Ukraine-Russia Showdown before the ICJ – Andrea Raab

On 16 January 2017, Ukraine instituted proceedings against Russia before the International Court of Justice (“ICJ”). In its application, Ukraine bases the Court’s jurisdiction on the International Convention for the Suppression of the Financing of Terrorism (“CFT”) as well as the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) (paras 7 and 13 of the application).

Concerning CFT, Ukraine contends that Russia violated its obligations by inter alia supplying funds, weapon and training to illegal armed troops, which engage in terrorism in Ukraine (para 134). Notably, it requests the Court to find that, by virtue of Russia’s sponsorship and failure to prevent the financing of terrorism, it bears international responsibility for matters including the shooting down of Malaysian Airlines Flight MH17 (para 135).

As regards CERD, Ukraine argues that Russia, “through its State organs and agents, as well as other persons and entities exercising governmental authority, including the de facto authorities administering the illegal Russian occupation of Crimea”, systematically discriminates against and mistreats Crimean tartars (para 137). Notably, Ukraine also submits that, in the Autonomous Republic of Crimea, Russia has “brazenly defied the UN Charter, seizing a part of Ukraine’s sovereign territory by military force” (para 5).

Ukraine’s application raises a number of controversial issues. This article deals with one of them, namely Russia’s responsibility for the shoot-down of MH17. In this regard, it will first pinpoint potential issues of jurisdiction and admissibility. Subsequently, with respect to the merits, it will discuss possible obstacles relating to the attribution of the shoot-down to Russia.

  1. Issues relating to jurisdiction and admissibility over Russia’s responsibility for the shoot-down of MH17

States may confer jurisdiction upon the ICJ in four ways. First, states may confer jurisdiction by both submitting a declaration under Art 36(2) of the ICJ Statute, whereby they consent ipso facto to the ICJ’s jurisdiction. Second, both states may be parties to a treaty containing a relevant compromissory clause. Third, the parties may conclude a compromis after the dispute has arisen or, lastly, the respondent State may consent implicitly by virtue of forum prorogatum after the issue is referred to the court.

Russia has neither lodged a declaration under Art 36(2), nor does there seem to be a compromis. It is too early to judge whether the ICJ could base its jurisdiction on forum prorogatum, as Russia has not yet submitted any response to the ICJ. Thus, Ukraine’s only option was to rely on a compromissory clause contained in a treaty to which both Ukraine and Russia are parties. Specifically, Ukraine relied on the compromissory clauses contained in Art 24 CFT and Art 22 CERD. Hence, Ukraine seems to be attempting to package the actual issues, that is the shooting down of MH17, in a manner so as to fit within the compromissory clauses of those treaties.

This practice of “shoehorning” is not novel: this approach was utilised by the Philippines in the South China Sea dispute and Georgia in Georgia v Russia. The ICJ’s role in this context is the following: it first must establish the applicability of CFT and/or CERD. Second, it must find that there is a dispute and that this dispute concerns the interpretation or application of CERD and/or CFT (cf Art 22 CERD and Art 24 CFT). It is at this point that the art of framing the dispute accordingly comes in. Thus far, as Tzanakopoulos points out, tribunals, including the ICJ, have reacted in a rather lenient way to cases of shoehorning.

However, as explained above, Art 24 CFT establishes the ICJ’s jurisdiction for disputes regarding its “interpretation or application” only. Yet, it may be difficult to see how the responsibility for the shooting down of MH17 is a question relating to the interpretation or application of CFT. This is so because the responsibility for the shoot-down of a plane only tangentially touches upon the financing of terrorism. Consequently, this issue could fall outside the Court’s jurisdiction.

Even if the ICJ finds jurisdiction in this regard, the matter may be inadmissible. By shooting down the plane, Russia did not per se injure Ukraine. Neither were Ukrainian citizens hurt, nor was the aircraft Ukrainian. Therefore, Ukraine might lack locus standi (cf. Art 42 of the ILC’s Articles on State Responsibility, see also Tomuschat in Zimmermann, Commentary on the ICJ Statute, Art 36, paras 132 et seq). Moreover, Ukraine thus far has not asserted that Russia has breached any erga omnes obligation, which could have given it some standing (cf. Barcelona Traction; Commentary on the ICJ Statute, Art 36 para 133).

In all, the ICJ may not have jurisdiction over the question of Russia’s responsibility for the shooting down of MH17, as this may not pertain to the interpretation or application of CFT. Additionally, Ukraine may not have standing to bring this issue before the ICJ.

  1. Obstacles relating to the attribution of the shoot-down to Russia

In the event that the issue indeed reaches the merits stage, another problem could potentially arise, namely that of attribution. In order for a state to bear state responsibility, two cumulative criteria must be fulfilled. First, the state must have committed an internationally wrongful act and, second, this conduct must be attributable to that state.

Ukraine argues that the wrongful act is the shooting down of MH17. As regards attribution to states of conduct committed by non-state actors, Art 8 of the Articles on State Responsibility stipulates that the “conduct of a person or group shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” Different standards are applied by the ICJ and the ICTY when it comes to the degree of control required. In particular, the ICJ established in Nicaragua the effective control standard, which necessitates the issuance of orders pertaining to specific operations. By contrast, the ICTY in Tadic was satisfied with overall control in the case of organised groups, that is, the equipping, financing or training and providing operational support to the group, as well as the coordinating or helping in the general planning of the group’s military or paramilitary activity. However, and although the ICTY dealt with attribution to a state of the conduct of non-state actors, it did not do so within the realm of state responsibility. Moreover, the ICJ upheld the applicability of the effective control test within the ambit of state responsibility in the Bosnian Genocide Case.

As pointed out, Ukraine claims that Russia bears the responsibility over the shooting down due to its sponsorship of terrorism and its failure to prevent the financing of terrorism. If the ICJ upholds its decisions in Nicaragua and the Bosnian Genocide Case, the mere sponsorship of “terrorism” as alleged by Ukraine may not suffice to attribute the shooting down to Russia. However, Ukraine also submits that the shooting down was attributable by virtue of Russia’s omission to prevent third parties from financing terrorism. In other words, Ukraine purports that the shooting down is to be considered an act of the Russian State because non-state actors shot down the plane, and though those non-state actors were financed by another party, Russia had violated its CFT obligations by not preventing this from happening. It does not seem to claim that Russia had any degree of control over the persons who shot down MH17. Ukraine merely states that the Court should find that Russia bears international responsibility for the shooting down of MH17 “committed by its proxies” “by virtue of…its failure to prevent the financing” of terrorism. Thus, Ukraine appears to be inferring and relying upon the violation of an obligation to prevent the financing of terrorism as a ground for attribution. Although some scholars have brought forth such a concept in the realm of the use of force and self-defence (see Starski, p 27 et seqq), the ICJ has not yet applied such a ground for attribution. Notably, this case is distinguishable from the Tehran Hostages Case, as Russia has not openly endorsed the activities of these non-state actors.

  1. Conclusion

Ukraine’s application to the ICJ raises a number of complex issues. This article addresses one of them, namely the shooting down of MH17. It highlights the obstacles that may arise relating to jurisdiction as well as admissibility, and points out which issues could appear with respect to the question of attribution. With regard to the former, the difficulty in seeing how the shooting down relates to the application or interpretation of CFT was explored, and the potential issue of Ukraine’s standing was pinpointed. Moreover, it was contemplated that the mere sponsorship of non-state actors may be insufficient to attribute their conduct to Russia. Lastly, it illustrated what hurdles may arise in the context of attribution by virtue of a State’s violation of an obligation. With the preliminary objections hearing scheduled for early March 2017, it will be interesting to observe how the ICJ deals with these issues.

Andrea Raab is a Magister Juris (MJur) Candidate at the University of Oxford, where she focuses on public international law. Andrea completed her undergraduate law degree at the University of Vienna. She is a laureate of the Heinrich Klang Award for the best ten graduates of the Vienna Law Faculty.