Discussions about decisions of the International court of UNPO in the case of Ukraine against Russia is gaining momentum. Note — this decision is not in fact, and in the framework of the provisional measures in the case of Ukraine. The aggressor in his style already stated that “the court, without a vote, acknowledged that the claims of Ukraine to Russia is groundless and, consequently, the conditions for the application of the provisional measures do not exist”. In Ukraine, a lot more opinions on this subject. To begin with — that was adopted by the court?
Recall, 16 January the foreign Ministry of Ukraine has sent to the international court of justice in the Hague a lawsuit concerning violation of the Russian Federation two UN Conventions: to combat the financing of terrorism and on the elimination of all forms of racial discrimination. In the Hague, the court refused to Ukraine in the approval of temporary measures against the Russian Federation under the Convention regarding the prohibition of financing of terrorism. However, in the second part, the court held that Russia should refrain from actions, which do not allow the Crimean Tatars to have their own representative bodies, including the Majlis, in addition, Russia should provide access to education in the Ukrainian language in Crimea. And obliged Ukraine and Russia to fulfill all items of the Minsk agreements.
Officials in one voice said that it was the victory of Ukraine. In particular, in the reaction of the foreign Ministry emphasizes the court’s decision in part the elimination of racial discrimination, but with respect to the financing of terrorism explained: “the Court confirmed the existence of a dispute between Ukraine and the Russian Federation concerning application of the Convention; the court found Ukraine’s adherence to the required pre-trial procedures; court acknowledged its preliminary (prima facie) jurisdiction in this dispute”. The foreign Ministry also stressed that its decision in part to the necessity of implementing the Minsk agreements, the court actually recognized Russia as a party to the process. “The next stage is the trial in fact, in the framework of which Ukraine will present all the necessary evidence to attract Russia to justice for breach of its international obligations”, — stated in the message.
Should we expect that Russia will abide by the decision of the court of justice on the elimination of racial discrimination in the framework of the provisional measures in the case of Ukraine? “No, she will not perform,” — said Commissioner President of Ukraine on Affairs of the Crimean Tatar people Mustafa Cemil. “Despite this, the court’s decision is very important. Clearly this is a moral support for those Crimean Tatars who are being persecuted,” said Dzhemilev.
First Deputy Chairman of the Verkhovna Rada Iryna Gerashchenko cited arguments of the foreign Ministry and criticized the FB community: “the Main subject of FB. The dominant mood is traditional for the Ukrainian segment of FB-proklinaya, betrayal, everything is lost, superiorly, reptiles, filed a lawsuit three years later, a bad lawsuit is filed, and all that jazz. As always”. Of course, a positive decision for Ukraine, we need to support and shout about the change where for no reason. But such cases are, unfortunately, a little bit. In this case, there are both pluses and minuses (about them below in the comments).
Previously, the lawmakers had noted that automatic Moscow’s consent for its jurisdiction in the Hague is only possible for two conventions, which, in fact, Kiev and used. In other cases in this court of Russia has the right not to give consent at the beginning of the arbitration. However, the problem lies in the fact that the main claim of Ukraine to Russia should be not terrorism, and discrimination, and military aggression, which led to the capture of the Crimea and part of Donbass. However, it should be noted that to engage Russia accountable for its aggression more difficult. Experts argue that under the UN Charter that deals exclusively with the security Council, which, as you know, Russia can block any decision. Another issue is that she Ukrainian government never officially declared war of Russia against Ukraine. We have never imposed martial law, and still operates the anti-terrorist operation. Moreover, if Crimea is the Verkhovna Rada has recognized the occupied territories, the Donbass no.
Thus, the preliminary decision of the Hague court — defeat or victory? The arguments of the experts.
“I would everything that happened, called the Minsk deadlock-3”
Andrei Senchenko, the Chairman of the public organization “Force of law”, MP V, VI, VII convocations:
— On the one hand, the ICJ’s decision is preliminary, but it specifies a particular vector. In my opinion, this vector is not in the interests of Ukraine. Under the Charter, the ICJ can hear disputes only when the parties agree for their consideration. In the case of a country that has ratified the relevant international conventions in the texts of the Conventions agreed with the ICJ jurisdiction to review such issues. Therefore, Ukraine and filed a lawsuit in the ICJ concerning the financing of the Russian Federation of terrorism and ethnic harassment. But, in my opinion, at this stage was made a strategic mistake. I tried several times with our supervisors on this subject to say that it was necessary to file a lawsuit about the occupation of Crimea, and the claim that is associated with the violation of the UN Charter, as a country, to unleash a war against Ukraine. But the position of our foreign Ministry, which is, in fact, the position of Poroshenko, is that such claims and to file is not necessary, because the Federation refuses to participate in the consideration of these issues. Of course, Russia would have refused, but the filing of such a lawsuit could testify to the fact that Ukraine is clearly evaluates what happened as a violation of the UN Charter, international relations and the like. Second. In this case, the Russian Federation by the fact of refusal would confirm they were wrong. It had to do, but was not done.
Next. Poroshenko said that we ATO and does not admit in fact a war than to help those who claims that in Ukraine, the ongoing internal conflict. Such behaviour led us into another dead end. The fact that the ICJ denied us in part of the containment measures of the Russian Federation, which are linked to the financing of terrorism, due to the fact that we have a war and not terrorism financing. If Ukraine Poroshenko intentionally imposes the term of the ATO, in the West he doesn’t have the strength for that, and therefore there is a lack of arguments. In the end, it looks like a serious loss.
Another point concerns the fact that the ICJ recalled the Minsk agreement, and it makes Russia and Ukraine to fulfill the Minsk agreements. It’s very strange, because, again, this court may examine without the consent of the two parties only to what was pre-defined as jurisdiction of the ICJ. In Minsk agreement was the consent of the Russian Federation and Ukraine that disputes which are connected with the implementation of the Minsk protocols should be considered in the Court of justice.
I have a suspicion that the Ukrainian side has again pressing the issue of the Minsk agreements. Since some of the items of these agreements do not pass through the Ukrainian Parliament, Poroshenko decided to push it through the court in the Hague. It will not lead to the fact that elections in the occupied territories, because society will not allow this to be done. But there’s a problem, because what will happen is that, say, Ukraine does not comply with the decision of the Hague court. There is another question. If the court went beyond the Conventions concerning the financing of terrorism and ethnic cleansing has gone the way of the adoption of the interim solution, which requires to perform the Minsk agreement, then why this court has not gone the way of, for example, a decision that would oblige the guarantor countries to implement the Budapest Memorandum? I think this is because the claim of the Ukraine to the ICJ or nothing has been written on the subject, or much less aggressively and less convincing than promises regarding the implementation of the Minsk agreements. I have all what happened, called the Minsk deadlock-3.
“#Betrayal and #Win, or that said court, in human language”
Andrey Pasechnik, counselor of the Embassy of Ukraine in the United States of America:
1. “Both sides should refrain from actions that may aggravate the dispute”, it means that both Ukraine and the Russian Federation is prohibited to perform any actions that may constitute violations of the Convention. This includes the obligation and the Convention on the suppression of the financing of terrorism (CFT), and the Convention on the elimination of all forms of racial discrimination (CERD).
2. “Both sides need to fulfill the Minsk agreements”, the first of which is a cease-fire. With the cessation of the armed conflict will end automatically and the mass civilian casualties that are caused by the illegal supply of weapons from Russia.
3. “The Russian Federation is obliged not to create obstacles for the activities of the government bodies of the Crimean Tatars, including the Mejlis.” The court referred to the report of international observers, who noted that none of the puppet Crimean Tatar bodies is neither representative nor legitimate. Now Russia needs to figure out how to resume the activities of the Majlis.
4. “The Russian Federation is obliged to renew the possibility of studying the Ukrainian language at the Crimean Peninsula.” In this part, the court noted that the reduction of Ukrainian-language teaching and learning the Ukrainian language is under pressure from the authorities of the Russian Federation, which poses a threat of irreparable prejudice to the rights of ethnic Ukrainians.
So #betrayal #win”? Depends on expectations and the specifics of this stage of the process. Already, it seems clear that the court does not have its own army and the international organizations that guarantee the implementation of court decisions, sometimes stalled. But temporary measures assigned additional obligations on the Russian Federation. And the main thing — Ukraine is currently a unitary state in the world that could make Russia responsible for their actions, and not in the style of “look me in the eyes”, and even voice and without any emotion. And won, though not with the devastating account. So, definitely #winning.
PS on phantom #betrayal on temporary measures for FT, which accelerates in the press. I can put myself in the place of reporters who attempt to make the news sooner, but the failure to schedule specific provisional measures against Russia related to FT, does not mean that no measures introduced. In the judgment EVERY word matters, and EVERY word there is a serious international legal battle. Because of the above decisions of the court kasayetsya FT, I will not repeat. So #predatelstvom.
P. p. S. What next? The court will make procedural schedule — who, when and what gives, when will be held the following meeting. In the next years, 1.5-2 oral hearing is completed, comes the stage of filing of written documents. Chronologically Ukraine will give 8-10 months to submit its Memorandum (the so-called statement of claim), most likely, Russia will put forward the objection to jurisdiction that will result in another preliminary stage of the process — the consideration and decision of the question whether there is a dispute, whether the dispute conventions and did side all necessary pre-trial procedures. It is at this stage concluded the case on the suit of Georgia against Russia. Today, as in the case of Georgia, the court found that at first glance (prima facie), it is possible to give a positive answer to all three questions. But detailed consideration of this issue is yet to come. Actually like behind the scenes of the court and between the legal teams of the parties there is a battle for every letter and every punctuation mark.
“Appeal to the ICJ — it is a tactic. a strategy should be the preparation of the consolidated claims to the Russian Federation as the aggressor state”
Volodymyr Vasylenko, international lawyer, judge of the International criminal Tribunal of the former Yugoslavia (2002-2005):
— Early and inappropriate to talk about this court’s decision in the algorithm is winning or losing because it is intermediate, not the solution in fact, and also because the ICJ takes legal decisions on the basis of universally recognized norms of international law. This decision concerns only temporary measures to limit further violations and to eliminate the deterioration of the situation.
Overall, the ICJ’s decision can be assessed positively, because the Russian General demanded the court to reject the request of Ukraine on the introduction of provisional measures. These interim measures in no way will affect the subsequent review of the case in fact. Ukraine will have the opportunity to provide additional evidence to substantiate its position. I personally thought that the ICJ’s decision at this stage will be approximately as follows.
Taking, Ukraine acted on the maximum program. But it is obvious that for its implementation you need to do serious work to strengthen the evidence base.
Regarding the question whether the decision of the ICJ as a threat, so to speak, the recognition of Russian Crimea, the requirement the ICJ to Russia in fact recognizes the authority of the Kremlin on the Peninsula? I don’t think such a threat exists, because it is quite clear that the ICJ turns to the Russian Federation as the aggressor state, which exercises overall effective control over the occupied territory. Regarding the fact that the ICJ recalled the Minsk agreements, it is worth noting that the Court only drew attention to the necessity of fulfilling the Minsk agreements by the parties, and has not established their obligation to comply with them. These expectations do not relate to the part of the temporary measures.
Georgia in 2008 filed a lawsuit on violation of the Russian Federation of the Convention on all forms of racial discrimination. Ukraine has used her experience, and it gave its positive result. But Georgia went straight to the ICJ and have not fulfilled the conditions of the Convention concerning the application of all possible measures of peaceful settlement before the ICJ. She didn’t offer Russia, in particular, to start negotiations. We need to realize that the Court does not consider the question of aggression, and the violation of the Convention.
It is also worth noting that the formation of a consolidated lawsuit against Russia as the aggressor and the occupier does not intersect with claims for violation of the said Conventions. Appeal to international courts for violations of separate Conventions. It is a tactic. And the strategy should be to prepare a consolidated claim to the Russian Federation as the state aggressor. It should be a solid voluminous document. His training should be specially created coordination body. One Department can’t do it. This coordinating body or inter-Ministerial Commission should gather all the evidence that suggests that indeed there is aggression of Russia against Ukraine. It is necessary to legalize these testimonies, documents, evidence. Then must be counted the loss that caused the Russian Federation to Ukraine. Should be calculated the losses suffered by the Ukrainian state from the inflicted harm and loss as a result of the elimination of the harm. You need to commit all the war crimes committed by the Russian side, indicating the personnel of the Russian troops. To losses that required to compensate for the RF must be on and the loss of the Commission on its activities. Need to attach our Western partners that have imposed against Russia sanctions and who suffered losses as a result of these sanctions. It all lies in the universally recognized principles determining losses and corresponding amount of compensation that must pay the state-aggressor.
Emphasize that our Western partners should understand the danger that is the behavior of the Russian Federation aimed at undermining the international rule of law. In the end, there should be created an anti-Putin coalition like the anti-Hitler coalition, in order to prevent those consequences which resulted in his attempt to appease Hitler.