How expected UN Court ruling can cement Russia's status as international criminal

Wednesday, 31 January 2024

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.

Read more about what to expect from the UN Court and how to distinguish 'betrayal' from 'victory' after the ruling is made public in the article by Sergiy Sydorenko, European Pravda's editor – UN court issues first ruling against the Kremlin. What to expect and what not to.

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. 

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.

To an external observer, 'racial discrimination' might not seem to be a particularly fitting term for Russia's actions. 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. 

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.

Claiming 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. 

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.

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!

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