19 AVRIL 2017
ORDONNANCE
APPLICATION DE LA CONVENTION INTERNATIONALE POUR LA RÉPRESSION
DU FINANCEMENT DU TERRORISME ET DE LA CONVENTION
INTERNATIONALE SUR L’ÉLIMINATION DE TOUTES
LES FORMES DE DISCRIMINATION RACIALE
(UKRAINE c. FÉDÉRATION DE RUSSIE)
___________
APPLICATIONOF THEINTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THEFINANCING OF TERRORISM AND OFTHE INTERNATIONAL
CONVENTION ON THEELIMINATIONOF ALLFORMSOF RACIAL
DISCRIMINATION
(UKRAINE v. RUSSIANFEDERATION)
19 APRIL 2017
ORDER TABLE OF C ONTENTS
Paragraphs
C HRONOLOGY OF THE PROCEDURE 1-15
I. PRIMA FACIE JURISDICTION 17-62
1. General introduction 17-21
2. Existence of a dispute concerning the interpretation or application
of ICSFT and CERD 22-39
(a) The International Convention for the Suppression of the
Financing of Terrorism 24-31
(b) The International Convention on the Elimination of All Forms
of Racial Discrimination 32-39
3. Procedural preconditions 40-61
(a) The International Convention for the Suppression of the
Financing of Terrorism 47-54
(b) The International Convention on the Elimination of All Forms
of Racial Discrimination 55-61
4. Conclusion as to prima facie jurisdiction 62
II. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE MEASURES
REQUESTED 63-86
1. General introduction 63-64
2. The International Convention for the Suppression of the Financing
of Terrorism 65-77
3. The International Convention on the Elimination of All Forms of
Racial Discrimination 78-86
III. RISK OF IRREPARABLE PREJUDICE AND URGENCY 87-98
IV. C ONCLUSION AND MEASURES TO BE ADOPTED 99-105
O PERATIVE PARAGRAPH 106
___________ INTERNATIONAL COURT OF JUSTICE
YEAR 2017
2017
19 April
General List
No. 166
19 April 2017
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
(UKRAINE v. RUSSIAN FEDERATION)
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
ORDER
Present: President BRAHAM ; Vice-President USUF; Judges OWADA , TOMKA , BENNOUNA ,
C ANÇADO TRINDADE , REENWOOD , XUE, DONOGHUE , GAJA, EBUTINDE , HANDARI ,
R OBINSON, CRAWFORD ; Judges ad hocOCAR , KOTNIKOV ; RegistrarOUVREUR .
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of
the Rules of Court, - 2 -
Makes the following Order:
Whereas:
1. On 16 January 2017, the Government of Ukraine filed in the Registry of the Court an
Application instituting proceedings against the Russian Federation with regard to alleged violations
of the International Convention for the Suppression of the Financing of Terrorism of
9 December 1999 (hereinafter the “ICSFT”) and the International Convention on the Elimination of
All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD”).
2. With regard to the ICSFT, Ukraine presented the following claims in its Application:
“134. Ukraine respectfully requests the Court to adjudge and declare that the
Russian Federation, through its State organs, State agents, and other persons and
entities exercising governmental authority, and through other agents acting on its
instructions or under its direction and control, has violated its obligations under the
Terrorism Financing Convention by:
(a) supplying funds, including in-kind contributions of weapons and training, to
illegal armed groups that engage in acts of terrorism in Ukraine, including the
DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals, in
violation of Article 18;
(b) failing to take appropriate measures to detect, freeze, and seize funds used to assist
illegal armed groups that engage in acts of terrorism in Ukraine, including the
DPR, the LPR, the Kharkiv Partisans, and associated groups and individuals, in
violation of Articles 8 and 18;
(c) failing to investigate, prosecute, or extradite perpetrators of the financing of
terrorism found within its territory, in violation of Articles 9, 10, 11, and 18;
(d) failing to provide Ukraine with the greatest measure of assistance in connection
with criminal investigations of the financing of terrorism, in violation of
Articles 12 and 18; and
(e) failing to take all practicable measures to prevent and counter acts of financing of
terrorism committed by Russian public and private actors, in violation of
Article 18.
135. Ukraine respectfully requests the Court to adjudge and declare that the
Russian Federation bears international responsibility, by virtue of its sponsorship of
terrorism and failure to prevent the financing of terrorism under the Convention, for
the acts of terrorism committed by its proxies in Ukraine, including: - 3 -
(a) the shoot-down of Malaysian Airlines Flight MH17;
(b) the shelling of civilians, including in Volnovakha, Mariupol, and Kramatorsk; and
(c) the bombing of civilians, including in Kharkiv.
136. Ukraine respectfully requests the Court to order the Russian Federation to
comply with its obligations under the Terrorism Financing Convention, including that
the Russian Federation:
(a) immediately and unconditionally cease and desist from all support, including the
provision of money, weapons, and training, to illegal armed groups that engage in
acts of terrorism in Ukraine, including the DPR, the LPR, the Kharkiv Partisans,
and associated groups and individuals;
(b) immediately make all efforts to ensure that all weaponry provided to such armed
groups is withdrawn from Ukraine;
(c) immediately exercise appropriate control over its border to prevent further acts of
financing of terrorism, including the supply of weapons, from the territory of the
Russian Federation to the territory of Ukraine;
(d) immediately stop the movement of money, weapons, and all other assets from the
territory of the Russian Federation and occupied Crimea to illegal armed groups
that engage in acts of terrorism in Ukraine, including the DPR, the LPR, the
Kharkiv Partisans, and associated groups and individuals, including by freezing all
bank accounts used to support such groups;
(e) immediately prevent all Russian officials from financing terrorism in Ukraine,
including Sergei Shoigu, Minister of Defense of the Russian Federation;
Vladimir Zhirinovsky, Vice-Chairman of the State Duma; Sergei Mironov,
member of the State Duma; and Gennadiy Zyuganov, member of the State Duma,
and initiate prosecution against these and other actors responsible for financing
terrorism;
(f) Immediately provide full co-operation to Ukraine in all pending and future
requests for assistance in the investigation and interdiction of the financing of
terrorism relating to illegal armed groups that engage in acts of terrorism in
Ukraine, including the DPR, the LPR, the Kharkiv Partisans, and associated
groups and individuals;
(g) make full reparation for the shoot-down of Malaysian Airlines Flight MH17; - 4 -
(h) make full reparation for the shelling of civilians in Volnovakha;
(i) make full reparation for the shelling of civilians in Mariupol;
(j) make full reparation for the shelling of civilians in Kramatorsk;
(k) make full reparation for the bombing of civilians in Kharkiv; and
(l) make full reparation for all other acts of terrorism the Russian Federation has
caused, facilitated, or supported through its financing of terrorism, and failure to
prevent and investigate the financing of terrorism.”
3. With regard to CERD, Ukraine presented the following claims in its Application:
“137. Ukraine respectfully requests the Court to adjudge and declare that the
Russian Federation, through its State organs, State agents, and other persons and
entities exercising governmental authority, including the de facto authorities
administering the illegal Russian occupation of Crimea, and through other agents
acting on its instructions or under its direction and control, has violated its obligations
under the CERD by:
(a) systematically discriminating against and mistreating the Crimean Tatar and ethnic
Ukrainian communities in Crimea, in furtherance of a state policy of cultural
erasure of disfavored groups perceived to be opponents of the occupation regime;
(b) holding an illegal referendum in an atmosphere of violence and intimidation
against non-Russian ethnic groups, without any effort to seek a consensual and
inclusive solution protecting those groups, and as an initial step toward depriving
these communities of the protection of Ukrainian law and subjecting them to a
regime of Russian dominance;
(c) suppressing the political and cultural expression of Crimean Tatar identity,
including through the persecution of Crimean Tatar leaders and the ban on the
Mejlis of the Crimean Tatar People;
(d) preventing Crimean Tatars from gathering to celebrate and commemorate
important cultural events;
(e) perpetrating and tolerating a campaign of disappearances and murders of Crimean
Tatars; - 5 -
(f) harassing the Crimean Tatar community with an arbitrary regime of searches and
detention;
(g) silencing Crimean Tatar media;
(h) suppressing Crimean Tatar language education and the community’s educational
institutions;
(i) suppressing Ukrainian language education relied on by ethnic Ukrainians;
(j) preventing ethnic Ukrainians from gathering to celebrate and commemorate
important cultural events; and
(k) silencing ethnic Ukrainian media.
138. Ukraine respectfully requests the Court to order the Russian Federation to
comply with its obligations under the CERD, including:
(a) immediately cease and desist from the policy of cultural erasure and take all
necessary and appropriate measures to guarantee the full and equal protection of
the law to all groups in Russian-occupied Crimea, including Crimean Tatars and
ethnic Ukrainians;
(b) immediately restore the rights of the Mejlis of the Crimean Tatar People and of
Crimean Tatar leaders in Russian-occupied Crimea;
(c) immediately restore the rights of the Crimean Tatar people in Russian-occupied
Crimea to engage in cultural gatherings, including the annual commemoration of
the Sürgün;
(d) immediately take all necessary and appropriate measures to end the disappearance
and murder of Crimean Tatars in Russian-occupied Crimea, and to fully and
adequately investigate the disappearances of Reshat Ametov,
Timur Shaimardanov, Ervin Ibragimov, and all other victims;
(e) immediately take all necessary and appropriate measures to end unjustified and
disproportionate searches and detentions of Crimean Tatars in Russian-occupied
Crimea;
(f) immediately restore licenses and take all other necessary and appropriate measures
to permit Crimean Tatar media outlets to resume operations in Russian-occupied
Crimea;
(g) immediately cease interference with Crimean Tatar education and take all
necessary and appropriate measures to restore education in the Crimean Tatar
language in Russian-occupied Crimea; - 6 -
(h) immediately cease interference with ethnic Ukrainian education and take all
necessary and appropriate measures to restore education in the Ukrainian language
in Russian-occupied Crimea;
(i) immediately restore the rights of ethnic Ukrainians to engage in cultural gatherings
in Russian-occupied Crimea;
(j) immediately take all necessary and appropriate measures to permit the free
operation of ethnic Ukrainian media in Russian-occupied Crimea; and
(k) make full reparation for all victims of the Russian Federation’s policy and pattern
of cultural erasure through discrimination in Russian-occupied Crimea.”
4. In its Application, Ukraine seeks to found the Court’s jurisdiction on Article 24,
paragraph 1, of the ICSFT and on Article 22 of CERD.
5. On 16 January 2017, Ukraine also submitted a Request for the indication of provisional
measures, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.
6. With respect to the ICSFT, in paragraph 23 of its Request for the indication of provisional
measures, Ukraine asked the Court to indicate the following provisional measures:
“(a) The Russian Federation shall refrain from any action which might aggravate or
extend the dispute under the Terrorism Financing Convention before the Court or
make this dispute more difficult to resolve.
(b) The Russian Federation shall exercise appropriate control over its border to
prevent further acts of terrorism financing, including the supply of weapons from
the territory of the Russian Federation to the territory of Ukraine.
(c) The Russian Federation shall halt and prevent all transfers from the territory of the
Russian Federation of money, weapons, vehicles, equipment, training, or
personnel to groups that have engaged in acts of terrorism against civilians in
Ukraine, or that the Russian Federation knows may in the future engage in acts of
terrorism against civilians in Ukraine, including but not limited to the ‘Donetsk
People’s Republic’, the ‘Luhansk People’s Republic’, the ‘Kharkiv Partisans’, and
associated groups and individuals.
(d) The Russian Federation shall take all measures at its disposal to ensure that any
groups operating in Ukraine that have previously received transfers from the
territory of the Russian Federation of money, weapons, vehicles, equipment,
training, or personnel will refrain from carrying out acts of terrorism against
civilians in Ukraine.” - 7 -
7. With respect to CERD, in paragraph 24 of its Request for the indication of provisional
measures, Ukraine asked the Court to indicate the following provisional measures:
“(a) The Russian Federation shall refrain from any action which might aggravate or
extend the dispute under CERD before the Court or make it more difficult to
resolve.
(b) The Russian Federation shall refrain from any act of racial discrimination against
persons, groups of persons, or institutions in the territory under its effective
control, including the Crimean peninsula.
(c) The Russian Federation shall cease and desist from acts of political and cultural
suppression against the Crimean Tatar people, including suspending the decree
banning the Mejlis of the Crimean Tatar People and refraining from enforcement
of this decree and any similar measures, while this case is pending.
(d) The Russian Federation shall take all necessary steps to halt the disappearance of
Crimean Tatar individuals and to promptly investigate those disappearances that
have already occurred.
(e) The Russian Federation shall cease and desist from acts of political and cultural
suppression against the ethnic Ukrainian people in Crimea, including suspending
restrictions on Ukrainian-language education and respecting ethnic Ukrainian
language and educational rights, while this case is pending.”
8. The Registrar immediately communicated to the Government of the Russian Federation
the Application, in accordance with Article 40, paragraph 2, of the Statute of the Court, and the
Request for the indication of provisional measures, in accordance with Article 73, paragraph 2, of
the Rules of Court. He also notified the Secretary-General of the United Nations of the filing of the
Application and the Request by Ukraine.
9. Pending the notification provided for by Article 40, paragraph 3, of the Statute by
transmission of the printed bilingual text of the Application to the Members of the United Nations
through the Secretary-General, the Registrar informed those States of the filing of the Application.
10. By letters dated 20 January 2017, the Registrar informed both Parties that the Member of
the Court of the nationality of the Russian Federation, referring to Article 24, paragraph 1, of the
Statute, had notified the Court of his intention not to participate in the decision of the case.
Pursuant to Article 31 of the Statute and Article 37, paragraph 1, of the Rules of Court, the Russian
Federation chose Mr. Leonid Skotnikov to sit as judge ad hoc in the case. - 8 -
11. Since the Court included upon the Bench no judge of Ukrainian nationality, Ukraine
proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a
judge ad hoc to sit in the case; it chose Mr. Fausto Pocar.
12. By letters dated 25 January 2017, the Registrar informed the Parties that, pursuant to
Article 74, paragraph 3, of the Rules, the Court had fixed 6, 7, 8 and 9 March 2017 as the dates for
the oral proceedings on the Request for the indication of provisional measures.
13. At the public hearings held from 6 to 9 March 2017, oral observations on the Request for
the indication of provisional measures were presented by:
On behalf of Ukraine: H.E. Ms Olena Zerkal,
Mr. Harold Hongju Koh,
Ms Marney Cheek,
Mr. Jonathan Gimblett.
On behalf of the Russian Federation: H.E. Mr. Roman Kolodkin,
Mr. Ilya Rogachev,
Mr. Samuel Wordsworth,
Mr. Andreas Zimmermann,
Mr. Grigoriy Lukiyantsev,
Mr. Mathias Forteau.
14. At the end of its second round of oral observations, Ukraine asked the Court to indicate
the following provisional measures:
“With respect to the Terrorism Financing Convention, Ukraine requests that the
Court order the following provisional measures:
(a) the Russian Federation shall refrain from any action which might aggravate or
extend the dispute under the Terrorism Financing Convention before the Court or
make this dispute more difficult to resolve.
(b) the Russian Federation shall exercise appropriate control over its border to prevent
further acts of terrorism financing, including the supply of weapons from the
territory of the Russian Federation to the territory of Ukraine.
(c) the Russian Federation shall halt and prevent all transfers from the territory of the
Russian Federation of money, weapons, vehicles, equipment, training, or
personnel to groups that have engaged in acts of terrorism against civilians in
Ukraine, or that the Russian Federation knows may in the future engage in acts of
terrorism against civilians in Ukraine, including but not limited to the ‘Donetsk
People’s Republic’, the ‘Luhansk People’s Republic’, the ‘Kharkiv Partisans’, and
associated groups and individuals. - 9 -
(d) the Russian Federation shall take all measures at its disposal to ensure that any
groups operating in Ukraine that have previously received transfers from the
territory of the Russian Federation of money, weapons, vehicles, equipment,
training, or personnel will refrain from carrying out acts of terrorism against
civilians in Ukraine.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
With respect to the CERD, Ukraine requests that the Court order the following
provisional measures:
(a) the Russian Federation shall refrain from any action which might aggravate or
extend the dispute under CERD before the Court or make it more difficult to
resolve.
(b) the Russian Federation shall refrain from any act of racial discrimination against
persons, groups of persons, or institutions in the territory under its effective
control, including the Crimean peninsula.
(c) the Russian Federation shall cease and desist from acts of political and cultural
suppression against the Crimean Tatar people, including suspending the decree
banning the Mejlis of the Crimean Tatar People and refraining from enforcement
of this decree and any similar measures, while this case is pending.
(d) the Russian Federation shall take all necessary steps to halt the disappearance of
Crimean Tatar individuals and to promptly investigate those disappearances that
have already occurred.
(e) the Russian Federation shall cease and desist from acts of political and cultural
suppression against the ethnic Ukrainian people in Crimea, including suspending
restrictions on Ukrainian-language education and respecting ethnic Ukrainian
language and educational rights, while this case is pending.”
15. At the end of its second round of oral observations, Russia made the following statement:
“In accordance with Article 60 of the Rules of the Court for the reasons
explained during these hearings the Russian Federation requests the Court to reject the
request for the indication of provisional measures submitted by Ukraine.”
*
* * - 10 -
16. The context in which the present case comes before the Court is well known. In large
parts of eastern Ukraine, that context is characterized by periods of extensive fighting which, as the
record before the Court demonstrates, has claimed a large number of lives. The destruction, on
17 July 2014, of Malaysia Airlines Flight MH17 while it was flying over Ukrainian territory
en route between Amsterdam and Kuala Lumpur, caused the deaths of 298 people. The Court is
well aware of the extent of this human tragedy. Nevertheless, the case before the Court is limited in
scope. In respect of the events in the eastern part of its territory, Ukraine has brought proceedings
only under the ICSFT. With regard to the events in Crimea, Ukraine’s claim is based solely upon
CERD and the Court is not called upon, as Ukraine expressly recognized, to rule upon any issue
other than allegations of racial discrimination.
I.PRIMA FACIE JURISDICTION
1. General introduction
17. The Court may indicate provisional measures only if the provisions relied on by the
Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need
not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see,
for example, Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional
Measures, Order of 7 December 2016, para. 31).
18. In the present case, Ukraine seeks to found the jurisdiction of the Court on Article 24,
paragraph 1, of the ICSFT and on Article 22 of CERD (see paragraph 4 above). The Court must
therefore first seek to determine whether the jurisdictional clauses contained in these instruments
prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it — if the other
necessary conditions are fulfilled — to indicate provisional measures.
19. Ukraine and the Russian Federation are parties to the ICSFT, which entered into force on
10 April 2002. They deposited their instruments of ratification on 6 December 2002 and
27 November 2002, respectively. Neither of them entered reservations to that instrument.
Further, Ukraine and the Russian Federation are parties to CERD, which entered into
force on 4 January 1969. Ukraine deposited its instrument of ratification on 7 March 1969 with
a reservation to Article 22 of the Convention; on 20 April 1989, the depositary received
notification that this reservation had been withdrawn. The Russian Federation is a party to
CERD as the State continuing the legal personality of the Union of Soviet Socialist Republics
which deposited its instrument of ratification on 4 February 1969 with a reservation to
Article 22 of the Convention; on 8 March 1989, the depositary received notification that this
reservation had been withdrawn.
20. Article 24, paragraph 1, of the ICSFT provides that: - 11 -
“Any dispute between two or more States Parties concerning the interpretation
or application of this Convention which cannot be settled through negotiation within a
reasonable time shall, at the request of one of them, be submitted to arbitration. If,
within six months from the date of the request for arbitration, the parties are unable to
agree on the organization of the arbitration, any one of those parties may refer the
dispute to the International Court of Justice, by application, in conformity with the
Statute of the Court.”
21. As regards CERD, Article 22 of that instrument reads as follows:
“Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not settled by negotiation or
by the procedures expressly provided for in this Convention, shall, at the request of
any of the parties to the dispute, be referred to the International Court of Justice for
decision, unless the disputants agree to another mode of settlement.”
2. Existence of a dispute concerning the interpretation or application of
the ICSFT and CERD
22. Both Article 24, paragraph 1, of the ICSFT and Article 22 of CERD make the Court’s
jurisdiction conditional on the existence of a dispute arising out of the interpretation or application
of the respective Convention. A dispute between States exists where they “‘hold clearly opposite
views concerning the question of the performance or non-performance of certain’ international
obligations” (see Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean
Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 26,
para. 50, citing Interpretation of Peace treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 74). The claim of one party must be “positively opposed”
by the other (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328). In order to determine, even prima facie,
whether a dispute exists, the Court “cannot limit itself to noting that one of the Parties maintains
that the Convention applies, while the other denies it” (Immunities and Criminal Proceedings
(Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, para. 47). Since
Ukraine has invoked as a basis for the Court’s jurisdiction the compromissory clauses in two
international conventions, the Court must ascertain whether “the acts complained of by [the
Applicant] are prima facie capable of falling within the provisions of [those] instrument[s] and . . .
as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain”
(ibid.).
23. At this stage of the proceedings, the Court must examine (1) whether the record shows a
disagreement on a point of law or fact between the two States; and (2) whether that disagreement
concerns “the interpretation or application” of the respective convention, as required by Article 24,
paragraph 1, of the ICSFT and Article 22 of CERD. - 12 -
(a)The International Convention for the Suppression of the Financing of Terrorism
24. Ukraine asserts that “[a] dispute has plainly arisen concerning the interpretation and
application of the Terrorism Financing Convention”. Ukraine states that in a diplomatic Note dated
28 July 2014, it “gave notice that it considered the Russian Federation to be violating the Terrorism
Financing Convention” and that it continued, repeatedly, to inform the Russian Federation of the
nature of its claims. According to Ukraine, “both by word and deed, the Russian Federation has
made it abundantly clear that it disputes Ukraine’s claims”.
25. Ukraine contends that, in the eastern part of its territory, since the spring of 2014, the
Russian Federation has systematically supplied “illegal armed groups”, such as the “Donetsk
People’s Republic” (DPR), the “Luhansk People’s Republic” (LPR), the “Partisans of the Kharkiv
People’s Republic”, and associated groups and individuals, with heavy weaponry, money,
personnel, training, and by giving other backing. That assistance, according to Ukraine, has been
used not only to support combat against the Ukrainian authorities, but also to conduct terrorist
attacks against civilians, within the meaning of Article 2, paragraph 1 (a) and (b), of the ICSFT,
such as the shelling of civilians in Volnovakha, Kramatorsk and Mariupol, the bombing of a
peaceful rally in support of national unity in Kharkiv and the shooting-down of Malaysia Airlines
Flight MH17. Ukraine contends that the definition of funds contained in the ICSFT is “extremely
broad” and includes in particular such weapons as those which it maintains have been provided by
the Russian Federation. Ukraine adds that the Russian Federation knew that the “illegal armed
groups” supported by it were perpetrating acts of terrorism. It also asserts that the obligation
contained in Article 18 (see paragraph 72 below) to co-operate in the prevention of the financing of
terrorism “is a broad one” and includes the obligation to take all practicable measures to prevent
individuals from providing or collecting funds for terrorism as well as the State obligation not to
finance terrorism directly. It claims that the Russian Federation has failed to co-operate in the
prevention of financing acts of terrorism, and has “unlawfully financed terrorism directly” in
violation of Article 18 of the ICSFT.
*
26. The Russian Federation denies that there is any dispute between the Parties as to the
interpretation and application of the ICSFT. Although it agrees that, during the conflict which
started in spring 2014, instances of alleged indiscriminate shelling and other humanitarian law
violations by both sides have been reported, it considers that these acts are not capable of falling
within the definition of acts of terrorism provided for in Article 2, paragraph 1, of the Convention
(see paragraph 73 below). The Russian Federation contends that no international body or
organization seised of the current situation in eastern Ukraine has qualified the ongoing hostilities
in terms of terrorism. It further contends that Ukraine has failed to submit any document from any
international organization or any State other than Ukraine itself, characterizing the acts of the DPR - 13 -
and the LPR as acts of terrorism. The Russian Federation adds that most of the civilian casualties
are in the territories under the control of the DPR and the LPR, and that multiple sources report that
Ukrainian armed forces are themselves responsible for numerous acts of indiscriminate shelling,
starting with the shelling of residential areas in Slavyansk in May 2014, where many civilians were
killed and wounded by the shelling by Ukrainian armed forces, while residential buildings,
hospitals and infrastructures were destroyed or damaged. In respect of the allegations regarding the
shooting-down of Malaysia Airlines Flight MH17, the Russian Federation argues that the evidence
does not suggest that any funds were provided with the intent or knowledge that they were to be
used for acts of terrorism against civilians.
27. The Russian Federation claims that, in any event, the ICSFT obliges States to co-operate
in the prevention and punishment of the financing by private actors of terrorist activities, but that it
does not cover matters of State responsibility for the financing of such activities by the State itself.
It contends that the text of the Convention, its drafting history, as well as subsequent practice,
confirm that it was only meant to address State obligations with respect to private actors, rather
than broadly regulating issues of a State’s responsibility for its own acts. It follows that, in the
opinion of the Russian Federation, purported instances of a State itself allegedly financing acts of
terrorism as defined by the Convention do not fall within the jurisdiction provided for in Article 24
of the Convention.
28. More specifically, the Russian Federation argues that the duty to prevent, as laid down in
Article 18 of the ICSFT, is significantly limited in various respects. First, States are only under an
obligation to co-operate in the prevention of the specific acts of financing criminalized by the
Convention. Article 18 of the Convention does not contain an obligation per se to prevent such
acts. Secondly, the obligation is limited to co-operation in the prevention of “preparations in [the]
respective territories” of States parties for the commission of acts prohibited by the Convention.
Thirdly, a State party to the Convention may only be held responsible for breaching Article 18 if
the acts prohibited by the Convention have actually been committed.
* *
29. The Court considers that, as it appears from the record of the proceedings, the Parties
differ on the question of whether the events which occurred in eastern Ukraine starting from the
spring of 2014 have given rise to issues relating to their rights and obligations under the ICSFT.
The Court notes that Ukraine contends that the Russian Federation has failed to respect its
obligations under Articles 8, 9, 10, 11, 12 and 18. In particular, Ukraine maintains that the Russian
Federation has failed to take appropriate measures to prevent the financing of terrorism in Ukraine
by public and private actors on the territory of the Russian Federation and that it has repeatedly
refused to investigate, prosecute, or extradite “offenders within its territory brought to its attention
by Ukraine”. The Russian Federation positively denies that it has committed any of the violations
set out above. - 14 -
30. The Court must ascertain whether the acts of which Ukraine complains are prima facie
capable of falling within the provisions of the Convention (see paragraph 22 above). The Court
considers that at least some of the allegations made by Ukraine (see paragraph 29 above) appear to
be capable of falling within the scope of the ICSFT ratione materiae.
31. In the view of the Court, the above-mentioned elements are sufficient at this stage to
establish prima facie the existence of a dispute between the Parties concerning the interpretation
and application of the ICSFT. During the hearings, the question of the definition of “funds” in
Article 1, paragraph 1, of the Convention (see paragraph 73 below) was raised. The question was
also raised whether acts of financing of terrorist activities by the State itself fall within the scope of
the Convention. For the purposes of determining the existence of a dispute relating to the
Convention, the Court does not need to make any pronouncement on these issues.
(b)The International Convention on the Elimination of All Forms of Racial Discrimination
32. Ukraine claims that a dispute exists between the Parties concerning the interpretation and
application of CERD. In particular, it asserts that the Russian Federation, by discriminating against
Crimean Tatars and ethnic Ukrainians in Crimea, has violated provisions of this Convention.
33. Ukraine contends that, following the purported annexation of the Crimean peninsula in
March 2014, the Russian Federation has used its control over this territory to impose a policy of
Russian ethnic dominance, “pursuing the cultural erasure of non-Russian communities through a
systematic and ongoing campaign of discrimination”.
34. With regard to the Crimean Tatar community, Ukraine argues that the Russian
Federation has suppressed its political leaders and institutions having, in particular, “outlawed
the Mejlis, the central self-governing institution of Crimean Tatar life” and has “prevented
important cultural gatherings, perpetrated a regime of disappearances and murders, conducted a
campaign of arbitrary searches and detentions, silenced media voices, and suppressed educational
rights”. Ukraine alleges that, “[j]ust recently, eleven Crimean Tatars who were peacefully
protesting against arbitrary searches were forcefully detained”. With regard to ethnic Ukrainians
living in Crimea, Ukraine states that the Russian Federation has restricted their educational rights
and ability to maintain their language and culture, and imposed discriminatory limitations on ethnic
Ukrainian media in the peninsula.
* - 15 -
35. The Russian Federation contends that there is no dispute between the Parties concerning
the interpretation or application of CERD. It claims that Ukraine has failed to demonstrate that,
prima facie, the alleged facts constitute violations of the provisions of the Convention. It asserts, in
particular, that the Applicant has not demonstrated that the searches, preventive measures or
criminal proceedings undertaken by the Crimean authorities against certain people of Tatar or
Ukrainian origin were applied in a discriminatory manner on the basis of the racial or ethnic origin
of those concerned. In its view, neither has Ukraine established that the Russian authorities were
engaged in a systematic practice of forced disappearances and murders motivated by racial or
ethnic considerations.
36. The Russian Federation further contests Ukraine’s allegations that the educational rights
of the Tatar and Ukrainian communities have been restricted. It claims, for instance, that the
Crimean Federal University recognizes the Ukrainian and Tatar languages as languages of
instruction, and that there are a dozen schools that offer Ukrainian-language education. The
Russian Federation also disagrees with Ukraine’s assertion that the Respondent has been seeking to
silence the Tatar and Ukrainian media in Crimea. It argues that more than 80 radio stations,
television channels and newspapers in the Ukrainian and Tatar languages are registered in Crimea
today and that only a few media outlets in those two languages were not registered, on the ground
that their application file was incomplete. The Russian Federation further denies that it has
suppressed the political leaders and institutions of the Tatar and Ukrainian communities. With
respect to the Mejlis, the Russian Federation claims that it has been wrongly characterized by
Ukraine as “the central self-governing institution of Crimean Tatar life”: it is not the only
representative body of the Crimean Tatars. It adds that, in any event, the decision to ban the Mejlis
was taken on security grounds and for public order reasons and bore no relation to the ethnicity of
its members.
* *
37. The Court considers that, as evidenced by the documents placed before the Court, the
Parties differ on the question of whether the events which occurred in Crimea starting from late
February 2014 have given rise to issues relating to their rights and obligations under CERD. The
Court notes that Ukraine has claimed that the Russian Federation violated its obligations under this
Convention by systematically discriminating against and mistreating the Crimean Tatars and ethnic
Ukrainians in Crimea, suppressing the political and cultural expression of Crimean Tatar identity,
banning the Mejlis, preventing Crimean Tatars and ethnic Ukrainians from gathering to celebrate
and commemorate important cultural events, and by suppressing the Crimean Tatar language and
Ukrainian-language education. The Russian Federation has positively denied that it has committed
any of the violations set out above. - 16 -
38. The acts referred to by Ukraine, in particular the banning of the Mejlis and the alleged
restrictions upon the cultural and educational rights of Crimean Tatars and ethnic Ukrainians,
appear to be capable of falling within the scope of CERD ratione materiae.
39. In the view of the Court, the above-mentioned elements are sufficient at this stage to
establish prima facie the existence of a dispute between the Parties concerning the interpretation
and application of CERD.
3. Procedural preconditions
40. The ICSFT and CERD set out procedural preconditions to be fulfilled before the seisin of
the Court.
41. Under Article 24, paragraph 1, of the ICSFT (see paragraph 20 above), a dispute that
“cannot be settled through negotiation within a reasonable time” shall be submitted to arbitration at
the request of one of the parties and it may be referred to the Court only if the parties are unable to
agree on the organization of the arbitration within six months from the date of the request.
42. Under Article 22 of CERD (see paragraph 21 above), the dispute referred to the Court
must be a dispute “not settled by negotiation or by the procedures expressly provided for in this
Convention”. In addition, Article 22 states that the dispute may be referred to the Court at the
request of one of the parties thereto only if the parties have not agreed to another mode of
settlement. The Court notes that neither Party contests that this latter condition is fulfilled in the
case.
43. Regarding the negotiations to which both compromissory clauses refer, the Court
observes that negotiations are distinct from mere protests or disputations and require a genuine
attempt by one of the parties to engage in discussions with the other party, with a view to resolving
the dispute. Where negotiations are attempted or have commenced, the precondition of negotiation
is only met when the attempt to negotiate has been unsuccessful or where negotiations have failed,
become futile or deadlocked. In order to meet the precondition of negotiation contained in the
compromissory clause of a treaty, “the subject-matter of the negotiations must relate to the
subject-matter of the dispute which, in turn, must concern the substantive obligations contained in
the treaty in question” (see Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011 (I), pp. 132-133, paras. 157-161).
44. At this stage of the proceedings, the Court first has to assess whether it appears that
Ukraine genuinely attempted to engage in negotiations with the Russian Federation, with a view to
resolving their dispute concerning the latter’s compliance with its substantive obligations under the
ICSFT and CERD, and whether Ukraine pursued these negotiations as far as possible. - 17 -
45. With regard to the dispute under the ICSFT, if the Court finds that negotiations took
place but failed, it will also have to examine whether, prior to the seisin of the Court, Ukraine
attempted to settle this dispute through arbitration, under the conditions provided for in Article 24,
paragraph 1, of the Convention.
46. With regard to CERD, along with the precondition of negotiation, Article 22 includes
another precondition, namely the use of “the procedures expressly provided for in the Convention”.
In this context, the Court will need to determine whether, for the purposes of its decision on the
Request for the indication of provisional measures, it is necessary to examine the question of the
relationship between both preconditions and Ukraine’s compliance with the second one.
(a)The International Convention for the Suppression of the Financing of Terrorism
47. Regarding the procedural conditions set out in Article 24, paragraph 1, of the ICSFT,
Ukraine contends that during a period of two years it has made “efforts to negotiate a resolution to
the dispute” with the Russian Federation, including the exchange of more than 40 diplomatic Notes
and participation in four rounds of bilateral negotiations. According to Ukraine, the Russian
Federation “largely failed to respond to Ukraine’s correspondence, declined to engage on the
substance of the dispute, and consistently failed to negotiate in a constructive manner”, arguing that
Ukraine’s claims did not raise issues under the ICSFT. Ukraine contends that it therefore became
apparent that the dispute could not be settled by way of negotiations within a reasonable time, and
that further negotiations would be futile. Consequently, by a Note Verbale dated 19 April 2016,
Ukraine suggested to the Russian Federation that the dispute be submitted to arbitration, pursuant
to Article 24, paragraph 1, of the ICSFT.
48. Ukraine explains that it was more than two months before the Russian Federation agreed
to discuss the arbitration. Ukraine asserts that in August 2016 it informed the Russian Federation of
its views on how an arbitration should be organized. It indicates that it was only in October 2016
that the Russian Federation stated “clearly its intent to participate in an arbitration if the parties
reached agreement on its organization” and presented a partial counter-proposal. Ukraine contends
that it continued to meet with the Russian Federation and engaged in diplomatic exchanges in an
attempt to reach agreement on the organization of the arbitration. According to Ukraine, however,
no agreement could be reached. Ukraine contends that the main reasons why the Parties were
unable to agree upon arbitration were that there had been months of delay on the part of the
Russian Federation and a divergence of views on various important issues. Because more than six
months had passed since Ukraine’s request for arbitration without the parties reaching agreement
on the organization of the arbitration, Ukraine claims that the procedural conditions of Article 24,
paragraph 1, of the ICSFT had been met when it seised the Court.
* - 18 -
49. The Russian Federation, for its part, claims that Ukraine has not fulfilled its obligation to
negotiate, as required by Article 24 of the ICSFT. It contends, in particular, that Ukraine did not
negotiate in good faith as to the substance of its claim that the Russian Federation had allegedly
violated its obligations under the Convention; and that it did not make a bona fide effort to try to
set up an arbitral tribunal.
50. With respect to its first argument, the Russian Federation explains that, throughout the
exchange of diplomatic Notes, Ukraine constantly insisted on its own position without showing any
willingness to engage in a meaningful discussion with the Russian Federation on relevant issues. In
particular, it contends, Ukraine consistently put forward allegations that went well beyond the
scope of the Convention. The Russian Federation asserts that nearly all of Ukraine’s diplomatic
Notes, which were meant to address issues arising under the Convention, were closely interwoven
with accusations against the Russian Federation regarding the prohibition of the use of force. The
Russian Federation claims to have requested, on several occasions, that Ukraine provide
evidentiary material and comprehensive information and data in order to be able to verify
Ukraine’s claims. The Russian Federation states that, should such elements have substantiated
Ukraine’s claims, it would have then taken the appropriate measures as required by the Convention.
However, Ukraine did not follow up on such requests, thereby rendering pointless the further round
of negotiations that had been envisaged.
51. With respect to its second argument, the Russian Federation states, in particular, that
Ukraine has never submitted concrete proposals for an arbitration agreement. According to the
Russian Federation, resorting to an ad hoc chamber of this Court as proposed by Ukraine could not
qualify as arbitration within the meaning of Article 24 of the ICSFT. In the Respondent’s view, it
was the Russian Federation which submitted full drafts for an arbitration agreement, as well as
draft rules of procedure with a view to addressing the concerns of Ukraine. The Russian Federation
adds that it never received any specific comments from Ukraine on its draft arbitration agreement.
* *
52. The Court notes that it appears from the record of the proceedings that issues relating to
the application of the ICSFT with regard to the situation in eastern Ukraine have been raised in
bilateral contacts and negotiations between the Parties. In particular, Ukraine addressed a
diplomatic Note to the Russian Federation on 28 July 2014 in which it alleged that the latter was
violating its obligations under the ICSFT. By means of a diplomatic Note of 15 October 2015, the
Russian Federation denied the claims being made by Ukraine. Further diplomatic exchanges
followed, in which Ukraine specifically referred to alleged breaches by the Russian Federation of
its obligations under the ICSFT. Over a period of two years, the Parties also held four in-person
negotiating sessions specifically addressed to the ICSFT. - 19 -
These facts demonstrate that, prior to the filing of the Application, Ukraine and the Russian
Federation had engaged in negotiations concerning the latter’s compliance with its substantive
obligations under the ICSFT. It appears from the facts on the record that these issues could not then
be resolved by negotiations.
53. With regard to the precondition relating to the submission of the dispute to arbitration,
the Court notes that by a Note Verbale dated 19 April 2016 Ukraine submitted a request for
arbitration to the Russian Federation. The Russian Federation responded by means of a Note
Verbale dated 23 June 2016, in which it offered to discuss “issues concerning setting up” the
arbitration at a meeting it suggested should be held a month later. By a Note Verbale dated
31 August 2016 Ukraine proposed to the Russian Federation to resort to the mechanism of an
ad hoc Chamber of this Court. In its Note Verbale to Ukraine, dated 3 October 2016, the Russian
Federation rejected this proposal and submitted its own draft arbitration agreement and
accompanying rules of procedure. At a meeting on 18 October 2016, the Parties discussed the
organization of the arbitration but no agreement was reached. Further exchanges between the
Parties did not resolve the impasse. It appears that, within six months from the date of the
arbitration request, the Parties were unable to reach an agreement on its organization.
54. The above-mentioned elements are sufficient at this stage to establish, prima facie, that
the procedural preconditions under Article 24, paragraph 1, of the ICSFT for the seisin of the Court
have been met.
(b)The International Convention on the Elimination of All Forms of Racial Discrimination
55. Regarding the procedural conditions set out in Article 22 of CERD, Ukraine contends
that it “has made extensive efforts to negotiate a resolution to the dispute, including the exchange
of more than 20 diplomatic Notes and participation in three rounds of bilateral negotiation
sessions”. Ukraine refers, in particular, to a diplomatic Note dated 23 September 2014, in which it
“brought a series of violations of the CERD to Russia’s attention”. However, Ukraine states that
the Russian Federation largely failed to respond to Ukraine’s correspondence, declined to engage
on the substance of the dispute, and consistently failed to negotiate in a constructive manner. It
failed to engage in detailed discussions of the claims presented by Ukraine, and avoided
substantive discussions of the relevant issues. According to Ukraine, during the three bilateral
negotiation sessions held in Minsk to try to settle the dispute, the “Russian Federation never
provided straight and specific responses on the issues raised”. Ukraine alleges that, at the same
time as it was refusing to engage in a meaningful discussion of issues of discrimination in Crimea,
the Russian Federation was continuing and intensifying its pattern of discrimination against
Crimean Tatars and ethnic Ukrainians in Crimea. It therefore became apparent that “further
negotiations would be futile, and prejudicial to the people living under a discriminatory occupation
regime”. According to Ukraine, the procedural conditions of Article 22 of CERD have thus been
complied with.
56. Ukraine further states that the Russian Federation is wrong in claiming that Ukraine was
obliged both to exhaust bilateral negotiations, and to attempt proceedings before the Committee on
the Elimination of Racial Discrimination established under the Convention (hereinafter the “CERD - 20 -
Committee”). In any event, whether or not the preconditions of Article 22 of CERD are cumulative,
is not, according to Ukraine, a matter for the current stage of the proceedings, which only requires a
finding of prima facie jurisdiction.
*
57. The Russian Federation, for its part, claims that none of the procedural conditions set out
in Article 22 of CERD has been fulfilled by Ukraine. First, it contends that there is no evidence of a
“genuine attempt to negotiate”. Although the Respondent acknowledges that, for two and a half
years, exchanges have taken place between the Parties, in the form of Notes Verbales and three
rounds of meetings, it contends that Ukraine has merely placed on record a certain number of
accusations that have constantly shifted from one Note Verbale to the next, rendering it impossible
to establish the positions of the two Parties on the questions at issue. Secondly, the Russian
Federation observes that Ukraine did not refer its claims to the CERD Committee, whereas
Articles 11 to 13 of the Convention establish a specific procedure for bringing State-to-State
complaints before this Committee. It adds that, in the exchange of diplomatic Notes, it had
expressly recalled to the Applicant, on 27 November 2014, that it should follow this procedure. It
recalls that the Committee can trigger an urgent action procedure when a situation requires
“immediate attention to prevent or limit the scale or number of serious violations of the
Convention”.
58. The Russian Federation is of the view that the two preconditions in Article 22 of
CERD namely, recourse to negotiations and to the procedures expressly provided for in the
Convention are cumulative. It observes that the Court has recognized in its jurisprudence that, at
the time CERD was being elaborated, the idea of submitting to the compulsory settlement of
disputes by the Court was not readily acceptable to a number of States, which explains why
additional limitations to resort to judicial settlement in the form of prior negotiations and other
settlement procedures without time-limits were provided for with a view to facilitating wider
acceptance of CERD by States.
* *
59. The Court recalls that it has earlier concluded that the terms of Article 22 of CERD
established preconditions to be fulfilled before the seisin of the Court (see Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 128, para. 141).
It notes that, as evidenced by the record of the proceedings, issues relating to the application of
CERD with regard to the situation in Crimea have been raised in bilateral contacts and negotiations
between the Parties, which have exchanged numerous diplomatic Notes and held three rounds of
bilateral negotiations on this subject. These facts demonstrate that, prior to the filing of the - 21 -
Application, Ukraine and the Russian Federation engaged in negotiations regarding the question of
the latter’s compliance with its substantive obligations under CERD. It appears from the record that
these issues had not been resolved by negotiations at the time of the filing of the Application.
60. Article 22 of CERD also refers to “the procedures expressly provided for” in the
Convention. According to Article 11 of the Convention, “[i]f a State Party considers that another
State Party is not giving effect to the provisions of this Convention”, the matter may be brought to
the attention of the CERD Committee. Neither Party claims that the issues in dispute have been
brought to the attention of the CERD Committee. Although both Parties agree that negotiations and
recourse to the procedures referred to in Article 22 of CERD constitute preconditions to be fulfilled
before the seisin of the Court, they disagree as to whether these preconditions are alternative or
cumulative. The Court considers that it need not make a pronouncement on the issue at this stage of
the proceedings. Consequently the fact that Ukraine did not bring the matter before the CERD
Committee does not prevent the Court from concluding that it does have prima facie jurisdiction.
61. The Court considers, in view of all the foregoing, that the procedural preconditions under
Article 22 of CERD for the seisin of the Court have, prima facie, been complied with.
4. Conclusion as to prima facie jurisdiction
62. In light of the foregoing, the Court considers that, prima facie, it has jurisdiction pursuant
to Article 24, paragraph 1, of the ICSFT and Article 22 of CERD to deal with the case to the extent
that the dispute between the Parties relates to the “interpretation or application” of the respective
Convention.
II. THE RIGHTS WHOSE PROTECTION IS SOUGHT
AND THE MEASURES REQUESTED
1. General introduction
63. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights claimed by the parties in a case, pending
its decision on the merits thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong to either party. Therefore,
the Court may exercise this power only if it is satisfied that the rights asserted by the party
requesting such measures are at least plausible (see, for example, Immunities and Criminal
Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016,
para. 71).
64. At this stage of the proceedings, the Court, however, is not called upon to determine
definitively whether the rights which Ukraine wishes to see protected exist; it need only decide
whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are
plausible (see, for example, ibid., para. 78). Moreover, a link must exist between the rights whose
protection is sought and the provisional measures being requested (ibid., para. 72). - 22 -
2. The International Convention for the Suppression
of the Financing of Terrorism
65. In its Application, Ukraine asserts rights under Articles 8, 9, 10, 11, 12 and 18 of
the ICSFT. However, for the purposes of its Request for the indication of provisional measures, in
order to identify the rights which it seeks to protect pending the decision on the merits, Ukraine
relies exclusively upon Article 18 of the ICSFT.
66. Ukraine submits that, under Article 18 of the ICSFT, it has a right to the Russian
Federation’s co-operation in preventing the financing of terrorism, i.e., the provision or collection
of funds with the intention that they should be used, or in the knowledge that they will be used, in
order to carry out acts of terrorism defined in Article 2, paragraphs 1 (a) and 1 (b) of the
Convention. As examples of such acts, committed on its territory, Ukraine refers, in particular, to
(a) the bombing of peaceful marchers in Kharkiv; (b) the bombardment of Mariupol; (c) the attacks
on Volnovakha and Kramatorsk; and (d) the shooting-down of Malaysia Airlines Flight MH17, all
of which, according to the Applicant, plausibly involved an “intent to cause death or serious injury
to civilians” and had a plausible purpose “to intimidate a population”.
67. Ukraine contends that a state of armed conflict does not exclude the application of
the ICSFT. According to Ukraine, international humanitarian law is not the only relevant law
applicable in situations of armed conflict. The ICSFT also applies in such situations, as long as
those attacked are not actively engaged in armed conflict. Civilians living far from conflict zones
who are not taking an active part in hostilities can be victims of terrorist attacks financed by
external suppliers of war materiel. Ukraine argues that the obligations under the ICSFT are
different from those under international humanitarian law, because that convention addresses the
financing of terrorism, “a topic not covered at all by the laws governing armed conflict”.
68. Ukraine maintains that, given the evidence before the Court, “it is far more than simply
‘plausible’” that the Russian Federation has engaged and continues to engage in prohibited
behaviour under the ICSFT. Ukraine states that various “highly credible international
organizations” have found that the Russian Federation “has financed its proxies in Ukraine for
many years”. In this regard, Ukraine refers, inter alia, to the reports of the Special Monitoring
Mission of the Organization for Security and Co-operation in Europe (OSCE) detailing multiple
military convoys of tanks, armoured personnel carriers, and heavy artillery, moving from Russian
territory across the Ukrainian border.
*
69. The Russian Federation claims that the specific rights claimed by Ukraine under
the ICSFT are not plausible. In particular, referring to the right to co-operation under Article 18 of
the Convention, which is “the sole right that Ukraine asserts with respect to the Request”, it
explains that this right is linked to the existence of financing of acts of terrorism as specified in
Article 2. However, according to the Russian Federation, there is no plausible allegation of acts of - 23 -
terrorism under the Convention, committed on the territory of Ukraine. The Respondent contends
that the civilian casualties referred to by Ukraine in its Request were caused by indiscriminate
shelling of areas controlled by both sides, and not by acts of terrorism within the meaning of
Article 2. In this regard, it adds that Ukraine’s own evidence shows that the Applicant has equally
engaged in these acts.
70. The Russian Federation asserts that Ukraine has mischaracterized the nature of the case
by erroneously seeking to invoke the ICSFT. According to the Russian Federation, the facts at hand
fall directly within the scope of international humanitarian law. The Respondent points out that
reports on human rights prepared by organizations such as the Office of the United Nations High
Commissioner for Human Rights (OHCHR), the OSCE and the International Committee of the Red
Cross (ICRC) refer to the need to “respect international humanitarian law” and to “violations of the
[international humanitarian law] principles of distinction, proportionality and precaution”, but
never characterize such acts as acts of terrorism. The Russian Federation states that incidents of
attacks in residential areas are not plausibly governed by the ICSFT and that, by contrast,
international humanitarian law is self-evidently relevant.
71. According to the Russian Federation, first, it cannot have breached its obligations under
Article 18 of the ICSFT, since it has not been demonstrated that the armed groups in eastern
Ukraine were engaging in acts of terrorism. Secondly the Russian Federation recalls its position
that the ICSFT obliges States to co-operate in the punishment and prevention of the financing by
private actors of terrorist activities. In any event, it contends that there is no plausible allegation
that it financed terrorism within the meaning of Article 2, paragraph 1, of the ICSFT. It recalls that
Article 2 is concerned solely with funds supplied with the knowledge or intent that they are to be
used for acts of terrorism, and that no evidence has been adduced that the Russian Federation
purposefully provided funds for the commission of alleged terrorist acts.
* *
72. The Court notes that the ICSFT imposes a number of obligations on States parties with
regard to the prevention and suppression of the financing of terrorism. However, for the purposes
of its Request for the indication of provisional measures, Ukraine invokes its rights and the
respective obligations of the Russian Federation solely under Article 18 of the Convention, which
reads as follows:
“1. States Parties shall co-operate in the prevention of the offences set forth in
article 2 by taking all practicable measures, inter alia, by adapting their domestic
legislation, if necessary, to prevent and counter preparations in their respective
territories for the commission of those offences within or outside their territories,
including: - 24 -
(a) measures to prohibit in their territories illegal activities of persons and
organizations that knowingly encourage, instigate, organize or engage in the
commission of offences set forth in article 2;
(b) measures requiring financial institutions and other professions involved in
financial transactions to utilize the most efficient measures available for the
identification of their usual or occasional customers, as well as customers in whose
interest accounts are opened, and to pay special attention to unusual or suspicious
transactions and report transactions suspected of stemming from a criminal
activity. For this purpose, States Parties shall consider:
(i) adopting regulations prohibiting the opening of accounts the holders or
beneficiaries of which are unidentified or unidentifiable, and measures to
ensure that such institutions verify the identity of the real owners of such
transactions;
(ii) with respect to the identification of legal entities, requiring financial
institutions, when necessary, to take measures to verify the legal existence
and the structure of the customer by obtaining, either from a public register or
from the customer or both, proof of incorporation, including information
concerning the customer’s name, legal form, address, directors and
provisions regulating the power to bind the entity;
(iii) adopting regulations imposing on financial institutions the obligation to
report promptly to the competent authorities all complex, unusual large
transactions and unusual patterns of transactions, which have no apparent
economic or obviously lawful purpose, without fear of assuming criminal or
civil liability for breach of any restriction on disclosure of information if they
report their suspicions in good faith;
(iv) requiring financial institutions to maintain, for at least five years, all
necessary records on transactions, both domestic or international.
2. States Parties shall further co-operate in the prevention of offences set forth
in article 2 by considering:
(a) measures for the supervision, including, for example, the licensing, of all
money-transmission agencies;
(b) feasible measures to detect or monitor the physical cross-border transportation of
cash and bearer negotiable instruments, subject to strict safeguards to ensure
proper use of information and without impeding in any way the freedom of capital
movements. - 25 -
3. States Parties shall further co-operate in the prevention of the offences set
forth in article 2 by exchanging accurate and verified information in accordance with
their domestic law and coordinating administrative and other measures taken, as
appropriate, to prevent the commission of offences set forth in article 2, in particular
by:
(a) establishing and maintaining channels of communication between their competent
agencies and services to facilitate the secure and rapid exchange of information
concerning all aspects of offences set forth in article 2;
(b) co-operating with one another in conducting inquiries, with respect to the offences
set forth in article 2, concerning:
(i) the identity, whereabouts and activities of persons in respect of whom
reasonable suspicion exists that they are involved in such offences;
(ii) the movement of funds relating to the commission of such offences.
4. States Parties may exchange information through the International Criminal
Police Organization (Interpol).”
73. Article 18 should be read together with Article 2 of the ICSFT because under Article 18
States parties must co-operate in the prevention of the offences set forth in Article 2, which reads as
follows:
“1. Any person commits an offence within the meaning of this Convention if
that person by any means, directly or indirectly, unlawfully and wilfully, provides or
collects funds with the intention that they should be used or in the knowledge that they
are to be used, in full or in part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in one of
the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian, or to
any other person not taking an active part in the hostilities in a situation of armed
conflict, when the purpose of such act, by its nature or context, is to intimidate a
population, or to compel a government or an international organization to do or to
abstain from doing any act.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. For an act to constitute an offence set forth in paragraph 1, it shall not be
necessary that the funds were actually used to carry out an offence referred to in
paragraph 1, subparagraphs (a) or (b).
4. Any person also commits an offence if that person attempts to commit an
offence as set forth in paragraph 1 of this article. - 26 -
5. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this
article;
(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of
this article;
(c) Contributes to the commission of one or more offences as set forth in paragraphs 1
or 4 of this article by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose
of the group, where such activity or purpose involves the commission of an
offence as set forth in paragraph 1 of this article; or
(ii) Be made in the knowledge of the intention of the group to commit an offence
as set forth in paragraph 1 of this article.”
Under Article 1, paragraph 1, of the Convention, the notion of “funds” which Article 2 refers to
“means assets of every kind, whether tangible or intangible, movable or immovable,
however acquired, and legal documents or instruments in any form, including
electronic or digital, evidencing title to, or interest in, such assets, including, but not
limited to, bank credits, travellers cheques, bank cheques, money orders, shares,
securities, bonds, drafts and letters of credit”.
74. Thus, the obligations under Article 18 and the corresponding rights are premised on the
acts identified in Article 2, namely the provision or collection of funds with the intention that they
should be used or in the knowledge that they are to be used in order to carry out acts set out in
paragraphs 1 (a) and 1 (b) of this Article. Consequently, in the context of a request for the
indication of provisional measures, a State party to the Convention may rely on Article 18 to
require another State party to co-operate with it in the prevention of certain types of acts only if it is
plausible that such acts constitute offences under Article 2 of the ICSFT.
75. In the present case, the acts to which Ukraine refers (see paragraph 66 above) have given
rise to the death and injury of a large number of civilians. However, in order to determine whether
the rights for which Ukraine seeks protection are at least plausible, it is necessary to ascertain
whether there are sufficient reasons for considering that the other elements set out in Article 2,
paragraph 1, such as the elements of intention or knowledge noted above (see paragraph 74), and
the element of purpose specified in Article 2, paragraph 1 (b), are present. At this stage of the
proceedings, Ukraine has not put before the Court evidence which affords a sufficient basis to find
it plausible that these elements are present. - 27 -
76. Therefore, the Court concludes that the conditions required for the indication of
provisional measures in respect of the rights alleged by Ukraine on the basis of the ICSFT are not
met.
77. The above conclusion is without prejudice to the Parties’ obligation to comply with the
requirements of the ICSFT, and, in particular, Article 18 thereof.
3. The International Convention on the Elimination of All Forms
of Racial Discrimination
78. In its Application, Ukraine asserts rights under Articles 2, 3, 4, 5 and 6 of CERD.
However, for the purposes of its Request for the indication of provisional measures, in order to
identify the rights which it seeks to protect pending a decision on the merits, Ukraine relies
exclusively on Articles 2 and 5 of the Convention (see paragraph 80 below). Ukraine states that
each of the measures requested relate to these rights. In this respect, it recalls that it is
requesting the Court to order the Russian Federation to refrain from any act of racial
discrimination, to suspend the decision to ban the Mejlis of the Crimean Tatar People, to take all
necessary steps to halt the disappearance of Crimean Tatar individuals and to suspend restrictions
on Ukrainian-language education.
*
79. The Russian Federation considers that the rights Ukraine asserts are not plausible and are
not grounded in a possible interpretation of CERD. It explains that it is not enough to allege that a
person has suffered a prejudice or that one of his or her rights under the Convention has been
infringed. It must be shown that the prejudice or the infringement of a right is discriminatory in
nature. Yet, according to the Russian Federation, Ukraine has not established that the Respondent
has adopted measures which had a discriminatory effect on the Tatar and Ukrainian communities,
showing a differentiation of treatment between those communities and the other residents in
Crimea. Focusing on Articles 2 and 5 of CERD, the Russian Federation considers that Ukraine
merely gives a list of alleged violations of human rights that have affected people of Tatar or
Ukrainian origin; at no point does it explain how these alleged violations constitute racial
discrimination under CERD.
* * - 28 -
80. The Court notes that CERD imposes a number of obligations on States parties with
regard to the elimination of racial discrimination in all its forms and manifestations. For the
purposes of CERD, the term “racial discrimination” includes discrimination on the basis of ethnic
origin (Article 1, paragraph 1). Articles 2 and 5 of the Convention, invoked by Ukraine for the
purposes of its Request for the indication of provisional measures, read as follows:
“Article 2
1. States Parties condemn racial discrimination and undertake to pursue by all
appropriate means and without delay a policy of eliminating racial discrimination in
all its forms and promoting understanding among all races, and, to this end:
(a) each State Party undertakes to engage in no act or practice of racial discrimination
against persons, groups of persons or institutions and to ensure that all public
authorities and public institutions, national and local, shall act in conformity with
this obligation;
(b) each State Party undertakes not to sponsor, defend or support racial discrimination
by any persons or organizations;
(c) each State Party shall take effective measures to review governmental, national
and local policies, and to amend, rescind or nullify any laws and regulations which
have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) each State Party shall prohibit and bring to an end, by all appropriate means,
including legislation as required by circumstances, racial discrimination by any
persons, group or organization;
(e) each State Party undertakes to encourage, where appropriate, integrationist
multiracial organizations and movements and other means of eliminating barriers
between races, and to discourage anything which tends to strengthen racial
division.
2. States Parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, special and concrete measures to ensure the
adequate development and protection of certain racial groups or individuals belonging
to them, for the purpose of guaranteeing them the full and equal enjoyment of human
rights and fundamental freedoms. These measures shall in no case entail as a
consequence the maintenance of unequal or separate rights for different racial groups
after the objectives for which they were taken have been achieved”;
“Article 5
In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial discrimination
in all its forms and to guarantee the right of everyone, without distinction as to race,
colour, or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights: - 29 -
(a) the right to equal treatment before the tribunals and all other organs administering
justice;
(b) the right to security of person and protection by the State against violence or
bodily harm, whether inflicted by government officials or by any individual group
or institution;
(c) political rights, in particular the right to participate in elections to vote and to
stand for election on the basis of universal and equal suffrage, to take part in
the Government as well as in the conduct of public affairs at any level and to have
equal access to public service;
(d) other civil rights, in particular:
(i) the right to freedom of movement and residence within the border of the
State;
(ii) the right to leave any country, including one's own, and to return to one’s
country;
(iii) the right to nationality;
(iv) the right to marriage and choice of spouse;
(v) the right to own property alone as well as in association with others;
(vi) the right to inherit;
(vii) the right to freedom of thought, conscience and religion;
(viii) the right to freedom of opinion and expression;
(ix) the right to freedom of peaceful assembly and association;
(e) economic, social and cultural rights, in particular:
(i) the rights to work, to free choice of employment, to just and favourable
conditions of work, to protection against unemployment, to equal pay for
equal work, to just and favourable remuneration;
(ii) the right to form and join trade unions;
(iii) the right to housing;
(iv) the right to public health, medical care, social security and social services;
(v) the right to education and training;
(vi) the right to equal participation in cultural activities;
(f) the right of access to any place or service intended for use by the general public,
such as transport hotels, restaurants, cafes, theatres and parks”. - 30 -
81. The Court observes that there is a correlation between respect for individual rights, the
obligations of States parties under CERD and the right of States parties to seek compliance
therewith (see Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of
15 October 2008, I.C.J. Reports 2008, pp. 391-392, para. 126).
82. The Court notes that Articles 2 and 5 of CERD are intended to protect individuals from
racial discrimination. Consequently, in the context of a request for the indication of provisional
measures, a State party to CERD may avail itself of the rights under Articles 2 and 5 only if it is
plausible that the acts complained of constitute acts of racial discrimination under the Convention.
83. In the present case, on the basis of the evidence presented before the Court by the Parties,
it appears that some of the acts complained of by Ukraine fulfil this condition of plausibility. This
is the case with respect to the banning of the Mejlis and the alleged restrictions on the educational
rights of ethnic Ukrainians.
*
84. The Court now turns to the issue of the link between the rights claimed and the
provisional measures requested.
85. The provisional measures sought by Ukraine in paragraph 24, points (b) to (e) of its
Request, which were reiterated at the close of its oral argument, are aimed at preventing the
Russian Federation from committing acts of racial discrimination against persons, groups of
persons, or institutions in the Crimean peninsula (point (b)); preventing acts of political and
cultural suppression against the Crimean Tatar people, including suspending the decree banning the
Mejlis (point (c)); preventing the disappearance of Crimean Tatar individuals and ensuring prompt
investigation of disappearances that have already occurred (point (d)); and preventing acts of
political and cultural suppression against the ethnic Ukrainian people in Crimea, including
suspending restrictions on Ukrainian-language education (point (e)).
86. As the Court has already recalled, there must be a link between the measures which are
requested and the rights which are claimed to be at risk of irreparable prejudice. In the current
proceedings, this is the case with respect to the measures aimed at safeguarding the rights of
Ukraine under Articles 2 and 5 of CERD with regard to the ability of the Crimean Tatar community
to conserve its representative institutions and with regard to the need to ensure the availability of
Ukrainian-language education in schools in Crimea. - 31 -
III. RISK OF IRREPARABLE PREJUDICE AND URGENCY
87. In view of the conclusion reached in paragraph 76, the issue of the risk of irreparable
prejudice and urgency only arises in relation to the provisional measures sought with regard
to CERD.
88. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings (see, for example, Immunities and Criminal Proceedings (Equatorial Guinea v.
France), Provisional Measures, Order of 7 December 2016, para. 82).
89. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will
be caused to the rights in dispute before the Court gives its final decision (ibid., para. 83). The
Court must therefore consider whether such a risk exists at this stage of the proceedings.
90. The Court is not called upon, for the purposes of its decision on the Request for the
indication of provisional measures, to establish the existence of breaches of CERD, but to
determine whether the circumstances require the indication of provisional measures for the
protection of rights under this instrument. It cannot at this stage make definitive findings of fact.
The right of each Party to submit arguments in respect of the merits remains unaffected by the
Court’s decision on the Request for the indication of provisional measures.
* *
91. Ukraine maintains that in Crimea, the Russian Federation is conducting a “policy of
cultural erasure” through its discrimination against the Crimean Tatar and ethnic Ukrainian
population. Ukraine claims that the risk of irreparable prejudice to the rights it invokes is imminent
in view of the persecution of the community’s leaders and the banning of the Mejlis (described by
Ukraine as the community’s central political and cultural institution), as well as the suppression of
the cultural and educational rights of Crimean Tatars and ethnic Ukrainians. Ukraine refers to
General Assembly resolution 71/205 of 19 December 2016 which expressed serious concern over
the banning of the Mejlis. Ukraine in addition refers to various reports of the OHCHR which, it
states, are highly critical of the intimidatory tactics used by the Russian Federation to silence
political expression by the Crimean Tatar community. Ukraine also cites reports of the OSCE’s
Human Rights Assessment Mission on Crimea and another report of the OHCHR which voiced
great concern over the rapid decline of Ukrainian-language instruction in Crimea.
92. According to Ukraine, without the interim measures of protection that Ukraine urgently
seeks, by the time this case is decided, “the ethnic Ukrainian and Crimean Tatar communities will
be severely weakened or destroyed as culturally distinct communities”. Ukraine stresses that all of - 32 -
the prejudice caused to those communities in the intervening years will be irreparable. It points out
that “[t]he vulnerability of these non-Russian groups is confirmed by the numbers who have left
Crimea since the peninsula was occupied”.
*
93. The Russian Federation, for its part, denies that there exists a risk of irreparable prejudice
to the rights of the Applicant under CERD. As regards the decision to ban the Mejlis, the Russian
Federation states that, in his report on the human rights situation in Ukraine (16 August to
15 November 2016), the United Nations High Commissioner for Human Rights, who was aware of
the contents of General Assembly resolution 71/205 of 19 December 2016, because this document
was drafted before the High Commissioner submitted his last report, made no criticism of the
decision of the Supreme Court of Crimea to ban the Mejlis, which was subsequently confirmed by
the Supreme Court of the Russian Federation. The Russian Federation contends that these judicial
decisions were taken on security grounds and for public order reasons and bore no relation to the
ethnicity of the members of the Mejlis.
94. The Russian Federation further asserts that the situation is not urgent, as alleged by
Ukraine. The Russian Federation points out that throughout the two and a half years of
consultations between the Parties, Ukraine has never made any reference to any kind of urgency or
to an imminent risk of prejudice. Quite the contrary, Ukraine has acted as if there were no urgency
at all. In addition, the Russian Federation argues that the CERD Committee, which is in its view the
most competent body in this area and has all the information to hand, has not deemed it necessary
to trigger the urgent action procedure at its disposal, despite having the possibility of doing so at
any time and being aware of the situation of minorities in Crimea for a long time. According to the
Respondent, this fact “deprives of all credibility Ukraine’s accusation that the Russian authorities
are pursuing a systematic campaign of cultural erasure in Crimea with the aim of eliminating the
Tatar and Ukrainian communities”.
95. Furthermore, the Russian Federation contends that it has taken substantive measures to
support the Crimean Tatar and Ukrainian communities and to promote their culture. It refers, in
particular, to the adoption of a presidential decree on 21 April 2014 on the rehabilitation of the
Crimean Tatar people, providing support for their revival and development, and granting them
specific social benefits. The Russian Federation states that it is aware of the need to provide
education in the language of that community, which, according to it, is being met. It also mentions
the fact that Crimean Tatars are represented in the political, legislative and judicial institutions of
the Republic of Crimea. It furthermore considers it important to point out that Crimea’s new
Constitution, which was adopted on 11 April 2014, establishes both the Crimean Tatar and
Ukrainian languages as official languages of Crimea. The Russian Federation adds that the
educational rights of the Tatar and Ukrainian communities are duly protected.
* * - 33 -
96. The Court notes that certain rights in question in these proceedings, in particular, the
political, civil, economic, social and cultural rights stipulated in Article 5, paragraphs (c), (d)
and (e) of CERD are of such a nature that prejudice to them is capable of causing irreparable harm.
Based on the information before it at this juncture, the Court is of the opinion that Crimean Tatars
and ethnic Ukrainians in Crimea appear to remain vulnerable.
97. In this regard, the Court takes note of the report on the human rights situation in Ukraine
(16 May to 15 August 2016), whereby the OHCHR acknowledged that “the ban on the Mejlis,
which is a self-government body with quasi-executive functions, appears to deny the Crimean
Tatars an indigenous people of Crimea the right to choose their representative institutions”,
as well as of his report on the human rights situation in Ukraine (16 August to 15 November 2016),
in which the OHCHR explained that none of the Crimean Tatar NGOs currently registered in
Crimea can be considered to have the same degree of representativeness and legitimacy as the
Mejlis, elected by the Crimean Tatars’ assembly, namely the Kurultai. The Court also takes note of
the report of the OSCE Human Rights Assessment Mission on Crimea (6 to 18 July 2015),
according to which “[e]ducation in and of the Ukrainian language is disappearing in Crimea
through pressure on school administrations, teachers, parents and children to discontinue teaching
in and of the Ukrainian language”. The OHCHR has observed that “[t]he start of the 2016-2017
school year in Crimea and the city of Sevastopol confirmed the continuous decline of Ukrainian as
a language of instruction” (report on the human rights situation in Ukraine (16 August to
15 November 2016)). These reports show, prima facie, that there have been restrictions in terms of
the availability of Ukrainian-language education in Crimean schools.
98. The Court considers that there is an imminent risk that the acts, as set out above, could
lead to irreparable prejudice to the rights invoked by Ukraine.
IV. C ONCLUSION AND MEASURES TO BE ADOPTED
99. The Court concludes from all of the above considerations that the conditions required by
its Statute for it to indicate provisional measures in respect of CERD are met. It is therefore
appropriate, pending its final decision, for the Court to indicate certain measures in order to protect
the rights claimed by Ukraine, as identified above.
100. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are in whole or in part other than those
requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the
Court. The Court has already exercised this power on several occasions in the past (see, for
example, Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional
Measures, Order of 7 December 2016, para. 94).
101. In the present case, having considered the terms of the provisional measures requested
by Ukraine and the circumstances of the case, the Court finds that the measures to be indicated
need not be identical to those requested. - 34 -
102. Reminding the Russian Federation of its duty to comply with its obligations
under CERD, the Court considers that, with regard to the situation in Crimea, the Russian
Federation must refrain, pending the final decision in the case, from maintaining or imposing
limitations on the ability of the Crimean Tatar community to conserve its representative
institutions, including the Mejlis. In addition, the Russian Federation must ensure the availability of
education in the Ukrainian language.
103. The Court recalls that Ukraine has requested it to indicate measures aimed at ensuring
the non-aggravation of the dispute with the Russian Federation. When it is indicating provisional
measures for the purpose of preserving specific rights, the Court also possesses the power to
indicate provisional measures with a view to preventing the aggravation or extension of a dispute
whenever it considers that the circumstances so require (see Request for Interpretation of the
Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v.
Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J.
Reports 2011 (II), pp. 551-552, para. 59). In this case, having considered all the circumstances, in
addition to the specific measures it has decided to take, the Court deems it necessary to indicate an
additional measure aimed at ensuring the non-aggravation of the dispute between the Parties.
*
* *
104. With regard to the situation in eastern Ukraine, the Court reminds the Parties that the
Security Council, in its resolution 2202 (2015), endorsed the “Package of Measures for the
Implementation of the Minsk Agreements”, adopted and signed in Minsk on 12 February 2015 by
representatives of the OSCE, Ukraine and the Russian Federation, as well as by representatives of
“certain areas of the Donetsk and Luhansk regions”, and endorsed by the President of the Russian
Federation, the President of Ukraine, the President of the French Republic and the Chancellor of
the Federal Republic of Germany. The Court expects the Parties, through individual and joint
efforts, to work for the full implementation of this “Package of Measures” in order to achieve a
peaceful settlement of the conflict in the eastern regions of Ukraine.
*
* * - 35 -
105. The decision given in the present proceedings in no way prejudges the question of the
jurisdiction of the Court to deal with the merits of the case or any questions relating to the
admissibility of the Application or to the merits themselves. It leaves unaffected the right of the
Governments of Ukraine and the Russian Federation to submit arguments in respect of those
questions.
*
* *
106. For these reasons:
THE COURT ,
Indicates the following provisional measures,
(1) With regard to the situation in Crimea, the Russian Federation must, in accordance with
its obligations under the International Convention on the Elimination of All Forms of Racial
Discrimination,
(a) By thirteen votes to three,
Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar
community to conserve its representative institutions, including the Mejlis;
IN FAVOUR : President BRAHAM ; Vice-President YUSUF; Judges OWADA , BENNOUNA ,
C ANÇADO TRINDADE , G REENWOOD , D ONOGHUE , G AJA, S EBUTINDE , B HANDARI ,
R OBINSON , RAWFORD ; Judge ad hocOCAR ;
AGAINST: Judges OMKA , UE ; Judge ad hocKOTNIKOV ;
(b) Unanimously,
Ensure the availability of education in the Ukrainian language;
(2) Unanimously,
Both Parties shall refrain from any action which might aggravate or extend the dispute
before the Court or make it more difficult to resolve. - 36 -
Done in French and in English, the French text being authoritative, at the Peace Palace,
The Hague, this nineteenth day of April two thousand and seventeen, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the Government of Ukraine
and the Government of the Russian Federation.
(Signed) RonnyA BRAHAM ,
President.
(Signed) Philippe COUVREUR ,
Registrar.
Judge O WADA appends a separate opinion to the Order of the Court; Judge T OMKA
appends a declaration to the Order of the Court; Judges ANÇADO TRINDADE and B HANDARI
append separate opinions to the Order of the Court; JuRAWFORD appends a declaration to the
Order of the Court; Judges ad hocOCAR and SKOTNIKOV append separate opinions to the Order
of the Court.
(Initialled) R. A.
(Initialled) Ph. C.
___________
Request for the indication of Provisional Measures
Order of 19 April 2017