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Two Victories for Ukraine and the Rule of Law

By Michael D. Reisman

Last week the International Court of Justice issued decisions in two cases in which Ukraine is attempting to hold Russia legally accountable for the war it launched in 2014 and dramatically escalated in 2022.


“These are historic rulings,” Professor Harold Hongju Koh of Yale Law School, a key member of Ukraine’s legal team and Legal Adviser to the U.S. Department of State from 2009 to 2013, told the Herald. “For the first time, after many failed attempts by other countries, Ukraine established by a decisive majority on the U.N.’s highest court that Russia is an international law violator.”


The Terrorism Financing and Discrimination Case


The court ruled on January 31 that Russia violated two treaties: the International Convention on the Elimination of Racial Discrimination and the International Convention for the Suppression of the Financing of Terrorism. Professor Koh said that “the Court found that Russia committed racial discrimination by suppressing Ukrainian education in Crimea and violated its treaty obligation to investigate the financing of terrorism in the Donbas.” The rulings are final and without appeal.


Russia illegally discriminated against Ukrainian-speaking students in Crimea, as evidenced by the more than 90 percent drop in the number of students receiving an education in the Ukrainian language between 2014 and 2016 while no such decline took place with other languages, according to the court.


Professor Koh added that “the Court also ruled, based on the evidence, that Russia violated the Court’s own order for nearly seven years.” The ruling cited two areas of Russian non-compliance. First, Russia’s continued ban on the Mejlis, the highest representative body of the Crimean Tatars, a Turkic-speaking ethnic group and minority in Crimea. Second, Russia’s recognition of the “Donetsk People’s Republic “and “Luhansk People’s Republic” as independent states and launching of a “special military operation” against Ukraine in February 2022.


The court rejected Ukraine’s claims that Russia discriminated against the Crimean Tatars in other ways, including by the dismantling of the Mejlis and arrests and acts of physical violence. The court also rejected Ukraine’s claims that Russia failed to prosecute offenders of terrorism financing crimes, cooperate with and assist other states in terrorism financing investigations, or identify and freeze funds connected to terrorism in the Donbas.


The court’s holding that the terrorism financing treaty does not cover the means used to commit acts of terrorism, including weapons, ammunition, or training camps, was criticized by Olena Zerkal, Ukraine’s former deputy foreign minister and original representative in the case. “I am disappointed by the toothless decision of the court,” she told Politico. “This is a bare minimum of what we demanded.”


The ICJ may lack an enforcement mechanism, but its binding rulings comprise an important source of international law recognized by almost all nations. They have precedential value, including in criminal cases, and can support claims for reparations by wrongdoers.


The Genocide Allegations Case


The ICJ ruled on February 2 that it has jurisdiction to consider Ukraine’s claim that Russia had no credible evidence that Ukraine committed genocide in Donetsk and Luhanska when it launched its full-scale invasion. Professor Koh told the Herald that “Ukraine may now proceed to prove that Russia’s full-scale invasion, which for two years has openly violated the Court’s 2022 order to remove its military and paramilitaries from Ukrainian soil, has been entirely based on a lie.”

Anton Korynevych, Ambassador-at-Large, Ministry of Foreign Affairs of Ukraine, who led its legal team, told the BBC that “the court will decide on the issue that Ukraine is not responsible for some mythical genocide which the Russian Federation falsely alleged that Ukraine... has been committing since 2014 in Donbas.”


The case revolves around the 1948 Genocide Convention, to which Russia and Ukraine have separately been parties since the 1950s. The convention bans acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. The prohibited acts include killing or harming members of the group, inflicting on the group conditions of life calculated to bring about its physical destruction, and forcibly transferring children of the group to another group. The court ruled that Ukraine established that it has a dispute with Russia about the convention.


A record 32 countries filed declarations of intervention supporting Ukraine, including more than two dozen European nations, Australia, and Canada. The court rejected the US's intervention because it has a reservation to the provision of the Genocide Convention at issue.


In contrast to a recently filed case in which South Africa has accused Israel of committing genocide in Gaza, Ukraine did not bring a claim against Russia for specific acts of genocide. The court rejected Ukraine’s claim that Russia violated the Genocide Convention because it falsely claimed that Ukraine committed genocide in the Donbas, recognized the breakaway republics, and invaded Ukraine based on that falsehood.


Ukraine’s claim will proceed to a final judgment, likely in several years. Assuming it ultimately prevails, Ukraine could rely on the judgment to show that Russia’s war was illegal under the principles of jus ad bellum, the law governing the conditions under which states may resort to war. This could support Ukrainian claims for war reparations, which the United Nations General Assembly formally recognized in November 2022.

Ukraine may also bring other cases against Russia under the principles of jus in bello, the law governing how wars are fought. Ukraine might sue Russia in the ICJ for violating the Genocide Convention based on specific acts and omissions, a claim for which there is precedent. In 2007, the ICJ ruled that Serbia violated its obligations under the Genocide Convention by failing to prevent the Srebrenica genocide, in which more than 8,000 Bosnian Muslims were killed.


The UN’s Independent International Commission of Inquiry on Ukraine has published two reports in which it documented human rights violations committed by Russian authorities in Ukraine, including torture, rape, and the deportation of children. 


Ukraine could sue Russia for its forced deportation of 20,000 Ukrainian children to Belarus and Russia, acts for which the International Criminal Court has already issued arrest warrants against Russian President Vladimir Putin and Russian politician Maria Lvova-Belova. The ICJ also left the door open for Ukraine to sue Russia for violating the United Nations Charter, which prohibits the unlawful use of force by UN members against other states.


Final Thoughts


It has been said that international law is the vanishing point of law, and the law of war is the vanishing point of a vanishing point. In other words, what use are legalisms and technicalities in the fog of war? Essentially, that is Russia’s argument.


Without the rule of law, we accept as normal the ruthless violence of a dictator who uses missiles and tanks to attempt to overthrow a duly elected government, then murders thousands and instills fear in millions. We owe it to those who have given their lives for freedom and liberty, ourselves, our children, and future generations to uphold the rule of law. The wheels of justice turn slowly, but they do turn.



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