Why Ukraine failed in The Hague, and what it needs to change to win cases against Russia

Wednesday, 7 February 2024 — , European Pravda
Credit: Hollandse Hoogte/East News
Anton Korynevych (left), Ambassador-at-Large of the Ministry of Foreign Affairs of Ukraine, and Alexander Shulgin, Ambassador of the Russian Federation to the Netherlands, at the International Court of Justice

Last week was supposed to go down in history. Ukrainian international lawyers and everyone else following the legal dispute with the aggressor state had had high hopes.

It was a truly historic week.

The two rulings that the ICJ delivered on the complaints of Ukraine v. Russian Federation in The Hague on 31 January (on genocide and The Big Case) are indeed crucial for the future development of international law.

The problem is that neither of them is in favour of Ukraine, and at least one of them is capable of causing direct harm.

But this is not a tragedy. Although Ukraine did not achieve the success it had been hoping for in The Hague, legally this outcome is not a "defeat". Ukraine will indeed, however, have to change its strategy, because unfortunately this will not be the last case whose outcome may disappoint us.

So why was Ukraine unable to succeed in The Hague? Were these complaints flawed and doomed to failure from the start? Is this indicative of deeper changes?

Did Ukraine lose at the ICJ?

Opinions on these rulings vary among international lawyers.

Representatives of the legal team from Ukraine's Foreign Ministry who worked in The Hague insist that Ukraine, while not achieving the full extent of its goals, nevertheless "defeated Russia" in both complaints.

And there is indeed a technical reason for diplomats and lawyers to call this a victory for Ukraine. Ukraine has formally advanced to the next stage for consideration of the case on its merits under the Genocide Convention. Russia has been formally recognised as having violated both conventions in The Big Case – the Conventions on the Suppression of Financing Terrorism and on the Elimination of Ethnic/Racial Discrimination. (Read more here: Ukraine claims win over Russia: explaining UN court's ruling on Crimea and Donbas case).

But even Kyiv does not truly believe in "Ukraine's victory".

There have been no victorious posts with congratulations from the president, prime minister or foreign minister about Ukraine's triumph in The Hague.

In both cases, the Court rejected most of Ukraine's positions and arguments regarding Russia’s international crimes. Most importantly, it dismissed Ukraine's key accusations, which formed the core of and were the reason for its complaint to the ICJ.

Many of the experts who followed the process and knew that the Court would definitely reject some of Ukraine's arguments had hoped for a better outcome. So such a negative ruling for Ukraine was extremely disappointing.

Even the official announcement of the ICJ's ruling on the UN website emphasised that the main outcome is that some of Ukraine's claims were rejected. However, the Court did recognise Russia as a violator of international law, which should also be taken into account. It’s just that the extent of this recognition is much more limited than Kyiv had expected.

There are also experts in the legal community who describe these proceedings as a complete failure for Kyiv, as well as some who considered the complaint against Russia as doomed to failure and had been critical of it from the beginning. The European Pravda team does not consider the situation to be quite so bleak. We believe the attempt to hold Russia accountable at the ICJ was justified, albeit unsuccessful.

The complaints against Russia were based on a very bold, creative interpretation of international law. It was not clear in advance whether Ukraine would succeed, as no state had ever done such a thing before.

We need to admit honestly that the chosen strategy failed and to be prepared for defeats in future "creative" cases. It is also crucial to acknowledge as soon as possible that the ICJ ruling on The Big Case could cause real harm to Ukraine.

A Failed "Creative" Approach

The ruling in the genocide case is truly disappointing, and it is the most revealing one.

Ukraine initiated these proceedings on 26 February 2022, just two days after Russia’s invasion, and filed the initial documents in the first few weeks of the full-scale war. There were no legal grounds to accuse Russia of genocide back then. Bucha and northern Kyiv Oblast had not yet been liberated, and the most horrific events in Mariupol had not yet occurred.

But Ukrainian lawyers and their Western advisers seized upon the fact that representatives of the Russian leadership, including Putin himself, had mentioned defending the non-existent "peoples of Donbas" from "genocide by the Kyiv regime" in order to justify the invasion.

The idea behind Ukraine's complaint is this: genocide is the most heinous crime in human history, but Russia had no grounds to accuse Ukraine of it. So we asked the Court to recognise that Russia’s aggression, based as it was on unfounded, preposterous accusations of genocide by Ukraine, was an abuse and violation of the convention by Russia.

The complaint was highly unconventional, and its creativity drew praise from all of Ukraine’s partners and by specialist international law publications.

Everyone understood that the case was not about genocide at all.

In reality, Kyiv was seeking to initiate a legal process that would recognise Russian aggression against Ukraine as unlawful, at least since 2022.

This aggression has still not been legally recognised!

True, there have been countless international statements, including advisory resolutions by the UN General Assembly, but these are merely political documents and are not binding on the entire world. This allows Russia to promote its "alternative reality" among countries of the Global South, arguing that "not everything is clear-cut".

Realistically, it is only possible to apply to the ICJ with a complaint against Russia by linking it to a specific convention. Genocide was this "creative" link.

But a year later, it was becoming increasingly apparent that it would not be plain sailing, as Russia was building an effective multi-level legal defence system. A significant part of Russia's legal position resembled a circus, with stories about the "Kyiv regime" and "whataboutery", but at the same time, Moscow was also building a credible defence, even refuting statements by Putin.

The ICJ ruling and its dangers

Ukraine's Western partners stepped in to assist Kyiv, recognising the importance of the proceedings. By the summer of 2023, another thirty states had joined the complaint in the UN Court, declaring that they could see how Russia had used false accusations of genocide as a pretext to attack Ukraine, and that they considered that such a violation of the Genocide Convention was also a violation of their own rights in that it undermined international law as a whole. It looked as if the ICJ wouldn't be able to say "no" in the face of such support.

Yet it did.

On 2 February 2024 in The Hague, the Court issued a ruling that threw out Ukraine's main accusations.

This is not a ruling on the merits, only on admissibility. Before considering the merits of Ukraine's accusations, the ICJ decides whether it has the right to address the intergovernmental dispute, whether procedures have been followed, and so on.

The ICJ ruling says that it will not examine the complaint brought by Ukraine and other states regarding Russia's abuse of the genocide accusation to attack Ukraine, and also rejects all other accusations regarding ongoing violations by Russia. Thus, Ukraine will not have a chance to obtain a ruling from the ICJ on the unlawfulness of the Russian attack at this stage.

However, the case is far from closed.

While dismissing the accusations against Russia, the Court will continue to consider the complaint regarding Ukraine's claims that it did not commit genocide in Donbas.

This fundamentally changes the essence of the complaint against Russia, which has turned into Kyiv having to prove its non-involvement in genocide in The Hague. This has immediately provided fuel for Russian propaganda. However, this is by no means the worst outcome for Ukraine.

Should Ukraine obtain a ruling in its favour and its wording is sufficiently clear, then it will have a legal basis to counter Russian propaganda for the first time since 2014. Russia continues to successfully peddle the myth worldwide that Kyiv was persecuting Russians in the East and Moscow was forced to intervene.

And there is little doubt that Ukraine will prevail in these absurd proceedings. The absence of both "Donbas peoples" and "genocide" by Ukraine has been confirmed by many UN institutions. All that is required is for the Court to issue a ruling on the merits. Unfortunately, scepticism towards Ukraine’s complaint is mounting.

In 2024, even the ad-hoc judge elected by Kyiv under Ukraine's quota, the Frenchman Yves Daudet, voted against – i.e. for the rejection of Ukraine’s complaint (the judges' votes were distributed 11/4). This is highly unusual in the ICJ.

The collapse of The Big Case against Russia

On 31 January, the Court issued a ruling on the merits that rejected the vast majority of Ukraine’s accusations in The Big Case.

Here, too, Ukraine had artfully found two conventions under which it could bring a case against Russia without the latter’s consent to participate in an international legal process (read more about this here) – the Terrorism Financing Convention and the Racial (Ethnic) Discrimination Convention – although in reality the purpose of the complaint was different.

Ukraine filed this complaint in 2015 to prove that Russia was present in occupied Donbas, that it had supplied militants with equipment, training, and so on.

Regarding Crimea, the goal was to prove the systematic persecution of people who do not identify as Russians, primarily Crimean Tatars.

Both objectives failed.

Ukraine did obtain a ruling on Russia's violation of both conventions, but only in minor respects.

The Donbas aspect was all about Russia's failure to look into Ukrainian enquiries regarding the funding of "LPR/DPR militants" from Russian accounts. The judges refused to even consider the key aspects of Ukraine’s complaint, ranging from the downing of MH-17 to the shelling of residential areas in Mariupol in 2015.

Regarding Crimea, the judges rejected, by a majority of 10 to 5, key aspects crucial for Ukraine, including all the accusations concerning the persecution of Crimean Tatars.

They only recognised Russia as guilty of having closed Ukrainian-language schools.

The UN Court proved unsympathetic to Ukraine’s creative interpretation of international law.

The majority of the judges preferred to take the most conservative approach to interpreting international law, though they did confirm some minor violations by Russia, so it did not get off scot-free.

With respect to the financing of terrorism, Ukraine argued that providing weapons, equipment, ammunition and so on to militants in Donbas is the same as financing them. Moreover, the Terrorism Financing Convention implies this. It says "Funds means assets of every kind, whether tangible or intangible, movable or immovable." When the parties were negotiating on drawing up the convention, they were talking about weapons, even though there is no direct mention of them in the text.

Yet 10 of the 15 judges opposed Ukraine’s interpretation, saying that since this is about financing, it must mean money, financial transfers, and so on. The Court simply refused to consider any of the key aspects of Ukraine’s complaint based on this criterion.

Regarding ethnic discrimination, the Court decided that since the majority of Crimean Tatars support Ukraine, their persecution, including banning the Mejlis (the Tatar people’s assembly) can be regarded as politically rather than ethnically motivated. And while political persecution may be illegal, it is not a violation of the Convention on the Elimination of Racial Discrimination, so the complaint had to be rejected.

Several of the ICJ judges expressed dissent in separate opinions.

They explained that providing weapons to terrorists is exactly the same as financing. "Means [that Russia provided for the war against Ukraine in Donbas] used to commit acts of terrorism may come within the scope of the concept of ‘funds’," Australian judge Hilary Charlesworth wrote

"In fact, weapons in particular could conceivably even have more value to a terrorist organisation than their cash equivalent, because owning and possessing the weapons eliminates transaction costs associated with sourcing weapons or with possible restrictions on obtaining them," Indian judge Dalveer Bhandari explained in his separate opinion.

"Even if there was credible evidence showing that the Crimean Tatar community was targeted because they espoused political views opposed to the presence of the Russian Federation in Crimea after the events of 2014, this would not be sufficient to exclude the possibility that they were also targeted because of their racial or ethnic origin. This is particularly so where, as in this case, the political views or concerns of an ethnic minority are inextricably intertwined with its ethnic identity," Judge Julia Sebutinde from Uganda emphasised.

We could talk endlessly about why these individual judges were correct, but the fact remains that the ICJ did not uphold Ukraine’s complaint based on the vote by the majority. And this vote will have consequences.

What will change and what can be done

The ICJ did not consider the question of whether Russia is involved in acts of terrorism in Eastern Ukraine and, accordingly, did not justify it. The Court did not consider the legality of the occupation of Crimea and Donbas, and so on. The initial objective set by Kyiv regarding Eastern Ukraine was to prove that "Russia is there".

In rejecting Ukraine’s claims, the ICJ was not declaring Russia's actions to have been correct and appropriate. It was saying that the Court cannot consider Ukraine's allegations on their merits.

Ukraine’s claims regarding the persecution of Ukrainians and particularly Crimean Tatars in Crimea were, however, rejected in substance. And this creates real problems.

Ukraine's international communications on the situation in occupied Crimea have been based on the fact that the country has evidence of mass, systemic violations on ethnic grounds for the best part of the past ten years. This has formed the basis of speeches at the UN, explanations to Ukraine’s partners, discussions with other states, and so on. The UN General Assembly annually approved resolutions stating that such ethnic persecutions were taking place.

Now Russia has a deadly counterargument against all of Ukraine's arguments. They have obtained a UN Court ruling that is difficult to counteract.

It is too early to say exactly what this ruling could lead to in practice, but Kyiv needs to prepare a new strategy for action and communication on "traditional" Crimean issues right now.

This is the most obvious consequence of Ukraine's setback in the UN Court.

Does it mean that Ukraine made a mistake somewhere? No, not necessarily.

It looks as if Ukraine has indeed become a hostage to the fact that most ICJ judges tend towards a conservative interpretation of international law. And it is not certain that other arguments would have convinced them.

But this was not known until the ruling on the merits was issued, because no one had ever lodged complaints with the ICJ in such an unconventional way.

Ukraine tried – and was slapped down by The Hague.

Ukraine must now reconsider its approach to international proceedings.

It is difficult to deny that one of the reasons is the general change in attitude towards Ukraine worldwide. This is clear, given the comments on the genocide case.

Unfortunately, the world’s unconditional support of Kyiv dissipated sometime in 2022.

And it would not be surprising if further "creative" legal cases also failed in the future. Now, this is an entirely realistic scenario. It is not worth filing more complaints against the Russian Federation unless there are firmer grounds than in the cases where Ukraine received such a painful rejection in early 2024.

Sergiy Sydorenko,

Editor, European Pravda

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