(Ukraine v. Russia cases before the ICJ)
On the 20 of February 2014 Russian Federation invaded and annexed Crimea, violating not only the territorial integrity of Ukraine but also the Organisation for Security and Cooperation in Europe (OSCE) principles and commitments made. Following the principles and norms of international law, the Crimea region was taken by the use of force, which is considered illegal. To give legitimacy Russia conducted a referendum where voters had two options “whether to join Russia or have autonomy within Ukraine” (BBC News, 2014) which provides a limited option to choose thus questioning the intentions behind the referendum. Russia’s results display that 97% of Crimeans voted to join Russia (CBS News, 2014). Most of the states in the international community condemned these actions, stating that it was “illegal and illegitimate, and its outcome will not be recognised” (BBC News, 2014).
The President of the European Council and the European Commission presented a collective statement on Crimea Peninsula reinforcing that the resolution to the crisis must be based on the territorial integrity, independence, and sovereignty of Ukraine (European Council, 2014). In 2017, Ukraine filed a suit against Russia before the International Court of Justice (ICJ), accusing Russiaof “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens” (Schaack, 2017). Despite some efforts from the international community to hold Russia accountable, it did not stop it from launching a full-scale invasion on Ukraine, which started on the 24 of February 2022 and is still ongoing. On the 22 of March 2022, Ukraine filed an application to the ICJ against Russia on allegations of genocide.
The objective of the essay is to shed light on the legal and political account of Russia’s annexation of Crimea. The focus is centred on a few main points, which are essential in the analysis. First, it is the political and historical background of the parties involved, second the main legal issues raised by the situation, following the legal justification used by parties concerned in relation to the cases, progress, and implications of arguments in international legal proceedings. Finally, the analysis is centred on further legal issues that have been raised by the Russian invasion of Ukraine in February 2022 which increased the threat to global peace.
- The political and historical background
Russia and Ukraine share an extensive history. In the aftermath of the collapse of the Soviet Union (USSR), Ukraine declared independence in 1991, and since then, it has struggled with its neighbour, Russia, on multiple levels. Fox (2021) believes that in twenty centuries, Russia aimed to eliminate Ukrainian nationalism and the independence movement in order to drive its political and ideological assimilation. Despite various conflicts during the time, in 2014 arose the Maidan Revolution, which marked the change of government from a pro-Russian to a pro-European. Meanwhile, Russia annexed Crimea, affirming it protects the ethnic Russians from Ukrainian government attack on civilians.
The pro-Russian armed groups Donetsk People’s Republic (DNR) and Lugansk People’s Republic (LNR) considered terrorist groups by Ukraine, seize parts of eastern regions on the Russian borderline. As domestic politics of Ukraine were fragile, Russia continued to support separatists. These events severed further all formal diplomatic connections between Russia and Ukraine. D’Anieri (2019) argues that the change in power in Kyiv in February 2014 was the immediate spark that determined Russia to invade Crimea and boost the support for separatism in eastern Ukraine. However, this could not have happened without a deeper set of causes and minor latent conflicts that surfaced with the end of the Cold War and the collapse of the Soviet Union (USSR). Without doubt, those events impacted international relationships and international order.
The collapse of the Soviet Union has also exacerbated ethnic and religious conflicts (Josephson, 2013) in various new states such as Ukraine, Moldova, Tajikistan, Chechnya, South Ossetia, and others. Among the motivators of the internal and external conflicts include the tendency to control the territory and the natural resources available, aspects that could have been among the Russia’s list. The international law is premised on the concept of the “state” and the “state” upon “sovereignty”. In its turn the “sovereignty” is founded upon the fact of the “territory”; thus, without territorial possession, a state cannot exist (Shaw, 2017, p. 361). Thus, for every nation including Ukraine losing territory means risking failing as a sovereign country, as a state. A potential failure and possibility to control Ukraine seems to be the intentions of Russia’s government.
General Assembly (2018) determined that all member states of the UN must not resort to the “use force against the territorial integrity” (General Assembly, 2018) of another nation in their international relations as this is against the principles and the law of international organisation (UN). Therefore, the Russian annexation of Crimea and ultimately the invasion of Ukrainian territory raised multiple unprecedented international legal problems and debates on the interpretation of the sources.
(b) The main legal issues raised by the situation
The legal issues raised by the annexation of Crimea Peninsula by Russia Federation and subsequent Russian support for pro-Russian separatists still active on Ukrainian territory are the violation of “sovereignty” and “territorial integrity “(uti possidetis) within its international boundary.There are also issues related to the activities, these are the use of force against Ukraine, seizure of three Ukrainian vessels, infringing Ukraine’s rights in its exclusive economic zones (EEZ) along with violations of the right of freedom of navigation as set out in the Convention on the Law of the Sea (Shaw, 2017). In addition to that, Russia implied the principle of self-determination which constitutes the basis for the formation of new states (Meade, 2022). However, using it to justify aggression is highly debatable at international level. Furthermore, there is a legal issue raised in relation to militarisation of the Crimea and the violations of the Minsk Agreement (United Nations, 2018).
Russia, along with authorities in Crimea, claim their action in conformity with international law,particularly with the principle or legal right of “self-determination as a human right” (Shaw, 2017, p. 162) legal implication used by Russia’s representants in their statements. The principle of “territorial integrity,” on the other hand is applied only in the relationship between states (Van den Driest, 2015). Nevertheless, the fact that international law is highly open to interpretation raise relevant questions and direct towards the vague aspects of it that affect the system of justice.
Under international law, acquiring territory using force alone is illegal (Shaw, 2017) because of Article 2(4) of the UN Charter and other practices (UN Charter, 1945). The state’s territorial integrity principles are well established and constitute a foundational principle of international law, despite lack of enforcement. Thus, “territorial integrity” is protected by a series of substantial laws that restrict interference in the national/ domestic jurisdiction of states. The secession claims of Crimea should be seen in contradiction to the domestic law that applies to the case, as it forbids regions to succeed without an all-Ukrainian referendum. The conditions in which the referendum took place, and the military presence of Russia is seen as a belligerent intervention in the domestic affairs of other state (Marchisio & Baiocco, 2020) and, therefore, is considered an act of aggression, a wrongful act. Russia is part of multiple treaties securing territorial sovereignty, which it has violated, and for this, it has been condemned by the international organisations. A discrepancy can be observed between its foreign policy and the real actions taken by the Russian government. For example, the foreign policy of Russia is fiercely aligned with UN principles stating that” Russia advocates for strengthening the legal foundation of international relations and complies with its international legal obligations in good faith“(The Embassy of Russia Federation, 2016). Russia’s annexation of Crimea and the later violent attack on Ukraine is indeed a breach of various treaties Russia is part of, such as the UN Charter, the 1994 Budapest Memorandum of Security Assurances for Ukraine, and the 1997 Treaty on Friendship, Cooperation, and Partnership between Ukraine and Russia, the 1975 Helsinki Final Act. (Pifer, 2020). Nonetheless, there is no precise way to hold any individuals or the state legally responsible for the annexation of Crimea and the current offensive on Ukrainian territories, despite Ukrainian attempts.
(c) Legal arguments used by the main parties involved in the situation in relation to the issues
The available tools for Ukraine were to file an application against Russia before the ICJ, where it condemned Russia for “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens” (ICJ, 2017). Ukraine requested immediate provisional measures in accordance with Article 40 of the Statute (ICJ, 2019). As an Applicant, it based its claims on two multilateral treaties; First, these are in terms of human rights violations and treaty is International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965), and second is related to terrorism, and it is the International Convention on the Suppression of Financing of Terrorism (1999) (ICSFT).
Both grant jurisdiction to the ICJ for disputes involving the Application or interpretation of these conventions and provide consent for jurisdiction (ICJ, 2017). Ukraine’s Application to the Courthas a mixture of overlapping statements, the allegations of Russia’s financing of terrorism and persecution of ethnic minorities in the region. The Application describes Russia’s acts in the territory as “ethnic erasure” (ICJ, 2017). Ukraine’s human rights claims imply the prohibition of discrimination and hold Russia responsible for tolerating killings, suppression of minorities, and conducting an unlawful referendum, thus violating the Convention (inter alia). The Convention (CERD) builds on the non-discriminatory provisions in the UN Charter (Shaw, 2017); thus, the principle of non-discriminatory demands the establishment of equality as well as formal equality.
The Ukrainian legal arguments related to terrorism activities imply the International Convention for the Suppression of the Financing of Terrorism (United Nations, 1999) that prohibits unlawful, wilful funding of terrorism or any other acts to cause intimidation of civilians or suppress a government. Ukraine allege that Russian Federation is supplying weapons and funds terrorist organisations such as (SPR and PLR) operating in Ukraine.
In Russia’s preliminary objections, first, Respondent asserts that the Court does not have jurisdiction under CERD and ICSFT. Second, Russia states that there are no plausible allegations of terrorism within ICSFT and that the allegations under CERD are inadmissible. Third, the Court jurisdiction under Article 24 of the Convention (United Nations, 1999) does not involve state responsibility or state officials under article 2 nor 18 (ICJ, 2018). According to Schaack (2017), the Russian government relied on arguments that prevailed in the allegations brought by Georgia against Russia before the ICJ where the preconditional procedures had not been satisfied (non-exhaustion of local remedies). Compared to Georgia v. Russia case, Ukraine presented sufficient evidence to satisfy preconditions (ICJ, 2019).
(d) The progress of international legal proceedings
The case is ongoing therefore it does not show much progress. Nonetheless, the Court affirms that the parties fulfilled procedural preconditions imposed in Article 24(1); furthermore, it considers that it has jurisdiction to entertain the allegations as these are within the provisions of CERD. After the examination of the procedural preconditions, it decides that Article 22 of CERD establishes alternative preconditions to the Court’s jurisdiction. Then, investigates the attempts to negotiate, because the dispute was not referred to CERD Committee (ICJ, 2019) even so, concludes that it satisfies the circumstances of the case. Regarding the admissibility-objection raised by the Respondent, the Court finds that the objection must be overruled and votes thirteen to three, rejecting the preliminary objection raised by Russia; thus, the Court proceeds with the claims raised by Applicant (Ibid.,2019).
The Court reminds the Respondent of the obligation to comply with CERD and ensure that education in the Ukrainian language is available. The Court indicated a measure for the non-escalation of the conflict. In addition to that, the Court reiterated the measures the Security Council endorsed for the Implementation of the Minsk Agreements signed in Minsk on 12 February 2015 (Marchuk, 2018, pp. 458-459). The current situation of the case is at the stage of fixing time limits for the filing of the Counter-Memorial by Russia. The Respondent requested an extension for one year, explaining that it faces issues because of the Covid-19 pandemic, which the Applicant has opposed saying this does not justify the postponement. It will significantly delay the resolution by the Court (ICJ, Press Release, 2020). Therefore, the Respondent has not filed the Counter-Memorial, which means the case is still pending.
(e) The implications of the arguments and proceedings referred to in (c) and (d) for international order
At the general level, international order requires some level of predictability, regularity, and equilibrium in how actors interact with one another (Lascurettes & Poznansky, 2021), which seems achievable with the strengthening position of UN and International Law. However, recent disturbing events such as Russia’s invasion of Ukraine led the world into uncertainty and fear of another potential global war.
Going back to Ukraine’s application before the ICJ, the arguments are direct mainly towards Human Rights violations and terrorism financing in the region; hence, it is unable to address the significant problem, which is the use of force by its neighbour, Russia, along with violation of state territorial sovereignty by annexing Crimea. This not only generates high uncertainties for international order but also questions the efficiency of the United Nations, which aims to establish global peace and security.
According to Burke-White (2014), Russia’s reinterpretation of the self-determination principle can destabilise the balance between protecting individual rights and preserving states’ territorial integrity. It can trigger further gross violations of Human Rights and state sovereignty across the globe, changing the international order, undermining international law and putting the democracy at risk. In this and many other cases, international law seemed powerless to prevent prominent actors from recuring to violations of the rule prohibiting the use of force. It is particularly damaging for undeveloped states and regions in active conflicts and those that have poor legal systems, such as Syria, Iraq, and Afghanistan, destabilising the efforts to adapt to a multipolar world. As for Russia’s leaders’ ambition to change the international order and increase its power in the international arena recuring to acts such as annexing territory and ultimately invading Ukraine did not counteract Ukraine’s rising westward orientation (Allan, 2020).
In terms of ICSFT, in the modern international relations the state-sponsored or supported terrorism has been a damaging attribute. (Trapp, 2012); despite acknowledging it, the accountability for these acts is rarely invoked or established successfully, it can be because of the heavy reliance of the international community on peace and security when responding to state involvement in terrorism. On the other hand, this approach does not mean less conflicts and killings, it shows the weakness of international community to work on a common goal without following own interest in the case.
The Ukrainian government used all available tools to hold Russia responsible for its activities.
Besides the Application before the ICJ, Ukraine strives to address these issues before other international courts, including the European Court of Human Rights, the Law of the Sea Tribunal, and the International Criminal Court (ICC) (Schaack, 2017).
- What further legal issues have been raised by the Russian invasion of Ukraine in February 2022?
In the aftermath of Russia’s invasion of Ukraine, the government filed an Application and Request for Provisional Measures to the ICJ against Russia on the allegations of Genocide. According to Shaw (2017, p. 316), genocide committed in a time of war or peace is a crime that falls under international law. As both countries are part of the Genocide Convention (International Committee of Red Cross, 2022), the Court has jurisdiction over the case. Russia alleged that Ukraine conducted Genocide in Donetsk and Luhansk region, thus violating the rights of civilians, primarily Russian speaking population.
On the other hand, Ukraine denied the accusations. It affirmed that the respondent uses it as a pretext for its aggression in Ukraine through a so-called “special military operation” and “de-Nazification” (ICJ Report, 2022), suggesting it prevents and punishes acts of Genocide when it has no valid basis. In addition to that, Ukraine claims that Russia’s allegations are false and cannot be justified for the usage of force. The Court imposes provisional measures, despite Russia not being present at the oral hearing. Until now, other legal issues have arisen in Ukraine from the beginning of the war. For example, there is a humanitarian crisis, severe violations of human rights, war crimes, and a lack of distinction between military and civilians from Russia’s side (Congressional Research Service, 2022). As this case is also pending, the Ukrainians and organisations involved in peacekeeping missions gather evidence of acts of violations on territory that can contribute to the prosecution of individuals committing war crimes and crimes against humanity.
Conclusion
Russian Federation invaded and annexed Crimea in 2014 in this way violating the territorial integrity and sovereignty of Ukraine. Based on international law, the act is considered illegal and constitutes an act of aggression. To give legitimacy Russia conducted a referendum under the self-determination principle; however, it was highly condemned by the international community as it is believed to be controlled under military force, which is not legit.
Ukraine filed an Application before the ICJ accusing Russia of unlawful funding of terrorist groups such as LNR and DNR and violation of Racial discrimination against minorities in Crimea. As domestic politics of Ukraine worsened, Russia continued to support separatists, leading to conflict escalations in the regions. Russia’s intervention, the annexation of Crimea, and the invasion of Ukrainian territory in 2022 raised various international legal issues such as illegal use of force, violation of Ukraine’s rights in EEZ, right of freedom of navigation, violations of human rights, humanitarian crisis, war crimes and others.
By annexing Crimea, Russia sparked outrage from member states of UN. However, no clear and meaningful actions were taken to hold Russia responsible for its activities which could have been among the causes that boosted the confidence of the Russian government to launch an invasion of the entire Ukrainian territory. Under international law, it has violated several treaties, including the UN Charter, the 1997 Treaty on Friendship, Cooperation, and Partnership between Ukraine and Russia, the 1975 Helsinki Final Act, and the 1994 Budapest Memorandum of Security Assurances for Ukraine (Pifer, 2020). Before the ICJ, Russia claimed that the Court does not have jurisdiction over the case; it is not admissible and has not satisfied preconditional measures. The case is still ongoing as Russia requested an extension to fill Counter-Memorial due to the Covid-19 pandemic, an aspect strictly criticised by Ukraine, implying the delay in Court resolution.
Therefore, the events in Ukraine marked a high level of uncertainty in terms of International Security and Order. It can trigger further breaches of international law that could undermine the efforts of the UN to establish global peace. Also, it points out the weaknesses of international law in terms of enforcement upon states. The invasion and the disastrous activities determinedUkraine to file another Application to the ICJ on the allegations of Genocide. Russia did not attend the oral hearing; despite this, the Court has jurisdiction to proceed with the case. Whatever the outcome, it is still challenging to make states comply with decisions.
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Veronica Maimescu 
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