Oleksii Plotnikov, PhD, international judiciary

It is with great curiosity that the “ARC” observes the proceedings between Ukraine and the Russian Federation in the international courts. One of them takes place at the International Court of Justice (ICJ) – the main judicial organ of the United Nations, the world’s most reputable international court. As a reminder, Ukraine applied to this court back in January 2017 with a claim on Russia’s violations of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention for the Suppression of the Financing of Terrorism. Ukrainian claims on violation of the anti-discrimination convention directly relate to Crimea, and most of the facts of discrimination described in the Ukrainian memorial [1] took place in Crimea.

Consideration of complex interstate disputes by an international court is not a quick process. However, it is not endless, and international courts normally attempt to stimulate the parties to complete procedural formalities as early as possible. Thus, in May 2017, the International Court of Justice issued an order, requesting Ukraine to provide its memorial (that is, a statement of the facts and arguments) by June 12, 2018, and Russia – to provide a counter-memorial (that is, its version of the factual circumstances and objections against the arguments of Ukraine) until July 12, 2019. This order was drawn up taking into account the positions of the parties, that is, the Court did not just come up with dates, but agreed them with representatives of Ukraine and the Russian Federation [2].

Ukraine fulfilled its obligations on time, but not Russia. The counter-memorial was not presented either on July 12, 2019, or in 2019 at all. The Court had, at the request of the representatives of Russia, to extend the deadline for the submission of the counter-memorial four times, and the final deadline was set at 9 August 2021 [3]. And exactly on August 9, information appeared on the website of the Ministry of Foreign Affairs of the Russian Federation that Russia had finally submitted its counter-memorial to the International Court of Justice [4]. The “ARC” experts were ready to analyse the Russian arguments, but it turned out that there was nothing to analyze. The information on submission of the memorial (let alone the text) did not appear on the web site of the ICJ until this date [5]. The commentary of the Ukrainian Foreign Ministry to the Russian statement also does not contain anything that would indicate the transfer of the text of the Russian counter-memorial to Ukraine [5].

It is difficult to draw any conclusions from the available nuggets of information, other than the assumption that Russia somehow continues to abuse its procedural rights in order to delay the process, as it has already done, endlessly delaying the moment of filing a counter-memorial. Compare it to theproceedings in the European Court of Human Rights, where Russia submitted an application in Russian, although the languages ​​of the ECtHR are English and French. The same languages ​​are the languages ​​of the International Court of Justice, and we hope that the Russian Foreign Ministry displayed more international legal professionalism at the International Court of Justice than the Russian prosecutor’s office did at the ECHR, and did not undertake such blatant manipulation as the submission of a counter-memorial on Russian. Therefore, let us express the timid assumption that the lack of information about the Russian counter-memorial was caused by summer vacations or other circumstance that are outside of our knowledge. Therefore, we will try to consider the information contained in the press release of the Russian Foreign Ministry.

On the issue that concerns Crimea, namely Russia’s violation of the International Convention on the Elimination of All Forms of Racial Discrimination, the Russian counter-memorial allegedly refutes “Ukrainian insinuations about the alleged discrimination of Ukrainians and Crimean Tatars living in Crimea” and reveals “the real situation in the sphere of interethnic and international relations on the peninsula” [4]. The statement of the Russian Foreign Ministry contains nothing else that would indicate the content of the Russian counter-memorial on the issue of racial discrimination.

If we assume that the Russian counter-memorial really refutes “Ukrainian insinuations”, then it must contain some factual data that would counter the allegedly “far-fetched and unfounded information” contained in the Ukrainian memorial regarding enforced disappearances, torture, arbitrary searches and detentions, and numerous other violations of the rights of Crimean Tatars and Ukrainians in Crimea. However, so far it looks as if Russia has decided not to object, but rather to provide the Court with more facts of such actions. On September 3 and 4, another wave of enforced disappearances of representatives of the Crimean Tatar people took place, which now face a dubious trial on obviously political charges [7].

It should also be mentioned that the International Court of Justice back in April 2017 ordered the Russian Federation “refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis”, and to ensure the availability of education in Crimea in the Ukrainian language [8]. The Russian occupational authorities ignored this order. In its defence, the Russian Foreign Ministry refers to the fact that the order of the Court allegedly does not contain the wording “to lift the ban of the Mejlis” [9]. For some reason this excuse did not impress the International Court of Justice, and in July 2018 it reminded Russia of the need to comply with his order [10]. As you might guess, the order remains unfulfilled.

The “ARC” awaits with great interest and impatience the text of the Russian counter-memorial to find out how the Russian representatives will deny the fact of non-compliance with a direct order of the UN International Court of Justice to end specific actions constituting racial discrimination. And, in order to satisfy our impatience a little, we inform the UN about the facts of discrimination in Crimea.

Only in 2021 we informed the UN Special Rapporteur on the rights of indigenous peoples about discrimination against indigenous peoples of Crimea by the occupying state [11]; informed the UN Independent expert on the enjoyment of all human rights by older persons about the practice of discrimination in Crimea on the basis of age [12]; informed the UN Committee on the Elimination of Discrimination against Women of discrimination by the occupation authorities against Crimean Tatar women in Crimea [13]. In common experts of ARC presented to UN in 2020-2021 more that 30 submissions on the human rights’ situation in the Crimea and majority of them reflected the challenges related with the racial discrimination.  

The “ARC” is not the only organization that brings to the UN information about human rights violations by the occupying power in Crimea, including racial and other forms of discrimination. We are confident that this information from numerous Ukrainian and foreign sources will help the International Court of Justice to form a correct picture of what is happening in the occupied Crimea and discard the Russian objections as clearly unfounded.

1. https://www.icj-cij.org/public/files/case-related/166/166-20180612-WRI-01-00-EN.pdf

2. https://www.icj-cij.org/public/files/case-related/166/166-20170512-ORD-01-00-EN.pdf

3. https://www.icj-cij.org/public/files/case-related/166/166-20210628-ORD-01-00-EN.pdf

4. https://www.mid.ru/ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/4836247

5. https://www.icj-cij.org/en/case/166

6. https://mfa.gov.ua/news/zayava-mzs-ukrayini-u-zvyazku-z-podannyam-rosijskoyu-federaciyeyu-kontr-memorandumu-do-mizhnarodnogo-sudu-oon

7. https://arc.construction/19379?lang=uk

8. https://www.icj-cij.org/public/files/case-related/166/166-20170419-ORD-01-00-EN.pdf

9. https://www.mid.ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2741603

10. https://www.pravda.com.ua/news/2018/07/19/7186838

11. https://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/urban-areas.aspx

12. https://www.ohchr.org/EN/Issues/OlderPersons/IE/Pages/AgeismAgeDiscrimination.aspx 13. https://arc.construction/16135