Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

“Ukraine has begun the legal fight”

On The Hague court holding its first hearing on Ukraine’s lawsuit against Russia over the latter’s violations of the Convention for the Suppression of the Financing of Terrorism and the Convention on the Elimination of All Forms of Racial Discrimination
7 March, 2017 - 12:06
Sketch by Viktor BOGORAD

On March 6, the UN International Court of Justice, based in The Hague, opened public hearings on Ukraine’s lawsuit against Russia, which stands accused of financing terrorism and engaging in racial discrimination. Let us recall that Ukraine filed the suit with the court on January 16, asking it to establish that Russia had violated these conventions by providing support for militants in the Donbas as well as illegally occupying Crimea and persecuting the Crimean Tatar and Ukrainian communities there.

“It is a historical moment: starting on March 6, Ukraine will present evidence of Russia’s crimes in the International Court of Justice in The Hague. The truth is stronger than weapons!” In this way, President of Ukraine Petro Poroshenko responded on Facebook to the commencement of the Ukrainian lawsuit proceedings. 

The Day asked former Agent of Ukraine in the International Court of Justice, international lawyer Professor Volodymyr VASYLENKO to comment on the importance of the commencement of the Ukraine vs. Russia lawsuit proceedings in The Hague court.

“Of course, from the perspective of Ukrainian interests, it is a positive development. I believe that the International Court of Justice will find Russia guilty of violating both the convention banning all forms of racial discrimination and the convention banning the financing of terrorism.

“But this does not solve the main problem, which is holding Russia responsible for its armed aggression against Ukraine. The issue of armed aggression and its identification will be considered only in passing, given that the violations of these conventions happened under conditions created by the annexation of Crimea and armed conflict in the Donbas. But the court will not identify Russia’s actions as armed aggression, will not issue orders to restore the territorial integrity of Ukraine and to cover damages that Ukraine suffered as a result of armed aggression, and will not consider the question of punishing perpetrators of the crime of aggression and war crimes.

“While the government tries to present this lawsuit, filed with the International Court of Justice, as an effort to hold Russia responsible for aggression against Ukraine, it will deal, in fact, only with responsibility for violation of the two conventions and nothing else. And even then, the decision on Ukraine will be positive only if it manages to convince the court that indeed, these conventions have been violated.

“The lawsuit includes a lot of evidence. In my opinion, it is convincing, and the very fact of consideration of this case regarding violations of the conventions is evidence that Russia ignores the requirements of international law and infringes on international order.

“However, Russia usually disregards its international obligations outright, and it is unlikely to comply with the decision of the International Court of Justice, which is likely to be in favor of Ukraine. An international arbitration was held in The Hague two years ago, and the arbiters ordered Russia to pay Yukos shareholders 50 billion dollars for the damages caused by the illegal nationalization of the company. However, Russia still has not paid and is not going to pay this compensation.

“The statute of the International Court of Justice states that if a state party does not comply with its decision, the court can appeal to the UN Security Council for enforcement. However, this path will not be effective in the present case because Russia enjoys the veto right in the UN Security Council. Therefore, the only way to force Russia to observe international law, to restore international order, and to comply with decisions of international courts is by imposing severe and wide-ranging sanctions on that country. Russia, as practice shows, does not act according to international law and relies on the ‘might-makes-right’ principle instead of law. Only a concerted coercive effort by the international community will be effective. Therefore, Ukrainian diplomats should work on persuading the international community to create an anti-Putin coalition, just like the anti-Hitler coalition was created once, in order to bring a criminal state, which Russia now is, to account.

“Undoubtedly, it was necessary to turn to the International Court of Justice and demand that it establish Russia’s responsibility for violations of these conventions, but in parallel with it, the Ukrainian leadership should have long ago created a domestic interagency coordinating body that would be authorized to prepare a consolidated claim of Ukraine as the state that suffered armed aggression against Russia as the state which committed armed aggression against Ukraine. This consolidated claim must include legal evidence of all the facts that indicate that Russia committed armed aggression and establish the harm that aggression caused Ukraine and the amount of damages incurred by the Ukrainian nation as a result of Russia’s unlawful actions, war crimes, and crimes against humanity committed during this aggression. This consolidated claim can be then served on Russia as the aggressor state using the formal diplomatic channels.

“This is the algorithm and the model that exists in international law. Of course, Russia will refuse to honor this claim, but the legal position of Ukraine will be thus established, as will be the damages and the amount of Ukraine’s claims against Russia.

“We do not know what will happen in a year or two or three. At the time, Adolf Hitler also did not expect that he would be held responsible, as would be the top leadership of the Third Reich and Germany as a nation. Nonetheless, it happened.

“I would like to recall that after Germany attacked the Soviet Union, an extraordinary government commission was appointed as soon as December 1942 to establish the crimes committed by Nazi Germany on the Soviet soil. The commission operated after the war as well, and its findings were a reason for Germany being compelled to pay reparations to the Soviet Union. To a large extent, the findings of the commission became the basis for charging major German war criminals at the Nuremberg Tribunal.

“Unfortunately, the Ukrainian government is not doing what it should be doing today. This is causing great harm to Ukraine’s position and its image as a country that should use, can use, and knows how to use legal mechanisms to protect its interests.”

By Mykola SIRUK, The Day. Interviewed by Natalia PUSHKARUK