Europe

ICJ Genocide Convention Ruling is a Pyrrhic Victory for Ukraine

August 23, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

THE HAGUE, Netherlands – On 2 February 2024, the International Court of Justice (ICJ) issued a landmark decision for Ukraine’s case against Russia regarding genocide allegations. The ICJ rendered its decision on the preliminary objections concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). 32 States intervened.

Dead bodies are placed in a mass grave on the outskirts of Mariupol, Ukraine. People cannot bury their dead because of the heavy shelling by Russian forces. Courtesy of Evgeniy Maloletka and the Associated Press.

Ukraine employed an exceptional legal maneuver. Because there is no international court with jurisdiction over UN Charter violations or the crime of aggression, Ukraine used the dispute resolution provision in the CPPCG to bring Russia to court. To justify its invasion, Russia claimed Ukraine was committing genocide against the Russian ethnic minority in eastern Ukraine. Ukraine used Russia’s disinformation against it. Ukraine argued that this established a dispute under the CPPCG and called for Court resolution. While the Court ordered Russia to suspend its military operations in the region to begin its provisional measures and investigations, Russia unsurprisingly ignored the order.

While these provisional measures seemed a big win for Ukraine in the early stages of the war, the mixed decision in February of this year has left many claiming the Court failed to deliver. The ICJ unanimously dismissed Russia’s procedural objections in its judgment, ruling that the Court can decide on the merits if Ukraine violated the CPPCG in the Donetsk and Luhansk Regions. Many human rights advocacy organizations highlighted how important the admissibility of reverse compliance claims is as Russia continues to spread anti-Ukrainian propaganda and hate speech. The unanimous dismissal of Russia’s procedural objections in the genocide case was a victory for Ukraine’s legal battles. Still, many regret that the ICJ did not determine Russia’s false allegations of genocide to justify the full-scale invasion of Ukraine to fall within the scope of the CPPCG. By sustaining Russia’s objection regarding subject-matter jurisdiction by a 12 to 4 vote, the Court raised significant concerns about applying the CPPCG in broad contexts.

Ukraine’s pyrrhic victory means that its conduct, not Russia’s has been the subject of the hearing. However, the Court has still been able to review Russia’s key justification for its military campaign. Anton Korynevych, Ukraine’s legal team leader told reporters, “It is important that the court will decide on the issue that Ukraine is not responsible for some mythical genocide, which the Russian Federation falsely alleged that Ukraine has committed.”

Additionally, Russia’s violations of the Court’s provisional measures order might also give Ukraine some more room to maneuver. However, they must contend with a Court likely unwilling to rule on an issue in the borders of its jurisdictional boundaries, especially when its ruling will likely be ignored. A redundant declaration of illegality, while satisfying, may do little more than keep waning support mobilized. The nations condemning Russia’s acts would likely condemn regardless of the Court’s rulings, and Moscow has had no reservations ignoring the holdings.

This may pose additional challenges to the international community when addressing serious human rights violations. The Court is in the middle of a highly charged political, legal, and military confrontation with no police or military to back its decisions. The only formal mechanism for Court decision enforcement is referral to the Security Council. But when the state subject to the decision retains a permanent seat on the Council, the chance of an enforcement resolution is slim. The Court must be careful to preserve its legitimacy in light of its predicament. While there were no obviously negative consequences of the mixed decision, it has pushed Ukraine to focus even more intensely on evidence collection of human rights violations and crimes committed by Russian forces to increase the chances of future legal victories.

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Just Security – Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 2 Feb. 2024

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

Associated Press – The UN’s top court says it has jurisdiction in part of Ukraine’s genocide case against Russia – 2 Feb. 2024

ICJ Ruling Based on Alleged CERD Violations by Russia Disappoints Many Ukrainians

August 21, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

THE HAGUE, Netherlands – On January 31, 2024, the International Court of Justice (ICJ) delivered a landmark judgment in the Ukraine v. Russia case concerning the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

*Protester at a rally calling for Crimea to remain a part of Ukraine. Courtesy of Spencer Platt and Getty Images.*

While the Court dismissed most of the allegations presented by Ukraine, it did investigate claims concerning the suppression of Ukrainian language and culture in Crimea. The Court’s ruling that Russia violated certain obligations under the CERD–regarding the educational rights of the Ukrainian-speaking community in Crimea–while limited, was still significant in demonstrating the importance of protecting minority rights and cultural identity.

The Court began by recalling that the current proceedings were instituted by Ukraine after events in Eastern Ukraine and Crimea in early 2014. With the parties currently engaged in an armed conflict, the Court had limited the scope of its opinion under this treaty significantly, clarifying that it was not ruling on issues beyond the CERD claims. Evidence submitted by Ukraine spans as far back as 2014, after the annexation of Crimea by the Russian Federation. Specifically, Ukraine alleges that Russia is engaged in a campaign of racial Discrimination against Crimean Tatars and ethnic Ukrainians in Crimea by depriving them of their political, civil, economic, social, and cultural rights.

Ukraine instituted the case in 2017 to address events that occurred in 2014 in Eastern Ukraine and the Crimean peninsula. Claims under CERD included allegations of systematic discrimination against Crimean Tatars and ethnic Ukrainian communities in Crimea. Ukraine also asked for reparations for all victims of the erasure and discrimination. The Court ruled on eight specific CERD claims, but ultimately only found Russia in violation of one. The Cout found that Russia violated Articles 2(1)(a) and 5(e)(v) of the CERD because of the educational system it instituted in Crimea after 2014. The Court rejected all of Ukraine’s other claims under CERD.

These included claims of alleged physical violence directed toward these groups because of their political and ideological positions, racially motivated behavior by law enforcement toward members of these groups, and restrictions on media, cultural gatherings, heritage, and education. The one claim the Court found Russia in violation of related to protecting educational opportunities in Ukrainian. Specifically, the court found violations of Articles 2 and 5. It further explained that while declining to offer education in a minority language was not racial discrimination under CERD, the structural changes Russia implemented in schools to change the language of instruction made it unreasonably difficult for children to receive education in their primary language. The Court also found evidence of harassment against individuals choosing to pursue their education in Ukrainian. Thus, it found Russia in violation of these articles.

Since the reorientation of the Crimean education system to Russian, Ukrainian language instruction has fallen by 90%. Despite this, the Court did not find that Russia’s violation of the CERD articles was the sole cause of the decline, and left many hopeful human rights advocates disappointed by the outcome of the case. The ruling came during a myriad of other ICJ rulings based on Russia’s actions in Ukraine and raised questions about the retroactivity of these holdings and evidentiary questions when acts overlap under various human rights treaties. The Court did not provide legal guidance for many of the questions that these cases are raising.

Note: This case was decided in tandem with a ruling on the International Convention for the Suppression of the Financing of Terrorism (ICSFT). This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

Just Security – Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

ICJ – Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) – 31 Jan. 2024

ICJ Ruling Only Finds in Favour of One Ukrainian Claim Against Russia’s Alleged ICSFT Violation

August 16, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

THE HAGUE, Netherlands – On January 31, 2024, the ICJ delivered a landmark judgment in the Ukraine v. Russia case concerning the Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The Court investigated Russia’s alleged violation of five articles and found the nation only violated one. While the Court dismissed most of Ukraine’s allegations, it did investigate and find that Russia failed to fulfill its obligations under the ICSFT by not adequately investigating terrorism financing.

*Ukrainian servicemen who were wounded in battle waiting to leave a field hospital near Bakhmut in Eastern Ukraine. Courtesy of Evgeniy Maloletka and the Associated Press.*

The first case was filed in 2017 by Ukraine under the ICSFT. It claimed Russia’s support for Russian separatist groups in eastern Ukraine, including in-kind contributions of weapons and training, violated the ICSFT. As part of that claim, Ukraine also argued that Russia violated the ICSFT by failing to investigate, prosecute, and extradite perpetrators guilty of financing terrorism found in Russian territory. The Court rejected all of Ukraine’s other claims under the convention largely because of insufficient evidence. This sliver of a win seemed to do little as Ukraine lost on nearly every other claim of significance.

The situation today is much different than when Ukraine first raised these complaints. This time around, Russia based its objection on the “clean hands” doctrine, which it raised in its Rejoinder on March 10th, 2023. Raising this objection at this late stage meant the Court viewed it as a defense on the merits. Several of the pieces of evidence submitted by Ukraine were already considered in the 2019 Judgement concerning the annexation of Ukraine

Aside from the acts Ukraine referred to by the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) after 2019, Ukraine also referred to the acts of armed groups and individuals before 2019. Because the Court previously issued a judgment, the Court had tricky subject-matter jurisdiction questions to untangle, especially as the timeline of events became increasingly muddled. Ultimately, the Court determined there was jurisdiction under Article 24, paragraph 1, and entertained claims. This did limit the evidence and acts the Court could consider and narrowed the scope of the investigation significantly.

The Court did find that Russia violated its obligations under Article 9 of the treaty, related to the mandatory investigations of financing terrorism. An allegation alone is enough to invoke the investigation obligations since the treaty requires a low evidentiary threshold to investigate alleged terrorism financing. Because the Article had a low threshold, it was the only apparent “win” for Ukraine. Many regarded the proceedings as inadequately protecting the human rights regime. Many speculated that these lackluster decisions indicate that the Court is unwilling to intervene in politically charged situations, especially one rife with military confrontation. Some might wonder whether these lackluster decisions signal that the ICJ is having second thoughts about wading into highly politically charged situations. But the Court must work to preserve its legitimacy, especially concerning cases involving one of the Permanent Security Council members since referral to the Security Council is the only way to enforce an ICJ decision.

No one is contesting that Russia is in violation of international law in waging its war, but the variety of cases brought against Russia by Ukraine demonstrates the limits of international law. While nations can condemn Russia for the acts that they were found guilty of under the ICSFT, if the holding remains unenforceable, it is unlikely that anything will change on the ground. Because of this, it is unsurprising that the Court ruled how it did.

Note: this case was decided in tandem with a ruling on the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Just Security – Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Library of Congress – International: International Court of Justice Issues Decision in Terrorism Financing and Racial Discrimination Case Involving Russia and Ukraine – 31 Jan. 2024

Russian Departure from the European Council and EUCHR Leaves Behind Questions About How to Handle Cases

August 14, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

STRASBOURG, France – After Russia’s departure from the European Court of Human Rights (EUCHR), questions about how to handle cases pending before the Court and the alleged dilution of standards that initially allowed Russia to join the Court remain.

Kremlin forces in Russian-occupied Donetsk drive tanks during a rehearsal for the Victory Day parade, marking the anniversary of the Soviet victory over Nazi Germany in WWII. Courtesy of Alexander Ermochenko and Reuters.

In 2002, the Court issued its first judgment against Russia to assist a Russian national conscripted to work on the Chernobyl nuclear plant disaster after brutal radiation exposure. But by 2012, 22,358 complaints had been filed against Russia. With a backlog of more than 120,000 cases, the Court was already facing a docket crisis, only exacerbated by Russia’s expulsion. In 2022, 2,129 judgments and decisions and 17,450 applications were pending against Russia.

The war in Ukraine only raised the count, and ECHR began publishing interim verdicts. Many view these procedural changes as undermining the Court’s ability to handle cases in its jurisdiction. That said, the interim ruling was the first international court to prove Russia’s occupation in Donbas since 2014 and considered the evidence from the occupied territories, including the downing of flight MH17 and actions by the Donetsk People’s Republic (DPR), Lugansk People’s Republic (LPR) and members of the Russian military.

But now, after the Russian exit, many question how the Court can handle the previously pending cases without jurisdiction, and these uncertainties are only exacerbated by Russia’s departure from the Council of Europe as well. Critics claim Russia was a thorn in both by weakening democratic standards in exchange for only mild internal reform in Russia.

These tensions have pervaded since Russia considered membership in 1994. And since 2014 and the annexation of Crimea, the relationship has been a sour one, with Russia refusing to pay dues. When Ukraine filed complaints against Russia’s acts, Russia did not listen to the ensuing Court orders. In 2022, after the full-scale invasion, the Kremlin did not listen to the Court order to stop hostilities. This situation deeply challenges the assumption that it is better to include rogue actors in international legal associations. Since Russia backed out, it is unclear if inclusion led to more harm or good, but it is clear that the Council and associated court were not successful in spreading liberal democracy to Russia as it had hoped.

Russia’s departure has not stopped the Council of Europe from acting on behalf of its victims in Ukraine and previously in Georgia. A key issue in these deliberations is identifying and defining conflict borders, which looks largely at where each state has control of its territory. Relying on past Georgian precedent, the ECHR did not have the jurisdiction to define borders because the “fog of war” prevented recognition of control during active hostilities. But earlier this year, the ECHR was able to rule that Russia controlled the DPR and LPR territories as of 2014 and assigned responsibility for the MH17 flight among other acts. Despite this ruling and revelation of the DPR and LPR alignment with Russia, the Kremlin continues to deny involvement. The ECHR ruling was certainly a political win for Ukraine, confirming the invasion began in 2014, not February 2022. It debunked Russian claims about independent separatist movements justifying the invasion. Russia’s objection to the ECHR’s subject matter jurisdiction over complaints concerning armed conflict was also rejected.

For now, the ECHR is considering issues of extraterritorial jurisdiction. The ECHR is considering any exceptional circumstances including jurisdiction ratione loci and jurisdiction ratione personae. The ECHR will consider occupation and annexation of another’s territory, whether unlawful or lawful and state agent’s authority over individuals in the territory. This is a win for Ukraine in that it legally declares when the war began, extending it to eight years earlier. The question that now remains is how to address violations that occurred after September 16, 2022, when Russia left the ECHR. It will remain responsible for acts carried out before that date, but no one is expecting compliance in the near future. If it seeks to return one day, a different question will emerge, but until then, the ECHR seems to be limited temporally by which violations it can examine.

Court House News – One year after Russian expulsion from top European human rights body, Ukraine war rages on – 15 Sep. 2023

European Committee on Legal Co-operation – Supporting Ukraine in the execution of judgments of the European Court of Human Rights

Atlantic Council – ECHR ruling confirms Russian invasion of Ukraine began in 2014 – 14 Feb. 2023

Gibson Dunn – Russia in the European Court of Human Rights – Recent Decisions May Impact Rights of Investors – 30 May 2023

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

Ukraine Revamps Constitutional Court System Amid Corruption Charges to Prosecute Russian Aggressors

August 9, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

KYIV, Ukraine – The Constitutional Court, Ukraine’s highest legal power, was in crisis before Russia’s invasion in 2022. Now the country, in the middle of armed conflict, must remake its legal institutions if it wants to prosecute Russian aggressors captured in its territory.

*The inside of Ukraine’s Constitutional Court House. Photo courtesy of Ukrainian Constitutional Court House website.*

From judges with conflicts of interest to alleged presidential interference, to backtracking corruption efforts, Ukraine must find a way to rectify its courts quickly. After a series of failed judicial reform bills, President Zelensky reconvened the Commission on Legal Reform. During the initial days of the Russian invasion, the Constitutional Court delayed major rulings, but now the Court seeks to prosecute individual Russians and perhaps even Russia as a whole for the crime of aggression.

While negotiations on an ad hoc tribunal for the crime of aggression have garnered the majority of the media attention, Ukrainian prosecutors have forged ahead and begun domestic investigations while the international community determines the crime of aggression question. The Ukrainian criminal code prohibits the crime of aggression under Article 437. This includes “‘the planning, preparation, initiation and conduct’ of aggressive war, as well as ‘participation in conspiracy aimed at commission’ of such actions.” The Ukrainian code does not require the prosecuted individual to be in a position of leadership, unlike the Rome statute so even ordinary fighters and soldiers can be found guilty of aggressively waging war and the associated actus reus.

The first conviction of the crime of aggression in the Ukrainian courts happened in May 2022, when 21-year-old Russian tank commander, Vadim Shishimarin was jailed for life after shooting an unarmed civilian, 62-year-old Oleksandr Shelipov, a few days after the invasion began. By July 2022, Ukraine’s prosecutor-general, Iryna Venediktova, and her office were investigating more than 21,000 war crimes and crimes of aggression allegedly committed by Russian forces. By March 2023, at least 26 war crimes suspects had been convicted by Ukrainian courts.

Before Russia’s invasion, national courts rarely saw aggression cases. Now, prosecutors are beginning to align Article 437 of the Ukrainian criminal codes to a more narrow scope, similar to the Rome statute. In the past, legislative attempts to bring Article 437 up the Rome standard failed. These prosecutions offer an interesting case study, as they show legal advocates conforming the code to international standards when the legislation and courts themselves have deprioritized doing so. Even with the Office of the Prosecutor General of Ukraine (OPG) sending guidance on standardized prisoner of war (POW) immunity, prosecutors seemed to be conforming to international humanitarian norms on combatant immunity fairly seamlessly.

Despite its corruption crisis, in February of this year, the Court issued a decision on an Article 437 case. It clarified who could be found guilty of the crime of aggression, further aligning Ukraine with international standards, rather than the criminal code’s broad definition. When the decision was released, 99 criminal aggression cases were registered, including cases against typical defendants, like military commanders, foreign intelligence service workers, and high-level state officials, but also including 30 “instigators of war” such as Russian singers and university rectors. While many–if not most–of these will take place in absentia, whether the Court can successfully rule on an atypical defendant’s crime of aggression poses an interesting challenge for the Court.

Additionally, Ukraine’s domestic prosecutors have an important opportunity to set a precedent for how the crime of aggression could be handled at national levels. This could set customary international law norms in an area that has seen little activity in the past century, which could be key to protecting the right to life. It is interesting to note that the list of potential defendants does not include notable suspects in aggression cases like President Putin himself and other members of the Troika. The Court seems committed, at least right now, to preserving the immunity of the Troika before its courts. It seems generally accepted that these personal immunities cannot be surpassed at a national level and will need some kind of extraordinary judicial response.

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

Cites:

BBC News – What is a war crime and could Putin be prosecuted over Ukraine? – 20 July 2023

Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

Harvard Ukrainian Research Institute- Ukraine’s Constitutional Court Crisis, Explained

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities,