A Shortcut at the Expense of Justice

On 31 January 2024, the International Court of Justice (“the Court”) rendered its judgment on the merits of a case initiated by Ukraine against the Russian Federation in 2017 (“the Judgment”). Ukraine alleged numerous violations by Russia of two treaties: the 1999 International Convention for the Suppression of the Financing of Terrorism (“Suppression of the Financing of Terrorism Convention”), and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (“Elimination of Racial Discrimination Convention”).

For the first time, the principal judicial organ of the United Nations ruled on the merits of an inter-state dispute concerning the interpretation and application of each of the aforementioned treaties. At the same time, the Court for the first time established international responsibility of the Russian Federation. The facts-intensive dispute was of cardinal importance to both parties embroiled in a bloody international armed conflict, currently under investigation by the prosecutor of the International Criminal Court. Following the Judgment, both governments claimed victory, making it challenging for an impartial disengaged observer to make sense of what the Court had actually decided. This blog post provides a brief overview of the decision and argues that the Court sidestepped the task of reconstructing what has happened in reality via judicial fact-finding. This approach comes at the expense of several legal errors.

Of Money and Weapons

Ukraine’s case under the Suppression of the Financing of Terrorism Convention centered on the Kremlin’s support to the self-proclaimed Donetsk and Luhansk “people’s republics”. Two findings made by the Court while interpreting this treaty severely undermined Ukraine’s case. Firstly, the Court interpreted the term ‘funds’ used in the 1999 convention as referring ‘to resources provided or collected for their monetary and financial value’, excluding ‘the means used to commit acts of terrorism, including weapons or training camps’ (para. 53 of the Judgment). Secondly, the Court reiterated that a State’s financing of acts of terrorism falls outside the scope of the Suppression of the Financing of Terrorism Convention. Consequently, ‘the Russian Federation’s alleged policy of financing armed groups in eastern Ukraine’ should not be scrutinized by the Court (para. 142 of the Judgment).

The Court’s narrow definition of ‘funds’ effectively cut out the bulk of Ukraine’s case under the Suppression of the Financing of Terrorism Convention which had been built around the facts of the various Russian entities providing the “people’s republics” with weapons, such as a mobile surface-to-air missile Buk system. That system was used, as confirmed by a Dutch criminal judgment, to down a civilian aircraft on 17 July 2014, resulting in the tragic loss of 298 innocent lives. The definition of ‘funds’ proposed by the Court allowed it to leave a significant amount of evidence submitted by the parties without examination and assessment. This definition is flawed to the extent of making the regime established by the Suppression of the Financing of Terrorism Convention meaningless as a whole, as eloquently explained by Judge Dalveer Bhandari in his separate opinion. To borrow his example, gasoline is a traded commodity and, therefore, a resource provided or collected for its financial value, hence ‘funds’ under the Court’s definition. Simultaneously, it is capable of being used by terrorists to power their automotive vehicles, thus falling under the category of ‘means used to commit acts of terrorism’ outside ‘funds’ in the Court’s understanding. The distinction put forward by the Court is not only unworkable but also leads to an unreasonable outcome of treaty interpretation: while it is prohibited by international law to send money to terrorists, it is perfectly allowed to give them bullets which may be purchased for money. Using customary rules of treaty interpretation of the Vienna Convention on the Law of Treaties, the Court first discounted ‘the ordinary meaning to be given to the terms of the treaty’, second, disregarded the ‘special meaning’ of ‘funds’ as ‘assets of every kind’ established in Article 1 of the Suppression of the Financing of Terrorism Convention, and, finally, used supplementary means of interpretation, such as travaux préparatoires, leading it to the manifestly absurd result.

The solution employed by the Court bears resemblance to its recent stance in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast. Disposing of that case, the Court concluded that, under customary international law, a State’s entitlement to continental shelf cannot extend beyond 200 nautical miles from the baselines from which the breadth of territorial sea is measured. This legal conclusion was apparently erroneous, for the reasons masterfully put together by Judge Hilary Charlesworth in her dissenting opinion. However, it allowed the Court to sidestep the more complex, fact-specific, and intensely litigated issue of delimiting that continental shelf.

As a court of first instance, the Court is capable of acting as a fact-finder (see, for example, articles 50-51 of the Statute). However, it repeatedly prefers to rely on seemingly dubious legal technicalities in order to avoid fact-intensive discussions of the issues hotly contested between the parties of the dispute.

In the context of the ongoing international armed conflict between Russia and Ukraine since 2014 the approach taken by the Court in the Judgment also means that there is still no independent judicial narrative of the events which have been interpreted and presented in starkly different ways by the aggressor and its victim.

The Court found a violation of Russia’s procedural obligation under Article 9 of the Suppression of the Financing of Terrorism Convention to investigate alleged terrorism financing offences following Ukraine’s calls contained in three diplomatic notes sent to Russia in 2014-2015 (paras. 102-111 of the Judgment). This violation has been perceived so insignificant by the Court itself that it failed to attach any remedy to it other than a general reminder that Russia “continues to be required… to undertake investigations” (para. 149 of the Judgment). Yet, these investigations are not only improbable but also most likely unfeasible now, ten years after the events in question.

One basis of discrimination does not exclude the other

The second part of Ukraine’s case was built upon the Elimination of Racial Discrimination Convention and concerned the situation of two ethnic minorities – Ukrainians and Crimean Tatars – in Crimea after its occupation and annexation by Russia in 2014.

Upon examining Ukraine’s allegations under this legal heading, the Court found that “the political identity or the political position of a person or a group is not a relevant factor” for the purposes of interpreting the term ‘racial discrimination’ defined in Article 1 of the Elimination of Racial Discrimination Convention (paras. 200, 214 of the Judgment). Using this approach, the Court was quick to establish that Russia’s measures complained of by Ukraine targeted political opponents of Russia in Crimea rather than representatives of the two ethnic minority groups. The only violation of the Elimination of Racial Discrimination Convention found related to the complaint about Ukrainian-language education in Crimean schools. That finding also did not trigger any specific remedy (paras. 373-374 of the Judgment).

In reaching its conclusion the Court chose to disregard that, using the words of Judge Hilary Charlesworth, “a finding that differential treatment is based on political grounds does not preclude it being also based on prohibited grounds, such as ethnic origin” (para. 32 of her separate opinion). When dismissing Ukraine’s claim about Russia’s ban on the Mejlis, the representative body of the Crimean Tatars, the Court failed to bring into picture the historical persecution of the Crimean Tatars as an ethnos during the years of Stalin’s tyranny and the role of the Mejlis in advancing and protecting the rights of the Crimean Tatars, as alluded to by late Judge James Crawford in his declaration to the Court’s order on the indication of provisional measures of 19 April 2017. The Court hollowed out the essence of Ukraine’s case, broke it into little bits, and then quickly dismissed them one by one.

Not the Time for Hiding

The Court additionally found that Russia failed to implement the provisional measures ordered by the Court. It however again chose not to award any specific remedies. Its finding, therefore, will have no impact on the ground. The harsh realities of the conflict and, most importantly, the human suffering on the territories of Ukraine occupied by Russia seem far removed from the grandeur of the Peace Palace.

With more than a quarter of its Members (four out of fifteen) renewed in February 2024, and a new President and Vice-President duly elected, the Court now faces a very heavy docket. It is incumbent upon the Court to demonstrate its relevance and saliency in the months and years ahead, showcasing its ability to interpret and apply international law not only faithfully but also innovatively and proactively, without fear and favour. It is for the Court to show value for money through the elaboration of legal concepts and factual narratives capable of contributing to the contemporary marketplace of ideas, not to hide beyond formalistic shortcuts.