meaning of “funds”
67. I concur with the Judgment's finding that “funds” do not encompass weapons within the meaning ascribed to the term by the Convention, but I feel the matter merits additional commentary.
68. There are two main elements essential for understanding terms in the interpretation of treaties: the ordinary meaning of the term and its special meaning for the purposes of the treatyFootnote 44.
69. The starting-point should be the meaning of the Convention's key term: “financing”. Its “ordinary meaning” is “the money needed to do a particular thing, or the way of getting the money”Footnote 45. The “ordinary meaning” of funds is “amount of money that has been saved or has been made available for a particular purpose”Footnote 46.
70. This understanding seems to have been shared by the authors of the Convention: according to its travaux, the initial draft by France explicitly defined “funds” as “any type of financial resource”Footnote 47 and a proposal by Japan — as “pecuniary benefit”Footnote 48 (“pecuniary” meaning “of or relating to money; consisting of or given or exacted in money or monetary payments”Footnote 49).
71. The term “financial resources” was later replaced with “assets”, and eventually the term “funds” was equated with “assets of every kind”Footnote 50. There does not seem to be any indication that this replacement was meant to deviate from the original understanding of “funds” as limited to financial resources: a French proposal, for example, defined “assets/property of every kind” as “including but not limited to cash, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit or any other negotiable instrument in any form, including electronic or digital form”Footnote 51. Weapons were conspicuously absent from this list, which made it almost verbatim to the final text of the Convention. Quite to the contrary — suggestions to include, apart from “funds”/“assets”, also “other property” understood to be “covering only arms, explosives and similar goods”Footnote 52 were explicitly rejected, and the final text of the Convention lacks this language.
72. Thus, the ordinary meaning of the terms and the development history of the Convention support the view that funds and assets were both understood to mean financial resources, while supply of arms was considered to be distinct and not intended to fall under the Convention.
73. The structure and contents of the ICSFT also indicate that it was not designed to be a general treaty against any and all support of terrorism, but one specifically targeted against financial flows to terrorists.
74. The preamble, where normally the object and purpose of a treaty are formulated, sets the goal of the Convention to “prevent and counteract movements of funds suspected to be intended for terrorist purposes without impeding in any way the freedom of legitimate capital movements”, while no mention of the freedom of trade in goods is made. In fact, the preamble directly mentions “illicit arms trafficking” as a different unlawful activity than terrorism financing, in which an organization that finances terrorism might “also” be engaged (but which the Convention is not intended to cover).
75. Furthermore, in Article 1, the “legal documents or instruments . . . evidencing title to, or interest in, such assets” only relate to purely financial resources (“bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit”).
76. Finally, the Convention's entire section on international co-operation — including Articles 8, 12, 13 and 18 — does not include any measures specifically aimed against arms trafficking, while there are plenty of rules concerning financial assets (identification, detection and freezing or seizure; bank secrecy; fiscal offences; “money-transferring agencies”, etc.)Footnote 53.
77. Considering the important role played by weapons in terrorist activity, it would be illogical to assume that the authors of the Convention have left such an obvious gap in its preambular and operative provisions.
78. While FATF, OECD and other organizations have their own specific terminology, it does not necessarily coincide with the terms of international treaties. FATF, particularly, has noted that its recommendations aim to implement United Nations Security Council resolutionsFootnote 54, which represent a wider range of obligations than specific treaties like ICSFT. Even so, FATF recommendations make a distinction between “funds” (which are defined similarly to the ICSFT definition) and “other assets”Footnote 55; such “other assets” being understood to include “e.g. weapons or vehicles”Footnote 56.
79. The ICSFT is, of course, a United Nations Convention and should be interpreted as such. In UN Security Council resolutions devoted to combating terrorism, there is a difference between terrorism financing and supply of weapons to terrorists. When referring to the ICSFT, these UN Security Council resolutions only associate it with the former, not the latterFootnote 57. The same approach is taken by UN counter-terrorism bodies, such as the United Nations Office on Drugs and Crime (UNODC), which provides a very illustrative example of this approach in its Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols:
“The 1999 Financing of Terrorism Convention is only one aspect of a larger international effort to prevent, detect and suppress the financing and support of terrorism. Under Security Council resolution 1373 (2001), Member States are required to take measures not only against the financing of terrorism, but also against other forms of support, such as recruitment and the supply of weapons. The 1999 Financing of Terrorism Convention only prohibits the provision or collection of “funds”, meaning assets or evidence of title to assets. However, when legislation to implement the Convention is enacted, the resolution's requirement to suppress recruitment and the supply of weapons should also be considered.”Footnote 58 (Emphasis added.)
80. UNODC, therefore, considers supply of weapons to fall under UN Security Council counter-terrorism resolutions, but not under the ICSFT.
81. National legislation likewise commonly draws a line between supply of weapons to terrorists and financing of terrorism. These are considered different criminal acts in the Russian Federation and other jurisdictionsFootnote 59.
82. Summing up, my understanding is that while the term “assets of every kind” may create an impression that “funds” encompass anything that may have monetary value, the drafters of the Convention, aiming to cover financing and not every possible form of support, ascribed a more specific meaning to this term as only encompassing “every kind” of pecuniary (financial) resources. In contrast, the term “other property”, viewed as a reference to weapons, was not included in the final text. The verity of this approach is upheld by State practice as reflected in Security Council resolutions and guiding documents of competent United Nations bodies such as UNODC.
83. In my opinion, this view is not contradictory to the task of combating terrorism. After all, the ICSFT is not the only international instrument active in this field: e.g. the Arms Trade Treaty was concluded in 2013 with the explicit aim “to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts”Footnote 60 and, of course, all States remain obliged to implement the counter-terrorism resolutions of the UN Security Council.
7. The Court missed an opportunity to apply the “clean hands” doctrine, choosing instead to destroy the doctrine itself
84. Yet another remarkable aspect of this case is the Majority's treatment of the clean hands doctrine. It is, of course, trite that this defence has long been a “black sheep” of Court practice and notoriously difficult to prove and apply (see Judgment, para. #37). However, the possibility of this defence was never brushed aside by the Court — at least not until now. Ironically, the present case is, in my opinion, an exemplary occasion of unclean hands shown by the Applicant, finally satisfying all of the criteria tentatively laid out in previous Court proceedings. The fact that the Court's Majority elected to end decades of uncertainty and completely eliminate the “clean hands” doctrine as a concept, rather than risk its application in the present case, speaks volumes. Indeed, on all previous occasions the Court was never forced to pronounce its position on the existence of clean hands as a defence, since it could instead refer to some or all of these criteria being, in any event, unsatisfied. Apparently, in the present case such an option was not open to the Court and the choice was between exonerating Russia on the basis of Ukraine's unclean hands or elimination of the clean hands doctrine as such. The Majority chose the latter, neglecting to provide any concrete reasoning for its abrupt decision.
85. As a tribute to this venerable doctrine, which, by happenstance, had its swan song while I appeared on the Bench, I feel obliged to outline the reasons why it should have been applicable in the circumstances of the present case.
86. One might opine that Russia did not directly assert that Ukraine has, through its alleged conduct, violated its obligations under the ICSFT. What Russia did, however, was to show that Ukraine had been itself engaged in the conduct of which it accuses the Russian Federation, if not worse, and which it considers to be a violation of the ICSFT. For example, Russia has demonstrated that Ukraine had been supplying DPR and LPR with funds, despite alleging them to be “notorious terrorist organizations”; that Ukrainian forces have been systematically shelling and bombing residential areas in Donbass (such shelling of civilian objects being considered by Ukraine as “terrorism”); that Ukraine had refused to fulfil MLA requests from Russia regarding certain persons and organizations on the basis of sovereignty or the fact that it did not consider such organizations to be of a terrorist nature; etc.
87. The fact that Russia itself did not consider funding DPR and LPR to be terrorism financing, or actions committed by armed forces in time of war to be terrorism only because they might have caused damage to civilians, should not have excluded the possibility of a quod non argument — that is, assuming Ukraine's allegations be taken at face value, they should have been dismissed due to Ukraine being engaged in the same, or worse, kind of conduct. To rule otherwise would imply that unclean hands can only exist when the applicant is in breach of certain other rules of the relevant treaty that it accuses the respondent of breaching — or that the respondent would have to first concede that such actions as it is being accused of (and which the applicant is also engaged in) are a breach of the treaty, before raising the clean hands defence. Neither of these conditions were to be found in preceding Court practice regarding clean hands.
88. The basics of the doctrine, which Russia invoked in its arguments, were laid down in the Judgment of 28 June 1937 rendered by the Permanent Court of International Justice (PCIJ) in the case concerning Diversion of Water from the Meuse (Netherlands v. Belgium) Footnote 61, as well as the ICJ cases concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Footnote 62 and Certain Iranian Assets (Islamic Republic of Iran v. United States of America), where traces of the clean hands principle application can be foundFootnote 63.
89. In Certain Iranian Assets, the Court has indicated the following conditions for the unclean hands doctrine, as a defence on the merits, the absence of which “in any event” precluded its application:
1. a wrong or misconduct must have been committed by the applicant or on its behalf;
2. a nexus between the wrong or misconduct and the claims being made by the applicant must exist;
3. there should be a sufficient level of connection between the wrong or misconduct and the applicant's claim, dependent on the circumstances of the caseFootnote 64.
90. In that case, the applicant, Iran, when suggesting a definition for the conditions of applicability of the “clean hands” doctrine, elected to define them as follows: “when the claimant is engaged in ‘precisely similar action, similar in fact and similar in law’ as that of which it complains”Footnote 65.
91. In Diversions of Water from the Meuse, Judge Hudson defined the principle (which he couched in terms of general equity) as “that where two parties have assumed an identical or a reciprocal obligation” and that “one party . . . is engaged in a continuing non-performance of that obligation” while, at the same time, there is “a similar non-performance of that obligation by the other party”Footnote 66.
92. In my view, all these conditions are met in the present case. In contrast to Certain Iranian Assets, when there was no question of inconsistency between Iran's allegations and its own performance under the Treaty of Amity, the present case appears to be a textbook example of “unclean hands”, where the applicant is actually committing the very same actions it accuses the respondent of, indeed on a larger scale, yet does not recognize these actions as being in breach of any international obligations, including those under the ICSFT.
(a) Conditions were met for the “clean hands doctrine” to apply in this case
(1) Ukraine committed actions that would qualify as “terrorism” and “terrorism financing” according to its own interpretation of these terms in the present case
93. According to Ukraine's counsel, Russia is “defending the indefensible”; Mr Thouvenin listed these “indefensible acts” as follows: “D'où ses efforts pour défendre l'indéfendable : des meurtres, un avion de ligne abattu, des bombardements de civils, des attentats à la bombe, et sa passivité coupable face au financement de cette barbarie.”Footnote 67
94. However, all of these acts (politically motivated murders, shooting down of a civilian airliner, shelling and bombings of residential areas, non-prosecution of what Ukraine considers
“financing of terrorism”) are attributable to Ukraine itself. Russia has provided the Court with factual evidence of the following actions by the Ukrainian Government:
— Repeated shelling by Ukrainian armed forces of residential areas in Donetsk, Lugansk and other Donbass cities, leading to thousands of civilian casualties. Ukraine used the same weapons systems (including Grad and Smerch MLRS) to conduct these attacks as it accuses DPR of using. The list of such shelling examples provided by Russia is much broader than the list of alleged shelling Ukraine blames DPR militia forFootnote 68.
— Killing of opposition figures, including the murders of journalists and firebombing of the Trade Union building in Odessa on 2 May 2014, when over 50 anti-Maidan activists were burned aliveFootnote 69.
— The downing of a Russian civilian airliner by Ukrainian armed forces, killing 78 passengers and crewFootnote 70.
— Trade with DPR and LPR in coal and other goods, thereby directly financing these supposedly “notorious terrorist organizations”Footnote 71.
— Creating a “climate of fear” through repeated human rights violations, including enforced disappearances and false allegations in “terrorism financing”, conducted by the Security Service of Ukraine (SBU)Footnote 72, the so-called “volunteer battalions” (of neo-Nazi leaning) and other entities under the control of the Ukrainian GovernmentFootnote 73.
— Using civilians as “human shields” by positioning military personnel and combat vehicles in close proximity to civilian objectsFootnote 74.
— Lack of effective investigation of the above actsFootnote 75.
95. If Ukraine's interpretation of the ICSFT were to be accepted, then Ukraine itself ought to be considered in breach of the ICSFT, as well as other legally binding norms of international law, including international humanitarian law.
(2) There is a nexus between Ukraine's actions and Ukraine's claims
96. In the present case, Ukraine considers that:
— causing deaths of civilians by accident in the context of an armed conflict is “terrorism” and falls under Article 2 (a), (b) of the ICSFT;
— deaths occurring as a result of civil strife between factions, triggered by the illegal coup in Kiev, to be “acts of terror”;
— provision of “funds” (which in Ukraine's view constitute any assets) to DPR and LPR is “financing of notorious terrorist organizations”;
— effect of civil war causing “terror” among civilian population to be an indication of terrorism falling under the ICSFT.
97. This aligns with Ukraine's own actions listed above, which are of a similar (or even more aggravated) nature.
(3) There is sufficient connection between Ukraine's actions and Ukraine's claims
98. Both Ukraine's own actions and its claims against Russia concern the same situation and circumstances, or very similar circumstances. Ukraine's armed forces have repeatedly conducted attacks against residential areas, causing massive civilian casualties, in the same armed conflict and in the same geographic region (Donbass). Killings, enforced disappearances and other acts committed by Ukrainian government agents or private actors affiliated with the Government of Ukraine, which contributed to the “climate of fear” in Donbass, were done within the context of the same civil war and civil strife triggered by the 2014 Maidan coup. Ukraine has conducted extensive trade with the same entities — DPR and LPR — that it accuses Russia of financing as “notorious terrorist organizations”. The time frames of the events are also the same — ranging from spring of 2014 to early 2017. The connection is thus pervasive, encompassing ratione loci, ratione temporis and ratione personae.
99. Although the shooting down of the Russian civilian airliner by Ukrainian armed forces occurred under different historical circumstances, the connection with that incident is still strong: it was a result of armed forces conducting dangerous military activity in airspace from which civilian air traffic was not properly barred, which resulted in an erroneous downing of a civilian aircraft in lieu of the anticipated military target. Both the actor State (Ukraine) and the victim State (Russia) of that incident are Parties to the present proceedings, which also provides a connection.
(b) Ukraine's claims that data provided by Russia is “propaganda” are invalid
100. Russia has provided numerous sources, including those of Ukrainian and international origin. The list of such shelling examples provided in Russia's Rejoinder is much broader than the list of the alleged shelling Ukraine blames DPR militia forFootnote 76.
101. The Ukrainian armed forces have also never hesitated before using civilians as a human shield. They deployed their troops and heavy weaponry in residential areas as well as in close vicinity to the socially important objects (schools, kindergartens, hospitals, etc.). They deliberately did this, inter alia, to provoke return fire and then groundlessly accuse the Donbass militia of “terrorism”Footnote 77. Russia has provided ample evidence of such behaviour by Ukraine, including data from the OSCE's Special Monitoring Mission SMM to Ukraine Footnote 78. In particular, the following was noted:
“An SMM mini-UAV spotted on 29 March recently dug trenches about 40 m from a residential house on the south-eastern edge of Travneve (government-controlled, 51 km north-east of Donetsk)”Footnote 79.
“Beyond withdrawal lines but outside designated storage sites, in government-controlled areas, on 22 May an SMM mini-UAV spotted three surface-to- air missile systems (9K35) about 50 m south-east of a school building in Tarasivka (43 km north-west of Donetsk) . . . In violation of withdrawal lines in government-controlled areas, on 21 May an SMM mini-UAV spotted two surface-to- air missile systems (9K35 Strela-10) in a residential area of Teple (31 km north of Luhansk) within 200 m of a civilian house, on 22 May an SMM mini-UAV spotted a surface-to-air missile system (9K35) about 2 km north-east of Teple, an SMM long- range UAV spotted two surface-to-air missile systems (9K33 Osa)”Footnote 80.
“The SMM observed armoured combat vehicles and an anti-aircraft gun in the security zone. In government-controlled areas, the SMM saw on 20 April four infantry fighting vehicles (IFV) (BMP-2) and an armoured reconnaissance vehicle (BRDM-2) near Zolote-1/Soniachnyi, two IFVs (BMP-2) near Zolote, five IFVs (BMP-2) near Zolote-3/Stahanovets, an armoured reconnaissance vehicle (BRM-1K) near Zolote 2 (60 km west of Luhansk) . . . On 21 April, the SMM saw . . . three armoured reconnaissance vehicles (BRDM-2) and two IFVs (BMP-1) on flatbed trucks near Zolote . . . On 22 April, the SMM saw two IFVs (BMP-2) near Zolote . . .”Footnote 81.
102. Furthermore, Ukraine itself has openly admitted the veracity of such facts to the Court, including, inter alia, with regard to the town of Avdeyevka (Avdiivka), which Ukraine claims was shelled by DPR with an intent to target civilians: “on Avdiivka, Russia continues to focus on military positions, which are undisputed — unlike the other attacks, Avdiivka was a front-line city”Footnote 82.
103 These facts, therefore, could not have been dismissed out of hand as mere “propaganda” and had to be taken into consideration.
(c) Ukraine failed to disprove the data provided by Russia
104. Ukraine had never even attempted to counter Russia's assertions regarding Ukraine's “unclean hands” on substance. Despite having the opportunity to prepare, after receiving Russia's written pleadings, a concrete rebuttal of Russia's alleged “propaganda”, Ukraine nevertheless failed to do soFootnote 83. This total lack of response speaks in favour of the validity of these facts.
(d) Conclusion — the “clean hands” doctrine should have been applied in the present case
105. Taking the above into consideration, the conditions for the application of the clean hands defence seemed to have been present: inter alia, the “connection” or “nexus” requirement seemed to be fulfilled: during the same time frame, in the same region, and with regard to the same entities, Ukraine was engaged in “precisely similar action, similar in fact and similar in law”Footnote 84, or — as the case may be — more damaging to the civilian population, than what it accused Russia of as allegedly a breach of the ICSFT, or as “predicate offences” with regard to DPR and LPR.
106. Even though the doctrine is now apparently denied the status of a possible defence (unless a future judgment of the Court reverses this decision), one might still argue for its utility and practicability. Indeed, international law hinges to no small extent on the practice of States and their interpretation of legal norms. It is my view that, in a situation of legal uncertainty, it may be useful to apply the clean hands criteria to see whether the applicant, in fact, shares the same interpretation and application of these norms as the respondent, and thus argues its position in bad faith. This, in turn, might inform the position of the Court regarding its own interpretation of the law.
8. Regarding remedies
107. Notably, the Court rejected all remedies requested by Ukraine (“cessation . . . of ongoing violations, guarantees and assurances of non-repetition, compensation and moral damages”)Footnote 85, beyond a formal declaration of a violation of Article 9, paragraph 1. Isn't it anything other than the apprehension of the shaky ground on which the Majority's position regarding Article 9 stands, and reluctance to implicate itself even further by providing tangible remedies? The Judgment's remark that Russia “continues to be required under Article 9 of the Convention to undertake investigations into sufficiently substantiated allegations of acts of terrorism financing in eastern Ukraine” (emphasis added) should be interpreted in this light. The allegations presented by Ukraine were, of course, not sufficiently substantiated. They contained nothing more than dubious claims that DPR and LPR were engaged in terrorist activities, claims which Ukraine failed to prove during these proceedings. Nor were these claims credible, considering Ukraine's tendency to use allegations of terrorism financing as a tool for political persecution, as recognized by international bodies such as the OHCHR.
108. Therefore, while I believe the declaration of violation to be improper, even in accordance with the Court's own criteria as expressed in this Judgment, it is appropriate that the Court did not award any further remedy to Ukraine.
PART II — CERD
1. The Court properly found no evidence of racial discrimination regarding the vast majority of Ukraine's allegations
109. Over the entire course of the proceedings, Ukraine has levelled at least 17 distinct allegations against Russia concerning CERD, claiming 47 (or so) incidents of “racial discrimination” with regard to Ukrainians and Crimean Tatars in Crimea. I agree with the Court's decision that Ukraine has failed to produce evidence of any racial discrimination regarding alleged “disappearances” and “murders”, law enforcement measures, citizenship, cultural heritage, cultural institutions, culturally significant gatherings and media outlets, as well as every individual “incident” of discrimination alleged by Ukraine.
110. In total, no racial discrimination at all was discovered by the Court with regard to the Crimean Tatar people. As regards the Ukrainian people living in Crimea, no discrimination was found either, with the sole exception of school education in the Ukrainian language. This last finding was rather perplexing, since school education in the Ukrainian language is and has been available in Crimea, with Ukrainian being one of the Crimean State (official) languages protected by the Constitution of the Republic of Crimea and relevant legislation of the Russian FederationFootnote 86; the Court itself confirms this in its JudgmentFootnote 87. Rather, the Majority found an issue with the fact that Crimeans in large numbers have, of their own will, switched the language of education of their children from Ukrainian to Russian after Crimea's reunification with Russia — which should not have come as a surprise, considering that Russian has always been the language of choice for the vast majority of the population of Crimea, and even during Ukraine's control over the peninsula most Crimeans — including most ethnic Ukrainians — preferred to receive education in Russian (as evidenced by Ukraine's own official statistics)Footnote 88.
111. I shall endeavour to shed some light on this matter further on, after a few remarks on other topics.
2. The Court properly did not support Ukraine's attempt to make political views an element of “ethnic origin”
112. One of the most surprising clashes of opinions in the CERD case was a debate regarding the notions of “ethnic origin” and “ethnic group”. In its effort to broaden the scope of the Convention, Ukraine argued that political views, such as those concerning the status of Crimea, were a part of Ukrainian and Crimean Tatar ethnicityFootnote 89. In other words, according to the Applicant, those Ukrainians in Crimea and Crimean Tatars who supported Crimea's self-determination and joining the Russian Federation, were not “real” Ukrainians and Crimean Tatars, since all “true” Ukrainians and Crimean Tatars supported Crimea remaining part of Ukraine.
113. I found this entire line of argument to be highly dubious not only because of the plain meaning of the term “ethnic origin” and the Court's clear prior pronouncement that it is a “characteristic inherent at birth”Footnote 90 rather than acquired like political views, nor from the standpoint of elementary logic (Crimea only became part of an independent Ukraine in 1991, so any “ethnic link” of Crimean Tatars to Ukraine or of Ukrainians to Crimea made little sense), but also proceeding from the object and purpose of the Convention itself. It would seem apparent that assigning the political views of certain members of an ethnic group to be an “inherent quality” of the group as a whole is an evil kind of stereotyping waiting to turn into something worse. Crimean Tatars have already suffered from similar stereotyping under Stalin; and then it was the Ukrainian Government that took an official position regarding the same ethnic group and painting part of that group as some kind of “ethnic traitors” based entirely on their political preferences. Likewise, hearing Ukraine's argument that a “frequently observed characteristic of ethnic groups is a desire to live together within a common political State”Footnote 91 raised questions not only about Ukraine's own inability to recognize the desire of mostly ethnic Russians of Crimea and Donbass to rejoin Russia, but also about the fate of those people in a “Ukrainian ethnostate”.
114. Prudently, the Court found, in no uncertain terms, that “the political identity or the political positions of a person or a group are not a relevant factor for the determination of their ‘ethnic origin’ within the meaning of Article 1, paragraph 1, of CERD”Footnote 92, thus putting an end to unwholesome speculations on this matter.
3. The Court rightly considered the ban of the “Mejlis” to not constitute racial discrimination
115. From the very start of the proceedings, the question of the “Mejlis” ban was at the forefront of the CERD debate: it was the only concrete matter in the entire case on which the Court had deemed it appropriate to issue a specific provisional measure in 2017.
116. In my opinion, the Russian Federation has convincingly argued in its pleadingsFootnote 93 that:
— neither the CERD nor other human rights instruments include a right of ethnic minority groups to establish and maintain their own representative institutionsFootnote 94;
— the Mejlis and its former leaders represented hardly any of the Crimean Tatars during the entire period of this institution's existenceFootnote 95;
— the Mejlis was not a representative body, but an executive body subordinate to the QurultayFootnote 96;
— in any event, the Crimean Tatar community is represented by other bodies such as the QurultayFootnote 97 and the Council of Crimean TatarsFootnote 98;
— the ban on the Mejlis was necessary to safeguard national security and public order against a grave and imminent peril (extremist activity)Footnote 99.
117. The Court has taken a lot of these arguments to heart and issued an appropriate decision worthy of quoting in its entirety:
“[T]he Court is of the view that the Mejlis is neither the only nor the primary institution representing the Crimean Tatar community . . . It suffices for the Court to observe that the Mejlis is the executive body of the Qurultay by which its members are elected and to which they remain responsible . . . The Qurultay is elected directly by the Crimean Tatar people and, as Ukraine acknowledges, it is ‘regarded by most Crimean Tatars as their representative body’. The Qurultay has not been banned, nor is there sufficient evidence before the Court that it has been effectively prevented by the authorities of the Russian Federation from fulfilling its role in representing the Crimean Tatar community. Therefore, the Court is not convinced that Ukraine has substantiated its claim that the ban on the Mejlis deprived the wider Crimean Tatar population of its representation.”Footnote 100
“[T]he Court is not satisfied that Ukraine has convincingly established that, by adopting the ban of the Mejlis, authorities or institutions of the Russian Federation promoted or incited racial discrimination”Footnote 101.
“[T]he Court observes that Ukraine did not establish that effective redress was denied by the Russian Federation.”
“For these reasons the Court concludes that it has not been established that the Russian Federation has violated its obligations under CERD by imposing a ban on the Mejlis.”Footnote 102
118. While all those reasons are perfectly valid, the key factor in favour of considering the ban of the “Mejlis” to be lawful was its role in the blockade of Crimea. Regrettably, the Court, usually considerate of views of international bodies, chose to neglect the OHCHR reports on the human rights situation in Crimea which called attention to the actions of the “Mejlis” leadership (including Mustafa Dzhemiliev and Refat Chubarov), together with Ukrainian neo-Nazi armed groups (“Right Sector”), in organizing the blockade of trade routes, communications and water and electricity supply to CrimeaFootnote 103, culminating in the bombing and destruction of power plant towers and high-voltage lines by which electricity was supplied from Ukraine to CrimeaFootnote 104. As a result of this total blockade, all of the Crimean population, including Crimean Tatars, suffered greatly from shortages of water, electricity, medicine, basic goods and other necessities. By this act alone the “Mejlis” had disavowed any representation of the interests of Crimean Tatars.
119. I thus support the Court's decision not to consider the ban of the “Mejlis” as racial discrimination. Should the Court have judged otherwise, it would have created a very problematic situation, when a body claiming to represent a certain ethnicity received carte blanche on violence, up to and including acts of extremism and terrorism, with any action to counter such activity running the risk of being declared a breach of the Convention. Certainly, such an outcome would be contrary to the interests of society as a whole and of the very ethnic groups these bodies claimed to represent.
4. The Court was correct in dismissing Ukraine's concept of “indirect discrimination”
120. Basic terms of the Convention that were challenged during the proceedings included the definition of racial discrimination itself. According to CERD's Article 1:
“the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” (emphasis added).
121. The first prong of the definition is “differentiation” (distinction, exclusion, restriction or preference) that is based on a protected quality. The purpose or effect of this differentiation (nullifying or impairing exercise of existing human rights on an equal footing) constitutes the second prong. Both are necessary for racial discrimination to occur. This rather obvious understanding is entrenched in legal doctrineFootnote 105. Russia stood on this position, stressing the need to establish “differentiation of treatment” alongside an “unjustifiable disparate impact” in order to find racial discriminationFootnote 106. Up to a certain point, Ukraine seemed to share that understanding: the Court itself in its 2019 Judgment on jurisdiction stated that “[i]t is the Applicant's position that these measures were principally aimed against the ethnic groups of Crimean Tatar and Ukrainian communities”Footnote 107.
122. However, in its apparent effort to artificially expand the scope of the Convention as much as possible, Ukraine advanced a particularly broad concept of “indirect discrimination”, the key feature of which was rejecting the need to prove “differentiation of treatment” with regard to so-called “effects-based discrimination claims”Footnote 108 (thus removing the first prong of CERD's definition) and claiming that “equal treatment which has a disproportionate effect on a group defined by the enumerated grounds is itself discriminatory”Footnote 109. Ukraine further claimed that it was not necessary to prove the existence of such “effect-based discrimination” by specific statisticsFootnote 110.
123. However, this concept is clearly not rooted in the ConventionFootnote 111. The plain text of CERD and extensive history of its elaborationFootnote 112 show that it is precisely the goal of ensuring equal treatment of persons belonging to various protected groups that lies at the core of the Convention régime.
124. Ukraine's experts, conversely, called for “unequal treatment” in order “to achieve genuine equality”Footnote 113. While the Convention in its Article 1 (4) does recognize the possibility of certain measures of so-called “positive discrimination”, which it exempts from the notion of “racial discrimination”, it nevertheless does not consider such measures to be mandatory — and neither did Ukraine accuse Russia of violating this provision of CERD. Moreover, according to CERD such measures must not “lead to the maintenance of separate rights for different racial groups” and “shall not be continued after the objectives for which they were taken have been achieved”.
125. Judicial practice likewise did not support Ukraine's position. In Qatar v. United Arab Emirates, the Court has already rejected the concept of “indirect discrimination” even in a less radical form than the one advanced by UkraineFootnote 114. In Minority Schools in Albania and other related cases, the PCIJ distinctly stated that equal treatment (or “equality in law”) “precludes discrimination of any kind”, giving an interpretation of Article 4 of the Albanian Declaration (which is very close to Article 1 (1) of CERD) as stipulating “equality before the law”, “régime of legal equality” and “equality of treatment”Footnote 115. Similarly, Ukraine's reliance on General Recommendation 14 of the CERD Committee was to no avail: the document only confirmed that difference in treatment (or “distinction”) was a necessary element of the definition of racial discriminationFootnote 116.
126. Thus, to even begin establishing discrimination, Ukraine would have had to first demonstrate distinction or other differentiation based on a protected quality. As the Court stated earlier in Qatar v. United Arab Emirates, CERD “was clearly not intended to cover every instance of differentiation between persons”Footnote 117. Qatar's claim was rejected mainly because it concerned differentiation on the grounds of nationality which are not covered by the Convention; whereas Ukraine apparently did not provide any evidence of differentiation whatsoeverFootnote 118.
127. The Court supported the two-prong approach in its Judgment:
“‘Racial discrimination’ under Article 1, paragraph 1, of CERD thus consists of two elements. First, a ‘distinction, exclusion, restriction or preference’ must be ‘based on’ one of the prohibited grounds, namely, ‘race, colour, descent, or national or ethnic origin’. Secondly, such a differentiation of treatment must have the ‘purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights’.”Footnote 119
128. The Court further added that even when “a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin”, it would still not constitute racial discrimination, by itself, if such an effect is not related to the prohibited grounds of discrimination set out in Article 1 (1): “Mere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention”Footnote 120.
129. Unfortunately, the Majority appeared not to follow these principles when dealing with the question of education, as will be shown in the following section.
5. The Majority erred with respect to school education in the Ukrainian language
130. To begin with, the Judgment admits that CERD “does not include a general right to school education in a minority language”Footnote 121 and “[t]he fact that a State chooses to offer school education in only one language does not, in and of itself, give rise to discrimination under CERD against members of a national or ethnic minority who wish to have their children educated in their own language”Footnote 122. Normally, that would be sufficient to conclude a lack of violation, since in the absence of a right there cannot be racial discrimination with regard to the exercise of that right.
131. However, access to education in Ukrainian was not even at issue in the present case. It is a fact that free public education in Ukrainian is available in Crimea and Ukrainian is one of Crimea's State languages.
132. In the eyes of the Majority, the real issue is different. According to the Judgment,
“the prohibition of racial discrimination under Article 2 (1) (a) of CERD and the right to education under Article 5 (e) (v), may, under certain circumstances, set limits to changes in the provision of school education in the language of a national or ethnic minority” (emphasis added),
proceeding with the following explanation:
“Structural changes with respect to the available language of instruction in schools may constitute discrimination prohibited under CERD if the way in which they are implemented produces a disparate adverse effect on the rights of a person or group distinguished by the criteria contained in Article 1, paragraph 1, of CERD . . . This would be the case in particular if a change in the education available in a minority language in public schools is implemented in such a way, including by means of informal pressure, as to make it unreasonably difficult for members of a national or ethnic group to ensure that their children, as part of their general right to education, do not suffer from unduly burdensome discontinuities in their primary language of instruction.”Footnote 123 (Emphasis added.)
133. It is, firstly, difficult to understand how, in the absence of a right to education in a minority language, there can reasonably exist an arguable right not to subject education in a minority language to discontinuance. Despite the profound legal discussion on this particular topic during both the written proceedings and the oral hearings, the Majority refrains from grounding its position in any specific treaty provisions, case law, State practice or legal doctrine.
134. What is even more confusing, though, is how the Court applied this principle to the circumstances of the present case:
“There was thus an 80 per cent decline in the number of students receiving an education in the Ukrainian language during the first year after 2014 and a further decline of 50 per cent by the following year. It is undisputed that no such decline has taken place with respect to school education in other languages, including the Crimean Tatar language. Such a sudden and steep decline clearly produced a disparate adverse effect on the rights of ethnic Ukrainian children and their parents.”Footnote 124
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Although the Court is unable to conclude, on the basis of the evidence presented, that parents have been subjected to harassment or manipulative conduct aimed at deterring them from articulating their preference, the Court is of the view that the Russian Federation has not demonstrated that it complied with its duty to protect the rights of ethnic Ukrainians from a disparate adverse effect based on their ethnic origin by taking measures to mitigate the pressure resulting from the exceptional ‘reorientation of the Crimean educational system towards Russia’ on parents whose children had until 2014 received their school education in the Ukrainian language.”Footnote 125
135. Thus, even in the absence of convincing evidence of any pressure on parents to educate their children in Russian rather than Ukrainian, the Majority, apparently, simply assumed that such a decline could only have taken place as a result of some kind of policy of racial discrimination pursued by the Respondent, and that by no means could this decline have occurred as simply an objective consequence of the Crimean population — already predominantly Russian and Russian-speaking — reverting to the ubiquitous use of the Russian language as a result of Crimea's return to Russia and cessation of Ukraine's educational policies aimed at overwhelmingly installing the Ukrainian language. In other words, the Majority failed to follow the Court's own position that “[m]ere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention”Footnote 126.
136. In so opining, the Majority has apparently paid little heed to the fact that selection of language of education in Crimea is a voluntary choice of the pupils and their parents. It appears that the Majority had difficulty believing that Crimeans would voluntarily choose to be educated in Russian and not in Ukrainian, that choice being rooted in their historical and cultural heritage and outlook for the future.
137. Neither was much weight given by the Majority to the opinion, though cited, of the OHCHR “that the main reasons for this decrease include a dominant Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean residents to mainland Ukraine”Footnote 127.
138. The Judgment also fails to mention that no law or other regulation in the Russian Federation prohibits Ukrainian-language private schools (despite Minority Schools in Albania, where solely access to private schools was in question, being so prominent in the proceedings).
139. The Court seems to have completely ignored the vast statistical evidence submitted by the Respondent, which showed how, according to Ukraine's own data, even during Ukrainian rule the majority of Crimeans still preferred to be educated in Russian — remarkably, even most of those who were ethnic Ukrainians, and despite Ukraine's own policy of promoting the Ukrainian languageFootnote 128. This mere fact ought to have indicated that there existed a strong preference for Russian-language education in Crimea.
140. Finally, it remains entirely unclear what “measures” the Russian Federation could have implemented beyond those it had already taken, i.e. making Ukrainian one of the State languages in Crimea and making free school education in Ukrainian available to all who so desired, unless the Majority expected Russia to force Crimean children to continue studying in Ukrainian when they and their parents desired to study in Russian.
141. The Judgment concludes that
“To find whether the Russian Federation violated its obligations under CERD in the present case, the Court needs to determine if the violations found constitute a pattern of racial discrimination . . . The legislative and other practices of the Russian Federation with regard to school education in the Ukrainian language in Crimea applied to all children of Ukrainian ethnic origin whose parents wished them to be instructed in the Ukrainian language and thus did not merely concern individual cases. As such, it appears that this practice was intended to lead to a structural change in the educational system. The Court is therefore of the view that the conduct in question constitutes a pattern of racial discrimination.”Footnote 129
142. The Judgment, however, does not point out any particular “legislative and other practice” that would actually be stopping Crimeans from being educated in Ukrainian, if they so desire, either in a free public school or in a private institution. It seems that the mere fact of Crimeans flocking to study in Russian instead of Ukrainian is already considered by the Majority to be proof of a “pattern of racial discrimination”. In other words, the “result” is considered to be evidence of a specific “cause”, despite the abundance of alternative explanations and in contravention of the Court's own rejection of the “indirect discrimination” approach.
143. I cannot concur with this reasoning or conclusion. In my opinion, there is no evidence of any “pattern of racial discrimination” or “disparate effect” on existing human rights, or even adverse differentiation of treatment — on the contrary, the Ukrainian language enjoys in Crimea a constitutional status rarely awarded to minority languages in any country: that of a State (official) language, with the possibility for anyone to receive free education in Ukrainian in public schools. Compared to how other States parties to CERD regulate minority language education and especially how Ukraine itself treats the Russian language — subjecting it to elimination and erasure despite the vast number of ethnic Russians and Russian-speakers in Ukraine — the treatment of the Ukrainian language in Crimea is far more preferential. If that is what constitutes “racial discrimination” in the opinion of the Majority, then a lot of States parties will have to reflect on their education policies.
144. To make matters worse, the remedy formulated by the Court includes a vague and uncertain phrase 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”Footnote 130. First of all, CERD does not impose any obligations to serve undefined “needs and reasonable expectations” beyond the duty to uphold actually existing human rights obligations without racial discrimination. Secondly, the Russian system of education already gives such “due regard” by providing all Crimeans with the opportunity to educate their children in Ukrainian language. This is confirmed by the Court's own decision that Russia conformed to the relevant part of the provisional measures Order. There is nothing more that could be done by Russia, and the Court never suggests any measure beyond those already undertaken by Russia to ensure access to education in Ukrainian language. My conclusion is, therefore, that this phrase is only intended to address possible new and prospective educational reforms.
6. The doctrine of clean hands was also applicable to the CERD case
145. The Respondent has provided extensive information on how Ukraine systematically violated the rights of Russians and other ethnic groups — including the Crimean Tatar community it now purports to protectFootnote 131. Disturbingly, this policy seems to be a consequence of the current Kiev régime's leanings towards ideological continuity with the Organization of Ukrainian Nationalists (OUN) and the Ukrainian Insurgent Army (UPA) — infamous collaborators of Nazi Germany during World War IIFootnote 132.
146. This historical background is essential both with regard to “clean hands” and to the general context of the CERD case.
147. After the defeat of Nazi Germany, the leaders, prominent members and fighters of the OUN and UPA, who were responsible for numerous war crimesFootnote 133 — including mass executions of prisoners of war and civilians, guarding Nazi concentration camps, Jewish pogroms, etc.Footnote 134 — emigrated abroad, continuing subversive activities aimed at Soviet Ukraine. With the collapse of the Soviet Union, these leaders and their descendants and adherents re-emerged in the newly independent Ukraine, creating neo-Nazi organizations which openly declared their succession to the OUN and UPA. The Respondent demonstrated how at least 15 radical neo-Nazi organizations have been created in Ukraine from 1991 to the present day, allying with each other and transforming into new neo-Nazi partiesFootnote 135. Some of them even openly adopted Nazi symbols (such as the Wolfsangel Footnote 136) as their logos. Seemingly, Ukraine did nothing to prevent the growth of this neo-Nazi sentiment in Ukraine and effectively failed to ban dissemination of its fascist and racist ideasFootnote 137, rather creating a favourable environment for their flourishing, as illustrated by multiple examples offered by the RespondentFootnote 138.
148. Against this historical backdrop, it is unsurprising that the current Ukrainian Government is pursuing a policy of glorification of Nazism in violation of Article 4 of the CERD. Stepan Bandera and Roman Shukhevych — by far the most notorious of Nazi collaborators — have been awarded the title of Hero of Ukraine, as have many other members of the OUN-UPAFootnote 139. Streets in Kiev and other cities of Ukraine have been renamed after themFootnote 140. They are presented as heroes in school textbooksFootnote 141. On 12 October 2007, Ukraine's President Viktor Yushchenko signed a decree on awarding Roman Shukhevych the title of Hero of Ukraine; on 10 January 2010 the same title was conferred on Stepan BanderaFootnote 142.Concurrently those disagreeing with neo-Nazi inclinations were suppressed by violent and military means, as evidenced not only by deadly attacks on protesters, as gruesomely proven by the burning alive of 48 opponents of the Maidan coup d'état in the building of the House of Trade Unions on 2 May 2014 in.OdessaFootnote 143, but, on a more massive scale, by multiple loss of life inflicted on the civilian population of Donbass, predominantly ethnic Russians and Russian speakers, in the course of the so-called “Anti-Terrorist Operation” launched on 14 April 2014Footnote 144.
149. Other ethnic minorities in Ukraine have also been subjected to mistreatment and violence even before the so-called EuromaidanFootnote 145. International monitoring mechanisms repeatedly reported on infringement of their cultural and educational rightsFootnote 146. Xenophobic and anti-Semitic sentiment has been growing for yearsFootnote 147. Attacks on Jews, Roma, Africans and other national minorities have taken place systematicallyFootnote 148. No effort to counter manifestations of xenophobia has been exerted by the Government, itself apparently supporting radical nationalism in UkraineFootnote 149.
150. As with theICSFT, Ukraine has not engaged substantively with the facts cited by Russia, inter alia, regarding Kiev's policy of glorification of Nazism contrary to Article 4 of the CERD, dismissing them as mere “Russian propaganda”Footnote 150. Conversely, the Respondent, in support of its position, predominantly refers to Ukrainian and international sources, such as Ukraine's high-ranking officials' “scientific” worksFootnote 151, documents of international organizations and monitoring institutionsFootnote 152, Ukrainian and foreign mass mediaFootnote 153, as well as Ukraine's own legislationFootnote 154. Indeed, concern about the resurgence of Nazism in Ukraine has been mounting for many years. Although fringe neo-Nazi movements may exist in various countries, what makes Ukraine unique is that, perhaps for the first time in post-WWII history, such movements organized and led violent armed protests, successfully overthrew a legitimately elected government, installed their own régime, put their people in charge of military, security and propaganda bodies, launched a campaign of fear and intimidation against the general population, brutally murdered dissenters and even conducted a full-fledged military operation against a part of their own country where people of another ethnicity resisted the new régime, killing and injuring thousands of civilians in the process.
151. In view of the aforesaid, there are adequate grounds for the application of the “clean hands” doctrine as a defence on the merits, since Ukraine itself is engaged in acts which are contrary to the obligations under CERD aimed at combating Nazism in all its forms.
152. Furthermore, as shown by the Respondent, Ukraine has been conducting policies with regard to the Russian-speaking population which Ukraine itself considers contrary to CERD (such as removing Russian-language education from schools, including those in predominantly Russian-speaking areas).
153. Hence, as in the case of the ICSFT, Ukraine's claims under CERD should have been dismissed in limine due to unclean hands of the Applicant. Ukraine's own actions against its ethnic minorities appear to be much more severe than anything that Ukraine even alleged against Russia.
Part III — Provisional measures Order
1. The Court rightly found no violation of the provisional measures Order with regard to education in the Ukrainian language
154. I certainly concur with the Court's decision on this matter: taking note of a report by the UN OHCHR, according to which “instruction in Ukrainian was provided in one Ukrainian school and 13 Ukrainian classes in Russian schools attended by 318 children”, the Court found that “instruction in the Ukrainian language was available after the adoption of the Order” and therefore “the Russian Federation has not violated the Order in so far as it obliged it to ensure the availability of education in the Ukrainian language”Footnote 155. However, this decision, which is, of course, based on objective fact, further highlights the unfathomable stance of the Majority regarding a “violation” of CERD in respect of education in the Ukrainian language. It is difficult to comprehend how a right could be at the same time non-existentFootnote 156, upheldFootnote 157, and impaired (due to racial discrimination, no less)Footnote 158. Yet all of these findings were made by the Majority in this Judgment regarding the same circumstances. It presumably leads to a bizarre conclusion — that a State party which actually provides its national minorities with freely accessible public education in their native language might find itself in violation of CERD, simply because its citizens elect not to use this right; and a State party that quashes the ethnic identity of minorities by eliminating all opportunities of education in their native languages would not be in violation, so long as it does so gradually.
155. One can only imagine the reasons behind this incongruous position other than that the Majority treading some unseen boundary between the aim of somehow implicating the Respondent and the need to avoid making a wider and far-reaching pronouncement which may also implicate other States parties. Whatever the reasons, though, the Court is now put into an untenable position: if it is ever faced with allegations against a State party that provides manifestly less language rights to ethnic minorities than Russia, it will be hard-pressed to follow the Majority's approach in this Judgment while keeping to the principles of impartiality and judicial integrity.
2. There could be no violation of the provisional measures Order regarding the ban on the “Mejlis”, since the Court found this ban to not be in contravention of CERD
156. This is another surprising and inexplicable decision of the Majority that contradicts the Court's own position taken in the Judgment. The Court has, of course, decided that the ban on the “Mejlis” did not constitute racial discrimination and was not in violation of CERDFootnote 159. All the more surprising that the Majority found a violation of a provisional measure concerning this same banFootnote 160.
157. By itself, the provisional measure in respect of the “Mejlis” ban was definitely ill-founded: even prima facie, Russia had sufficient grounds for the measure, considering that entity's non-representative character and overt involvement in acts that would, in practically any country, be qualified as criminal, extremist or even terrorist. Several judges have expressed their disagreement with this part of the Order, having provided convincing argumentsFootnote 161. However, that is not the primary issue now.
158. Even when issuing the provisional measures Order in 2017, the Court had been careful to indicate that the measure was to be implemented by Russia “in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination”Footnote 162. The Court has now found that Russia conformed to its obligations under CERD with respect to the “Mejlis”. Therefore, no violation of the provisional measures Order could have been established.
159. By adopting a decision that there was a violation of the Order, despite the Court's Judgment on the merits of the issue, the Majority seems to be attempting to use provisional measures as an independent tool of assigning State responsibility, completely divorced from whatever findings the Court might make on the merits. And since provisional measures operate on the principle of prima facie evaluation of plausibility, rather than establishing actual circumstances based on convincing evidence, this tool is immeasurably less balanced than the Court's final judgments, affording a wide discretion for decisions that have no actual bearing on law or fact.
160. This is, of course, in contravention of the Statute of the Court and the basic principles of justice, including international justice. Provisional measures have long been a controversial topic, with their binding character only affirmed by the Court relatively recentlyFootnote 163 and arguments being consistently raised against such binding force. According to the Statute, the sole purpose of a provisional measure is “to preserve the respective rights of either party”, “[p]ending the final decision”Footnote 164. If it turns out that a party to the dispute had no such right from the beginning, it only means that there had been no need for provisional measures, as the right was never in peril. It cannot mean that, despite being exonerated on the merits, the other party is still somehow “responsible” for not taking measures to preserve a right that was either non-existent in the first place or successfully preserved (whichever way you look at it).
161. As a result, by taking such a clearly unjustified decision, the Majority has (perhaps inadvertently) undermined the very status of provisional measures that the Court sought to buttress in recent years. Indeed, if provisional measures orders are going to be used as an “alternative” way of assigning State responsibility, based on extremely vague and uncertain criteria that lead to conclusions which demonstrably fly in the face of reality, it will only serve to strengthen the non-acceptance among States of the binding character of such measures.
3. The Majority's decision regarding the provisional measure on non-aggravation was manifestly ill-founded
162. If the Majority's decision regarding the provisional measure on the “Mejlis” ban is an attempt to expand the scope of provisional measures beyond the circumstances established by the Court, then the similar decision concerning non-aggravation seems to be an attempt to expand this scope beyond the subject-matter of the dispute and even the Convention itself.
163. In the view of the Majority, the Russian Federation's actions of recognizing DPR and LPR and conducting a special military operation “severely undermined the basis for mutual trust and co-operation and thus made the dispute more difficult to resolve”Footnote 165.
164. To begin with, it seems self-evident that events of 2022 did not relate to the subject-matter of the present dispute, which is limited entirely to circumstances predating 2017 that were fundamentally different in nature. As set out in the 2017 provisional measures Order itself, “the case before the Court is limited in scope”Footnote 166.
165. Secondly, it is difficult to imagine how the events of 2022 could have “aggravated” or “interfered with” a dispute that had been brought by the Applicant to the Court in 2017, had already been under consideration for five years, and concluded with final hearings on the merits soon after these events transpired. It seems obvious that no new solution to the matters under dispute could have been discovered in these few months, that would not have been available during the previous years. And in reality, these events have had no noticeable impact on the Parties' legal reasoning or their representation at the Court.
166. In LaGrand, on which the Court relies to support the binding character of provisional measuresFootnote 167, no measure related to non-aggravation was issued. In Georgia v. Russian Federation (2008) the Court did issue such a measure — however, despite the applicant calling for a pronouncement of a violation of the order by the respondent, the Court did not even entertain these calls on substance and restricted itself, in its Judgment on jurisdiction and admissibility, to stating the following:
“The Court in its Order of 15 October 2008 indicated certain provisional measures. This Order ceases to be operative upon the delivery of this Judgment. The Parties are under a duty to comply with their obligations under CERD, of which they were reminded in that Order.”Footnote 168 (Emphasis added.)
167. This, in my view, is the true extent of the effect of a non-aggravation provisional measure after the case has been successfully concluded. There had been no “aggravation” of the Georgia v. Russian Federation dispute on CERD in 2008 (despite the military clash and tensions between the two countries), as there had been no “aggravation” of the ICSFT/CERD dispute in the present case.
168. Thirdly, the 2017 Order concerning non-aggravation was addressed to both Russia and Ukraine: “Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”Footnote 169 (Emphasis added.)
169. The Court, however, never even attempted to examine whether Ukraine was also complying with this provisional measure, despite Russia drawing attention to the fact that Ukraine continued its attacks on Donbass and consistently refused to implement the UN-backed peaceful solution to the crisis (the Minsk Agreements)Footnote 170, as well as Ukraine's refusal to enter into negotiations concerning a possible settlement between the PartiesFootnote 171.
170. Summing up, the Majority's decision on this matter goes beyond the scope of the provisional measures Order, the scope of the entire case, even the scope of the Convention itself, and does not conform to the principle of impartiality and equal treatment of the Parties. In any event, the Court does not afford Ukraine any specific remedy with regard to this decision, so it will have no particular impact on the current situation.
(Signed) Bakhtiyar TUZMUKHAMEDOV.
