Top UN Court Agrees to Hear Ukraine Case Against Russia

Presiding Judge Abdulqawi Ahmed Yusuf, third right, reads a verdict at the International Court of Justice  in The Hague, Netherlands, on Feb. 13, 2019. (AP Photo/Peter Dejong, file)

THE HAGUE, Netherlands (CN) – In a big win for Ukraine, the United Nations’ highest court ruled Friday that it has jurisdiction to hear Kiev’s claims that Russia illegally financed separatist groups in eastern Ukraine.

Ukraine’s Deputy Minister of Foreign Affairs Olena Zerkal smiled and laughed during a press conference after the hour-long hearing at the International Court of Justice. The 16-judge-panel of The Hague-based ICJ denied all five of Russia’s preliminary objections.

“This is a great victory for Ukraine, but not only for Ukraine. I think this is a victory for the rule of law,” Zerkal said.

Kiev filed the complaint in January 2017, accusing Moscow of violating two treaties: the International Convention for the Suppression of the Financing of Terrorism, or ICSFT, and the International Convention on the Elimination of All Forms of Racial Discrimination, or CERD.

The ICSFT claim centers on a series of violent events that Ukraine alleges Russia either committed or provided support for, including the shooting down of Malaysian Airlines Flight MH17 in 2014.

The CERD violation concerns Russia’s treatment of the ethnic Ukrainian community in Crimea, which Russia annexed in 2014.

In March 2017, the ICJ held initial hearings in which it determined that it had prima facie jurisdiction over the case. In September 2018, Russia raised five preliminary objections, two concerning the ICSFT claim and three concerning the CERD allegation. The court held hearings on those objections in June.

Both the ICSFT and CERD require parties to attempt to solve disputes on their own, either by negotiation or arbitration, and Russia argued that Ukraine had not allowed for a sufficient opportunity to do so.

However, the court found Friday that there was a “genuine attempt at negotiation made by Ukraine” based on two years of diplomatic correspondence and face to face meetings.

The CERD also requires that parties “exhaust local remedies” before a country can bring a claim, but since the allegations against Russia are a “pattern of conduct” rather than individual cases, the ICJ concluded that “the rule of exhaustion of local remedies does not apply.”

Russia also raised two objections about the nature of the complaint. Moscow argued that the incidents cited by Ukraine, including the shooting down of MH17, were done by individuals, not state actors, and therefore the ICSFT did not apply. Moreover, it argued the incidents Ukraine alleged violated the CERD were false or exaggerated.

To the first argument, the CJ said that the text of the ICSFT refers to “any person,” and any argument about whether Moscow should be held responsible is for the merits stage of the case. It found similarly on the CERD argument, as the groups Ukrainian claims are being discriminated against constitute ethnic groups under the convention.

ICJ President Abdulqawi Ahmed Yusuf read aloud Friday’s ruling, which was not immediately available on the court’s website.

Since Russia’s invasion of Ukraine, the two have faced off in other legal venues as well. Ukraine argued in September before the European Court of Human Rights that Russia violated the rights of people living in Crimea. There is also a separate case before that court over Russia’s activities in eastern Ukraine and the Donbas region.

Kiev won a case in May against Russia when the International Law of the Sea Tribunal ordered Moscow to return Ukrainian sailors in its custody.

Ukrainian officials were optimistic that the ICJ would set a schedule for the hearings on the merits of the case by Christmas, but court watchers were skeptical of that timeline. Cases before the ICJ can last for years.

Friday’s ruling is final and cannot be appealed.

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