November 15, 2019

At the International Court of Justice

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Buried among the news headlines of recent days was the significant November 8 ruling by the International Court of Justice that it does indeed have jurisdiction to hear Ukraine’s case against Russia regarding its actions in eastern Ukraine and Crimea. In a nutshell, the court rejected Russia’s claims that it lacks jurisdiction in the proceedings instituted by Ukraine on the basis of both the 1999 International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (known as CERD) and found that it has jurisdiction to hear Ukraine’s claims made on the basis of both conventions. Moreover, the court’s judgement is “final, without appeal and binding on the parties,” as is stated in the ICJ’s news release.

The principal judicial organ of the United Nations, the International Court of Justice is composed of judges elected for nine-year terms by the General Assembly and the Security Council. Its seat is at The Hague in the Netherlands. The court’s role is described as twofold: “to settle, in accordance with international law, legal disputes submitted to it by states” and “to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.”

It was back on January 16, 2017, that Ukraine had filed its case with the ICJ’s registry, alleging violations of the ICSFT in eastern Ukraine and of the CERD in Crimea beginning in the spring of 2014. RFE/RL reported: “Kyiv alleges Moscow has breached a treaty on terrorism financing by arming and supporting pro-Russia separatists in eastern Ukraine since 2014. Kyiv has also charged that Russia-installed authorities have been suppressing the rights of ethnic Tatars and other minorities since Russia occupied and illegally annexed Ukraine’s Crimean peninsula in 2014.”

To be sure, the ICJ’s ruling was limited to the issue of jurisdiction and did not deal with the merits of Ukraine’s case. That is yet to come. However, Ukraine’s Deputy Minister of Foreign Affairs Olena Zerkal, who leads Ukraine’s delegation to the ICJ, was quoted as saying that the ruling was both “a great victory for Ukraine” and “a victory of the rule of law.” She added: “We can move forward and [present] all arguments at the court and for the international community concerning violations which [took place] on Ukrainian soil. …That means that Russia will be accountable.”

The Associated Press reported that Deputy Minister Zerkal also said the ICJ ruling means details of the Malaysia Airlines Flight 17 (MH17) case will be aired during Ukraine’s arguments. Although Russia, as a permanent member of the U.N. Security Council, had vetoed an international tribunal to prosecute those responsible for MH17’s downing, “this court will hear this case and it might be that it will have an influence on the Russian position in the Security Council and that we will achieve justice,” she explained.

Of course, Russia’s Foreign Affairs Ministry reacted to the news by expressing its confidence that the ICJ will “eventually reject all of Ukraine’s claims.” It was an expected reaction from the aggressor state that continues to maintain its forces are not on Ukrainian territory and that the ongoing conflict in Ukraine is a civil war.

Both the U.S. Embassy in Ukraine and Ukraine’s Embassy in the U.S. hailed the court’s ruling. U.S. Embassy Kyiv wrote on Twitter: “This is a major step toward protecting Ukraine’s sovereignty, territorial integrity and democracy, and holding Russia accountable for its actions.”

Unfortunately, the verdict in Ukraine’s case against Russia is expected no earlier than 2022. In the meantime, Russia’s war on Ukraine and its persecution of Crimean Tatars and other minorities continues. Still, there is hope that Ukraine’s successful use of international law in its fight against Russia will strengthen Kyiv’s position on the international arena at this critical time of negotiations regarding Crimea and the Donbas.

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