Russia’s Foreign Ministry has claimed victory in a suit brought by Ukraine before the United Nations’ International Court of Justice (ICJ). In fact, the court has only held a preliminary hearing in the case, and Russia is by no means winning.
In the suit, filed with ICJ in January, Kyiv accused Moscow of violating two international treaties that Russia signed: the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of all Forms of Racial Discrimination (CERD).
Kyiv accused Moscow of five violations of the ICSFT, including “supplying funds; weapons and training to illegal armed groups involved in acts of terrorism in Ukraine.” Kyiv also asked the court to hold Russia responsible for shooting down Malaysian Airlines Flight MH-17 in July 2014, and shelling and bombing civilians in several Ukrainian towns.
Ukraine also accused Russia of ten violations of the CERD, including “systematically discriminating against and mistreating the Crimean Tatar and ethnic Ukrainian communities in Crimea, in furtherance of a state policy of cultural erasure of disfavored groups perceived to be opponents of the occupation regime.”
On April 19, the ICJ held a preliminary hearing that resulted in a decision to accept Ukraine’s suit for further investigation. The court also called on Russia to “refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis,” as well as to ensure “the availability of education in the Ukrainian language.”
Speaking in Crimean city of Simferopol on May 4, Russian Foreign Ministry spokeswoman Maria Zakharova commented on the status of the Ukrainian suit with the ICJ, claiming the court had dismissed Kyiv’s claims against Russia as “implausible.”
“Contrary to the claims of the Ukrainian side, there is not a word in the text of the court’s decision about ‘repression’, ‘persecution’ and the like by Russia in relation to the Crimean Tatars and Ukrainians living in Crimea, or about the requirement ‘to lift the ban of the Mejlis of the Crimean Tatar people’,” Zakharova said.
However, court documents show that Zakharova’s statement does not reflect the context of the ICJ findings.
At the request of Polygraph.info, Christopher Swift an international lawyer and a professor at Georgetown University, compared Zakharova’s statement with the ICJ documents on the preliminary hearing and drew the following conclusions.
1.) The International Court of Justice's preliminary ruling confirmed two things: first, that the ICJ has jurisdiction to hear Ukraine's case against Russia; secondly, that there is sufficient evidence to allow Ukraine's case to continue. Both of these findings rejected the Russian government's arguments for dismissing the case.
2.) In reaching this decision, the ICJ determined that the evidence against Russia was plausible enough to allow the case to continue. Had there not been such plausible evidence, then the Russian government would have won this first round of arguments and the court would have dismissed the case altogether.
3.) Nevertheless, this is not a final decision on the merits of the case. Ukraine and Russia will still need to present their evidence and arguments to the ICJ, and the ICJ will need to weigh that evidence in light of the standards imposed under the two treaties that Ukraine used to bring the case. This is just the first round in what will probably be a long proceeding.
4.) It is also important to note that the ICJ issued preliminary orders in the case directing the Russian government to protect the Crimean Tartar community's local institutions and to ensure that students can be taught the Ukrainian language. Imposing these provisional protections is a rare and extraordinary move, and one that reflects the ICJ's concern that the Russian government may already be violating its treaty obligations.
5.) The Russian Foreign Ministry’s characterization of this ruling has no relationship to the text of the decision itself. There would be no case if Ukraine's claims were not "plausible," and to say that they were implausible suggests that the Russian government is still litigating the same argument that it just lost. Perhaps the ministry spokesperson received the wrong talking points from her colleagues in the ministry's legal department. Either way, the ministry’s statement confuses legal analysis with legal advocacy in a way that casts a losing argument as a courtroom victory.