Ukraine and Russia are this week facing off against each other before the International Court of Justice (ICJ) in The Hague. Kiev accuses Moscow of violating two international Conventions, one on funding terrorism and one on the elimination of all forms of racial discrimination. It is asking the Court for urgent measures.
Ukraine wants the ICJ to order Moscow to stop supporting separatists in eastern Ukraine immediately and also stop violating the rights of ethnic Tatars in Crimea. It is asking the Court to do this urgently, before making any pronouncement on the substance of the case, which could take years. “All we want is a return to stability and calm,” declared Ukraine’s foreign minister Olena Zerkel, who called the current situation “dangerous and unpredictable”. After the popular uprising that led to the fall of Viktor Yanukovych in February 2014, a new armed insurrection against the Ukrainian government sprang up in the east of the country. Separatists supported by Russia proclaimed the independent republics of Donetsk and Logansk, bringing intervention by the Ukrainian army. “Russia is implementing its foreign policy with no regard for human life, and is using all means to impose its will,” Zerkel said in The Hague. “Its tactics include supporting terrorism and acts of racial discrimination, as well as propaganda, subversion, intimidation, political corruption and cyber-attacks.” According to Harold Koh, lawyer for the Ukraine and former State Department Legal Advisor under Obama, “Russia has been trying for years to take control of its neighbours”. “As I speak to you, Russia is conducting a massive operation to supply funds, arms and support to illicit groups,” he told the 16 judges on the bench.
Russia says that Ukraine’s offensive before the Court aims to “stigmatize a large part of the Ukrainian population” and “label Russia as terrorist and as a persecutor”. Roman Kolodkin, legal department chief at the Russian foreign ministry, spoke of the recent Ukrainian revolution, denouncing the opposition for asking people to choose between Europe and Russia. He said this was a “fallacious choice which has divided the country” and led to a “government of victors” with an “anti-Russian message”. Moscow argues that in eastern Ukraine, “faced with anti-Russian hatred, people called for autonomy”, and accuses Ukraine of not wanting a “peaceful solution” as provided for in the Minsk accords. Above all, Russia is contesting the Court’s jurisdiction, saying that the Convention on funding terrorism has not been violated and does not apply just because “a State has decided to call certain groups terrorist”, according to Ilia Rogatchev from the Foreign Ministry. He says Moscow’s alleged support would have to have been carried out with knowledge and intent to cause terrorist acts. “Labelling terrorist could have grave consequences” and be “an obstacle to peace negotiations”, he said, quoting the ICRC. Russia asked the Court whether, given that the Lugansk and Donetsk separatists signed the Minsk accords, Ukraine had therefore placed its signature alongside terrorist groups.
Violations of humanitarian law on both sides
As evidence of Russian implication, Ukraine is producing reports, photos and a NATO satellite view showing the development of Russian positions along the Ukrainian border. Russia says the conflict is “tragic” and has “caused many civilian victims”. Rogatchev speaks of “violations of humanitarian law on all sides”. Russia says the arms it is accused of supplying come from “arsenals Ukraine inherited from the former Soviet army in 1991, which were formerly used to keep the whole of NATO at a distance”, which were stored in Donbass (eastern Ukraine) and have now fallen into the hands of the rebels. But Ukraine says the urgency arises also from the fact that missile launchers, like those used to shoot down the MH17 aircraft, could be used again. The commercial airliner flying from Amsterdam to Kuala Lumpur was shot down over Donbass on July 17, 2014, causing the deaths of 298 people from 13 different nations. Harold Koh called the tragedy an “attack on humanity” and reminded the Court that Moscow had vetoed a proposal to set up an international tribunal to try the perpetrators. A joint inquiry led by the Netherlands, which had the largest number of victims, is currently under way. According to its initial conclusions, the ‘plane was shot down by a Russian- made BUK missile. With regard to the MH17, Russia is walking on eggshells, since the criminal investigation is still ongoing. In one of their reports, investigators said they had intercepted calls in which the separatists said they were weak in anti-aircraft capability and needed missile-launchers, whereas Russia claims that the missile-launcher used to down the aircraft was already part of the separatist arsenal. If this evidence is to be taken into account, says Rogatchev, it clearly cannot be proven that there was intent to fund an intentional act against a civilian aircraft.
Discrimination against Tatars
The Court then turned its attention to Crimea, which returned to Russia after the parliament’s declaration of independence and a referendum on February 17, 2014. Koh said he was “not asking the Court to confirm Ukraine’s sovereignty, since the international community has already done that”, but was calling on Moscow to stop discrimination, notably against the Tatar minority. “Some of them have disappeared, some have been abducted and elected officials representing Tatars have been driven into exile,” he told the Court, after Tatars already suffered “mass exile under the Stalin regime” in 1941. Ukraine says their culture is in danger.
Russia has never been denounced for violating minority rights, its lawyers replied on the second day of hearings, producing statistics purportedly showing the presence of Tatars in the justice and education sectors and in all the State institutions, and that they have not massively fled the Crimean peninsula. Moscow says the Tatars were always discriminated against up to February 2014, even after the independence of Ukraine.
Ukraine and Russia will continue presenting their case before the Court until March 9, after which the judges will deliberate. Their decision could take several weeks.