Ukraine uses international courts as one of the instruments to counter Russia’s aggression. In 2014-2019, Ukraine brought complaints against Russia before the European Court of Human Rights, the International Court of Justice, the Permanent Court of Arbitration, as well as accepted the jurisdiction of the International Criminal Court over the Euromaidan protests, the events in Crimea and Donbas. Ukraine expects that international courts will oblige Russia to compensate for damages inflicted on Ukrainian citizens and legal entities and will increase price for Russia if its aggressive policy continues. However, the trust of many countries in international courts may decrease if Russia fails to abide judgments delivered in Ukraine’s favour.
International courts are one the instruments which Ukraine uses to counter Russia’s aggression. In practice, Ukraine does not have an opportunity to bring Russia to justice for violating the fundamental principles of international law, particularly, the prohibition of the threat or use of force, the inviolability of territorial integrity and state borders. Instead, Ukraine appeals to international courts over violations of certain international conventions by Russia which are a result of its broad-scale aggressive policy.
|European Court of Human Rights|
|In 2014-2019, Ukraine brought eight inter-state complaints against Russia before the European Court of Human Rights (ECHR) over violations of the European Convention on Human Rights of 1950. Later, the ECHR regrouped them into five inter-state cases.|
|Ukraine v. Russia no. 20958/14 related to the events in Crimea
|In this complaint, Ukraine proves numerous human rights violations in Crimea caused by the Russian occupation. In particular, Ukraine accuses Russia of arbitrary arrests of pro-Ukrainian activists, abductions of people, tortures, disappearances of Crimean Tatar activists, forced conversion of the Crimean population to Russian citizenship, harassment of journalists and attacks against them, seizure of property belonging to Ukrainian legal entities, searches and seizures of churches, lack of education in the Ukrainian and Crimean Tatar languages, restrictions on entry of Ukrainian citizens to Crimea and their departure from the peninsula etc.|
|Ukraine v. Russia (II) no. 43800/14 related to the abduction of children and their transfer to Russia||This complaint concerns violations of rights of orphan children and children without parental care. Ukraine maintains that three groups of children were abducted by pro-Russian militants in Donbas in summer 2014 and subsequently transported to Russia after illegal border crossings.|
|Ukraine v. Russia no. 8019/16 related to the events in Eastern Ukraine||In this complaint, Ukraine maintains that Russia which controls militants and exercises de facto control over certain areas of Donetsk and Luhansk regions is responsible for large-scale human rights violations there. Ukraine accuses militants controlled by Russia of almost daily killing of Ukrainian soldiers and civilians, tortures and ill-treatment of them, restrictions of journalistic activities, misreporting and the use of hate speech in Russian and separatist media, lack of education in the Ukrainian language, and the inability to conduct the Ukrainian parliamentary elections there.|
|Ukraine v. Russia (VII) no. 38334/18 related to the politically motivated prosecutions of Ukrainian citizens by Russia||This complaint concerns prosecutions and arrests of Ukrainian citizens by Russia on political grounds. Russia accuses them of non-recognition of Crimea’s accession to Russia, membership in organizations that are legal in Ukraine, incitement to violence, war crimes, extremism and espionage in Ukraine’s favour. Ukraine also maintains that these Ukrainian citizens were deprived of the right to a fair trial and the right to an effective remedy.|
|Ukraine v. Russia (VIII) no. 55855/18 related to the events in the Kerch Strait in November 2018||This complaint concerns violations of the rights of 24 Ukrainian sailors amid Russia’s attack on Ukrainian navy vessels. Ukraine accuses Russia of an attack on the Ukrainian navy vessels, wounding of the Ukrainian sailors, their illegal placement in detention facilities and criminal prosecution given that they enjoy the status of prisoners of war.|
|Ukraine’s request||In all inter-state complaints, Ukraine requests the ECHR to hold Russia liable for numerous human rights violations committed on the territory of Ukraine and force it to compensate for damages inflicted on Ukrainian citizens and legal entities.|
|Prospects||As of February 2019, the ECHR has not taken a decision on the admissibility of any of the five inter-state complaints yet. The inter-state complaint related to the events in Eastern Ukraine is expected to be the hardest case given that the ECHR has to conclude to what extent Russia is responsible for human rights violations in the territories controlled by the militants. In turn, proceeding of individual complaints related to the events in Eastern Ukraine will largely depend on the ECHR judgement in this inter-state case (as of January 2019, the ECHR registered 4,369 individual complaints against Ukraine and about 400 against Russia related to the events in Crimea and Donbas).|
|International Court of Justice|
|In January 2017, Ukraine filed a lawsuit against Russia in the International Court of Justice (ICJ) with regard to violations of the International Convention for the Suppression of the Financing of Terrorism of 1999 (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (CERD).|
|Alleged violations under ICSFT
|Ukraine claims that Russia supplies funds and weapons to illegal armed groups the “DPR”, the “LPR”, and the “Kharkiv Partisans”, does not take measures to prevent the financing of these groups by Russian public and private actors, does not cooperate with Ukraine on investigations of acts of terrorism, neither prosecutes nor extradites perpetrators of acts of terrorism committed in the territory of Ukraine etc.|
|Alleged violations under CERD||Ukraine claims that the Russian occupation authorities systematically discriminate and conduct a “state policy of cultural erasure” of the Crimean Tatar and ethnic Ukrainian communities in Crimea, suppress the expression of Crimean Tatars through the ban on the Mejlis of the Crimean Tatar People and the prosecution of its leaders, intimidate Crimean Tatars with arbitrary searches and detentions, tolerate disappearances and murders of Crimean Tatars, silence Crimean Tatar and Ukrainian media, prevent Crimean Tatars and Ukrainians from holding public cultural events, and suppress education in the Crimean Tatar and Ukrainian languages.|
|Ukraine’s request with regard to ICSFT||Ukraine requests the ICJ to recognize that Russia bears international legal responsibility for the shoot-down of Malaysian Airlines Flight MH17 (July 2014), the shelling of civilians in Volnovakha, Mariupol (January 2015) and Kramatorsk (February 2015), and the bombing in Kharkiv (February 2015), order Russia to make full reparation for these acts of terrorism, cease the supply of weapons, funds and other resources to terrorist groups in the territory of Ukraine, freeze all bank accounts used to support such groups, initiate prosecution against Russian high officials responsible for financing terrorism (Sergei Shoigu, Vladimir Zhirinovsky, Sergei Mironov, Gennadiy Zyuganov), and cooperate with Ukraine on the investigation of the financing of terrorism.|
|Ukraine’s request with regard to CERD||Ukraine requests the ICJ to order Russia to cease the “policy of cultural erasure” of the Crimean Tatar and Ukrainian communities, make full reparation for the victims of discrimination in the peninsula, lift the ban on the Mejlis of the Crimean Tatar People, cease unjustified searches and detentions of Crimean Tatars, adequately investigate the disappearances of Crimean Tatars (Reshat Ametov, Timur Shaimardanov, Ervin Ibragimov), restore an access of Crimean Tatars and Ukrainians to education in their languages, lift restrictions on Crimean Tatar and Ukrainian media, and ensure the right of Crimean Tatars and Ukrainians to hold public cultural events.|
|Prospects||In April 2017, the ICJ issued provisional measures in respect of CERD, obliging Russia to restore the Mejlis, refrain from all limitations on the representation of Crimean Tatars, and restore an access to education in the Ukrainian language. However, the ICJ refused to satisfy Ukraine’s request to introduce provisional measures against Russia under ICSFT.
Before 12 July 2019, Russia has to file a second Counter-Memorial where it may raise objections to the jurisdiction of the ICJ over this case. After that, the ICJ has to take a decision on the admissibility of this case.
|Permanent Court of Arbitration|
|In September 2016, Ukraine initiated arbitration proceedings against Russia over violations of the UN Convention on the Law of the Sea of 1982 (UNCLOS).|
|Alleged violations||This case concerns violations of Ukraine’s rights as the coastal state by Russia in maritime zones adjacent to Crimea after the annexation of the peninsula. Ukraine maintains that Russia violated its rights in maritime zones in the Black Sea, the Sea of Azov and the Kerch Strait through the exploitation of natural resources (first of all, oil and gas) on the Black Sea continental shelf legally belonging to Ukraine, the seizure of Ukrainian drilling outfits, the obstruction of fishery by Ukrainian fishing companies in adjacent water zones, the construction of a bridge, power lines and a gas pipeline across the Kerch Bridge without Ukraine’s permission, the blocking of passage of Ukrainian vessels through the Kerch Strait, the negative impact on marine ecology due to the construction of the Kerch Strait Bridge, the conduct of archeological excavations at the bottom of the Black Sea without Ukraine’s permission etc.|
|Ukraine’s request||Ukraine requests the Permanent Court of Arbitration (PCA) to vindicate its rights as the coastal state in maritime zones adjacent to Crimea, order Russia to cease actions which violate Ukraine’s sovereignty in respective water zones, and force Russia to pay reparation for damages inflicted on Ukraine by unlawful activities.|
|Prospects||Before 19 April 2019, Ukraine has to file a second Memorial, reiterating its claims to Russia. In turn, Russia has to file a second Counter-Memorial before 19 September 2019, raising new objections to the Tribunal’s jurisdiction over this case. After that, the Tribunal may start considering the case on the merits.|
|International Criminal Court|
|Ukraine signed but did not ratify the Rome Statute of the International Criminal Court (ICC). Instead, Ukraine exercised the right envisaged by article 12(3) of the Rome Statute, accepting the ICC’s jurisdiction over crimes during the Euromaidan protests (from 21 November 2013 to 22 February 2014) and all crimes in the territory of Ukraine (from 20 February 2014 onwards, with no end date).|
|Situation||Possible war crimes or crimes against humanity|
|Euromaidan events||The Office of the Prosecutor of the ICC (OTP) has not concluded yet that murders during the Euromaidan protests were widespread and systemic enough to be regarded as crimes against humanity.|
|Situation in Crimea||The OTP classifies the situation in Crimea as an international armed conflict between Ukraine and Russia. As of December 2018, the OTP is examining a range of war crimes or crimes against humanity committed by the Russian occupation authorities in Crimea: killing of civilians, enforced disappearance of civilians, tortures, unlawful confinement, conscription of Crimean residents to serve in the Russian occupation troops, transfer of the civilian population of Crimea outside the occupied territory, seizure of property, prosecution of ethnic groups (Crimean Tatars and Ukrainians) on political grounds etc.|
|Situation in Donbas||The OTP considers that there is a parallel existence of two armed conflicts in Donbas: a non-international armed conflict (between Ukrainian troops and anti-government armed groups “DPR” and “LPR”) and an international armed conflict (between Ukrainian and Russian troops). Currently, the OTP is examining possible war crimes and crimes against humanity in Donbas: intentional attacks on civilians and civilian objects, treacherous killing and wounding (during the battle of Ilovaisk), murder of persons who were captured, tortures and ill-treatment, sexual and gender-based crimes, involvement of children under the age of 15 in warfare.|
|Prospects||Currently, the OTP is at the final stage of preliminary examination of the three abovementioned situations. In case war crimes or crimes against humanity are confirmed in Crimea and Donbas, the Prosecutor may launch an official investigation and request to issue an arrest warrant against concrete perpetrators.|
Appeals to international courts open the following opportunities for Ukraine.
- Ukraine demonstrates its willingness to protect the rights and interests of its citizens and legal entities which have suffered from Russia’s aggressive actions.
- Judgements of international courts (first and foremost, ECHR), if delivered in Ukraine’s favour, will increase material and reputational costs for Russia over the events in Crimea and Donbas.
- Many countries will try to avoid close political and business ties with Russia if it fails to abide by judgements of international courts.
However, there are certain risks for Ukraine if Russia fails to abide by judgements of international courts.
- ECHR judgements in Ukraine’s favour will increase the likelihood that Russia may withdraw from the Council of Europe, reducing already-narrow opportunities to bring an aggressor state to international responsibility.
- The trust of many countries in international institutions may decrease if Russia fails to abide judgments of international courts. As a result, this may narrow a range of international legal means in case of disputes arising between Ukraine and other countries.