At hearings at the International Court of Justice (known as the World Court) in The Hague in the Netherlands from March 6-9, 2017, Ukraine's deputy foreign minister Olena Zerkal requested an immediate court injunction to stop Russia's abuses in Ukraine, while a suit against Russia filed at the ICJ by Ukraine in January 2017 is examined by the court.
Invoking the UN Covenant on the Elimination of All Forms of Discrimination (CERD) and the International Convention on the Suppression of Financing of Terrorism (Terrorism Financing Convention), the international treaties under the ICJ's purview, Zerkal detailed allegations of acts of terrorism and racial discrimination as well as propaganda, subversion, intimidation, political corruption and cyberattacks by Russia. Zerkal also provided information on the escalation of the war in the Donbas in recent weeks, backed by reports of the OSCE Special Monitoring Mission.
Serving as attorney for Ukraine, Harold Hongju Koh, former U.S. deputy assistant secretary for human rights in the Clinton Administration, argued Ukraine's case along with other U.S. lawyers, hoping to get at a minimum the judge’s temporary order of protection that might serve as a deterrent and also means of validating Ukraine's plight.
As expected, Roman Kolodkin, the legal director of Russia’s Foreign Ministry immediately responded with a declaration that the ICJ has no jurisdiction over the case presented by Ukraine. Here, he has legal grounds given the court’s past jurisprudence on the case of Georgia versus Russia in 2011.
The ICJ found in that case that Georgia and Russia had not exhausted a key procedural requirement to bring a case to ICJ, namely the so-called "compromissory clause" requiring the parties to first take part in negotiations to resolve their dispute, as provided for under the CERD. The facts in the Georgia case showed that it had not attempted to negotiate its claims of discrimination. This enabled the ICJ to dismiss the case as lacking jurisdiction, even as it acknowledged that Georgia’s dispute was legitimate.
In Ukraine’s case, it might be argued that the more than two-and-a-half years that Ukraine has been involved in the negotiations of the Minsk Agreements for a cease-fire, exchange of prisoners-of-war and other actions would meet the requirement for such a compromise effort.
Those negotiations concern only the Donbas, however. As former ICJ judge Bruno Simma explained to Deutsche Welle, Ukraine has not engaged in such negotiations with Russia regarding Crimea per se-- which is the basis for its claims of CERD violations. He said Ukraine's chances with the suit were "not nil" but that "it is always difficult to deal with cases of war involving major powers."
In its case alleging the financing of terrorism, Ukraine outlined the Russia support for the separatists' "illegal armed groups" in the Donbas and also noted the shooting down of MH17. The Terrorism Financing Convention also requires that negotiations over the dispute must be held before the case can be ruled on. Ukraine argued that its diplomats had sent more than 40 diplomatic notes and took part in four bilateral negotiations, but Russia largely failed to respond to its letters and refused to engage on the substance of the dispute.
In the statement published on its website, as a way of triggering the ruling on jurisdiction, the Russian Foreign Ministry made a counter claim that Ukraine had "unilaterally terminated the consultations" regarding implementation of CERD in Crimea. They also said that while Ukraine labelled the separatist leaders of the Donbas as "terrorists," Kyiv was negotiating with them in the Minsk process with the help of international mediators – thereby undercutting their case for a need for the ICJ’s remedies if they had the Minsk process.
Ukraine's citation of the reports of the OSCE Special Monitoring Mission detailing the escalation of the war in recent weeks indicated that the Minsk Agreements were not working.
Even so, Russia’s interpretation of the case is likely correct: the test for pre-negotiations may be viewed as not having been met regarding violations in Russia-occupied Crimea, which is the bulk of Ukraine’s case for discrimination under CERD, nor regarding the funding of separatists under the relevant treaty.
In Georgia’s case, by one vote, the judge granted an interim injunction while the case was being decided. So Ukraine may get this much from the suit at the ICJ, which may take years to adjudicate. As Koh said, Ukraine was not seeking relief from Russia’s acts of territorial aggression in annexing Crimea, although the mistreatment of minorities stemmed from that condition.
The court is continuing its deliberations and reported March 9 that it will announce its decision regarding provisional measures “in due course.”