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UN court decides Russia has violated treaty to combat terrorism

But the court didn’t agree with most of Ukraine’s complaint.


Ukrainian Azov Battalion soldiers on the defensive in July 2014 (cc) Carl Ridderstråle via Wikimedia Commons


On Jan. 31, the International Court of Justice (ICJ) in the Hague ruled on Ukraine’s 2017 complaint against Russia for violating the International Convention for the Suppression of the Financing of Terrorism (ICSFT). This is just one of several international legal cases involving Russia and Ukraine and their now decade-long war.


The International Criminal Court (ICC), a separate court also in the Hague, has been investigating suspected atrocities on Ukrainian territory since late 2013. Unlike the ICJ, which resolves disputes between states, the ICC seeks to hold individuals criminally accountable for serious international crimes like war crimes. So far, ICC judges have authorized arrest warrants for two Russians – including President Vladimir Putin – who are accused of war crimes.

 

The European Court of Human Rights has also been evaluating complaints against Russia for human rights violations, including in Crimea and eastern Ukraine. War crimes investigations are also ongoing in national courts in Europe, for example in Germany and Sweden, based on the principle of universal jurisdiction


Lawfare, not just warfare


These overlapping international and domestic court actions are part of attempts by Ukraine and its allies to fight Russia in court, not just on the battlefield. International law scholars call this strategy “lawfare,” when countries use legal systems, not just armed force, to achieve their national goals. Ukraine, for example, has presented itself as a law-abiding nation pursuing legal channels to end the conflict, in contrast to its adversary Russia.


In this context, Russia has accused international institutions of being biased against the great power. Accusations of bias can undermine support for courts like the ICC and ICJ, so these institutions must proceed with caution. This means each decision must carefully explain the court’s jurisdiction, the chain of events leading to the case, the evidence analyzed, and the conclusions reached. Hence, the adage “Justice must not only be done but must also be seen to be done.”


The ICJ on Jan. 31 decided Russia violated the ICSFT but didn’t agree with most of Ukraine’s complaint. In many instances, the court said Ukraine did not provide sufficient evidence of alleged treaty violations by Russia. Maintaining a high evidentiary standard is important for any court, especially one that is in the international limelight. But let’s rewind to the beginning.


This case started with the Euromaidan uprising


The history of the case dates back to late 2013 and early 2014, shortly before the Russia-Ukraine war first broke out. Ukraine’s pro-Russia president, Viktor Yanukovych, decided to abandon an agreement that would establish a political and economic association between Ukraine and the European Union. That agreement enjoyed broad support in Ukraine. Instead, Yanukovych signed a trade agreement with Russia, preferring close ties with Moscow over close ties with Brussels.


Large-scale protests erupted, sweeping Ukraine, especially in Kyiv. The Yanukovych government brutally repressed protesters. But the protests (known as the Euromaidan or Maidan Uprising, after Kyiv’s Independence Square) continued. By Feb. 20, 2014, Yanukovych had fled the capital, and Ukraine’s parliament voted to remove him from his post. The transitional government soon released political prisoners and initiated legal actions against those who planned and participated in the killing of protesters.


In a first official act of war, in late February 2014 Russia invaded and soon thereafter annexed the Ukrainian territory of Crimea. Russian military and intelligence also exploited unrest in eastern Ukraine, which is home to a large population of ethnic Russians and Russian speakers. Russian-backed separatist armed groups proceeded to form the breakaway people’s republics of Donetsk and Luhansk. Russia recognized these republics as independent of Ukraine in 2014 and, since 2022, has claimed them as part of Russia.


The 2014 fighting prompted Ukraine to file this complaint


Ukraine has accused separatist fighters in Donetsk and Luhansk of committing terrorism, and claimed that individuals and organizations within Russia – including members of the government – financed these activities. As a party to the ICSFT, Russia has an obligation to investigate possible terrorism financing (see ICSFT Article 9, paragraph 1). But Russia failed to do so and thus violated the ICSFT. In its 2024 decision on the case, the ICJ ordered Russia to investigate the funding of terrorism in Ukraine.


The court restricted its judgment to the issue of individuals in Russia possibly providing funds to armed groups allegedly engaging in terrorism in Ukraine. This is because the ICSFT only concerns terrorism financing. Thus, the ICJ said it would not address the issue of individuals in Russia possibly providing arms or other non-monetary support to those allegedly engaging in terrorism. So the court set aside, for example, the 2014 downing of Malaysia Airlines Flight MH117 in eastern Ukraine with a Russian-made, Russian-supplied missile.


The ICJ limited its judgment in other ways


First, the court ruled there was not sufficient evidence that Russia violated Article 8, paragraph 1 of the ICSFT, which requires states to identify, detect, and freeze or seize funds used or intended to support terrorism. The court said Ukraine did not provide sufficient evidence that Russia knew terrorism was possibly being financed from within its borders.


Second, the court ruled there was not sufficient evidence that Russia violated Article 10, paragraph 1 of the ICSFT, which requires states to prosecute or extradite individuals accused of financing terrorism. Ukraine had to both prove that terrorism financing had occurred and that, despite this, Russia failed to initiate cases against offenders. Ukraine failed on both counts.


Using a similar line of reasoning, the court ruled there was not sufficient evidence that Russia violated Article 12, paragraph 1 of the ICSFT, which requires states to assist each other in investigating terrorism financing; or Article 18, paragraph 1, which requires states to take measures to prevent and counter terrorism financing.


The recent decision, while perhaps not completely satisfactory to Ukraine and its supporters, shows the seriousness of ICJ proceedings. To critics of the international justice system, the ruling helps counter claims that international courts are biased against Russia and its allies.

Kelebogile Zvobgo - February 16, 2024

Originally published in Good Authority, cc: 4.0

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