Olexiy Plotnikov, PhD (International Judiciary)
Since the beginning of the armed conflict between Ukraine and the Russian Federation in 2014, Ukraine took every possible step to challenge the actions of Russia legally. As nicely put by some Ukrainian researchers, the conflict took a form of Russia warfare against Ukrainian lawfare . While Russian military power is vastly superior to Ukrainian, in the domain of international law Russia found itself in a disadvantageous situation. Since the beginning of the conflict, Ukraine’s government took an attacking position, challenging Russia’s actions in all available international courts. Neither of them has powers to end the conflict, but the international courts are capable of ruling on related legal issues. One of such issues is ethnic discrimination of Crimean Tatars by the occupying power.
In a complex political and legal setting that emerged in 2014, Ukraine’s most obvious option was to submit a case to the International Court of Justice – the judicial body of the United Nations called upon to resolve any question of international law and having the power to order compensations. A problematic aspect of such application was to determine its legal basis. Russia’s actions towards Ukraine were in violation of numerous international treaties and customs, yet the jurisdiction of the ICJ is exclusively consensual, where consent can be expressed either generally by declaring recognition of the ICJ jurisdiction in all cases, or by special agreement between the parties on submission of a particular dispute to the World Court, or by signing an international treaty which prescribes compulsory jurisdiction of the ICJ in all matters related to that treaty. Russia neither recognized the jurisdiction of the ICJ in general, nor demonstrated willingness to bring the case to the Court by agreement with Ukraine.
The only option was to determine a treaty, that is somehow related to the conflict, which is in force between both parties, which provides for compulsory jurisdiction of the UN Court, and to which Russia has made no reservations as to jurisdiction. Only two such treaties could be identified: the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Such choice of legal grounds for a claim may seem bizarre for a case of violation of the fundamentals of international law, including the UN Charter itself, however no claims based on treaties other than the mentioned two would be suitable for the ICJ from the jurisdictional viewpoint.
The claim under the CERD inevitably brought in the question of Crimean Tatars, who, alongside with Ukrainians, were the most discriminated ethnic group in the parts of Ukrainian territory controlled by Russia. Ukraine was not the first state that applied to the ICJ under the CERD. In 2008, Georgia utilized a similar strategy against Russian occupation of Abkhazia and South Ossetia. The Georgian case, however, failed in the ICJ for jurisdictional reasons. Following “the footsteps of Georgia” [2, p. 2], Ukraine was likely to encounter similar jurisdictional problems, that ruined the previous Georgian application.
Russia raised four preliminary objections to the jurisdiction of the ICJ in the Georgian application: a) absence of a dispute based on the CERD; b) failure of Georgia to comply with the procedural preconditions for application, namely to take effort for extrajudicial dispute settlement; c) absence of spacial jurisdiction (ratione loci); d) absence of temporal jurisdiction (ratione temporis). Russia described the case as “artificial”, claimed that Georgia never attempted to apply to other human rights bodies or attempted to negotiate it in its bilateral contacts with Russia, and that the real dispute behind the case was about “Georgia’s unlawful use of force” . In its admissibility decision, the ICJ addressed two of the objections. It firstly found that there existed an ample evidence proving that the dispute between the parties did exist, and Georgia did claim violations of the CERD at different international forums, including UN General Assembly and the Security Council, as well as in bilateral exchanges between the parties, and thus dismissed the first preliminary objection. As to the second objection, the Court found that Georgia failed to follow the preliminary settlement procedure or utilize any dispute resolution mechanisms alternative to the ICJ, and therefore upheld the Russian second preliminary objection and found that it lacks jurisdiction to hear the case on the merits .
Ukraine made no secret of the fact that it is going to apply to the ICJ under the CERD. In their statements, Ukrainian officials (like the Minister of Justice) declared that they strive to comply with the negotiation requirement of Article 22 of the CERD. In contrast to Georgia, which submitted an application to the ICJ four days after Russian troops openly entered its territory, Ukraine’s cold-blooded preparations took almost three years, with much effort invested in gathering evidence of Russia’s reluctance to negotiate. Only after three failed rounds of negotiations, Ukraine instituted proceedings on 16 January 2017. In turn, Russia’s position was weaker than in the Georgian case from the very beginning, since the possible spacial and temporal limitation to jurisdiction were irrelevant ab initio (all facts related to the dispute took place when the CERD was in force for both parties, and Russia would rather lose the case, than agree that Crimea is not its territory).
The wording of Ukraine’s application is far from reserved. It characterized Russia’s attitudes towards Crimean Tatars and Ukrainians in Crimea as “collective punishment against these communities for their refusal to accept the illegal occupation…a broad-based campaign of cultural erasure through discrimination”. According to Ukraine’s broadly formulated prayer for relief, the violations of the CERD in respect of Crimean Tatars by Russia took forms of:
(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.
Similar violations were alleged to have been committed against ethnic Ukrainians .
This extensive quotation from Ukraine’s submission is necessary for understanding the comprehensive character of the Ukrainian claim. With the exception of perhaps only exploitation of natural resources, it describes every grievance that a discriminated indigenous community may suffer from a dominant power. It can be expected that the World Court will deal with each, or at least with most of those pleadings on the merits stage.
Alongside with the application instituting proceedings, Ukraine submitted a request for provisional measures. It described the situation under the CERD as urgent because of “ongoing and unrelenting” “policy of cultural erasure through discrimination” of the Crimean Tatar and ethnic Ukrainian communities. According to Ukraine’s submission, there was “a significant risk that the Russian policy of erasing their distinct cultural identities will succeed”, and therefore Ukraine requested the Court to order the Russian Federation to refrain from racial discrimination against persons, groups and institutions on the occupied territory of Ukraine, cease and desist from any acts of suppression against the Crimean Tatar people, including suspension of the decree banning the Mejlis, to take steps to investigate disappearances of the Crimean Tatars and to investigate those disappearances (Ukraine’s request for provisional measures) . The Court granted the Ukrainian request for provisional measures on 19 April 2019, finding that it has prima facie jurisdiction, and that the rights in question could suffer irreparable damage . This was, however, without prejudice to the future findings of the Court on jurisdiction and merits. Suffice to say, a similar order in the Georgian case did not prevent the Court’s finding that it lacks jurisdiction, and had no practical effect for the situation on the ground.
The first major courtroom battle in the case, where the parties revealed the essence of their arguments, took place around the question of jurisdiction and preliminary objections. Ukraine’s memorial, submitted on June 12, 2018, contained a plentiful description of what Ukraine considered to be evidence of racial discrimination in Crimea, however, it was crucial for the case to prove that a series of attacks, harassment, and intimidation of Crimean Tatars and Ukrainians did amount to racial discrimination and not some other violation, that would exclude the case from the jurisdiction of the ICJ. Ukraine relied on several positions that were principle for the case. Firstly, it interpreted the definition of racial discrimination broadly, to include all unfavorable de jure and de facto limitations of rights of certain groups. Secondly, Ukraine contended that the term “racial discrimination” relates not only to race, but also to any clearly distinguishable ethnic group. Thirdly, Ukraine argued that Crimean Tatars and Ukrainians in Crimea were expressly labeled and targeted as groups. On this basis, Ukraine concluded that the Court has jurisdiction to hear the case under the CERD .
On September 12, 2018, Russia submitted its preliminary objections to jurisdiction and admissibility of the Ukrainian claims. Although preliminary objections are not intended to elaborate deeply on the merits of the case, they offer an insight into the Russian position on the issues raised by Ukraine. Russia begins with a general objection that the Court lacks jurisdiction ratione materiae because the real issue behind the Ukrainian claim is sovereignty over Crimea, not racial discrimination or terrorism. Coming to specific objections, Russia claimed that Ukraine’s definition of ethnic group is vague, and the Crimean Tatars can be viewed not as one group, but as an amalgation of many groups, which have distinct identities (Greeks, Armenians, Italians, Jews, Turks and others). Russia further argued that there is no evidence that Crimean Tatars (or Crimean Ukrainians) consider themselves as a distinct ethnic group, and that their sense of unity with Ukraine is based not on ethnicity, but on political opinion. Russia did not go as far as complete denial of existence of Crimean Tatars as a group, but clearly attempted to undermine the idea of ethnic character of this group by scattering them between various other ethnic identities and by claiming political, rather than national grounds for unity of the Crimean Tatars and Crimean Ukrainians as groups.
In a similar way, Russia offered to disperse its policies into many unrelated acts that could be explained by reasons other than racial discrimination. The ban of public events was explained by violation of the Russian legislation on such events, educational rights were provided under the Russian standards and in any event were not violated, religious claims are not connected to the CERD, etc. In general, Russia suggested not to see the wood for the trees, so that neither of the Ukrainian allegations would amount to violation of the CERD. According to the Russian view, Ukraine has failed to demonstrate that certain violations in Crimea resulted from racial distinction.
Continuing its objections based on jurisdiction, and similarly to the Georgian case, Russia alleged violation of procedural preconditions established by Article 22 of the CERD, namely that Ukraine failed to arrange meaningful negotiations before bringing the case to the ICJ. The final objection concerned the so-called local remedies rule, which obligates the applicant in international courts to make sure that local remedies (courts and other dispute-settlement mechanisms) in the respondent state have been unsuccessfully attempted before bringing the case to the international forum (Ukraine v. Russian Federation, Preliminary Objections of the Russian Federation). Such objection could bring Ukraine’s pleadings based on violation of the CERD to a deadlock, since it would be virtually impossible to demonstrate that in all cases of ethnic discrimination alleged by Ukraine, the victims exhausted the domestic remedies, and if they were indeed so required, such exhaustion would take years and itself become a barrier on the way to international court .
Ukraine took an opportunity to comment on the Russian objections. Concerning the CERD, Ukraine agreed that the application under the CERD was part of the broader effort aimed against aggression, but stated that the claim under the CERD should be viewed independently of its context. Ukraine further commented on Russia’s position that certain isolated events cannot amount to violation of the CERD in general, repeating that these allegedly isolated actions form a consistent policy applied disproportionately against Crimean Tatars an Ukrainians. Finally, Ukraine stressed that the local remedies rule applies only in cases where a state brings a claim on behalf of an individual, and does not apply in interstate cases .
The positions of the parties were expressly and extensively described and supplemented by heated oral debates in June 2019. On 08 November 2019, the ICJ delivered a judgment on preliminary objections. Although this judgment is of procedural, rather than of substantial character, it still indicated certain interpretations that are important both for the future proceedings and for the application of the CERD in general. The Court agreed with the position of Ukraine that the obligations of extrajudicial settlement under the CERD are alternative, rather than cumulative. This means that in order to claim violation of the Convention before the World Court, the applicant-state must either negotiate with the respondent, or refer to procedures prescribed under the Convention (through Committee on Elimination of Racial Discrimination). Further, the Court found that although no meaningful negotiation took place between Ukraine and Russia, Ukraine has properly demonstrated its attempts to engage in such negotiations by d
iplomatic means. The ICJ agreed with Ukraine that there is no duty to exhaust domestic remedies of the respondent state in case of interstate application under the CERD. The Court also found that Russia’s objection based on the alleged failure of Ukraine to demonstrate a pattern of violations that would amount to the breach of the CERD was subject for consideration on the merits stage .
On the same day, 08 November 2019, the ICJ ordered the Russian Federation to submit its counter-memorial by 8 December 2020 in order to consider the case on the merits. Ukraine overcame the first line of defense erected by Russia. However, further prospects of the case are unclear. With the change of administration and resignation of Ukraine’s Deputy Foreign Minister Olena Zerkal, who orchestrated the case on the Ukrainian side, Ukraine may turn out to be less persistent in obtaining a final decision. Moreover, even if Ukraine succeeds in obtaining such decision, Russia will hardly comply with it. It has already demonstrated its unwillingness to follow the orders of the ICJ by not fulfilling the preliminary measures prescribed by the Court, which included suspension of the ban of Mejlis .
Under Article 94 of the UN Charter, if a state fails to comply with a judgment rendered by the ICJ, the other party may have recourse to the Security Council, which can decide upon measures to be taken to give effect to the judgment. An apparent problem of Ukraine in that case will be that Russia is a permanent member to the Security Council with a veto power. It will obviously block any activity of the Council directed against itself, bringing the entire case to a stalemate. Ukraine did send a letter to the UN General Assembly concerning non-compliance with the order on preliminary measures, however, no action followed . Therefore, even if rendered in favor of Ukraine, the possible judgment of the World Court will be complementary for international antidiscrimination law, and will possibly be another indicator of the illegal nature of Russia’s action for the global community, but will hardly immediately resolve the problem of ethnic discrimination of Crimean Tatars by the Russian Federation.
- Public discussion «Crimea: Ukraine’s Lawfare vs Russia’s Warfare». Ukrainian Helsinki Human Rights Union, 12 July 2019. https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea.
- Marchuk, Iryna. “Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia). Melbourne Journal of International Law 18(2) (2017): 1-24.
- Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections of the Russian Federation, 2009 ICJ Rep 70 (December 1).
- Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment on Preliminary Objections of the Russian Federation, 2011 ICJ Rep 70 (December 1).
- 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 Instituting Proceedings, 2017 (January 16).
- 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), Request for provisional measures, 2017 (January 16).
- 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, (2017).
- 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), Memorial of Ukraine, 2018 (June 12).
- 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 of the Russian Federation, 2018 (September 12).
- 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), Written Statement of Observations and Submissions on the Preliminary Objections of the Russian Federation Submitted by Ukraine, 2019 (January 14).
- 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), Judgment of November 8, 2019, (2019).
- Statement by the delegation of Ukraine at the UNGA plenary meeting on the report of the International Court of Justice. October 30, 2019. https://ukraineun.org/en/press-center/400-statement-by-the-delegation-of-ukraine-at-the-unga-plenary-meeting-on-the-report-of-the-international-court-of-justice.
- Letter dated 26 April 2018 from the Permanent Representative of Ukraine to the United Nations addressed to the Secretary-General, A/72/846–S/2018/395.