Ukraine Argues Case Against Russia in UN High Court

ICJ President Abdulqawi Ahmed Yusuf on the first day of hearings Monday in a dispute between Ukraine and Russia. (UN Photo/ICJ-CIJ/Frank van Beek)

THE HAGUE, Netherlands (CN) – Russia and Ukraine returned to the International Court of Justice on Tuesday for Kiev to argue that the United Nations’ highest court has jurisdiction to hear its claims that Moscow illegally funded rebels in eastern Ukraine.

On Monday, Russia argued The Hague-based ICJ lacks jurisdiction on two sets of complaints Ukraine has raised. Kiev accuses Russia of violating 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, CERD, through its treatment of minority groups in the annexed Crimea region.

The ICSFT prong of the case centers on a series of violent events which Ukraine alleges Russia either committed or provided support for, including the shooting down of Malaysian Airlines Flight MH17 in 2014. Ukraine further alleges that armed rebel groups, operating in eastern Ukraine, are essentially proxies for the Russian government that have repeatedly attacked civilians.

Kiev’s CERD claims are based on allegations that Moscow has “systematically undermined the linguistic and educational rights of the ethnic Ukrainian community in Crimea” since annexing that region in 2014.

The court held initial hearings in March 2017 and held the following month that it had had prima facie jurisdiction over the case, but left open the possibility that Russia could later argue Ukraine’s claims do not fall under the ICSFT.

The ICJ also found there was insufficient evidence to warrant provisional measures with regards to the terrorism funding accusations, but said Russia should ensure the Tatar people – Turkic-speaking groups in Crimea – are not discriminated against.

Olena Zerkal, Ukraine’s deputy minister of foreign affairs, opened Tuesday’s hearing at the UN’s highest court by accusing Russia of disrespecting the court and international law.

“Russia simply denies what the whole world knows,” she said, referring to Moscow’s denials of involvement in terrorist activities in eastern Ukraine, including the shooting down of flight MH17.

Zerkal said Russia’s arguments the day before had either already been settled by the ICJ during hearings on provisional measures in 2017 or were beyond the discussion of jurisdiction and should be left for hearings on the merits of the case.

The gallery in the courtroom got a French language lesson when Jean-Marc Thouvenin, professor at Paris Nanterre University, asked whether the French word “quiconque” means whomever or any person. The latter is the translation used in the ICSFT.

Thouvenin was rebutting the argument Russia had made the previous day that the 1999 treaty only covers private people, not states or state actors.

Harold Hongju Koh, a Yale University law professor addressing the CERD prong of the case, pointed out to the courtroom that Refat Chubarov, chairman of the Mejlis of the Crimean Tatar people, was present and that the Mejlis was still outlawed by Russia, despite the ICJ ordering Russia to allow the highest governing body of the Tatar people to operate as part of the provisional measures it issued two years ago.

Chubarov stressed the importance of protecting the rights of the Tatar people in a statement after the hearing. Their population is estimated at around 5 million and they long faced oppression under the Soviet Union. The Tatars originated around the Volga River in western Russia.

The final argument Tuesday returned to a debate on grammar when Jonathan Gimblett, of international law firm Covington & Burling, gave an explanation of the meaning of the word “or.”

He finished his presentation by addressing the Russian claim that Ukraine had not properly engaged in mediation, as CERD requires states to do.

“Ukraine’s extensive contact over two years, including 13 diplomatic notes and three face-to-face meetings amply satisfy that standard,” he said.

ICJ President Abdulqawi Ahmed Yusuf ended the hearing with a reminder to both parties to keep their comments on Thursday and Friday brief and they don’t have to use the entirety of the allotted time. Both Russia and Ukraine ran over their time during the first rounds of arguments.

“What we are seeking from this court is justice. What Russia is doing is seeking to avoid justice,” Vsevolod Chentsov, Ukraine’s ambassador to the Netherlands, said after the hearing.

The Russian delegation declined to comment. Moscow will have the opportunity to respond to Ukraine’s position on Thursday in its second round of oral arguments.

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