Ukraine claims win over Russia: explaining UN court's ruling on Crimea and Donbas case
On the last day of January 2024, Ukraine heard the judgment on the merits in the first case against Russia at the International Court of Justice (ICJ). Opinion has been polarised on this, but the international lawyers involved in the case insist that it is a win for Ukraine. European Pravda is pleased to present a joint article by these lawyers, explaining and arguing why this event is important and detailing how Ukraine achieved this ruling from the Court.
* * * * On 31 January 2024, the International Court of Justice (ICJ) delivered a ruling in the case of Ukraine v. the Russian Federation regarding the application 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). We refer to this case as The Big Case, both because it involves the violation of two UN conventions simultaneously, and considering the number of people involved and the volume of documents and evidence submitted to the Court.
In the ICJ verdict, Russia was found guilty of violating both Conventions. As a nice bonus, the Court also found Russia guilty of violating the mandatory order for the application of provisional measures.
Russia is a violator of international law. Now it's official.
Lengthy debates can be had about the number of Ukraine's claims that were satisfied or rejected. Let's leave that to the scholars. It's worth noting, however, that jurisprudence often employs the so-called "kitchen sink" method, where you throw in all the arguments you can hoping that at least one of them will work.
Ukraine could not afford to lose the Big Case. Neither could Russia. For many, primarily political, reasons.
The large-scale invasion raised the stakes in this case to the maximum. And Ukraine won. Violations by Russia were established under each of the conventions.
So this is a historic ruling. This judgment is unprecedented for the ICJ and will go down in history. Experts in international law will study it, discovering new nuances each time.
However, the document approved by the court provides no details on how Ukraine achieved this ruling and what it hopes for next. That's why we have written this article. The Big Case was initiated in 2014 when Russia occupied Crimea and started its invasion of Donbas.
Back then, Ukrainians believed they were going through the darkest times in the country's history. Russia's actions were a violation of international law, and it needed to be held accountable. It's worth emphasising that the actions of the Russian leadership, including Putin, were undoubtedly criminal.
Ukraine, however, focused on holding Russia accountable as a state. In international law, the resolution of intergovernmental disputes is the responsibility of the International Court of Justice (ICJ). However, filing a complaint with the ICJ is not that simple.
It is not enough for both parties to be UN members to bring a dispute before the ICJ. Russia also needed to consent to dispute resolution in The Hague, which it would never do. So the only option was to find an international treaty that provides for dispute resolution in the ICJ and to prove that Russia had violated the provisions of that treaty.
The Ukrainian side examined the treaties to which Russia was a party and found two that corresponded to Russia's actions. The crimes committed by the Kremlin in Donbas violated the Terrorism Financing Convention, the ICSFT, and the crimes committed in Crimea violated the Convention on Racial Discrimination, CERD. This determined the choice of legal tools to bring a case against Russia.
Ukraine therefore informed the ICJ that Russia was financing terrorist activities in eastern Ukraine, and that in Crimea it was also implementing a systematic policy of discrimination against ethnic Ukrainians and Crimean Tatars. Much has changed since then, though. One of Ukraine's tasks in lodging a complaint with the Court in 2014-2015 was to prove that "they were there", as Russia claimed "they were not there".
It is true that the circumstances (and therefore the tasks) fundamentally changed in 2022, but by then, the Big Case was in its final stage. What makes the Big Case so different from others is the fact that we knew in advance that Russia had no interest in resolving the dispute and would attempt to undermine every step Ukraine took towards achieving justice. Hence, Ukraine had to go through lengthy technicalities so as to not give Russia any opportunity to undermine the case.
For instance, Ukraine was obligated to resolve the dispute through negotiations. So, nearly half a year was spent on the first face-to-face meeting with representatives of the Russian Federation to hear them parrot their propaganda about the 'the people of Donbas' and the 'Kyiv regime'. There were no expectations of success in such negotiations, but Ukraine had to go through them anyway.
Between 2014 and 2016, Ukraine's Ministry of Foreign Affairs sent Russia over 80 diplomatic notes. Ukraine conducted seven rounds of negotiations just to make sure (and convince the Court) that Russia had no intention of settling the dispute through negotiations. On 16 January 2017, Ukraine finally filed a complaint with the ICJ.
The case review procedure had two stages. First, the Court had to confirm its jurisdiction (the right to consider the dispute). The substantive case review could only commence if Ukraine won at this stage.
If not, the case would have been closed, and Russia would have cracked open the champagne. On 8 November 2019, Ukraine 'won jurisdiction', meaning it had successfully passed the first stage. The Court deemed that Ukraine had exhausted provisional remedies (without those two years of correspondence and demeaning negotiations, it would have received a refusal).
Only then did the substantive case review begin. At the time, Ukraine's entire complaint was purely speculative, because the ICJ had never considered anything similar. Ukraine became the first claimant in history to use the Terrorism Financing Convention for a complaint against another state.
So it was unclear whether the Court was ready to consider such cases in general. Accusing a nuclear state of financing terrorism is a very serious matter. As for the Convention on Racial Discrimination, Georgia used it against Russia in 2008, being the first to do so.
The Georgians, however, were defeated as the ICJ denied them jurisdiction. Russia emerged victorious. Ukraine had to learn from Georgia's experience, avoid its mistakes, and become the first to succeed.
Most of the proceedings at the ICJ take place in writing. Each party to the dispute sequentially submits two fundamental documents in writing, presenting its position and providing evidence. They are called the memorial, counter-memorial, reply, and rejoinder.
On 12 June 2018, Ukraine filed its memorial, a document thousands of pages long with over 20 appendices. There is no point measuring the evidence in pages - it is measured in volumes or boxes. It took the Ukrainian side several days to print out these documents.
And it had to rent a minibus to deliver the memorial to the Court. Such an extensive body of evidence was unprecedented at the ICJ, causing it to amend its rules and set a limit of 750 pages for appendices to the main documents after Ukraine's Big Case. The essence of Russia's violations under the Terrorism Financing Convention boiled down to the fact that Russia did nothing to prevent the transfer of assets to the so-called DPR (Donetsk People's Republic) and LPR (Luhansk People's Republic), which were committing acts aimed at forcing the government of Ukraine to change the constitutional order.
Under the Racial Discrimination Convention, Ukraine claimed that Russia was conducting a campaign of cultural annihilation against ethnic Ukrainians and Crimean Tatars in occupied Crimea.
What were Russia's counterarguments? They can be summed up as "you're no better than us". Russia tried to argue that Ukraine also engaged in terrorism, but the Court was not convinced.
But Russia simply had no other arguments. After 22 February 2022, when Russia launched its full-scale invasion of Ukraine, there was a significant change. All the world-class lawyers representing Russia at the Court announced the termination of their cooperation with Moscow. So Russia had to fill its legal team with international law professors from China and Iran.
From 6 to 18 June 2023, during the oral hearings on the substance of the case, the Court heard a concentrated round of Russian propaganda about the 'Kyiv regime', 'tanks dug in coal mines in Donbas' and other blatant propaganda garbage, now with Chinese and Iranian accents. And on 31 January 2024, the Court announced its ruling: a victory for Ukraine. The Big Case will continue.
This ruling also sets other processes in motion. The political and reputational impact of Russia being recognised as a violator of international law will further undermine the international legitimacy of Putin's regime, especially for countries that are still hesitating. And finally, the verdict is crucial because every diplomatic victory inspires Ukrainians and the Ukrainian army.
Anton Korynevych, Ukraine's agent, Ambassador at Large in the Ministry of Foreign Affairs of Ukraine Oksana Zolotarova, Ukraine's co-agent, Director of the Directorate General for International Law in the Ministry of Foreign Affairs Andrii Pasichnyk, Adviser to the Embassy of Ukraine in the USA
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