Textbook lessons in lawfare from Crimea's aftermath.
The recent proliferation of legal disputes between Russia and Ukraine, as well as those involving nationals and entities of either State, has opened new theatres of unarmed combat between the two neighbours.
As fighting remains entrenched between the States in Donetsk and southeastward, the emergence of high-stakes cases in courtrooms across Europe represents one of the largest expansions of this conflict since the spring 2014 declaration of separatist republics in eastern Ukraine. These adjudications are therefore not only relevant to policymakers’ understanding of the future of the conflict, but also instructive for their consideration of legal options in addressing their own regional security disputes.
This first post in a series devoted to the multiplication of legal battles in the ongoing conflict between Russia and Ukraine examines the potential role and significance of the UN's highest judicial body, the International Court of Justice.
Primary Front: The Hague
Ukrainian Justice Minister Pavlo Petrenko stated last month that “[t]he next year will be devoted to the initiation of a large-scale lawsuit at the International Court of Justice [...].” According to Minister Petrenko, Ukraine is nearing completion of its pre-trial gathering of evidence and communication with Russia on the nature of the dispute (such exchange of views is likely critical for reasons discussed below).
On what basis might Ukraine ask the Court to assert jurisdiction over Russia, a State which has not filed a declaration accepting the Court's compulsory jurisdiction under Article 36 of its the Court's Statute? Ukrainian Deputy Justice Minister for European Integration Serhiy Peukhov appeared to cite this month both the 1969 Convention on the Elimination of All Forms of Racial Discrimination and the 1999 Convention for the Suppression of the Financing of Terrorism, both of which Russia has ratified and which contain compromissory clauses submitting certain classes of disputes to the Court.
Before Ukraine can ask the Court to find that Russia's treatment of Crimean Tatars or other groups violated the Racial Discrimination Convention, it must demonstrate that such a dispute falls within the Court's competence pursuant to Article 22 of the Convention:
Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.
In 2011, the Court found that it lacked jurisdiction over a case brought against Russia by Georgia, which alleged violations of the Racial Discrimination Convention arising from Russian activities in the Caucasus. The Court, applying a standard perfected in the Preliminary Objections phase of the controversial South West Africa case, agreed with Georgia that a cognizable dispute existed between the two States. However, it found that Georgia had failed to satisfy Article 22's prerequisite of a good-faith effort to settle the dispute "by negotiation or by the procedures expressly provided for in this Convention" prior to submitting the dispute to the Court. The Court concluded that this failure was fatal to its jurisdiction under the Racial Discrimination Convention.
To avoid the same pitfall, Kiev is likely including in their pre-trial correspondence with Moscow specific references to the Racial Discrimination Convention, in order to ensure that their exchange of views is seen by the Court to satisfy the prerequisite that the parties attempt to settle by non-judicial means the alleged violation of Russia's obligations under the Convention.
The alternative basis on which Kiev has discussed bringing Russia to The Hague would seem to impose a lower bar for entry to the courthouse. Article 24(1) of the Terrorism Financing Convention states:
Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.
By contrast to the corresponding clause in the Racial Discrimination Convention, Article 24(1) of the Terrorism Financing Convention makes no reference to specific alternatives to negotiation, and requires only that a "reasonable time" pass before negotiation may be terminated in favour of adjudication. However, even if the Court were to exercise jurisdiction pursuant to the Terrorism Financing Convention and find that an armed conflict constituted terrorism, what remains to be seen is whether Ukraine could obtain satisfaction.
As commentators have observed, the Court has only rarely awarded specific compensation figures. Nevertheless, were Kiev to present clear evidence of the form and amount of financing involved, this may create a unique opportunity for the Court to award a specific amount of damages. Ukraine's case would presumably assert that Russia has failed to adhere to its obligations under the Convention to exercise criminal jurisdiction over Russian nationals who have financed terrorism in Ukraine under Article 7, and (more importantly to a claim for damages) that it has failed to freeze or seize funds used in the commission of terrorism pursuant to Article 8.
Given the remote possibility of enforcing a monetary judgment against Moscow, however, Kiev might alternatively take an approach which prioritises a declarative judgment. Russia has filed a declaration under Article 7 exercising jurisdiction over terrorist financing commissioned by its nationals and/or on its territory. Should Kiev manage to frame its facts to include evidence taken after Russia exercised effective control over Crimea and focus its legal arguments on Russia's responsibility to prosecute terrorism financiers within its own territory, this may indirectly ask the Court to cast judgment on the international legal status of Crimea.
An alternative approach to obtaining a declaratory statement from the Court regarding the international legality of Russia's annexation of Crimea and/or incursions into eastern Ukraine could be to petition the UN General Assembly to request the Court to provide an Advisory Opinion on the matter. While this is a seemingly more straightforward approach than the use of a multilateral convention concerning a tangential matter—and while the geopolitical value of a favourable Advisory Opinion may be practically indistinct from that of a favourable declaratory Judgment—recent history suggests that the Court is averse to this approach.
In 2010, the Court responded to a similar request regarding the legality of Kosovo's declaration of secession by narrowly limiting itself to the question of whether the declaration itself was prohibited under international law, rather than addressing the true significance of the declaration as regards Statehood. Scholars such as Prof. Milena Sterio have referred to this as "a formalistic, rigid approach [...] intent on respecting the territorial status quo imposed by the great powers, at the expense of failing to develop normative law on the issue of self-determination". It is unclear whether a more narrowly tailored request for Advisory Opinion would be received by a bolder Court.
It also remains to be seen whether Russia would find it procedurally or geopolitically beneficial to participate in any of the foregoing proceedings before the Court. Nevertheless, non-appearance does not negate the Court's ability to make findings against the absent respondent, as it demonstrated in its 1986 Judgment in Nicaragua v. United States, and as was recently confirmed by the Arbitral Tribunal in the Arctic Sunrise dispute arising from Russia's seizure of a Netherlands-flagged Greenpeace vessel.
Whether or not Russia would participate in proceedings before the UN's highest judicial body, it has recently used its status within other UN organs to provide its views on public international law and territorial integrity. For example, Russian Deputy Permanent Representative to the UN Pyotr Ilyichev provided to the Security Council this month an 'express review' of international legal violations committed by the United States and the United Kingdom since the establishment of the UN. Representative Ilyichev's review included not only well-known incursions such as the United States' 1983 invasion of Grenada—which resulted in a rebuke by the UN General Assembly and a response from U.S. President Ronald Reagan that "it didn't upset my breakfast at all"—but also the United Kingdom's violation of Albanian sovereignty in the Corfu Channel, which in 1946 found voice in the International Court of Justice's first-ever contentious case.
Unfortunately, while legal scholars recall that Judgment for its development of international law, Governments may see its value differently: it went unpaid for 50 years.
 Milena Sterio, The Right to Self-Determination under International Law: ‘Selfistans’, Secession, and the Rule of the Great Powers (Routledge 2013), p. 78.
 Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005 (Vol. I: The Court and the United Nations), 4th ed. (Martinus Nijhoff 2006), p. 239.