Ukraine vs Russia: The ICJ's Court Decision, Examined

What You Need To Know:

✅ The International Court of Justice (ICJ) in The Hague has partially granted Ukraine’s request for preliminary measures against Russia under the International Convention of the Elimination of All Forms of Racial Discrimination;

✅ The Court said that it wouldn’t impose measures ordering Russia to stop funding and equipping pro-Russian separatists;

✅ “The court did not consider any of the claims made by Ukraine on merits. This is very important to know,”-- Mykola Gnatovskiy, Professor of International Law;

✅ Gnatovskiy says there are some very useful hints for Ukraine to consider in the preparation and the drafting of its memorial for the Court regarding both conventions: “The Court has already, in a way, showed how it is going to interpret the definition of terrorism and the financing of terrorism that are present in the Convention.”

The International Court of Justice (ICJ) in The Hague has partially granted Ukraine’s request for preliminary measures against Russia under the International Convention of the Elimination of All Forms of Racial Discrimination. However, the court said that it wouldn’t impose measures ordering Russia to stop funding and equipping pro-Russian separatists as part of the case brought against Moscow by Ukraine. The decision concerned the choice of provisional measures based on claims that Russia supports terrorism in Donbas and ethnic discrimination against Ukrainians and Crimean Tatars in annexed Crimea.

While many have viewed this as a loss for Ukraine, International lawyer Mykola Gnatovskiy says it’s impossible to speak about winners or losers at this time: “At this stage, Ukraine requested provisional measures— that is a very preliminary stage of the proceeding.” He adds that so long as the case continues, these are no victors.

“The court did not consider any of the claims made by Ukraine on merits. This is very important to know,” adds Gnatovskiy. The ICJ has limited time, on the basis of what there is before, to order preliminary measures. The international lawyer applauds Ukraine’s success in the specific measures ordered under the Convention of the Elimination of All Forms of Racial Discrimination, and says that “it was too early” for the Court to judge the other Convention.

Ukraine must now prepare a memorial, and Russia a counter-memorial to submit to the ICJ. Gnatovskiy says there are some very useful hints for Ukraine to consider in the preparation and the drafting of its memorial for the court regarding both conventions: “The court has already, in a way, showed how it is going to interpret the definition of terrorism and the financing of terrorism that are present in the Convention.”

Hromadske’s Nataliya Gumenyuk spoke to Mykola Gnatovskiy, Professor of International Law via Skype on April 23, 2017 in Kyiv.

Has Ukraine won or lost in this case? What does it all mean? Can you elaborate?

This case is of course a case that should be viewed in a broader context of the various efforts by the Ukrainian government to have recourse to various judicial mechanisms that exist in international law. When it comes to the International Court of Justice, the government chose to invoke the international convention on the elimination of all forms of racial discrimination as well as the international convention for the suppression of the financing of terrorism, for the simple reason that these were the two conventions where Russia has already beforehand agreed to the jurisdiction of the International Court of Justice—in respect of all possible disputes arising from these two conventions.

So at this stage, Ukraine requested provisional measures that is a very preliminary stage of the proceeding. So at this stage, it is really impossible to speak about winners or losers. Definitely there might have been a big loss for Ukraine, should the court decide to strike out these cases and basically refuse justice to Ukraine, exactly on this stage. This is a rare occasion, but in principle, this is not impossible. The court did that in other cases, sometimes. So here, of course, as long as the case goes on, we can’t say there are winners or losers.

Now, concerning the provisional measures ordered, I think Ukraine can consider it to be a success that measures ordered under the convention of the elimination of all forms of racial discrimination that these measures are quite specific. It is not just a general measure that the parties should refrain from aggravating the dispute or making it more difficult to resolve. This measure also applies to both conventions and this measure was also ordered by the court. But the specific measure concerning the Crimean Tatars and in particular their representative body, the Mejlis, so it is a specific measure concerning the education in the Ukrainian language. So it is good that these specific measures have been indeed ordered. The other on the financing of terrorism—this convention was very new for the court in the sense that there hasn’t been a case directly dealing with the interpretation of this convention. The court has entered an unknown territory and the court had to be very careful and very prudent at this stage, without prejudging its future decisions and judgments on the existence of the jurisdiction of the court because it is evident that Russia will submit preliminary objections regarding the jurisdiction and also possibly, if that stage is successfully passed by Ukraine, then also the court didn’t prejudge its further deliberations on the merits of the case.

So in that respect, there are some very useful hints for Ukraine regarding the preparation and the drafting of its memorial for the court regarding the convention on the elimination of all forms of racial discrimination but also regarding terrorism. Because the court has already, in a way, showed how it is going to interpret the definition of terrorism and the financing of terrorism that are present in the Convention. And this also requires Ukraine to be very specific.

I’d like to clarify, why are those claims that Russia supports terrorism in Donbas not supported? Some people were saying that maybe Ukraine was too ambitious to raise that particular issue but the government has chosen that particular claim. How would you interpret that?

In the first place, the court did not consider any of the claims made by Ukraine on merits. This is very important to know. It was just the preliminary measures whether the court can already on the basis of what there is before it, in a very limited time, order preliminary measures. And in respect to this convention, the court wasn’t in a position to do that because the situation is indeed very complex. It’s not only about terrorism; it’s also about an armed conflict. And this is what the Russian agents before the court tried to argue, that this entire situation in the eastern regions of Ukraine that falls under the scope of international humanitarian law, of course it does. But not only international humanitarian law—acts of terrorism are possible, they can be committed and unfortunately they are committed in armed conflicts making it also a specific case that could be raised under this convention. So now, for the Court, it was too early to judge and that’s why the court decided to be cautious. This is how I interpreted its order.

What will this lead to? What is next?

The court has to fix timing for the parties to prepare, for Ukraine to prepare its memorial—that is the main document, the main submission to the court. And the Russian Federation to prepare its counter-memorial. So it will take time. I think now with the possible stage of establishing jurisdiction of preliminary objections by the Russian Federation that only this stage of preliminary objections, will take in my opinion, two or maybe three years.

If we go beyond ICJ. What are the other ways for countries, like Ukraine in this case, to ask for justice?

Ukraine is already doing that. Ukraine is doing that in the European Court of Human rights with five interstate applications concerning the Russian Federation. Ukraine is already doing it in the Arbitral Tribunal created under the United National Convention on the Law of the Sea. Ukraine is doing that with investment claims. This is a very complex picture; it is not just the International Court of Justice.