#cerd

Les Comédiens-Routiers – 1932

BM, Filistin’in İsrail hakkındaki şikayetini kabul etti

Birleşmiş Milletler (BM) Irk Ayrımcılığının Ortadan Kaldırılması Komitesi’nin (CERD), Tel Aviv’in engelleme girişimlerine rağmen Filistin’in İsrail’e yönelik şikayetini ve Filistin halkı hakkındaki ihlallerini oybirliğiyle onayladığı bildirildi.Filistin Dışişleri Bakanlığından yapılan yazılı açıklamaya göre, BM Irk Ayrımcılığının Ortadan Kaldırılması Komitesi (CERD), “işgalci güç İsrail’e karşı…

Ukraine’s Dashed High Hopes: Predictable and Sober Decision of the ICJ on Indication of Provisional Measures in Ukraine v Russia

Ukraine’s Dashed High Hopes: Predictable and Sober Decision of the ICJ on Indication of Provisional Measures in Ukraine v Russia

There has been a lot of speculation on the possible outcome of Ukraine’s request for indication of provisional measures in the highly politicized case of Ukraine v Russia, in particular following the parties’ heated exchange of arguments during oral proceedings that took place on 6-9 March 2017 before the ICJ (see my blog here and another blog here). Last week, the Court delivered a highly anticipated decision in which it indicated provisional measures with respect to Ukraine’s claims under CERD by requesting Russia “to refrain from maintaining or imposing limitations on the ability of Crimean tatar community to conserve its representative institutions, including the Mejlis” (by 13 to 3) and “ensure the availability of education in the Ukrainian language” by a unanimous vote (p. 106). In addition to those specific measures aimed at preserving specific rights, the Court chose to indicate an additional measure of general nature with the view of ensuring the non-aggravation of the dispute between the Parties (paras 103, 106).

In rather mild language, the Court also spoke of its ‘expectation’ for the Parties, “through individual and joint efforts, to work for the full implementation of [the Minsk agreements] in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine” (para. 104). This seems to be a compromise middle-ground solution when the Majority, although having dismissed the plausibility of claims under ICSFT and therefore chosen not to indicate provisional measures with respect to Ukraine’s claims under the Convention, highlighted the seriousness of the ongoing fighting in eastern Ukraine and encouraged the Parties to revive the Minsk agreements that have been violated countless times. Also, in the opening paragraph of the decision read out by President Abraham, the judges emphasized the gravity of the conflict in eastern Ukraine characterized by extensive fighting that has claimed many civilian lives, including those who were killed when the ill fated MH17 passenger plane was shot down over the territory of Ukraine (para. 16). However, at the same time, they made it clear that the scope of their judicial inquiry was solely limited to the claims under the two Conventions (ibid). In deciding whether to indicate provisional measures, there are three basis prerequisites that have to be met: (1) the existence of prima facie jurisdiction; (2) a link between the rights protected and the provisional measures sought (the test of plausibility of the existence of the asserted rights); (3) risk of irreparable prejudice and urgency.

Prima facie Jurisdiction under CERD and ICSFT

Given that Ukraine invoked Article 22 of CERD and Article 24 of ICSFT as two compromissory clauses in order to establish the jurisdiction of the Court, the ICJ initially examined whether those clauses prima facie conferred jurisdiction upon it to rule on the merits of the case (para. 18). As for the existence of the dispute under ICSFT, the Court found that “at least some of the allegations made by Ukraine appear to be capable of falling within the scope of the ICSFT ratione materiae” (para. 30). However, it is not entirely clear what specific allegations appear to be capable of falling within the scope of the Convention, as the judges merely referred to the preceding paragraph which summarises Ukraine’s allegations on the violations of Articles 8, 9, 10, 11, 12 and 18 of ICSFT (para. 29). While the Court took note of Ukraine’s argument of the prohibition of direct state responsibility for terrorism, which the latter had inferred from a state’s obligation to prevent the terrorism financing offences by analogy to the ICJ Bosnia Genocide case, it did not make any pronouncements at this stage as to whether a state’s obligation to prevent implies an obligation not to commit the crime under ICSFT (para. 31). With respect to the procedural preconditions under ICSFT, the Court found that it appeared that the issues “could not then be resolved by negotiations” (para. 52). The Court found that the evidence at its disposal appeared to demonstrate the failure of both parties to agree upon an organization of arbitration, within six months from the date of the arbitration request, and therefore was sufficient to establish, prima facie, that the procedural preconditions for the seisin of the Court have been met (paras 53-54). At this stage, the Court did not comment on whether Ukraine’s insistence of setting up an arbitral tribunal by way of creation an ad hoc chamber of the ICJ, which I commented on in my previous blog, could satisfy the procedural preconditions under ICSFT. However, the issue is likely to re-emerge at a later stage of proceedings.

As for the existence of the dispute within the meaning of CERD, the Court concluded that the acts referred to by Ukraine, which included the banning of the Mejlis and the alleged restrictions of cultural and educational rights of Crimean tatars and ethnic Ukrainians, appear to be capable of falling within the scope of the Convention (para. 38). This is notwithstanding the fact that Ukraine alleged a broad spectrum of discriminatory practices in Crimea, which included far more serious allegations under CERD, such as disappearance and murder, arbitrary searches and detention, media restrictions and harassment (Ukraine’s application, paras 103-110, 121-123 and my blog here). Given the Court’s conclusion that the issues pertinent to CERD appeared not to have been resolved by negotiations, it was satisfied that the procedural preconditions for the seisin of the Court, prima facie, have been met (para. 61). However, as in Georgia v Russia, the Court did not make any pronouncements on whether the procedural preconditions of ‘negotiations’ and recourse to the ‘procedures expressly provided for in CERD’ are alternative or cumulative (para. 60) This matter is yet unresolved and will come up at a later stage of proceedings, although I believe that the plain textual reading of Article 22 strongly suggests that these two preconditions are used in alternative.

Plausibility of Claims under ICSFT

The finding of the Court that provoked the sighs and lively reaction from the audience was its conclusion that Ukraine’s claims under ICSFT were not plausible for the purposes of the second limb of the test for indicating provisional measures (para. 76). The Court made it clear that a state’s obligations under Article 18 to cooperate in the prevention of terrorism financing offences arise only if it is plausible that the acts constitute offences under Article 2 of ICSFT (para. 74). As earlier discussed in my blog post, this predictable outcome is due to the fact that Ukraine’s counsel spent little time on discussing the necessary mens rea requirement, having taking it for granted that the alleged acts “would naturally intimidate Ukrainian civilians”, and poorly linking the alleged acts of terrorism to intentional or knowing financing of such acts. State responsibility for terrorism financing, which arises out of the breach of ICSFT by States Parties, is objective in nature and does not require establishing the subjective element. However, if the primary rule of conduct requires the proof of intent, it has to be demonstrated that individual agents possess the required intent. In the ICJ Bosnia Genocide case, the ICJ was aided by the developed jurisprudence of the ICTY that dealt with the attribution of individual criminal responsibility for genocide committed in Srebrenica. In that respect, one can say that the ICJ had a significant advantage, unlike in the present case, given its access to ample evidence of the ICTY.

The discussion on the plausibility of claims features heavily in separate opinions appended to the decision. Having noted uncertainty regarding the interpretation of the plausibility standard for the purposes of indication of provisional measures, Judge Pocar found that the plausibility test required for indication of provisional measures had been positively met in the present case (paras 4, 6). The same conclusion was reached by Judge Owada who argued that the standard of plausibility should be fairly low at the provisional measures stage (para. 20). Judge Bhandari opines that the question of intent has to be addressed at the merits stage, whereas at this stage it must only be shown that individuals allegedly financing terrorism had at least knowledge that the funds might be used for carrying out acts in Article 2 ICSFT, which could be inferred from the pattern of behavior (para. 22). Judge Cancado Trindade went as far as to dismiss the ‘plausibility of rights’ test and claimed that, in present circumstances, the decisive test should be that of human vulnerability (para 85). The disagreement among judges shows that the Court would definitely benefit from more clarity on the interpretation of the plausibility test at the stage of provisional measures.

For Ukraine, despite the court’s finding on prima facie jurisdiction under ICSFT, the prospects of the Court addressing its claims under the Convention on the merits are very bleak, in particular, given the Majority’s finding on the absence of the plausibility of claims under ICSFT at this preliminary stage. At the next stage of proceedings, Russia would most probably rehearse the same arguments as during oral proceedings on indication of provisional measures and submit objections to the Court’s jurisdictions on the basis of the two Conventions. As soon as the decision came out, Russian media declared the decision to be “a grand failure” for Ukraine, whereas Ukrainian media paints a more optimistic picture of its prospects before the ICJ. My best take on this is that Ukraine’s claims under CERD will be heard on the merits, however, it is a big disappointment for Ukraine at this stage that the Court did not find sufficient evidence to recognize the plausibility of its more serious allegations under CERD and indicate specific provisional measures with respect to those alleged breaches of the Convention. However, Ukraine should not be disheartened, as its strategy of pursuing parallel proceedings before the ICC and the ECtHR might bear some fruitful results in the future.

[via EJIL: Talk!]

‘Terrorism’ at the World Court: Ukraine v Russia as an Opportunity for Greater Guidance on Relevant Obligations?

‘Terrorism’ at the World Court: Ukraine v Russia as an Opportunity for Greater Guidance on Relevant Obligations?

Recently, Ukraine instituted proceedings against Russia before the ICJ, alleging violations of both the International Convention for the Suppression of the Financing of Terrorism (the ‘Convention’) and the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), followed up by a provisional measures request. This post is primarily concerned with the allegations formulated under the former instrument, including Russia’s alleged financing and support of illegal armed groups and terrorist activities in Ukraine, notably with respect to the downing of Flight MH17 (which the UNSC condemned in Resolution 2166 and demanded accountability). Given that a brief provisional measures overview has already been given on this blog, along with broader discussion of the case, I will highlight a few particular points of interest.

Shedding Light on the Convention

The Convention forms part of a series of multilateral conventions (the so-called ‘sectoral’ treaties) dealing specifically with terrorism-related offences and imposing obligations upon parties to criminalise relevant conduct domestically, falling short in many instruments of actually defining ‘terrorism’. The Convention is a notable exception, defining terrorism at Article 2(1) as:

‘[a]n act which constitutes an offence within the scope and as defined in one of the treaties listed in the annex; or…[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act’.

The ‘treaties listed’ limb refers to nine of the ‘sectoral’ treaties, including the 1971 Montreal Convention, which has relevance in this case.

Much of the content of these conventions is relatively untried and untested. Some contain compromissory clauses granting jurisdiction to the ICJ in the case of a dispute, including Article 24 of the Convention, on which Ukraine relies. While scholars have lobbied for greater resort to this jurisdictional avenue to bring terrorism cases to the Court, Ukraine’s case marks only the third instance of litigation involving a sectoral anti-terrorism treaty before the international judiciary, alongside the two Lokerbie cases. This is an important moment for the Court, but also for international law.

This collection of anti-terrorism conventions has been described in the most anti-cohesive fashion: a ‘patchwork’ of instruments, a ‘piecemeal’ approach, etc. This is a unique opportunity for the Court to provide helpful interpretive guidance on Article 2(1) and related issues, especially the notion of ‘intent’, a matter of considerable contention between the parties. There is no authoritative judicial pronouncement on this front, despite Ukraine’s efforts in tracking down an Italian Supreme Court of Cassation decision which weakens Russia’s argument by holding that:

‘an action against a military objective must also be regarded as terrorism if the particular circumstances show beyond any doubt that serious harm to the life and integrity of the civilian population are inevitable, creating fear and panic among the local people’ (CR/3, pp 39–40).

While there are many unresolved issues surrounding the legal concept of ‘terrorism’, Ukraine’s case shows that civilians have been targeted for purposes that include ‘intimidat[ing] a population’ and ‘compel[ling] a government or an international organization to do or abstain from doing any act’, with Russia’s support (CR/3, pp 40ff). And that is the essence of ‘terrorism’ under the Convention.

Jurisdiction, Prima Facie or Otherwise

Russia contends that the Court should not take jurisdiction given that the dispute pertains to questions of recourse to force, sovereignty, territorial integrity and self-determination. Where have we seen this movie before? Right: Georgia v Russia shares similarities with this case, not least for the fact that it gave Article 22 of CERD (the compromissory clause) its day in court. As pointed out by Judge Crawford in his recent dissenting opinions in the Marshall Island cases, in the Georgia v Russia case;

‘the doubt was whether that dispute really concerned racial discrimination…or whether Article 22 was being used as a device to bring a wider set of issues before the Court’.

In reviewing the parties’ respective pre- and post- application conduct, it is to be hoped that the Court will avoid relying on its recent jurisdictional formalism, which was criticised by judges writing separately in Marshall Islands (see, eg, Judges Bennouna, Robinson and Crawford). More interestingly, the Article 24 jurisdictional preconditions are not identical to those enshrined in Article 22 of CERD. While the former also requires an attempt to settle the dispute by negotiation, Article 24, upon the expiry of a ‘reasonable time’, then requires an attempt to settle the matter through arbitration, failing which after six months the case can be submitted to the ICJ. Ukraine suggested that constituting an ICJ ad hoc chamber could fulfil the arbitration requirement (CR/3, pp 32–34). This is a novel and interesting argument.

Russia took issue with this position (CR/4, pp 29–30), as did a contributor to this blog. However, it might not be that farfetched, as the Convention does not define the term ‘arbitration’. Of course, Judge Oda opined that an ICJ ad hoc chamber is ‘essentially an arbitral tribunal’. More recently, Judge Tomka emphasised ‘the limits of the Court’s function, resulting from the fact that it has evolved from international arbitration, which is traditionally focused on bilateral disputes’. Indeed, scholars have explored the similarities between the Court and international arbitration. Further, the Gulf of Maine case demonstrated that parties retain considerable control over both the chamber’s composition and the legal questions submitted to it.

Here, Ukraine’s proposal appeared to suggest that it was open to the parties to request the Court – presumably by way of special agreement – to constitute an ad hoc chamber to attempt arbitration prior to formally seizing the Court under Article 24 of the Convention. Ukraine put forth this proposal primarily because the Court’s ‘rules would be available, making it substantially easier to reach final agreement for parties that have had great difficulty reaching agreement’, as was the case between the present parties regarding the organization of an arbitration (CR/3, p 33). In that scenario, the parties would have been free to carefully tailor the scope of questions submitted to the chamber in that special agreement. Had this quasi-arbitral process before the ad hoc chamber failed, Ukraine would not have been barred from instituting proceedings before the Court, as it has now done, pursuant to Article 24 of the Convention at the expiration of the 6-month period. Granted, this might suggest a ‘2-kicks-at-the-can’ approach to ICJ jurisdiction, but it nonetheless raises interesting questions, chief amongst them whether constituting an ad hoc chamber can fulfil an ‘arbitration precondition’ to the seisin of the Court in a compromissory clause.

Moreover, Russia attempted to establish a lack of prima facie jurisdiction by arguing that State responsibility for sponsoring and/or funding terrorism is not captured by the Convention. This position appears somewhat disingenuous or divorced from the broader context. As stressed by Ukraine (CR/3, p 48), the Convention’s drafters reserved the question of ‘State terrorism’, but that is an entirely different question from State responsibility for sponsoring and/or funding terrorism. More importantly, treaty interpretation should not occur in a vacuum; context is everything. Endorsing an overly formalistic construction of the Convention would ignore the tremendous legal developments that have occurred since 9/11, starting with UNSC Resolution 1373 and the counterterrorism edifice erected subsequently. In a monograph, I argue that relevant State and institutional practice places a heightened burden of prevention and due diligence upon States, translating into an enhanced obligation to prevent terrorism. Therefore, some Russian claims conflict with the spirit of both this counterterrorism edifice and the Convention, if it is interpreted in an evolutionary light.

Resolution 1373 basically universalised as mandatory the Convention’s prescriptions for all States, adding that any support – direct or indirect – of terrorism or its financing is prohibited (see James Crawford, State Responsibility, p 160). This international practice also imposes clear obligations of cooperation and mutual assistance in preventing terrorism and its financing. Ukraine alleges various violations by Russia of the Convention, the obligation to cooperate under Article 18 being central (Application, pp 40–42). Therefore, Russia’s knowledge and support, irrespective of its form, of the downing of MH17, bombings in Kharkiv and the shelling of civilians in Ukraine should be regarded as captured by this instrument, provided the underlying acts conform to the Article 2(1) definition.

This case might also have implications for State responsibility for supporting terrorism, should the Court accept Ukraine’s arguments that Russia can be held legally responsible for violating the Convention’s prohibition of financing and sponsorship of terrorism through its own organs or agents (Application, pp 40–42). It is possible that Russia will raise a preliminary objection to challenge the idea that the Convention enshrines obligations requiring States parties not to support/finance terrorism themselves. But even at this stage, the parties have debated the scope and meaning of paragraph 166 of Bosnian Genocide. Ukraine essentially maintains that it would be ‘paradoxical’ for the Convention to obligate States to prevent the financing of terrorism carried out by individuals over which they exert control or influence, but not be themselves accountable for such conduct carried out by their organs or individuals whose actions are attributable to them. Russia entertains a contrary position (CR/2, pp 37ff). In light of the above context, that posture seems to run counter to the spirit of post-9/11 counterterrorism efforts, including a forward-looking and purposive interpretation of the Convention.

Granted, the Convention’s compromissory clause does not incorporate an express reference to State responsibility claims, as compared to Article IX of the Genocide Convention. However, Ukraine is right in stating that:

‘it would be a twisted reading indeed to assume that a State can simply look the other way if its own public organs and officials are engaged in the financing of terrorism’;

this signals that ‘the duty to prevent carries meaning only if the State is prohibited from doing the very thing it is meant to prevent’. This posture clearly aligns with the spirit of Resolution 1373 and subsequent resolutions, which constitute a prism through which the Court should interpret the Convention.

Failure to consider this broader context would be short-sighted, overly formalistic, and a disservice to the underlying cause. While there was a governing treaty on self-defence (UN Charter), in the Wall Advisory Opinion (p 194) the ICJ favoured a State-centric conception of self-defence, thereby failing to consider Resolutions 1368 and 1373 and the fact that non-State actors increasingly mount ‘armed attacks’. This was criticised by judges writing separately (see Judges Higgins, Kooijmans and Buergenthal). Granted, the inter-State dynamic was arguably not relevant in the Wall case, but the Court nonetheless acknowledged that criticism and left the question open subsequently in Armed Activities (para 147).

The Implausibility of Rejecting this Case: Shared Responsibility in Promoting Global Security

A careful review of the facts suggests a plausible claim under the Convention. Ukraine is right in qualifying the definition of ‘terrorism’ broadly, which is also informed by a broad definition of the term ‘funds’ in Article 1(1) (CR/1, pp 40ff). The Court will have to grapple with competing constructions of ‘intent’, but it should not lose sight of the broader context described above. Thus, Ukraine appears justified in emphasising the terms ‘by any means’ ‘provides…funds’, which militate in favour of recognising Russia’s provision of a Buk missile to fighters used in the MH17 incident as an offence under the Convention, for example. Equally sound is Ukraine’s resistance to Russia’s ‘multiple intent requirements…imposed on the Convention’s language’.

Finally, Russia urges the Court not to ‘interfere with, the Minsk II package of measures’ given that the ‘Security Council remains seised of the situation in east Ukraine’. This argument is not entirely convincing. As the ICJ has repeated, the Council’s responsibility in maintaining global security is not exclusive. Article 12 of the UN Charter does not establish a hierarchy between both organs. Rather, they can pursue complementary roles in promoting global security and address different aspects of a broader dispute (see my recent book, pp 143ff).

In Lockerbie, Judge Bedajoui stressed that:

‘the first dispute concern[ed] the extradition of two Libyan nationals and [was] being dealt with, legally, by the Court…whereas the second dispute concern[ed]…State terrorism as well as the international responsibility of the Libyan State and [was] being dealt with, politically, by the Security Council’.

Similar reasoning applies here. The first step towards fulfilling this complementary role for the Court is to seriously consider the pending provisional measures request and taking jurisdiction to provide much-needed clarity on an important anti-terrorism instrument.

[via EJIL: Talk!]

Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. In relation to the fulfilment of jurisdictional prerequisites provided for in Article 24 of ICSFT, Ukraine argues that Russia ignored central issues to the dispute and therefore, it could not have reasonably been expected “to continue participating in fruitless negotiation sessions”. In turn, Russia argues that Ukraine did not engage in negotiations bona fide, as the only objective it had allegedly pursued was to take Russia to the Court. Russia further submits that during the negotiations, when the parties were in the course of agreeing on yet another round of negotiations, Ukraine unilaterally walked away from the negotiations.

Regarding the parties’ negotiations on arbitration, Ukraine submits that the parties were unable to agree on the organization of arbitration in the six-month period provided by the Convention. Russia claims that although it produced the full draft of an arbitration agreement, Ukraine never responded with specific comments on the draft (this was later denied by Ukraine). Despite different accounts of the attempted arbitration proceedings, it appears that the parties engaged in the negotiations. Nonetheless, they were unable to agree either on the arbitration setup or on the enforcement of a possible arbitral award. Of particular interest is that Ukraine suggested setting up an arbitral tribunal within the meaning of Article 24 of ICSFT by way of creation of an ad hoc chamber of the ICJ with subsequent enforcement of the future arbitral award through the UNSC under Article 94(2) of the UN Charter. Ukraine appears to have conflated an arbitral tribunal with the ad hoc chamber of the Court that delivers judgments of the Court but not arbitral awards that could be enforced through the UNSC. This begs the question if the arbitration mechanism within the meaning of Article 24 of ICSFT was attempted at all, given Ukraine’s suggestion to institute the ad hoc chamber of the ICJ for the purposes of such proceedings.

With respect to Article 22 of CERD, Ukraine submits that despite extensive diplomatic correspondence and three rounds of negotiations, Russia “never provided straight and specific responses on the issues raised by the Ukrainian side”. Russia maintains that Ukraine did not engage in bona fide negotiations and “abruptly decided to end the consultations” in December 2016. During the oral proceedings, Russia was advancing arguments on Ukraine’s practice of discrimination of Crimean tatars prior to the annexation of Crimea, while providing examples as to how the situation regarding the protection of minority rights has improved after Crimea became part of Russia. Although the parties have placed different emphases on various factual circumstances surrounding the human rights situation in Crimea, there appears to exist a dispute between the parties on the interpretation and application of CERD, as the acts alleged by Ukraine are capable of infringing upon the rights enshrined in CERD (in the words of ICJ Georgia v Russia, Order on Provisional Measures, para 112). It should be sufficient at this stage that Ukraine attempted to initiate discussions with Russia on issues that fall under CERD (ibid., para. 114)

Plausibility of The Most Disputed Claims under ICFST

The most interesting part of the proceedings relates to the parties’ exchange regarding the plausibility of claims under ICFST. Two major points of contention deserve particular attention. The first one relates to the prohibition of state financed terrorism that, as argued by Russia, was not contemplated by the drafters of the Convention. ICFST does not explicitly impose an obligation upon a state to refrain from rendering its support for terrorism, as it only speaks of an obligation in the prevention of the terrorism financing offences, as well as an obligation to cooperate in order to investigate and prosecute those offences. However, an obligation not to engage in the terrorism offences on the part of a state, although not explicitly mentioned, appears to be implied. In that respect, Ukraine was right to seek inspiration from the ICJ Bosnian Genocide case where the ICJ found that an obligation not to commit genocide follows from the expressly stated obligation to prevent the commission of genocide (ICJ Bosnian case, para 166). One can hardly disagree with the ICJ that it would be “paradoxical” if states were only under an obligation to prevent, but “were not forbidden to commit such acts” (ibid). Although the Genocide Convention is different from the ICFST, it would be logical if similar reasoning prevailed in the context of the present case, since an obligation to prevent the terrorism financing offences should imply the prohibition of committing such offences.

Another important aspect of dispute concerns the interpretation of mens rea with respect to the terrorist acts listed in Ukraine’s application that Russia allegedly provided support for. Given that Ukraine alleges that specific incidents of shelling civilians, bombings in Kharkiv and shooting down of MH17 constitute the acts of terrorism within the meaning of Article 2(1) of ICFST that had been financed by Russia, it is unfortunate that Ukraine’s counsel was ambiguous in addressing the mens rea standard for the crime of terrorism and did not spend more time on showing the linkage between the alleged acts of terrorism and knowing financing of such acts. It is clear from the wording of ICFST that an act of terrorism may occur in the context of an armed conflict if “the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. In the context of ICFST, the ‘peacetime’ definition of terrorism was included as a catch-all definition of the primary offence with an added reference to an armed conflict. The mens rea in Article 2(1)(b) is twofold. First of all, it requires (1) the intent to cause death or serious bodily injury to a civilian; and (2) purpose to intimidate a population or pursue certain political objective (dolus specialis). With respect to the first limb of mens rea, the counsel erroneously stated that recklessness would suffice. As to the second limb of mens rea, the counsel merely stated that the attacks listed in Ukraine’s application “would naturally intimidate Ukrainian civilians, and they arose in the context of a group that was seeking political concessions from their Government”. Even at this preliminary stage, the counsel could have made more effort to demonstrate the existence of dolus specialis with respect to the alleged acts of terrorism, as the lack of plausibility in that regard would simply make all Ukraine’s claims under ICFST fall apart. Ukraine might well follow the fate of Yugoslavia v Belgium where, at the stage of provisional measures hearings, the ICJ dismissed the Genocide Convention on a jurisdictional basis, since it was not satisfied that the bombings which formed the subject of the Yugoslav Application “indeed entail the element of intent, towards a group as such” as required by the definition of the crime of genocide (Legality of Use of Force (Yugoslavia v. Belgium), Order on Provisional Measures, paras 40-41).

There are a number of other interesting arguments advanced by Russia, in particular with respect to the absence of the element of discrimination regarding the alleged human rights violations in Crimea, as well as the absence of urgency to order provisional measures as they could interfere with peace processes (Minsk Agreements). All in all, it is a case to be watched, as it has the potential to offer answers on the interpretation of state obligations under CERD, although it is less likely that it will engage with a substantive discussion of Ukraine’s claims under ICFST.

  [via EJIL: Talk!]

Ukraine Takes Russia to the International Court of Justice: Will It Work?

Ukraine Takes Russia to the International Court of Justice: Will It Work?

In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Although the choice of the conventions as a jurisdictional basis is rather peculiar, it is explained by the fact that none of the treaties ratified by Russia and Ukraine provide for a jurisdictional basis to address the real issue at stake i.e. the unlawful use of force. Therefore, Ukraine followed in the footsteps of Georgia and alleged the breach of CERD, claiming Russia’s denial of rights – accorded by CERD Convention – to non-Russian ethnic groups, such as the Crimean Tatar and ethnic Ukrainian communities in Crimea. The jurisdictional basis for Ukraine’s action before the ICJ could be found in Article 22 of CERD:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in his Convention, shall at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

When the same article was invoked by Georgia as a jurisdictional basis for its claims, Russia argued that Georgia did not honour the procedural requirements in CERD. It contended that Georgia failed to adduce evidence demonstrating that it attempted to negotiate or employ any other mechanisms provided for in CERD to resolve the dispute. The Court upheld Russia’s preliminary objection and dismissed the case on procedural grounds, concluding that Georgia neither attempted to negotiate CERD-related matters with the Russian Federation nor invoked any other procedures expressly provided for in CERD to settle the dispute (ICJ Georgia v Russia, paras 182-183).

Ukrainian officials have earlier stated that they were building up the case against Russia by attempting to negotiate in good faith with Russia over the alleged violations of both conventions, which is the prerequisite for bringing the case before the ICJ. Judging by Russia’s response to Ukraine’s lawsuit in the commentary posted by the Russian MFA, Russia clearly has a different perception of Ukraine’s negotiation attempts. It maintains that despite Russia’s “genuine” attempts to clarify the nature of Ukraine’s claims with respect to the alleged violations of the UN Terrorism Financing Convention, it encountered “persistent unwillingness of Ukrainian authorities to engage in the substantive dialogue”, which “ultimately ended with Ukraine’s unilateral withdrawal from consultations”. Russia also stated that Ukraine dismissed the prospect of settling the dispute through an independent arbitration tribunal and claimed that “Ukraine does not seek to settle the dispute, but rather attempts to find any excuse to bring the case before the ICJ”. The settlement of dispute provided for in the Terrorism Financing Convention differs from the settlement mechanism provided for in CERD. Article 24 of the Terrorism Financing Convention reads as follows: “any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration”. The same article imposes the six-month period from the date of the request for arbitration, during which the arbitration mechanism for the dispute should be in place, before the case could be brought up before the ICJ.

As to Ukraine’s claims on the violation of CERD, Russia maintained that it engaged in the dialogue with Ukraine in good faith, however, Ukraine “showed the lack of interest in the substantive discussion of the issues at dispute”. Russia submits that it suggested to Ukraine to compare Russian and Ukrainian legislation on racial discrimination “in order to find a common understanding of the best way to protect the people’s rights and substantively deal with each specific situation”. It is not entirely clear what exactly Russia was trying to get out of the suggested “comparative exercise”, as the parties had to attempt to negotiate their way out of the impasse, rather than exchange best practices on the implementation of the Convention. Russia also claimed that it encouraged Ukraine to review its practices with respect to the implementation of the Convention in Crimea “prior to its reunification with Russia”. It is clear that Russia advanced a flipside argument and, in doing so, attempted to divert the attention from the current issues at stake. It also maintains that Ukraine ignored its questions regarding the rights of the Russian and Russian speaking population in Ukraine, which are not relevant to the current dispute.

Although negotiations were attempted, the parties do not seem to have communicated about the same issues which form basis for Ukraine’s action before the ICJ. The ICJ judges will have to evaluate whether negotiations within the meaning of both conventions indeed have taken place. A helpful guidance could be found in the case of Georgia v Russia, in which the ICJ construed what constitutes negotiations and to what extent they have to be pursued before it can be concluded that the requisite preconditions for bringing the case before the ICJ have been met:

Negotiations entail more than the plain opposition of legal views or interests between two parties (…). As such, the concept of “negotiations” (…) requires (…) a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute (ICJ Georgia v Russia, para. 157).

Proving that that both parties made a genuine attempt to engage in discussions, with a view of resolving the impasse, may prove to be a stumbling block in the proceedings. Of course, an attempt to negotiate does not have to lead to an actual agreement (ICJ Georgia v Russia, para. 158). However, the absence of evidence demonstrating a “genuine attempt to negotiate” would translate into the failure to meet the required preconditions. In the situations “where negotiations are attempted or have commenced”, the preconditions would be considered to be met “when there has been a failure of negotiations, or when negotiations have become futile or deadlocked” (ICJ Georgia v Russia, para. 159). Russia’s litigation strategy would most probably be to undermine Ukraine’s attempts to negotiate as being genuine. Ukraine would most likely maintain that the negotiations have become futile or deadlocked. The ICJ judges will have a difficult task to ascertain whether the procedural preconditions have been met given a highly politicised context, which underlines the ongoing dispute.

Substantive Law Issues

With respect to the violations of the Terrorism Financing Convention, Ukraine alleged that since 2014 Russia has escalated its interference in Ukrainian domestic affairs by “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens”. Ukraine submitted that by instigating and sustaining an armed insurrection in eastern Ukraine, Russia violated fundamental principles of international law enshrined in the Convention. In light of the on-going armed conflict in eastern Ukraine, which has been recognised by the ICRC, various international NGOs and more recently by the ICC Prosecutor as being governed by the rules of international humanitarian law, one cannot help but wonder whether the choice of the convention is the right one. Although the government of Ukraine treats rebels who are fighting in eastern Ukraine as “terrorists”, the international community has described the situation in Ukraine as “hybrid warfare” where an international armed conflict runs in parallel to a non-international armed conflict. As the response to Ukraine’s claims with respect to the violation of the Convention, Russia maintains that Ukraine did not provide any information that was supportive of its allegations on the breach of the Convention. It also hinted that the situation in eastern Ukraine is governed by the rules of international humanitarian law, questioning Ukraine’s treatment of the DPR and the LPR representatives as “terrorists” in light of their earlier participation in the Minsk process with the view to resolve the dispute. The same objection on substantive law will be inevitably advanced by Russia in the ICJ. Ukraine’s rationale behind invoking the Convention as a jurisdictional basis is well understood, however, the prospect of the ICJ going into the substance of those claims is very slim, since a more accurate description of the situation in eastern Ukraine would be the violation of the rules and customs of war.

Ukraine has better chances to succeed with its claims under CERD. 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. In its response, Russia evades to address the issues of the impact of the annexation of Crimea on the rights of non-Russian ethnic groups in Crimea by stating that it “pays great attention compliance with its obligations under CERD”. If the Court were to proceed with the examination of Ukraine’s claims under CERD, it would not be able to rule narrowly on the issues pertinent to the violations of CERD, without addressing the context in which the alleged breaches have taken place. However, 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, it should consider lobbying for the initiation of advisory proceedings before the ICJ at the request of the UNGA. If this were to happen, it is hoped that the UNGA learnt from the Kosovo advisory proceedings and the question to be submitted for consideration to the ICJ would be broad enough for the Court to give some meaningful answers and clarify the state of international law today (on the ICJ Kosovo advisory proceedings, see earlier Akande’s and Milanovic’s posts).

[via EJIL: Talk!]

Sari Horwitz and Jenna Portnoy, The Washington Post Gov. Terry McAuliffe will allow more than 200,000 ex-cons in Virginia to register to vote in the upcoming presidential election, one of the biggest actions taken by a state to instantly restore voting rights. The change applies to all felons who have completed their sentences and been released from supervised probation or parole. The Democratic governor’s decision particularly affects black residents of Virginia: 1 in 4 African Americans in the state has been permanently banned from voting because of laws restricting the rights of those with convictions. “Once you have served your time and you’ve finished up your supervised parole. . .I want you back as a full citizen of the commonwealth,” McAuliffe said. “I want you to have a job. I want you paying taxes, and you can’t be a second-class citizen.” The governor called the instant restoration of rights to these Virginians the natural next step to his incremental streamlining of a process that has already given 18,000 nonviolent felons their rights back. With the signing of Friday’s executive order, McAuliffe eliminated the need for an application for violent felons who had completed their sentences up to that moment... Along with restoring voting rights, the governor’s action restores the right to serve on a jury, run for office and become a notary public. The new rights also apply to felons convicted in another state and living in Virginia. “It is a historic day for democracy in Virginia and across our nation,” said Tram Nguyen, co-executive director of the New Virginia Majority, a progressive activist group. “The disenfranchisement of people who have served their sentences was an outdated, discriminatory vestige of our nation’s Jim Crow past.” Across the country, state laws vary on the right to vote for ex-offenders. According to the American Civil Liberties Union, about 5.85 million Americans with felony convictions (and misdemeanors in several states) cannot vote. The Sentencing Project estimates that 1 in 13 African Americans are prohibited from voting... Three states — Kentucky, Iowa and Florida — permanently revoke voting rights for people with prior felony convictions. Virginia has also been one of those states that revoked the right to vote. But in recent years, both McAuliffe and his Republican predecessor, Robert F. McDonnell, have used their executive authority to try to restore voting rights to ex-offenders... McAuliffe will have to sign an identical executive order every month for the remaining two years of his term to cover violent felons who get out of prison each month. The next governor could easily reverse the designation for future felons by ending the practice that McAuliffe began Friday. Virginia governors serve one four-year term and there’s an election in 2017. Each state that allows ex-offenders to vote has its own process. Residents in Maine and Vermont never lose their right to vote, even if they are in prison. In 38 states and the District, most felons automatically gain the right to vote when they complete their sentence, according to the National Conference of State Legislators. In other states, they have to apply to have voting rights restored. “This is a humongous change,” said Myrna Pérez, director of the voting rights and election project at the Brennan Center for Justice at New York University School of Law. “What this will do is move Virginia, which was among the worst of the worst in terms of disenfranchising people, to a much more middle-of-the-road policy.” Other states have moved forward on changing their policies toward convicted felons. The Maryland General Assembly passed a law this year that will give 44,000 ex-cons the right to vote this year. Governors in Kentucky, Florida and Iowa took executive action to restore voting rights to certain ex-offenders, but those orders were rescinded after they left office... Virginia is one of 11 states where ex-offenders cannot vote unless the state gives them an individual exemption, according to the Brennan Center...

https://www.washingtonpost.com/news/post-nation/wp/2016/04/22/about-200000-convicted-felons-in-virginia-will-now-have-the-right-to-vote-in-november/

  Rights at issue include, but are not limited to:

the right to vote, equal protection, nondiscrimination, equality before the law, the right to participate in public life and public affairs.

  Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, International Covenant on Civil and Political Rights (23 April 2014, CCPR/C/USA/CO/4)

Voting rights

While noting with satisfaction the statement by the Attorney General on 11 February 2014, calling for a reform of state laws on felony disenfranchisement, the Committee reiterates its concern about the persistence of state-level felon disenfranchisement laws, its disproportionate impact on minorities and the lengthy and cumbersome voting restoration procedures in states. The Committee is further concerned that voter identification and other recently introduced eligibility requirements may impose excessive burdens on voters and result in de facto disenfranchisement of large numbers of voters, including members of minority groups. Finally, the Committee reiterates its concern that residents of the District of Columbia (D.C.) are denied the right to vote for and elect voting representatives to the United States Senate and House of Representatives (arts. 2, 10, 25 and 26).

The State party should ensure that all states reinstate voting rights to felons who have fully served their sentences; provide inmates with information about their voting restoration options; remove or streamline lengthy and cumbersome voting restoration procedures; as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. The State party should also take all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters and result in de facto disenfranchisement. The State party should also provide for the full voting rights of residents of Washington, D.C.

  Universal Declaration of Human Rights

Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 21.3: The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

  International Covenant on Civil and Political Rights

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2.

(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  International Convention on the Elimination of Racial Discrimination

Article 5: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

[c] Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

  Committee on the Elimination of Racial Discrimination:

General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25): 07/12/1996. [CCPR/C/21/Rev.1/Add.7, General Comment No. 25. (General Comments):

9. Paragraph (b) of article 25 sets out specific provisions dealing with the right of citizens to take part in the conduct of public affairs as voters or as candidates for election. Genuine periodic elections in accordance with paragraph (b) are essential to ensure the accountability of representatives for the exercise of the legislative or executive powers vested in them. Such elections must be held at intervals which are not unduly long and which ensure that the authority of government continues to be based on the free expression of the will of electors. The rights and obligations provided for in paragraph (b) should be guaranteed by law.

10. The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.

11. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced. Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.

  American Declaration on the Rights and Duties of Man

Article 2:  All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Article 20:  Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.

  American Convention on Human Rights

Article 23. Right to Participate in Government

1. Every citizen shall enjoy the following rights and opportunities:

a. to take part in the conduct of public affairs, directly or through freely chosen representatives;

b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters...

Article 24. Right to Equal Protection