Director-General for International Law, Ministry of Foreign Affairs of Ukraine Oksana Zolotaryova (centre) and Ambassador-at-Large, Ministry of Foreign Affairs of Ukraine Anton Korynevych (right) prior to the ruling of the International Court of Justice in The Hague, the Netherlands, on January 31, 2024.
Marco Levytsky, Editorial Writer.
The United Nations’ top court has rejected most of the claims brought forward by Ukraine in a ruling released on January 31. Chief among these was that Russia pay reparations for the downing of flight MH17 over Russian-occupied Donbas in 2014.
Judges at the International Court of Justice (ICJ) in the Hague held that since there was insufficient evidence to establish Russia having financially supported terrorism (which is prohibited by UN treaties) as opposed to having directly supplied weapons to terrorists in eastern Ukraine (which conduct is not covered by any UN treaties), the ICJ had no legal basis or authority to order that Russia pay reparations.
The ICJ decision stems from a case brought by Ukraine in 2017, which has taken seven years to conclude. It originated from Ukraine’s argument that Russia had financed terrorism during the conflict in Donbas. Ukraine also accused Russia of attempting to erase Tatar and Ukrainian culture in Crimea after Russia illegally annexed the peninsula in 2014, thereby violating a human rights treaty.
The logic that led to this decision escape us. If providing financial support to a terrorist group is a violation of a treaty, then why isn’t the direct supply of weapons? And if the International Convention for the Suppression of the Financing of Terrorism, or ICSFT, does not cover the supply of weapons to terrorist groups then that is a very serious omission and must be corrected. Financial support can be used for anything. But weapons can be used for only one thing – and that is to kill. And that’s exactly what the Russians and their proxies did. They killed 283 mostly Dutch passengers plus 15 crew members. An investigation by the Dutch Safety Board (DSB) and the Dutch-led joint investigation team (JIT), reported in 2016 that the airliner had been downed by a Buk surface-to-air missile launched from pro-Russian separatist-controlled territory in Ukraine. The JIT found that the Buk originated from the 53rd Anti-Aircraft Missile Brigade of the Russian Federation and had been transported from Russia on the day of the crash, fired from a field in a rebel-controlled area and the launch system returned to Russia afterwards. On November 17, 2022, following a trial in absentia in the Netherlands, two Russians and a Ukrainian separatist were found guilty of murdering all 298 people on board flight MH17. The Dutch court also ruled that Russia was in control of the separatist forces fighting in eastern Ukraine at the time. Reaffirming that finding would have been a minimum that the court should have done but failed to do. Had it done so, that would have been a remarkable advance in international law and a blow to Russia.
More appropriately and fittingly, however, would have been for the court to have declared Russia to be a terrorist organization. Whether because it funded the separatists or provided arms to them, whatever they did, should have amounted to promoting terrorism. The court could have tried to define terrorism as something like the intentional use of indiscriminate violence or coercion to invoke extreme fear, or in other words terror, against innocent people in the pursuit of political goals, or a definition similar to that. Emerging with such a more precise definition in itself would have been an advance in international law.
What’s more, any “order” for Russia to comply with UN treaties is absolutely ludicrous. When has Russia ever complied with any UN or other international treaty?
The court did rule in Ukraine’s favor regarding the International Convention on the Elimination of All Forms of Racial Discrimination, CERD. It found that that Russia implemented a discriminatory education system in Crimea “with regard to school education in the Ukrainian language” and has not complied “with its duty to protect the rights of ethnic Ukrainians.”
However, it interpreted the violations of the rights of both Ukrainians and Crimean Tatars as being due to the political activities of both groups and not by their ethnicity.
“What will this lead to? Russia will take this as an indulgence to intensify repression and persecution of Crimean Tatars and the entire Crimean Tatar people. They will push the indigenous people out of the peninsula even harder,” explained Refat Chubarov, Chairman of the Mejlis (Parliament) of the Crimean Tatar People.
Ukraine’s Ministry of Foreign Affairs tried to put a positive spin on this ruling.
“This is the first time in its history that the International Court of Justice has reached a final judgment on Russia’s violations of international law,” it said in a statement released February 1.
“The case, initiated by Ukraine, documented the campaign of terrorism suffered by the Ukrainian people beginning in 2014. Russian-controlled individuals and groups attacked Ukrainians, shelled civilian areas and bombed peaceful cities. Ukrainians were targeted in Volnovakha, Mariupol, Kramatorsk, Avdiivka, Kharkiv and Odesa. Furthermore, Russia has been conducting a campaign aimed at eliminating the culture of ethnic Ukrainians and Crimean Tatars in the temporarily occupied Crimea since 2014. The judgment of the International Court of Justice leaves no doubt that the Russian Federation is in violation of international law” added the Ministry.
But Lana Zerkal, Ukraine’s former deputy foreign minister and its representative to the court, told Politico: “I am disappointed by the toothless decision of the court… This is a bare minimum of what we demanded.” Zerkal said the United Nations court had an opportunity to create a historic precedent by recognizing a state as a sponsor of terrorism, noting that Russia has supplied armed groups in Ukraine’s east with rockets, bombs and money — knowing it would be used to kill and intimidate civilians.
“This creates a legislative vacuum,” Zerkal added. “Nowadays, terrorism financing comes in every form — including cash, weapons, and bitcoins. But the conservative U.N. court ruled it is not terrorism financing if it is not a standard money transfer.”
The ICJ is composed of 15 judges elected to nine-year terms by the UN General Assembly and the UN Security Council from a list of people nominated by the national groups in the Permanent Court of Arbitration. Currently its member judges come from the following countries: Somalia, China, Slovakia, France, Morocco, Brazil, United States, Uganda, India, Jamaica, Australia, Lebanon, Japan, Germany, Belgium and even Russia Itself. Decisions are made by a majority and the court’s judgment is final, but it has no enforcement mechanism. Therefore, the main effect its rulings can have is to influence world opinion. But even here, it has failed miserably.
Zerkal summed it up quite succinctly. “I think this is a sign of the times. Just like the U.N. Security Council can’t do anything, the U.N. court also can’t.”
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