Ukraine Unleashes Judicial Assault on Russian Imperialism

After more than three years of fighting Russian invaders in eastern Ukraine, Russian oppression of Crimean Tatars, fruitless negotiations to end the war, ineffective punitive sanctions against Russian leaders, the free world’s powerlessness to subdue Russia, and Russia’s obstinate drive to re-subjugate Ukraine, Kyiv has opened an historic offensive front against Moscow – a judicial one.

Earlier this week, Kyiv brought suit against Russia in the International Court of Justice for its invasion of Ukraine. According to experts and pundits, the case in The Hague could go down as one of the most spectacular in years based on the points made in the lead paragraph. Will one of the strongest and fiercest nations on earth, a nuclear-armed, energy-producing global bully sit penitently in the dock and accept a guilty verdict of the court?

The detailed 45-page indictment outlines the comprehensive range of contemporary Russian violations of two UN conventions. Initially, Kyiv accuses Russia of violating the Terrorist Financing Treaty through its support of “illegally armed groups” in the occupied, self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic.

The second part of the claim covers the documented mistreatment of Crimean Tartars and ethnic Ukrainian populations when Russia annexed after a fabricated referendum the Ukrainian peninsula in March 2014. Russia is accused of violating the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by imprisoning and even killing Crimean Tatar activists and banning the Majlis of the Crimean Tatar People – its representative body.

Ukraine cites UN and OSCE reports from the region, as well as NATO satellite imagery as evidence. The suit calls on the court to hold Russia to account for its crimes, including the downing of MH17 and firing on civilians. Kyiv is also demanding war reparations for the damage and destruction of Ukrainian property.

In her opening salvo against Russia, Deputy Minister of Foreign Affairs Olena Zerkal itemized Ukraine’s claims against its historical aggressor. Zerkal, a 44-year-old legal expert and erudite defender of Ukraine’s interests, noted that thousands of innocent Ukrainian civilians have already suffered deadly attacks, and millions remain under imminent threat. She said their “peaceful and simple day-to-day routines have been ruined,” and their fundamental rights have been blatantly violated by one of the permanent members of the United Nations Security Council – Russia.

Zerkal went on to state: “The Russian Federation continuously violates international law and abuses human rights. The Russian Federation continues to supply deadly assistance to illegal armed groups in Ukraine that have committed numerous terrorist attacks. In occupied Crimea, the Russian Federation wholly disregards human rights, while implementing policies of cultural erasure and pervasive discrimination. These actions are unacceptable to the international community: They have been denounced by the United Nations.

“The Russian Federation implements its foreign policy without regard for human life, and uses any available tool to impose its will.

“The Russian Federation’s tactics include support for terrorism and acts of racial discrimination, as well as propaganda, subversion, intimidation, political corruption, and cyber-attacks. This is the reality that we are facing in Ukraine. The Russian Federation has continued to engage in this conduct for three years, and all this time it continues to deny its multifaceted aggression against Ukraine.

Zerkal reiterated for the International Court of Justice Russian crimes against Ukraine that have been placed in the public record by numerous military and political institutions and have been regarded as proof of Moscow’s belligerent and criminal intentions.

“I stand before the World Court to request protection of the basic human rights of the Ukrainian people. We seek justice and accountability under international law, while the Russian Federation continues to demonstrate disregard for its obligations under international treaties. As a result, the people of Ukraine are facing an ongoing campaign of terror and cultural erasure. The situation is truly dire,” Zerkal appealed to the court.

Ukraine said in the ICJ filing that since 2014, Russia has stepped up its interference in Ukraine’s affairs, “intervening militarily…financing acts of terrorism and violating the human rights of millions of Ukraine’s citizens, including, for all too many, their right to life.”

It said Kyiv is seeking “full reparations for... acts of terrorism the Russian Federation has caused, facilitated, or supported,” citing bombardments of residential areas. Also, the provisional measures Ukraine requests include a freeze on providing money, weapons, vehicles, equipment, training or personnel to the separatists.

For the past three years Russia has repeatedly denied in the face of evidence to the contrary that it has been sending troops and military equipment to eastern Ukraine, and supporting its mercenary separatists and terrorists. There is extensive public evidence that Russia is not only supporting illegal anti-government armed groups in Donbas but had organized the conflict in the first place.

Former Russian FSB colonel Igor Girkin (“Strelkov”) publicly admitted how he “pulled the trigger of war” in Donbas when he, after helping Russia establish control over Crimea, pulled together a unit of Russian and local volunteers who started seizing police stations in Donbas to obtain weapons: “If our unit had not crossed the border, it would have all ended as it did in Kharkiv or Odesa. Several dozen casualties, those with burns and those arrested. And that would have been the end of it… It was practically our unit, which got this ongoing war moving.”

Ukraine’s Ministry of Information Policy has been keeping track of Russia’s lies about its war in eastern Ukraine. Deputy Minister Dmytro Zolotukhin listed the following five key points:

1. Events in eastern Ukraine are an internal Ukrainian conflict rather that military aggression.

In fact, Russian forces started establishing corresponding paramilitary organizations in Donbas, financially supporting them and providing military training, as early as 2009, in the context of preparations for an active phase of aggression against Ukraine. In addition, Ukraine’s state agencies and public organizations of Ukraine have provided and continue to provide gigabytes of data evidencing the presence of Russian troops in the sovereign territory of Ukraine.

2. It is a lie that flight MH17 could be shot down by the Ukrainian military, which Russia claims could also be deployed in close proximity to the disaster site.

The investigators have long established all the facts and aspects of the way the BUK-M1 missile launcher, which killed 298 people, was brought to the territory of Ukraine from Russia, being controlled by Russian mercenaries and terrorists that they supervised and sponsored, and fired a missile from an already established location.

3. It is also not true that there are no Russian weapons and troops in Donbas.

4. Russia is also lying about the fact that Ukraine does not adhere to Minsk Agreements.

The latest escalation in Avdiyivka was provoked by pro-Russian terrorists five hours after a telephone conversation between Vladimir Putin and Donald Trump. Volunteers spotted armored vehicles and heavy artillery in close proximity to the contact line, which is a violation of the norms of the agreements under the Minsk deal.

5. Russia claims that the current railroad blockade evidences the fact that Ukraine itself is a sponsor of terrorism.

At Ukrainian enterprises, which the Russians have not yet managed to steal, citizens of Ukraine have been working. They receive salaries and pay taxes to the Ukrainian budget. As UNIAN reported, the representatives of the Russian Federation on March 7, during the hearings at the International Court of Justice in The Hague, deny Ukraine’s accusations, claiming that there are allegedly no legislative or factual grounds for the introduction of provisional measures against Russia.
Russia’s mission in The Hague is to prove that a “coup” and “civil war” took place in Ukraine rather than a popular uprising against Moscow’s henchman, Viktor Yanukovych, who summoned Russian troops to quell demonstrators and then fled Ukraine. Russia further claims that the Ukrainian language was never officially recognized in Ukraine and that Crimea was illegally included into Ukraine in 1991, without an appropriate referendum.

Dr. Iryna Marchuk, associate professor at the Faculty of Law at the University of Copenhagen, in an article for EjilTalk, summarized by the Ukrainian Crisis Media Center, discussed Ukraine’s chances of winning a guilty verdict against Russia.

Marchuk believes Ukraine has better chances to succeed with its claims under International Convention on the Elimination of All Forms of Racial Discrimination. She noted that with respect to the violations of CERD, Ukraine argued that after Russia seized Crimea by military force and attempted to legitimize its act of aggression through the illegal referendum, it created a climate of violence and intimidation against non-Russian speakers in Crimea that violates their rights under CERD.

However, Marchuk cautioned that the Court will not provide answers that Ukraine wants to hear on the use of force and the legality of Crimea’s unilateral cessation, as it is limited to the examination of claims that strictly fall within CERD. If Ukraine wants to get answers to those questions, she advised that it should consider lobbying for the initiation of advisory proceedings before the ICJ at the request of the United Nations General Assembly.

Founded in 1945, Russia fully recognizes the authority of the ICJ and, as a permanent member of the UN Security Council, reserves the right to appoint a Russian to serve as one of the court’s 15 judges. Ukraine can call for an ad hoc judge to participate specifically in this proceeding. Rome Statute that governs the ICJ, which Russia had signed, but not ratified.

As for precedents, the ICJ heard a case that Georgia brought against Russia for the 2008 war in Georgia’s South Ossetia region, and it was “highly controversial,” former ICJ judge Bruno Simma observed for Deutsche Welle. He served on the court from 2003-12. As Ukraine is doing now, Georgia used CERD as the basis for its suit. By just one vote, the court granted an “interim injunction,” calling on both sides to cease violations. Later, the court sided with Russia and dismissed the case on the grounds that it lacked jurisdiction.

Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned.  Article 94 of the United Nations Charter lays down that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party.” So Russia must abide by the decision – even guilty.

Judgments are final and without appeal.  If either of the parties challenges their scope or meaning, it has the option to request an interpretation.  In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.

As regards advisory opinions, it is usually for the United Nations organs and specialized agencies requesting them to give effect to them or not by whatever means are appropriate for them.

Simma said the court could rule in the Ukraine vs Russia case the same as it did in the Georgia vs Russia case. It is “always difficult to deal with cases of war involving major powers.” In the claim of persecution of minorities, CERD contains a provision calling for “serious negotiations” between the parties in advance of bringing a case to the ICJ. Russia refuses to seriously negotiate is aggression against Ukraine or any other transgression.

Court proceedings could last up to three years, Simma said. “An interim injunction could come in April, followed by a decision on jurisdiction a year later. Then, the decision itself could be handed down a year and a half after that.” Ukraine’s chances of success are not zero, Simma said. Even an interim injunction on its own would be a “success for Ukraine,” he admitted.

Is a suit filed in the ICJ, an agency of the United Nations, worthwhile? By and large, the UN has been supportive of Ukraine during the months of Russian invasion, occupation and war. But Russia has also refused to abide by the tone and spirit of UN or other decisions.

For example, most recently, a senior American general told Congress on Wednesday, March 8, that Russia has deployed a prohibited cruise missile, the first public confirmation by the US that the Kremlin had fielded the weapon in violation of a landmark arms control agreement. The missile is believed to have been moved in December from a test site in southern Russia to an undisclosed operational base.

However, realistically, even though the decisions are binding, will Russia abide by them? Moscow has not lived up to any international treaty, covenant or accord that it has ever signed. Russia has also violated each Minsk ceasefire agreement related to the current war with Ukraine. The onus is on Russia to abide by the ICJ ruling and it will face global condemnation if it doesn’t.

Nonetheless, by bringing suit against Russia in The Hague, Ukraine will have taken another step in exposing Russian crimes against Ukraine and humanity for the world to see. As Ukraine’s opening remarks certify, the Russo-Ukraine War of 2014-17 is, in fact, a continuation of Russia’s imperial mission of subjugating Ukraine and the nearby independent countries. Turning this suit against Russian into a contemporary version of the Nuremberg Trials would certainly be worth the effort.