Author: Roshni Ravindra Chandewal

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination.

Court: International Court of Justice (ICJ)

Date of Judgment: 31 January 2024

Case Type: Contentious case (inter-State dispute) under two treaties: ICSFT (terrorism financing) and CERD (racial discrimination)

Bench / Composition of Court: According to the summary, the Court was composed of: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Pocar, Tuzmukhamedov; Registrar Gautier.

Relevant Provisions Invoked: International Convention for the Suppression of the Financing of Terrorism (ICSFT): Article 24 (Ukraine invoked Art. 24, para 1) as basis for ICJ jurisdiction.

international Convention on the Elimination of All Forms of Racial Discrimination (CERD): Article 22 (Ukraine invoked Art. 22) as basis for ICJ jurisdiction

Introduction

The case Ukraine v. Russian Federation brought before the International Court of Justice (ICJ) in 2022–2024 concerns allegations by Ukraine against Russia under two key international treaties: the International Convention for the Suppression of the Financing of Terrorism (ICSFT, 1999) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965). Ukraine alleges that Russia engaged in unlawful acts of aggression, including military actions in Crimea and eastern Ukraine, which involved financing of terrorism and systematic racial discrimination against certain ethnic groups, particularly Crimean Tatars and Ukrainians.

The application highlights the growing role of international judicial mechanisms in addressing state accountability for violations of human rights and international security. Ukraine invoked Articles 24 and 22 of the ICSFT and CERD, respectively, to establish the ICJ’s jurisdiction, seeking provisional measures to prevent further violations and ensure Russia complies with its treaty obligations. The case is significant as it underscores the interplay between international human rights law, anti-terrorism obligations, and the enforcement challenges in contemporary conflicts.

Brief Facts

1. Parties Involved: The case was brought by Ukraine against the Russian Federation before the International Court of Justice (ICJ).
2. Nature of Allegations: Ukraine alleged that Russia violated its obligations under two international treaties:

1. International Convention for the Suppression of the Financing of Terrorism (ICSFT, 1999) – by financing and supporting acts of terrorism on Ukrainian territory.
2. International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965) – by committing acts of racial discrimination, particularly against Crimean Tatars and ethnic Ukrainians in territories under Russian control.

3. Context: The allegations relate primarily to the annexation of Crimea in 2014 and the ongoing military aggression in eastern Ukraine, where Ukraine claimed that Russia’s actions involved unlawful military interventions, support for armed groups, and systematic oppression of specific ethnic communities.
4. Jurisdiction: Ukraine invoked Article 24 of the ICSFT and Article 22 of CERD to establish ICJ jurisdiction and sought provisional measures to prevent further violations while the case is pending.
5. Objective: Ukraine requested the Court to order Russia to cease acts of terrorism and racial discrimination, ensure the protection of vulnerable populations, and comply with international obligations under both treaties.

Issue Involved

The central issue in this case was whether the Russian Federation had violated its international obligations under:

1. The International Convention for the Suppression of the Financing of Terrorism (ICSFT, 1999) – specifically, whether Russia had financed or supported terrorist acts on Ukrainian territory, in breach of its obligations under Article 2 of the ICSFT.
2. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965) – specifically, whether Russia had engaged in acts of racial discrimination against ethnic groups, including Crimean Tatars and ethnic Ukrainians, violating its obligations under Article 2 and other relevant provisions of CERD.
3. Jurisdictional question: Whether the ICJ had jurisdiction to entertain Ukraine’s application under Article 24 of the ICSFT and Article 22 of CERD.
4. Provisional measures: Whether the Court should order urgent provisional measures requiring Russia to halt alleged violations while the proceedings are ongoing to prevent irreparable harm.

In essence, the case raised questions of state responsibility for acts of aggression, financing of terrorism, and racial discrimination, and the enforcement of international treaty obligations before the ICJ.

Petitioner’s Argument

1. Violation of the ICSFT:

1. Ukraine argued that Russia had financed and supported acts of terrorism on Ukrainian territory, particularly through backing armed groups in Crimea and eastern Ukraine.
2. Ukraine claimed these acts fell squarely within the definition of terrorism under the International Convention for the Suppression of the Financing of Terrorism (ICSFT, 1999).
3. Ukraine maintained that Russia had a legal obligation under Article 2 of ICSFT to prevent and suppress terrorism financing and had failed to do so.
4. Violation of CERD:

1. Ukraine alleged that Russia had committed racial discrimination against Crimean Tatars and ethnic Ukrainians in occupied territories, including restrictions on language, culture, religion, and political participation.
2. Ukraine contended that these actions breached Russia’s obligations under Articles 2 and 6 of CERD, which require states to eliminate racial discrimination and protect minority groups.
3. Provisional Measures:
4. Ukraine sought urgent provisional measures from the ICJ to prevent further harm to civilians, maintain the status quo, and ensure Russia refrains from financing terrorism or committing racial discrimination while the case is pending.
5. Jurisdiction:
6. Ukraine argued that the ICJ had jurisdiction under Article 24 of ICSFT and Article 22 of CERD, and that the treaties expressly allowed for interstate disputes to be adjudicated before the Court.

In short, Ukraine framed its case as one of state responsibility for serious breaches of international law, combining anti-terrorism obligations with human rights protections.

Respondent’s Argument

1. Challenge to Jurisdiction:

1. Russia contested the jurisdiction of the ICJ, arguing that Ukraine’s claims did not fall within the scope of Article 24 of ICSFT or Article 22 of CERD.
2. Russia claimed that the ICJ could not adjudicate disputes relating to military and security actions on its own territory or in areas it controls, asserting that Ukraine’s application improperly invoked treaty provisions for political purposes.
3. Denial of Alleged Violations:

1. Russia denied that it had financed or supported acts of terrorism in Ukraine, arguing that the armed groups in Crimea and eastern Ukraine were internal actors and not under Russian control.
2. On CERD claims, Russia contended that no systematic racial discrimination had occurred against Crimean Tatars or ethnic Ukrainians, and any administrative or security measures taken were legitimate state actions, not violations of the Convention.
3. Political Nature of the Dispute:
4. Russia maintained that the dispute was fundamentally political and military in nature, rather than a legal controversy suitable for the ICJ, and therefore the Court should decline to exercise jurisdiction.
5. Provisional Measures:
6. Russia opposed Ukraine’s request for provisional measures, arguing that such orders would interfere with Russia’s sovereign actions and ongoing security operations, and that the ICJ had no authority to compel compliance in this context.

In essence, Russia’s defence combined jurisdictional objections, denial of substantive violations, and assertions of political/military prerogatives to resist ICJ intervention.

Judgement

On 19 April 2022 (provisional measures), the International Court of Justice (ICJ) issued its order on provisional measures requested by Ukraine. Later developments continued into 2023–2024 as the proceedings unfolded.

1. Jurisdiction:

1. The ICJ confirmed that it had prima facie jurisdiction under Article 24 of the ICSFT and Article 22 of CERD to entertain Ukraine’s application.
2. The Court emphasized that these treaty provisions allow disputes between State Parties to be brought before the ICJ.
3. Provisional Measures Ordered:

The ICJ directed Russia to:

1. Cease all acts of racial discrimination against persons in the territories of Crimea and eastern Ukraine, particularly Crimean Tatars and ethnic Ukrainians.
2. Ensure that any group of persons in those territories is not subjected to acts of terrorism or financing of terrorism.
3. Report to the Court periodically on the measures taken to comply with these orders.
4. Rationale:

1. The Court held that irreparable harm could occur if Russia continued its alleged acts, particularly in relation to vulnerable populations.
2. Provisional measures are binding, even though the final merits of the case had not yet been decided.
3. The ICJ stressed that these measures are intended to preserve the rights of the parties and prevent escalation, not to prejudge the merits of the dispute.
4. Significance:
5. This was one of the rare instances where the ICJ issued binding provisional measures in an ongoing armed conflict, highlighting the role of international law in protecting human rights and curbing financing of terrorism even in wartime.

Ratio Decidendi

1. Prima Facie Jurisdiction of the ICJ under ICSFT and CERD:
2. The ICJ established that it had prima facie jurisdiction under:

1. Article 24 of the ICSFT – allowing disputes regarding treaty obligations related to the financing of terrorism to be brought before the Court.
2. Article 22 of CERD – permitting inter-State disputes over racial discrimination obligations to be adjudicated by the ICJ.
3. Legal principle: Where treaties expressly confer jurisdiction, the ICJ can entertain disputes even amidst an ongoing armed conflict, provided the claims are prima facie plausible.
4. Necessity of Provisional Measures to Prevent Irreparable Harm:

1. The Court reasoned that the alleged acts by Russia—financing/supporting terrorism and racial discrimination—could cause irreparable harm to individuals and communities in Crimea and eastern Ukraine.
2. Legal principle: When there is a risk of irreparable prejudice to rights under international treaties, the ICJ has the authority to prescribe binding provisional measures to prevent further violations.
3. Binding Nature of Provisional Measures:

1. The ICJ emphasized that provisional measures are legally binding and must be complied with, even though the Court has not yet ruled on the merits of the case.
2. Legal principle: Provisional measures are an essential tool for protecting treaty rights and preserving the subject matter of the dispute until a final judgment.
3. Protection of Vulnerable Groups under International Law:

1. The Court highlighted that the obligations under CERD require states to take all necessary measures to prevent racial discrimination and protect vulnerable populations, regardless of the context of armed conflict.
2. Legal principle: States cannot evade treaty obligations on human rights or anti-terrorism measures, even during military operations.

Analysis

This case represents a significant moment in the evolution of international dispute resolution, particularly in the context of armed conflict and allegations involving terrorism financing and racial discrimination. The ICJ’s approach demonstrates a careful balance between legal interpretation and geopolitical sensitivity.

One of the most important aspects of the case is the Court’s acknowledgment of its prima facie jurisdiction under both conventions. By recognizing jurisdiction based on treaty-specific dispute resolution clauses (Article 24 ICSFT and Article 22 CERD), the ICJ reaffirmed that international treaty obligations remain valid and enforceable even when parties are engaged in active armed conflict. This marks an important assertion that the rule of law persists during wartime and that states cannot shield themselves behind claims of sovereignty or political character when treaty violations are alleged.

A second analytical point is the Court’s treatment of provisional measures. The ICJ’s decision reflects an evolving doctrine in which provisional measures are not merely precautionary but serve as a mechanism to preserve rights and prevent irreversible harm. In this case, the Court emphasized that vulnerable civilian populations—particularly Crimean Tatars and ethnic Ukrainians—faced a credible risk of irreparable prejudice. This reasoning aligns with prior jurisprudence, such as in The Gambia v. Myanmar and Bosnia and Herzegovina v. Serbia and Montenegro, where human rights concerns justified urgent intervention.

Notably, the Court refrained from making findings on the merits at the provisional stage. The allegations of terrorism financing under the ICSFT require a high evidentiary threshold, including proof of specific intent to finance terrorism—an issue likely to be highly contested in the merits phase. Likewise, proving systemic racial discrimination under CERD involves demonstrating discriminatory patterns or state policies, rather than isolated incidents.

The case also reflects broader implications for the international order. Ukraine’s reliance on treaty law to challenge Russia before the ICJ illustrates the growing practice of using legal mechanisms rather than purely political or military channels to address large-scale violations. Meanwhile, Russia’s jurisdictional objections signal a familiar pattern in which powerful states frame treaty-based claims as politically motivated to avoid adjudication.

Finally, the Court’s decision reinforces the principle that international legal obligations in areas such as counterterrorism and racial equality are binding and enforceable, even against major geopolitical powers. Although the effectiveness of enforcement depends on compliance—something uncertain in this context—the ruling strengthens the normative framework surrounding state accountability.

Final Decision

Ukraine instituted proceedings in January 2017 amid escalating tensions following Russia’s alleged involvement in eastern Ukraine (from early 2014) and annexation of Crimea. The current armed conflict, with immense human costs, has intensified since, but the Court’s jurisdiction is strictly limited to alleged violations of the ICSFT (terrorism financing in eastern Ukraine) and CERD (racial discrimination against Crimean Tatars and ethnic Ukrainians in Crimea). The ICJ explicitly excludes broader disputes like Russia’s “aggression,” “unlawful occupation,” or Crimea’s status under international law.

In its 2019 preliminary objections judgment, the Court affirmed jurisdiction under ICSFT Article 24(1) and CERD Article 22, defining the dispute in two aspects: (1) Russia’s duty to prevent/suppress terrorism financing in eastern Ukraine, particularly by groups like the Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR); and (2) discriminatory measures in Crimea violating CERD. Ukraine alleges Russia failed to curb financial support for DPR/LPR-linked attacks and other acts, while in Crimea, it pursued a discriminatory campaign post-2014 takeover, stripping minorities of political, civil, economic, social, and cultural rights.

ICSFT Analysis: Preliminary Issues

Both states ratified the ICSFT (Russia 2002, Ukraine 2003) without reservations. The Court first dismisses Russia’s late-stage “clean hands” invocation—claiming Ukraine’s alleged misconduct bars its claims—as a merits defence. Historically cautious, the ICJ has never recognized “clean hands” as customary law or a general principle, rejecting it for admissibility or merits in inter-state disputes with valid jurisdiction (citing Jadhav and Certain Iranian Assets).

Key interpretations follow:

• “Funds” (Article 1(1)): Limited to monetary/financial resources (e.g., cash, securities, cryptocurrencies, real estate provided for value). Excludes non-financial means like weapons or training camps, as the ICSFT targets “financing,” not general terrorism support. Textual breadth (“assets of every kind”) is contextualized by the convention’s focus on financial transactions (Articles 8, 12, 13, 18) and purpose: suppressing funding via charities or illicit channels, per travaux préparatoires.
• Terrorism Financing Offence (Article 2(1)): Applies ratione personae to “any person” (individuals or state agents), obliging states to suppress private financing, though direct state funding is outside scope. Ratione materiae, only the financing act (chapeau) qualifies; predicate acts (subparas. (a) treaties-listed offences; (b) civilian-targeted acts to intimidate/compel) are elements, not standalone offences. Mens rea requires “intention” or “knowledge” funds will fund predicates; Ukraine relies on knowledge (awareness at provision time), inferable from objective facts like recipient groups’ notorious terrorism (e.g., UN designations), but not unilateral state labels.
• Predicate Acts and Proof: No need to prove specific incidents or group notoriety here; focus is Russia’s non-cooperation (e.g., freezing assets, investigations under Articles 8-10, 12, 18). Evidence standard: convincing, not heightened (unlike genocide), allowing inferences where Ukraine lacks territorial control.

The judgment proceeds to merits, finding partial breaches (e.g., Russia’s inadequate responses to Ukraine’s 2014-2016 requests), but rejects most claims for insufficient proof of knowledge-linked financing. Under CERD, Russia violated non-discrimination duties by dissolving Crimean Tatar assemblies and restricting Ukrainian-language education/culture. No reparations ordered; parties urged cooperation.

This ruling underscores the ICJ’s restrained role in ongoing conflicts, prioritizing treaty-specific obligations over geopolitical adjudication.