Will Ukraine get a fairytale ending in The Hague?

06 February 2017 by Stephanie van den Berg, The Hague (The Netherlands)

Ukraine and Russia will face off before the International Court of Justice (ICJ) from March 6 to 9 over so-called provisional measures against Russia to “prevent further aggravation or extension of the disputes between the parties” requested by Ukraine. Among the measures demanded by Kiev is that Russia cracks down on border security to prevent acts of terrorism financing, including the supply of weapons to pro-Russian militias.  

Wreckage recovery of flight MH17 November 2014 (Photo: Dutch Ministry of Defence/ Dutch Safety Board)
Image caption: 
Wreckage recovery of flight MH17 November 2014 (Photo: Dutch Ministry of Defence/ Dutch Safety Board)

In their filing to the UN's highest court of January 16, Ukraine specifically names the shooting down of Malaysian Airlines flight MH17 as an alleged example of how Russia funded terrorist attacks by pro-Russian forces in Ukraine breaching their obligations under the 2002 Terrorism Financing Convention. Ukraine's claim before the ICJ could see the first time an international court is asked to rule on the circumstances of the 2014 attack on MH17 which left 298 people dead. The International Criminal Court (ICC) is also opened a preliminary examination in 2014 into events in Ukraine and especially the Crimea crisis but has not launched an official investigation yet. 

The case is likely to take several years, if the court finally decides that it has jurisdiction under the terrorism financing convention. But if it does, judges in The Hague could end up having to decide who shot down the Malaysian Airlines flight and whether they had Russian backing. Russia denies any involvement and has dismissed findings from an -- internationally backed but separate from the ICJ --Joint Investigative Team which said in September last year that the plane was shot down with a Russian-manufactured Buk surface-to-air missile from an area controlled by pro-Russian forces. The team, which has investigators from the Netherlands, Ukraine, Malaysia, Australia and Belgium, has not given the names of any suspects yet but they are expected to in the future [IJT-165]. The Netherlands is pushing for an international tribunal to try suspects but Russian opposition to the plan and Moscow's permanent seat on the UN Security Council make in unlikely to succeed.

Why the court won't rule on the annexation of the Crimea directly

While the shooting down of MH17 looks like it will be a key element in Ukraine's case before the ICJ, the case is really about the 2014 annexation of the Crimea by Russia. Although Ukraine, the European Union and the United States have called the annexation illegal, in the ICJ case Kiev is not actually asking the court to rule directly on the question of whether Russian military intervention was legal under international law.

Why not? It’s a question of the ICJ’s jurisdiction, which is tied to international treaty obligations or a voluntary declaration by a state to accept the court’s involvement. Neither Russia nor Ukraine have not signed such a special declaration recognizing the jurisdiction of the court as compulsory in any case involving a dispute between states. Which means the ICJ cannot look at a case without the express consent of both parties involved. Kiev might be willing. But Moscow is unlikely. So the only other way for Ukraine to file a claim is to base itself on those international treaties also signed by Russia which give the ICJ jurisdiction to intervene in case of a dispute.

Ukraine is trying to tackle the issue of the Crimea sideways, by getting Russia before the ICJ for failing to uphold its obligations both under the terrorism financing convention and the 1969 International Convention on the Elimination of All Forms or Racial Discrimination known by its acronym CERD

In a January 2016 blog on EJIL Talk! Gaiane Nuridzhanyan calls this a “Cinderella problem” after comments from ICJ judge Christopher Greenwood that Ukraine is trying to “squeeze a rather large, perhaps ungainly force, into the glass slipper of a jurisdictional clause that really is far too small” for the case it wants to bring.

Ukraine is not the first to try to bring such a case against Russia. In 2008 Georgia also filed a claim with the ICJ on the basis of CERD . It claimed that Moscow had violated its obligations under the convention with its interventions in South Ossetia and Abkhazia which 'altered the ethnic composition” of the areas. That case was eventually dismissed in 2011 when the ICJ ruled it did not have jurisdiction because Georgia had not fulfilled all the preconditions for bringing the case before the highest UN court, namely because it did not try to solve the dispute with Russia through negotiations first.

Lessons learned from the Georgia case

Having probably learned from the 2011 ruling, Ukraine sets out clearly in its claim that it has tried to resolve the issue through negotiations including participation in three rounds of bilateral negotiation. But the question remains whether that will be enough for the ICJ. That will be up to the judges to decide, as the CERD article 22 simply states broadly that a party can bring before the ICJ “[a]ny dispute . . . which is not settled by negotiation or by the procedures expressly provided for in this Convention”.

International law observers note that this will be the first time the jurisdiction of the ICJ is sought for the terrorism financing convention. In the convention it states any dispute that cannot be settled through negotiations within a reasonable time “shall … be submitted to arbitration” if the parties are unable to organise arbitration within six months of such a request “any one of those parties may refer the dispute to the ICJ”. In its application Ukraine argues that Russia has consistently dragged its feet since Kiev filed a request for arbitration in April 2016. As there is still no agreement on organisation of arbitration Ukraine argues the ICJ must hear the case.

Although no Russian filings have been made in this case yet it is likely that Moscow's first line of defence will be to argue the ICJ has no jurisdiction as they successfully claimed in the Georgia case.The hearings on provisional measures in March will be the first opportunity to hear Russia's arguments.



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