UN High Court to Decide Ukraine Fight Against Russia

The International Court of Justice held the first day of hearings in a dispute between Ukraine and Russia on Monday. (UN Photo/ICJ-CIJ/Frank van Beek.)

THE HAGUE, Netherlands (CN) – The International Court of Justice heard the final round of oral arguments Friday over Ukraine’s claims that Russia financed rebel terrorist groups and discriminated against an ethnic group in the annexed Crimea region.

After both countries delivered opening arguments Monday and Tuesday, Russia returned to The Hague-based ICJ, the United Nations’ highest court, on Thursday as its London-based lawyer Samuel Wordsworth of Essex Court Chambers delivered Moscow’s rebuttal on why the case should be thrown out on jurisdictional grounds.

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 the Tatar people 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.

Russia’s attorney Wordsworth focused on a central question in the case: what is terrorism?

While this might seem like an odd argument, “there is room in the law on both sides,” according to Vincent-Joël Proulx, assistant professor at the National University of Singapore, who is not a counsel in the case.

Some of the difficulty stems from the vague definition of terrorism in international law. “One person’s freedom fighter is another’s terrorist,” Proulx said in an interview.

Ukraine addressed this point in its arguments Friday morning, with Marney Cheek of the international law firm Covington & Burling telling the ICJ that Russia is financing groups which are known to engage in terrorist activities, in violation of the ICSFT, a 1999 treaty.

She outlined several incidents, including the shooting down of passenger airliner MH17, which Ukraine argues was a terrorist act committed by pro-Russian groups in eastern Ukraine.

On Thursday, another one of Russia’s lawyers, Andreas Zimmermann, professor of international and European law at the University of Potsdam, reiterated Moscow’s position Thursday that the ICSFT does not apply to states. Russia contends the U.N. framework only applies to private people, describing it as “designed to cut groups such as ISIS off from individual donors.”

Ukraine responded to this argument on Friday, with Paris Nanterre University professor Jean-Marc Thouvenin, saying states and state actors are included in the treaty’s definition of “any person.”

This wasn’t the only discussion of grammar. Alain Pellet, another Paris Nanterre University professor, argued that the meaning of the word “or” is derived from the context of its usage. He harkened back to Ukraine’s arguments on Tuesday when Jonathan Gimblett, also of the international firm Covington & Burling, told the ICJ that “or means or.”

The argument over “or” gets to another focal point of Russia’s objection of jurisdiction. Both the ICSFT and CERD require parties to attempt to solve disputes on their own, either by negotiation or arbitration. Ukraine is attempting to argue that the case before the ICJ meets this standard.

“It’s a novel argument,” Proulx, the National University of Singapore professor, said. According to him, it’s entirely plausible that the judges will find Ukraine has not done enough to try to resolve the dispute with Russia before bringing it to The Hague and will send the countries back to negotiate with one another.

In the final oral argument of Thursday’s hearing, Mathias Forteau, yet another Paris Nanterre University professor representing Russia, addressed the aspects of the case that related to CERD, a 1969 agreement. In his arguments, Forteau contended that CERD refers to racial discrimination, which is not the case under these circumstances.

Ukraine is accusing Russia of discrimination against the Tatar people, who are, like most Russians, Caucasian.

Forteau went on to say that some of the Tatar people, who Ukraine claims are being discriminated against, are in favor of unification with Russia, and they have representation other than the Mejlis, their highest governing body.

Kiev pointed out on Friday that the ICJ had already ordered Russia to re-establish the Mejlis in its ruling on preliminary measures in the case in 2017 and that Moscow had refused to do so.

Dmitry Lobach, Russia’s ambassador-at-large from the Ministry of Foreign Affairs, gave the country’s closing statements on Thursday. He asked the ICJ to focus on the issue of jurisdiction, as the hearings should not address the merits of Ukraine’s claims.

Olena Zerkal, Ukraine’s deputy minister of foreign affairs, gave her nation’s final statement on Friday, asking the court to move forward with the case to give Ukraine an opportunity to present the merits.

“MH17 is the tragic result of Russia’s financing of terrorism,” she said. “The complete case should be heard on the merits.”

In a statement after the hearing, Zerkal stressed the importance of having legal recourse against Russia and emphasized that Ukraine only brought the case to the ICJ after it exhausted other measures. The Russian team did not give a statement.

A ruling is expected at the end of this year or early next year.

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