Wednesday, 31 January may turn out to be a truly historic day for Ukraine. A ruling is to be announced in our first case against the Russian Federation at the International Court of Justice at the Peace Palace in The Hague. The court ruling has already been drawn up, agreed upon and printed. The Ukrainian delegation has arrived in the Netherlands to hear the court's decision in person. In a matter of hours, the suspense will be over.
Then the period of analysis and understanding of what the court has decided will begin. No doubt we will also hear sceptical voices, as Ukraine's complaint will almost certainly be only partially upheld.
Firstly, this is the nature of international courts. Secondly, Ukraine's complaint against Russia was too "unique".
So far, no state has interpreted international law in its claims to the UN court as creatively as Ukraine has. Ukraine’s complaint has set a historic precedent and because of this, the ruling will also be historic.
This brief article will help you understand what to expect from the UN court, and will also help you to distinguish "betrayal" from "victory" after the ruling is made public.
The case regarding Crimea and Donbas
Ukraine’s complaint against Russia dates back to 2017, although the incidents forming the basis of Ukraine’s first case against Russia in The Hague date back to 2014-15. Why did Ukraine wait so long? Because it diligently followed all the procedures required by international conventions before turning to the UN Court.
Since the appeal was so 'creative', Ukraine had to ensure it would not be rejected on technicalities.
The Ukrainian government based its claim on the violation of two conventions: the International Convention for the Suppression of the Financing of Terrorism, concerning Russia's actions in Donbas, and the International Convention on the Elimination of All Forms of Racial Discrimination, regarding violations during the Russian occupation of Crimea.
Why these conventions? What does racial discrimination have to do with Crimea? Why does Ukraine’s first case sound so uncertain?
Many observers, especially those not working in the field of international law, have been asking these questions since 2017, when Ukraine filed the claim at The Hague.
The answer is simple but unpleasant – Ukraine had no other options.
The mechanisms of international law did not allow it to pursue the Kremlin in court for aggression or occupation. Although it is an international crime, there is (so far) no punishment prescribed for Putin or the Russian state.
Therefore, even after 2022, when Russia stopped denying its open involvement in armed aggression against Ukraine, no case has been brought at The Hague specifically for these accusations.
Ukraine's strong and weak points
Now that the court's ruling has been finalised and the enemy cannot use any publications to attack Ukraine, we must honestly admit that Ukraine's complaint against Russia was not an open-and-shut case. The bold interpretation of international law by lawyers from Ukraine’s Foreign Ministry and foreign advisers has elicited both admiration and caution, because a potential defeat in court would have been a significant blow to Ukraine's image.
Frankly, Ukraine's framing of accusations against Russia within the provisions of these two conventions has sometimes looked very fragile and sounded rather unconvincing.
The legal team, however, achieved what initially looked like an impossible task: the case passed the court's scrutiny and received an affirmative decision on jurisdiction (acceptance of the charges), and a final decision has been reached.
To an external observer, 'racial discrimination' might not seem to be a particularly fitting term for Russia's actions. This part of the complaint could have been the most challenging. Ukrainians are indeed different from Russians, but what does it have to do with race? A win for Ukraine under this convention, however, is the most likely. Despite its name, this UN convention prohibits oppression and restrictions based on national and ethnic characteristics, and there are numerous examples of such abuses in occupied Crimea.
Banning the Mejlis (the Crimean Tatar assembly) based on blatantly fabricated charges that Russia was unable to substantiate in court is a glaring example that practically guarantees Ukraine's victory at The Hague under this convention.
There are, unfortunately, some weaknesses in relying on this convention. Neither Ukrainian nor independent international observers have access to Crimea, making it difficult to document restrictions on education in the Crimean Tatar and Ukrainian languages. Moreover, Russia has blatantly lied in the documents it submitted to the court, claiming that Crimean Tatar and Ukrainian identities have flourished during the years of occupation. As a result, the court may simply throw out some of Ukraine's accusations.
But the weakest point, unfortunately, seems to be Kyiv's position regarding the financing of terrorism in Donbas.
Ukraine has consistently claimed since 2014 that the Donetsk and Luhansk "People’s Republics" ('DNR' and 'LNR') simply do not exist – that they are not 'local self-defence' forces but armed formations operating under direct Russian control, involving Russian army officers and intelligence. This contradicts the purposes of the convention cited by Ukraine.
Russia exploited this inconsistency to challenge the Ukrainian accusations. That sounded cynical because, in fact, Russia acknowledged its involvement in the killing of Ukrainians in 2014-15 at the trial. Such arguments, however, no doubt resonated with the court. We covered them in our reports from The Hague hearings (Right to Commit Acts of Terrorism During War).
Nevertheless, Russia is unlikely to secure a victory even under this convention. The downing of the MH17 airliner by a Buk surface-to-air missile falls under the definition of financing of terrorism. Russia delivered the means to carry out the act of terrorism onto Ukrainian territory and then brought it back to Russia. Moreover, the existing ruling by the Dutch national court on the circumstances of this crime should help the UN Court lean in Ukraine's favour.
What will a win look like for Ukraine?
It must be emphasised once again: the UN Court ruling is almost guaranteed not to be unilateral. The court can only satisfy part of Ukraine's claim, and this was clear from the very beginning. If Ukraine's lawyers achieve only a partial acknowledgment of Russia's guilt under each of the two conventions, this would be sufficient grounds to congratulate them on victory.
It is important to realise that although the International Court is not a criminal justice body, and its ruling cannot put Putin, Lavrov or Shoigu behind bars, the significance of this victory would be unparalleled. It would be the first internationally recognised decision that the Russian state has been an international criminal since 2014 – because there have been no such decisions to date.
With all due respect to the UN General Assembly, its resolutions do not have such power. They are political decisions that bear no legal consequences. And the Security Council, which under the UN Charter has the legal right to declare someone in violation, is paralysed by Russia's abuse of its veto. Only the International Court of Justice can break this enchanted circle. And now this has happened.
So in the future, all international legal rulings can and will refer to this decision in the event that Ukraine wins.
Even if the court rejects Ukraine's complaints about Donbas, this could actually turn out to be a legal win for Ukraine – for example, if the court takes the position that Russia cannot be punished for financing terrorism for shelling residential areas in Mariupol or a bus near Volnovakha because back in 2014-2015 Russia was in fact waging war against Ukraine, this would be an acknowledgement that an international armed conflict was taking place in Donbas.
There are many such crucial details. So it’s not just what the court rules that matters, but also how it articulates it.
European Pravda will be following events in The Hague closely. On Wednesday evening, you’ll be able to read an in-depth article on how the international struggle against Russia has evolved. On Friday, an interim decision will be announced in The Hague in another crucial case under the Convention on the Prevention of Genocide.
Editor, European Pravda