On January 31, 2024, the International Court of Justice delivered its judgment in Application of the International Convention for the Suppression of the Financing of Terrorism [ICSFT] and of the International Convention on the Elimination of All Forms of Racial Discrimination [CERD] (Ukraine v. Russian Federation). The case was instituted by Ukraine in 2017 and addresses events which occurred from 2014 in eastern Ukraine and the Crimean peninsula. Ukraine alleged that Russia failed to take measures to prevent and suppress terrorism financing as required under ICSFT in relation to acts and armed activities allegedly perpetrated by the Donetsk People's Republic and the Luhansk People's Republic. In relation to CERD, Ukraine alleged that Russia engaged in a campaign of racial discrimination after it took control of the Crimean peninsula that deprived Crimean Tartars and ethnic Ukrainians of their political, civil, economic, social, and cultural rights. As part of the proceedings, Ukraine also requested provisional measures resulting in an April 2017 order that Russia refrain from maintaining or imposing limitations on the ability of the Crimean Tartar community to conserve its representative institutions, including the Mejlis, and make sure that education in the Ukrainian language was available.
In its judgment on the merits, the Court:
- Found that Russia's failure to investigate facts relating to individuals who had allegedly committed an offence in violation of Article 2 ICSFT violated Article 9(1) of that Convention.
- Rejected all other claims made by Ukraine in relation to ICSFT.
- Found that Russia violated Articles 2(1)(a) and 5(e)(v) CERD in relation to its implementation of the educational system in Crimea after 2014.
- Rejected all other claims made by Ukraine in relation to CERD.
- Found that Russia violated its obligations under the 2017 Order of the Court in relation to limitations on the Mejlis and its failure to refrain from action that might aggravate or extend the Parties' dispute.
- Rejected all other claims made by Ukraine in relation to the 2017 Order.
Judge Donoghue appended a separate opinion arguing, inter alia, that Russia also violated Article 12 ICSFT.
Judge Tomka's declaration explained his inability to join the Court in finding that Russia's maintenance of limitations on the Mejlis violated the Court's 2017 Order.
Judge Abraham's declaration [in French only] argues that the recognition of the Donetsk People's Republic and the Luhansk People's Republic as independent states and the "special military operation" launched against Ukraine are unrelated to the dispute and should have had no bearing upon it.
Judge Bennouna's declaration focused on his disagreement concerning the Court's finding that Russia violated the 2017 provisional measure of non-aggravation and argued that it should not have been ordered as an isolated measures and that it does not carry the same obligatory weight as other more specific measures.
Judge Yusuf's declaration disagreed with the Court's finding that Russia violated the provisional measure of non-aggravation for much the same reason as Judge Bennouna.
Judge Sebutinde's dissenting opinion argued that Russia violated its obligations under Articles 12 and 18 ICSFT, as well as its obligations under CERD with regard to measures taken against the Mejlis and the Crimean Tartar population.
Judge Bhandari's separate opinion disagreed with the Court's interpretation of the term "funds" under Article 1(1) ICSFT as not including weapons.
Judge Iwasawa's separate opinion elaborated upon two points made by the Court concerning (1) the Court's rejection of the clean hands doctrine as a defense on the merits and (2) whether a differentiation of treatment amounts to discrimination under CERD.
Judge Charlesworth's separate opinion focused on her difference in opinion regarding the meaning of the term "funds" under ICSFT and her belief that individual acts of racial discrimination are wrongful under CERD regardless of whether they form part of a pattern of racial discrimination. She also argued that the obligation not to aggravate a dispute is an aspect of the obligation to use peaceful means to settle a dispute and that conduct incompatible with the latter obligation (such as the use of force) is in principle likely to aggravate a dispute. Finally, she considered that Russia violated the 2017 provisional measure relating to the availability of education in Ukrainian because it did not satisfactorily or consistently offer instruction in Ukrainian.
Judge Brant's declaration [in French only] explains his disagreement with the Court's finding that Russia violated the 2017 Order with respect to the limitations placed on the Mejlis.
Judge ad hoc Pocar's separate opinion disagreed with the Court's interpretation of "funds" under ICSFT and its exclusion of weapons and other objects used in terror attacks. He also argued that Russia should have brought Ukraine's requests to the attention of the prosecutorial authorities in line with Article 10. He also disagreed with the Court's decision that Ukraine's requests for legal assistance did not give rise to an obligation to give Ukraine "the greatest measure of assistance" in relation to the criminal investigations. Judge Pocar also disagreed with the Court's definition of "racial discrimination" under CERD and its application of the Convention to the ban of the Mejlis. He also disagreed with the Court's finding that Russia had not violated the 2017 provisional measure in relation to the availability of education in Ukrainian, arguing that a state can't escape the obligation to ensure the availability of language education by artificially reducing demand.
Judge ad hoc Tuzmukhamedov's separate opinion argued that the Court failed to determine with certainty that attacks that took place in Donbass were attributable to the Donbass force there. He also felt that the lack of proof of terrorism financing should have foreclosed a finding of a violation of the obligations to cooperate under Article 9 ICSFT. He argued that the Court could have legitimately applied the clean hands doctrine in the ICSFT case. On CERD, he felt that the ban on Mejlis does not constitute racial discrimination, and he strongly disagreed with the Court's view on language education, arguing that CERD does not contain a general right to education in a minority language. He also felt that the clean hands doctrine could have been applied with respect to the CERD claims.