The International Court of Justice of the United Nations as a mechanism for the investigation of human rights violations: the case of Ukraine against the Russian Federation regarding discrimination and  the suppression of the financing of terrorism

In order to counter the aggression of the Russian Federation, Ukraine widely uses various international mechanisms for investigating violations of human rights by the Russian Federation. One of these mechanisms is the International Court of Justice of the United Nations (ICJ), which is currently considering two cases initiated by Ukraine against the Russian Federation. This article focuses on the first one – the case of the application of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT)

On January 16, 2017, Ukraine filed the specified lawsuit at the UN ICJ. This was preceded by Ukraine’s compliance with all the necessary requirements for pre-trial settlement of the dispute (negotiations between the parties during 2014-2016 did not make any progress; Ukraine’s proposal to jointly start the formation of arbitration was ignored).

The unification of lawsuits under two international treaties in one case is due to the fact that the violation of both conventions was a consequence of the Russian Federation’s rejection of a free choice regarding the European and Euro-Atlantic course of Ukraine, which the Ukrainian people made during the Revolution of Dignity.

The purpose of this lawsuit is to establish the violation committed by the Russian Federation of the rights provided for by the specified Conventions, to restore the violated rights, to compel the Russian Federation to refrain from such violations in the future, as well as to get compensation for the damage caused.

The record of the case:

Since 2014, the Russian Federation has increased its interference in Ukrainian affairs to dangerously new levels, carrying out military intervention in Ukraine, financing terrorist acts, and violating the human rights of millions of Ukrainian citizens, including for many, their right to life. By its actions, the Russian Federation violates the fundamental principles of international law, including those enshrined in the ICSFT.

In particular, the Russian Federation is accused of violating the ICSFT:

refused to cooperate in the prevention of crimes related to the financing of terrorism by taking all practicable measures from the prevention and countering preparations in its territory to the commission of those crimes within or outside its territory (Article 18 ICSFT);

does not take measures to identify and track funds that are used or distributed to finance terrorism in Ukraine, as well as to freeze or seize funds that are used or distributed to finance terrorism in Ukraine (Article 8 of the ICSFT);

does not conduct any investigation regarding persons who have been involved in or are suspected of financing terrorism in Ukraine, and has not extradited or prosecuted the suspects (Articles 9 and 10 of the ICSFT);

did not provide the utmost assistance to Ukraine in investigating criminal cases related to the financing of terrorism (Article 12 of the ICSFT).

As a result of these violations, illegal armed groups in Ukraine received funds that allowed them to commit numerous terrorist acts, including the downing of the MH17 flight, shelling of Volnovakha, Mariupol, Kramatorsk, and Avdiivka, a terrorist attack during the Unity March, and at the “Stena” rock club in Kharkiv, etc.

Such a connection between the Russian Federation and terrorist groups on the territory of the so-called DPR (DNR) and LPR (LNR) is confirmed, in particular, in the judgment of the European Court of Human Rights in the case of Ukraine and the Netherlands against Russia. Among other things, the Court established that the territories in the east of Ukraine seized by the separatists, from May 11, 2014, and at least until January 26, 2022, were under the jurisdiction of the Russian Federation. The Court referred to the Russian military presence in eastern Ukraine since April 2014 and the full-scale deployment of Russian troops since August 2014 at the latest. The Court also established that the Russian Federation had a significant influence on the separatists’ military strategy; that it has been providing weapons and other military equipment to the separatists on a significant scale since the beginning of the establishment of the DPR and LPR and in the following months and years; that it carried out artillery fire at the request of the separatists; and that it provided political and economic support to the separatists.

In the Autonomous Republic of Crimea and the city of Sevastopol, the Russian Federation “arbitrarily violated the UN Charter by seizing part of the sovereign territory of Ukraine by means of military force”. In an attempt to legitimize its act of aggression, the Russian Federation organized an illegal “referendum” that it hastened to hold in an atmosphere of violence and intimidation of non-Russian ethnic groups. It also launched a campaign of cultural destruction that began with the invasion and the referendum and continues to this day, which violates ICERD.

The Russian Federation is accused of violating ICERD:

• participates in numerous and mass acts of racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea, as well as participates in the policy and practice of racial discrimination against these communities (Article 2 of ICERD);
• sponsors, defends, or supports acts of racial discrimination committed by other persons or organizations against the Crimean Tatar and Ukrainian communities in Crimea (Article 2 of ICERD);
• promotes and incites racial discrimination of the Crimean Tatar and Ukrainian communities in Crimea (Article 4 of ICERD);
• does not provide guarantees for the protection of the right of members of the Crimean Tatar and Ukrainian communities to equality before the law (Article 5 of ICERD);
• does not provide the Crimean Tatar and Ukrainian communities in Crimea with effective protection and legal remedies against acts of racial discrimination (Article 6 of ICERD);
• did not take immediate and effective measures, particularly in the fields of teaching, education, culture, and information, in order to combat prejudices that lead to racial discrimination of the Crimean Tatar and Ukrainian communities in Crimea (Article 7 of ICERD).

Such violations were repeatedly confirmed by the UN High Commissioner for Human Rights. Thus, in the 2014 report, it is indicated that the situation in Crimea regarding the provision of human rights demonstrates numerous and continuous violations. The implementation of the legislation of the Russian Federation in this region in violation of UN General Assembly Resolution 68/262 prevents the exercise of human rights and fundamental freedoms. Numerous legal problems have arisen in connection with the application of legislative and regulatory acts of the Russian Federation regarding citizenship, which endangers the rights of residents of this region, in particular those who do not have Russian citizenship. Residents of Crimea, who are known to have a “pro-Ukrainian” position, are being intimidated; many face discrimination, especially in education, employment, and property rights. Crimean Tatar leaders are banned from entering Crimea, and Crimean Tatar activists face criminal prosecution and restrictions on their rights. The systematicity of such violations is confirmed by all the annual reports of the UN High Commissioner for Human Rights. After the full-scale invasion of the Russian Federation into Ukraine and the subsequent occupation of other parts of the Ukrainian territory, the human rights situation in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol significantly deteriorated.

Major violations of human rights in Crimea are also recorded in the resolutions of the UN General Assembly, in particular: extrajudicial killings, kidnappings, enforced disappearances, politically motivated persecution, discrimination, oppression, intimidation, violence, including sexual, unauthorized searches and arrests, torture and ill-treatment, in particular to obtain evidence, placement in a psychiatric hospital, transfer or deportation from Crimea to the Russian Federation, as well as recorded violations of other fundamental freedoms, including freedom of expression, freedom of religion or belief, and the freedom of peaceful assembly and association.

Position of the UN Security Council

On April 19, 2017, the UN Security Council adopted a decision to apply temporary measures against the Russian Federation, according to which the Russian Federation in the temporarily occupied Crimea has to:

• refrain from preserving or applying new restrictions on the rights of the Crimean Tatar community to preserve its representative institutions, including the Mejlis of the Crimean Tatar people;
• ensure access to education in the Ukrainian language.

Unfortunately, the Russian Federation does not comply with this order of the UN Security Council, which is repeatedly confirmed in the resolutions of the UN General Assembly.

On November 8, 2019, the ICJ ruled in favor of Ukraine on preliminary objections, rejecting all objections of the Russian Federation regarding jurisdiction and admissibility, confirming its jurisdiction to consider Ukraine’s claims under the ICSFT and ICERD.

The stage of the case consideration

On June 6-14, 2023, oral hearings took place, which actually precede the final stage of the case consideration – the preparation and rendering of a decision by the UN IC. Along with demands for the immediate cessation of violations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Convention on Combating the Financing of Terrorism (ICSFT) committed by the Russian Federation, Ukraine also asks the UN ICJ to oblige the Russian Federation to pay financial compensation for the damage that Ukraine has suffered as a result of the above-stated violations, including for the damage its citizens suffered.

For reference

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union (helsinki.org.ua).

Opinions, conclusions, and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government, or UHHRU. The contents are the responsibility of the authors and ECHR.

USAID is the world’s premier international development agency and a catalytic actor driving development results. USAID’s work demonstrates American generosity, promotes a path to recipient self-reliance and resilience, and advances U.S. national security and economic prosperity. USAID has partnered with Ukraine since 1992, providing more than $3 billion in assistance. USAID’s current strategic priorities include strengthening democracy and good governance, promoting economic development and energy security, improving healthcare systems, and mitigating the effects of the conflict in the East. For additional information about USAID in Ukraine, please call USAID’s Development Outreach and the Communications Office at +38 (044) 521-5753. You may also visit our website: http://www.usaid.gov/ukraine or our Facebook page at https://www.facebook.com/USAIDUkraine