A. Preliminary issues

33. Before addressing Ukraine's claims under the ICSFT, the Court will first consider certain preliminary issues relevant to the determination of the dispute, namely the Russian Federation's invocation of the “clean hands” doctrine, the interpretation of relevant provisions of the ICSFT and certain questions of proof.

B. Alleged violations of obligations under the ICSFT

C. Remedies

148. The Court recalls that, in respect of its claims under the ICSFT, Ukraine has requested, in addition to declaratory relief, the cessation by the Russian Federation of ongoing violations, guarantees and assurances of non-repetition, compensation and moral damages (see paragraph 27 above).

149. By the present Judgment, the Court declares that the Russian Federation has violated its obligations under Article 9, paragraph 1, of the ICSFT and continues to be required under that provision to undertake investigations into sufficiently substantiated allegations of acts of terrorism financing in eastern Ukraine.

150. The Court does not consider it necessary or appropriate to grant any of the other forms of relief requested by Ukraine.

A. Preliminary issues under CERD

152. In addressing Ukraine's claims under CERD, the Court will first consider certain preliminary issues relevant to its decision on this aspect of the dispute.

B. Alleged violations of Articles 2 and 4 to 7 of CERD

201. Before turning to the alleged violations of obligations under CERD, the Court recalls that its jurisdiction is limited by virtue of Article 22 of CERD to Ukraine's claims under that Convention. In the present case, the Court lacks jurisdiction to rule on alleged breaches of other obligations under international law, such as those deriving from other international human rights instruments. However, the fact that a court or tribunal does not have jurisdiction to rule on alleged breaches of those obligations does not mean that they do not exist. They retain their validity and legal force. States are required to fulfil their obligations under international law, and they remain responsible for acts contrary to international law which are attributable to them (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 46, para. 86; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 52-53, para. 127).

C. Remedies

371. Having established that the Russian Federation has violated its obligations under Article 2, paragraph 1 (a), of CERD and Article 5 (e) (v) of CERD (see paragraph 370 above), the Court now turns to the determination of remedies for this internationally wrongful conduct.

372. The Court recalls that, in respect of its claims under CERD, Ukraine has requested, in addition to a declaration of violations, the cessation by the Russian Federation of ongoing violations, guarantees and assurances of non-repetition, compensation and moral damages (see paragraph 27 above).

373. By the present Judgment, the Court declares that the Russian Federation has violated its obligations under Article 2, paragraph 1 (a), of CERD and Article 5 (e) (v) of CERD. It considers that the Russian Federation remains under an obligation to ensure that the system of instruction in the Ukrainian language gives due regard to the needs and reasonable expectations of children and parents of Ukrainian ethnic origin.

374. The Court does not find it necessary or appropriate to order any other remedy requested by Ukraine.

A. Compliance with provisional measures

375. In its final submissions, Ukraine requests the Court to adjudge and declare that:

1. “(l) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by maintaining limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.

2. (m) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by failing to ensure the availability of education in the Ukrainian language.

3. (n) The Russian Federation has breached its obligations under the Order indicating provisional measures issued by the Court on 19 April 2017 by aggravating and extending the dispute and making it more difficult to resolve by recognizing the independence and sovereignty of the so-called DPR and LPR and engaging in acts of racial discrimination in the course of its renewed aggression against Ukraine.”

376. The Court indicated the following provisional measures in its Order of 19 April 2017 (I.C.J. Reports 2017, pp. 140-141, para. 106):

377. The Parties disagree about whether the Russian Federation complied with the Court's Order of 19 April 2017.

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378. Ukraine alleges that the Russian Federation has violated the Court's Order of 19 April 2017 by failing to lift its ban on the Mejlis, by failing to ensure that education in the Ukrainian language is available in Crimea, and by aggravating the dispute and making it more difficult to resolve.

379. According to Ukraine, the Order clearly required the Russian Federation to revoke its ban on the Mejlis, which is necessarily a “limitation[] on the . . . Mejlis”. It points out that the Russian Federation has not lifted the ban. Ukraine rejects the interpretation put forward by the Russian Federation which would be tantamount to treating the obligations under the first provisional measure as self-judging. In its view, this reading is incompatible both with the precise text of the first provisional measure, as well as with the binding character of provisional measures generally. Ukraine argues that if the Court were to follow this interpretation, any State before the Court would be free to ignore a provisional measures order solely based on its belief that it might someday prevail on the merits.

380. Ukraine also submits that the Russian Federation has violated the Order as far as language education is concerned. It claims that since the Russian Federation took control of Crimea, the number of students receiving Ukrainian-language education has declined by nearly 100 per cent. More specifically, Ukraine maintains that of the seven Ukrainian-language education institutions that existed in 2014, only one remains and that even in this school Ukrainian is only taught as a subject to a few classes in specific grades. According to Ukraine, this sharp decline is not due to a lack of demand, but to the fact that parents are harassed and discouraged from selecting a Ukrainian- language education for their children and that resources for Ukrainian-language education in Crimea are dwindling sharply.

381. Finally, Ukraine submits that the Russian Federation, through its conduct subsequent to the adoption of the Order of 19 April 2017, aggravated the dispute between the Parties both in respect of the ICSFT and of CERD.

382. Regarding the ICSFT, Ukraine argues that the dispute is defined by the Application filed by Ukraine, which requests the Court to declare that the Russian Federation must

383. Regarding CERD, Ukraine claims that the Russian Federation has aggravated the dispute by various statements and other efforts subsequent to the adoption of the Order of 19 April 2017 which have perpetuated and aggravated racial discrimination against ethnic Ukrainians and Crimean Tatars. Ukraine points, inter alia, to a statement by the CERD Committee of June 2023 criticizing the Russian Federation for its “[i]ncitement to racial hatred and propagation of racist stereotypes against ethnic Ukrainians, in particular on State-owned radio and television networks, . . . as well as by public figures and government officials”. Ukraine also refers to recent statements made by President Putin, who characterized Ukrainians as Nazis and denied the existence of a separate Ukrainian people and the right of Ukrainians to their own State.

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384. The Russian Federation denies that it has violated the Court's Order indicating provisional measures.

385. The Russian Federation is of the view that the first measure does not necessarily require it to lift or suspend the ban on the activities of the Mejlis, since this measure only requires that it take measures in keeping with its obligations under CERD. Consistent with the fact that rights under CERD are not unlimited, it would be difficult, according to the Russian Federation, to imagine that the Court would demand that States parties to CERD renounce their right to maintain their national security and public order. The Russian Federation maintains that, it has genuinely been addressing the situation of the Mejlis without at the same time hampering the principle of the rule of law and undermining the protection of national security.

386. Regarding the measure concerning access to education in the Ukrainian language, the Russian Federation does not dispute the fact that there has been a decline in the number of students being taught in Ukrainian. In its view, this decline stems from the low demand for education in the Ukrainian language subsequent to what it considers the change in sovereignty in Crimea. It maintains that, despite the low demand for teaching in Ukrainian, the Russian Federation has never restricted that possibility or obstructed students' wishes to study in Ukrainian. The Russian Federation maintains that such access is not denied to those who wish to pursue it and that Ukrainian can be the language of instruction for students upon request. The Respondent asserts that possibilities to study Ukrainian at various Crimean universities continue to exist.

387. Finally, as far as the third measure is concerned, the Russian Federation is of the view that the case before the Court is limited in scope and that events that have unfolded since February 2022, which Ukraine invokes, bear no relation to the present proceedings. In its view, this is illustrated by the fact that Ukraine brought a separate Application invoking the Genocide Convention with respect to the events occurring since February 2022. Moreover, the Respondent claims that the Russian Federation has actively sought a negotiated settlement between the Parties in the context of the present case, which was rejected by Ukraine as inappropriate. In this regard, the Russian Federation points out that the Court has previously held that “pending a decision of the Court on the merits, any negotiation between the Parties with a view to achieving a direct and friendly settlement is to be welcomed”.

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388. The Court recalls that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109).

389. The Court will address the question of compliance with each of the provisional measures contained in its Order of 19 April 2017 in.turn.

With respect to the first provisional measure, the Court recalls that it ordered that

390. Ukraine claims that the Russian Federation has violated this measure by not lifting the ban on the Mejlis. It is uncontested between the Parties that the Russian Federation has neither suspended nor lifted the ban on the Mejlis. However, the Parties disagree about whether the chapeau of the provisional measure, by its reference to CERD, can be interpreted as leaving a margin of discretion for the Russian Federation as to how to implement its obligations under the measure.

391. The Court recalls that obligations arising from provisional measures bind the parties independently of the factual or legal situation which the provisional measure in question aims to preserve (see Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015 (II), p. 665, para. 129). The Court is of the view that the reference in the Order of 19 April 2017 to the obligations of the Russian Federation under CERD does not provide any scope for the Russian Federation to assess, for itself, whether the ban on the Mejlis and the confirmation of the ban by the Russian courts were, and remain, justified. The formulation in the chapeau “in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination” refers to the source of the rights which the measure seeks to preserve and does not qualify the measure nor confers discretion upon the Party addressed to decide whether or not to implement the measure indicated.

392. The Court therefore finds that the Russian Federation, by maintaining the ban on the Mejlis, has violated the Order indicating provisional measures. The Court notes that this finding is independent of the conclusion set out above (see paragraph 275 above) that the ban on the Mejlis does not violate the Russian Federation's obligations under CERD.

393. With respect to the second provisional measure, the Court recalls that it ordered that

394. The Court notes that the Order of 19 April 2017 required the Russian Federation to ensure that education in the Ukrainian language remains “available”. In this regard, the Court takes note of a report by the OHCHR, according to which “instruction in Ukrainian was provided in one Ukrainian school and 13 Ukrainian classes in Russian schools attended by 318 children” (OHCHR, Report on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and city of Sevastopol, Ukraine, 13 September 2017 to 30 June 2018, UN doc. A/HRC/39/CRP.4, para. 68), which confirms that instruction in the Ukrainian language was available after the adoption of the Order. While Ukraine has shown that a sharp decline in teaching in the Ukrainian language took place after 2014, it has not been established that the Russian Federation has violated the obligation to ensure the availability of education in the Ukrainian language contained in the Order indicating provisional measures.

395. The Court therefore concludes that the Russian Federation has not violated the Order in so far as it required the Respondent to ensure the availability of education in the Ukrainian language.

396. In the Order indicating provisional measures, the Court also stated that “[b]oth Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

397. The Court observes that, subsequent to the Order indicating provisional measures, the Russian Federation recognized the DPR and LPR as independent States and launched a “special military operation” against Ukraine. In the view of the Court, these actions severely undermined the basis for mutual trust and co-operation and thus made the dispute more difficult to resolve.

398. For these reasons, the Court concludes that the Russian Federation violated the obligation under the Order to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

B. Remedies

399. In its final submissions, Ukraine also requests the Court to adjudge and declare that the Russian Federation is required to:

400. The Court recalls that orders indicating provisional measures create a legal obligation for the States involved (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 110) and that it is well established in international law that “the breach of an engagement involves an obligation to make reparation in an adequate form” (Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21).

401. The Court considers that its declaration that the Russian Federation has breached the Order indicating provisional measures by maintaining the ban on the Mejlis and has breached its obligations under the non-aggravation measure contained in the same Order provides adequate satisfaction to Ukraine.

402. Regarding Ukraine's requests for restitution with respect to the Mejlis, the Court finds that, since it has concluded that the ban on the Mejlis does not violate the Russian Federation's obligations under CERD (see paragraph 275 above), no restitution can be due after the date of this finding, the assessment at the provisional measures stage having not been confirmed on the merits.

403. The Court does not find it necessary or appropriate to order any other remedy requested by Ukraine.

*

* *

404. For these reasons,

The Court,

(1) By thirteen votes to two,

Finds that the Russian Federation, by failing to take measures to investigate facts contained in information received from Ukraine regarding persons who have allegedly committed an offence set forth in Article 2 of the International Convention for the Suppression of the Financing of Terrorism, has violated its obligation under Article 9, paragraph 1, of the said Convention;

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Pocar;

AGAINST: Judge Xue; Judge ad hoc Tuzmukhamedov;

(2) By ten votes to five,

Rejects all other submissions made by Ukraine with respect to the International Convention for the Suppression of the Financing of Terrorism;

IN FAVOUR: Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Salam, Iwasawa, Nolte, Brant;

Judge ad hoc Tuzmukhamedov;

AGAINST: President Donoghue; Judges Sebutinde, Bhandari, Charlesworth; Judge ad hoc Pocar;

(3) By thirteen votes to two,

Finds that the Russian Federation, by the way in which it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language, has violated its obligations under Articles 2, paragraph 1 (a), and 5 (e) (v) of the International Convention on the Elimination of Racial Discrimination;

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Xue, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Pocar;

AGAINST: Judge Yusuf; Judge ad hoc Tuzmukhamedov;

(4) By ten votes to five,

Rejects all other submissions made by Ukraine with respect to the International Convention on the Elimination of Racial Discrimination;

IN FAVOUR: Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Salam, Iwasawa, Nolte, Brant;

Judge ad hoc Tuzmukhamedov;

AGAINST: President Donoghue; Judges Sebutinde, Bhandari, Charlesworth; Judge ad hoc Pocar;

(5) By eleven votes to four,

Finds that the Russian Federation, by maintaining limitations on the Mejlis, has violated its obligation under paragraph 106 (1) (a) of the Order of 19 April 2017 indicating provisional measures;

IN FAVOUR: President Donoghue; Judges Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Pocar;

AGAINST: Judges Tomka, Xue, Brant; Judge ad hoc Tuzmukhamedov;

(6) By ten votes to five,

Finds that the Russian Federation has violated its obligation under paragraph 106 (2) of the Order of 19 April 2017 indicating provisional measures to refrain from any action which might aggravate or extend the dispute between the Parties, or make it more difficult to resolve;

IN FAVOUR: President Donoghue; Judges Tomka, Sebutinde, Bhandari, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Pocar;

AGAINST: Judges Abraham, Bennouna, Yusuf, Xue; Judge ad hoc Tuzmukhamedov;

(7) By eleven votes to four,

Rejects all other submissions made by Ukraine with respect to the Order of the Court of 19 April 2017 indicating provisional measures.

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Salam, Iwasawa, Brant; Judge ad hoc Tuzmukhamedov;

AGAINST: Judges Sebutinde, Nolte, Charlesworth; Judge ad hoc Pocar.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this thirty-first day of January, two thousand and twenty-four, 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, respectively.

(Signed) Joan E. DONOGHUE,

President.

(Signed) Philippe GAUTIER,

Registrar.

President DONOGHUE appends a separate opinion to the Judgment of the Court; Judges TOMKA, ABRAHAM, BENNOUNA and YUSUF append declarations to the Judgment of the Court; Judge SEBUTINDE appends a dissenting opinion to the Judgment of the Court; Judges BHANDARI, IWASAWA and CHARLESWORTH append separate opinions to the Judgment of the Court; Judge BRANT appends a declaration to the Judgment of the Court; Judge ad hoc POCAR appends a separate opinion to the Judgment of the Court; Judge ad hoc TUZMUKHAMEDOV appends a separate opinion, partly concurring and partly dissenting, to the Judgment of the Court.

(Initialled) J.E.D.

(Initialled) Ph.G.

A. Article 12 of the ICSFT

5. As stated by the Court in paragraph 126 of its Judgment, Article 12 of the ICSFT obligates States parties to afford one another the greatest assistance in their investigations into the commission of terrorism financing offences. Specifically, Article 12, paragraph 1, provides that States parties “shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings” in respect of the offence of terrorism financing and its predicate acts, “including assistance in obtaining evidence in their possession necessary for the proceedings”. I am of the view that in the present case, the Russian Federation has violated this obligation.

6. Although Ukraine claimed having sent over 91 requests to Russia between 2014 and 2020, the Court rightly only considered the 12 requests for mutual legal assistance (hereinafter “MLA”) produced before the Court by Ukraine (paragraph 126 of the Judgment). Furthermore, the Court was correct to limit its analysis to those requests that specifically mentioned the provision of financial support to persons or organizations alleged to have engaged in acts of terrorism (paragraph 128 of the Judgment). However, I disagree with the Court's reasoning in paragraph 130 of the Judgment, which led to its conclusion that these requests for legal assistance did not meet the evidentiary threshold required to give rise to the Russian Federation's obligation under Article 12 to assist Ukraine in its investigations.

7. The Court considers that the requests for legal assistance provided by Ukraine to the Russian Federation were insufficient to trigger the obligation under Article 12 because they did not describe in sufficient detail the commission of alleged predicate acts by the recipients of the funds and because they failed to substantiate the fact that the alleged funders knew that the funds would be used to commit such acts (paragraph 130 of the Judgment). In my view, the evidentiary threshold applied by the Court is unnecessarily stringent and imposes an impracticable burden upon States requesting assistance with investigations into terrorism financing. The State requesting legal assistance is often not in possession of such detailed information regarding the precise nature of the predicate acts, prior to submitting its request, and that is the very reason for the request for legal assistance in the first place.

8. When making a request for legal assistance, it is not necessary for a State to demonstrate that the alleged funders “knew” what the funds provided were to be used for. It is precisely this information concerning the mens rea of the funders that the requesting State seeks to uncover during its investigation. At the stage of requesting legal assistance, the requesting State should not be expected to be in possession of all the relevant facts concerning the alleged offence. It is sufficient that the request contains credible allegations that a terrorism financing offence may have been committed. This is an analogous standard to that applied in the context of Article 9 of the ICSFT, which concerns the obligation to undertake investigations. In my opinion, the obligation under Article 9 to conduct a criminal investigation and the obligation under Article 12 to assist with an investigation are two sides of the same coin. Ordinarily, if the requesting State has met the evidentiary threshold required for the trigger of an obligation under Article 9, as Ukraine did in the present case, the same will be true with respect to the evidentiary threshold required to trigger an obligation under Article 12.

9. In the present case, the Court concluded with respect to Article 9 that the communications made by Ukraine to the Russian Federation contained sufficiently detailed allegations of terrorism financing to obligate the Russian Federation to undertake investigations into the facts alleged therein (paragraph 107 of the Judgment). For the same reasons, the Court should have concluded that the Russian Federation was obligated to provide Ukraine with the “greatest measure of assistance” in respect of Ukraine's own criminal investigations or extradition proceedings in respect of individuals alleged to have committed terrorism financing offences. The requests for legal assistance provided by Ukraine credibly alleged that individuals present on the territory of the Russian Federation provided financing to armed groups associated with armed groups involved in attacks on civilians in Ukraine. For example, the requests included information regarding fundraising websites set up by members of the Russian State Duma and bank accounts used to finance LPR operations. At the time, the Russian Federation had also been made aware by Ukraine, of conduct allegedly undertaken by armed groups associated with the DRP and LPR that Ukraine considered to constitute predicate acts under the ICSFT (see paragraph 107 of the Judgment). In my view, this information was sufficient to meet the evidentiary threshold for triggering the obligation of the Russian Federation under Article 12.

10. In my view, the Russian Federation failed to fulfil its obligation to provide Ukraine with such assistance. As noted, the most relevant requests for legal assistance are those made by Ukraine on 11 November 2014, 3 December 2014, and 28 July 2015. The Russian Federation entirely rejected each of these requests. In all three cases, it cited Article 2 (b) of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (hereinafter the “European Convention”) and Article 19 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993, as amended by Protocol of 28 March 1997 (hereinafter the “Minsk Convention”) to justify its rejection of the requests. These articles concern the rejection of requests for legal assistance on grounds of sovereignty or security. In the circumstances, I do not consider that the Russian Federation's rejection of Ukraine's requests for MLA was justified for two reasons.

11. First, the Russian Federation did not adequately explain its reasons for rejecting Ukraine's request. Even if the security exceptions invoked by the Russian Federation applied in the present case, which is far from clear, the Russian Federation was required to substantiate that ground. Article 19 of the European Convention and Article 19 of the Minsk Convention both require that the Russian Federation notify Ukraine of the reasons for its refusal when denying a request for legal assistance. As the Court has explained in the past, a “bare reference” to a treaty provision does not suffice to satisfy a requirement that a State give reasons for a refusal for mutual assistanceFootnote ¹. But that is precisely what the Russian Federation did here. Its rejection of the Ukrainian requests contained little more than a reference to the treaty provisions it invoked without any further explanation. This, in my view, was insufficient to sustain an exception to the obligation under Article 12 of the ICSFT.

12. Secondly, it is notable that even though its response rejecting Ukraine's requests for MLA were little more than a paragraph long, the Russian Federation took many months to send its response to Ukraine. The Russian Federation did not respond to the request dated 11 November 2014 until 31 August 2015, entailing a delay of over nine months. Similarly, the Russian Federation took over eight months to respond to the request dated 3 December 2014 and over seven months to respond to the request dated 28 July 2015. This is despite the fact that, as the Court notes in the present Judgment, “the Russian Federation generally answers requests for mutual legal assistance ‘within one to two months’” (paragraph 110 of the Judgment). These inordinate delays, coupled with the failure to substantiate the reasons for declining Ukraine's MLA requests, clearly demonstrate a failure by the Russian Federation to meet its obligations under Article 12.

13. In short, the Russian Federation not only failed to provide Ukraine with “the greatest measure of assistance” in its investigations into terrorism financing, but it also failed to provide Ukraine with reasons for declining the Applicant's MLA requests. I therefore cannot agree with the Court's finding that Ukraine has failed to establish a violation by the Russian Federation of Article 12, paragraph 1, of the ICSFT.

B. Article 18 of the ICSFT

14. I also cannot agree with the Court's conclusion in paragraph 146 of the Judgment concerning the compliance by the Russian Federation with its obligation pursuant to Article 18 of the ICSFT. In my view, the Russian Federation violated its obligations under this provision.

15. As the Court notes, Article 18, paragraph 1, obligates States parties to take “all practicable measures” to prevent and counter preparations for the commission of terrorism financing offences. I agree that for a violation of this obligation to occur, it is not necessary that the offence of terrorism financing should have occurred (paragraph 138 of the Judgment). I also agree that the provision is a broad one encompassing all reasonable and feasible measures that a State may take to combat terrorism financing, including but not limited to adoption of a regulatory framework to monitor and prevent transactions with terrorist organizations (paragraphs 139-140 of the Judgment). However, I disagree that Ukraine has failed to demonstrate that the Russian Federation failed to meet this obligation.

16. As the Court explains in the present Judgment, Ukraine submitted multiple Notes Verbales and requests for mutual legal assistance to the Russian Federation alleging that Russian officials and private persons were engaged in the financing of acts of terrorism. Indeed, some of these individuals made no attempt to hide the fact that they were fundraising for activities carried out by armed groups whose overall aim was to compel Ukraine to accept the demands of the DPR and LPR. Upon receiving this information, it was incumbent upon the Russian Federation to investigate these persons in their individual capacity and, where necessary, to take “all practicable measures” to counter any preparations by those individuals to commit the offence of terrorism financing.

17. I am of the view that the Russian Federation failed to take such “practicable measures” that were within its disposal. I agree with the Court that the direct financing by the Russian Federation of acts of terrorism does not fall within the scope of the ICSFT (paragraph 142 of the Judgment). However, this does not absolve the Russian Federation of the obligation to take actions to counter the financing of terrorism by its officials or other private actors on its territory, in their individual capacity. The evidence shows that the Russian Federation did not take such actions. To the contrary, it appeared to endorse and even encourage the financing of armed groups associated with the DPR and LPR.

18. Similarly, I believe that the Russian Federation did not do all that it could to discourage and counter fundraising by private individuals for armed groups operating in Eastern Ukraine alleged to have committed acts of terrorism. The Russian Federation has a robust framework for the prevention of terrorism financingFootnote ². However, it chose not to make use of that framework to in any way restrict or limit fundraising for the DPR and LPR while investigations were ongoing into the possible complicity of both entities in the commission of acts of terrorism.

A. Law enforcement measures

20. One of Ukraine's claims under CERD is that the law enforcement measures implemented by the Russian Federation in relation to members of the Crimean Tatar community and its leadership in Ukraine, violated CERD, in particular Articles 2 (1), 4, 5 (a) and 6 (paragraphs 222-224 of the Judgment). Having examined the law enforcement measures, and the manner in which they were implemented, the Court rightly concluded that the measures regulating the prevention, prosecution and punishment of certain broadly defined criminal offences — whilst in and of themselves not possessing a discriminatory purpose — were nonetheless implemented and enforced in a manner that had a disparate adverse effect on the rights of Crimean Tatars (paragraphs 226-238 of the Judgment).

21. However, the Court having noted that the stated purpose of certain law enforcement measures appears to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security, went on to conclude that it has not been established that “persons of Crimean Tatar origin were subjected to such law enforcement measures based on their ethnic origin” (paragraph 241 of the Judgment). It is this finding with which I disagree.

22. In my view, there is sufficient evidence to conclude that the Russian Federation's enforcement of its anti-extremism legislation against members of the Crimean Tatar community amounted to racial discrimination under CERD because it had the effect of discriminating against Crimean Tatars on the basis of their ethnic or national origin. Besides, even if there was credible evidence showing that the Crimean Tatar community was targeted because they espoused political views opposed to the presence of the Russian Federation in Crimea after the events of 2014, this would not be sufficient to exclude the possibility that they were also targeted because of their racial or ethnic origin. This is particularly so where, as in this case, the political views or concerns of an ethnic minority are inextricably intertwined with its ethnic identity. Furthermore, it is also not inconceivable that a given measure may have more than one objective. Thus, while it may be true that the law enforcement measures against the Crimean Tatars were based on the political positions and views they espoused, this does not exclude the possibility that the measures also had a discriminatory purpose or effect on the rights of that protected group.

23. The Court correctly finds that the law enforcement measures undertaken by the Russian Federation in Crimea had a disproportionate effect upon Crimean Tatars, a fact that has also been noted by the OHCHR and the UN General Assembly (paragraph 238 of the Judgment). Accordingly, such measures constitute acts of racial discrimination unless they can be credibly justified by reasons unrelated to race, colour, descent or national or ethnic origin. I do not believe that the Russian Federation has advanced such a credible alternative rationale for its treatment of Crimean Tatars. The Russian Federation's purported justification for its conduct is that individuals of Crimean Tatar heritage are linked to religious extremism and other criminal activities. However, the evidence it supplies in support of this assertion is far from persuasive.

24. In essence, the Russian Federation appears to consider that, because some persons of Crimean Tatar heritage have been linked to acts of religious extremism and crimes such as drug trafficking, this provided a general justification for searches and other law enforcement measures directed against Crimean Tatars more generally and the places in which they socialize and worship. Indeed, the Court notes in its Judgment that “the stated purpose of certain measures appears to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security” (paragraph 241 of the Judgment). In my view, the evidence also shows that such measures were targeted against Crimean Tatars on the basis of their ethnic and national origin. Such acts of racial profiling are impermissible under CERD. The evidence before the Court, including reports by the OHCHR, demonstrates that the Russian authorities undertook raids directed against businesses and religious sites, resulting in the detention of large numbers of Crimean Tatars, without any apparent specific basis for determining that the men detained may have been linked to criminal activityFootnote ³. In many cases, no charges were brought against those detained. Such disproportionate targeting of members of a particular ethnic group, with no justified basis, constitutes an act of racial discrimination under Articles 2 and 5 of CERD.

B. Ban against the Mejlis

25. I do not agree with the conclusion of the Court that the ban against the Mejlis was only politically motivated and that, consequently, the Russian Federation did not violate its obligations under CERD (paragraph 275 of the Judgment). In my view, the ban constituted an act of racial discrimination. In particular, I take issue with two aspects of the Court's reasoning regarding this issue.

26. First, I disagree that because the Mejlis is not the only institution representing the Crimean Tatar community, the ban did not deprive the Crimean Tatar population of its representation (paragraph 269 of the Judgment). The majority's conclusion that the cultural rights of the Crimean people were not affected by the ban of the Mejlis is based upon the mistaken assumption that the representative role formerly played by the Mejlis can be ably carried out by the current Qurultay. However, the role played by the Mejlis as the executive body of the Crimean Tatar people is not equivalent to that played by the Qurultay. The two bodies are not equivalent but are distinct and complementary. Furthermore, there is evidence that the Mejlis is considered by many Crimean Tatars as a traditional organ of an indigenous people that enjoys a high degree of representative legitimacyFootnote ⁴.

There is also uncontroverted evidence that the current body known as the “Qurultay of Muslims of Crimea” is not representative of the Crimean Tatar community.

27. Ukraine argues that both the Mejlis and the Qurultay are legitimate representative institutions of the Crimean Tatar people. Ukraine explains the Mejlis is the “traditional organ of the Crimean Tatar people”, which is elected by the Qurultay. It notes that in June 1991, the Crimean Tatars organized the election of the Qurultay, a “democratic body, whose name recalls an ancient institution of the Crimean Khanate that governed Crimea from the fifteenth to the eighteenth centuries”. The delegates of the Qurultay are elected directly by the Crimean Tatar people at large every five years. The Qurultay in turn elects a Mejlis, “an executive body to be the legitimate representative voice for the Crimean Tatar community when the Qurultay is out of session”. Ukraine also cites an OHCHR report noting that “[w]hile approximately 30 Crimean Tatar NGOs are currently registered in Crimea, none can be considered to have the same degree of representativeness and legitimacy as the Mejlis and Qurultay”.

28. According to Ukraine, the relationship between the Qurultay and the Mejlis (before the Russian measures banning the Mejlis) was as follows. The Qurultay was the highest representative body of Crimean Tatars and was composed of 250 delegates elected by secret ballots cast by Crimean Tatars and their families. The Qurultay was elected for a period of five years, although it did not sit permanently, but only temporarily for sessions. For example, the Qurultay, elected in 1991, sat for five days. The Mejlis was composed of 33 people elected by the Qurultay. It operated as the sole authorized representative executive body between sessions of the Qurultay. For most of the time, when the Qurultay was not in session, the Mejlis operated to represent Crimean TatarsFootnote ⁵. The Mejlis was given the authority to represent Crimean Tatars in all negotiations with the governing authorities.

29. Ukraine also states that “the new pro-Russia organizations that Russia deems to have replaced the Mejlis [do not] represent the Crimean Tatar community at large”Footnote ⁶. For its part, Russia refers to an “extraordinary session of the extended Qurultay of the Muslims of Crimea” that took place on 17 February 2018, and which elected the so-called “Council” of the Crimean Tatar People, or Shura. Ukraine responds that this “Qurultay”, whose delegates are appointed by local religious organizations, is a distinct organization with a religious focus and not a representative institution elected by the Crimean Tatar people. Ukraine further claims that Mr Ablayev, a leading member of this supposed “Qurultay” and now the head of the Shura, is well known within the Crimean Tatar community as a renegade outlier who has chosen to work with the Russian authorities in Crimea.

30. The Russian Federation emphasizes that “[n]o restrictions or bans have been imposed against the Qurultay in the Russian Federation”. However, the Respondent appears to acknowledge that there has been some change to the make-up of the original Qurultay, stating that “currently the functions of the Qurultay of the Crimean Tatar People are performed by the Qurultay of Muslims of Crimea that has delegated representatives of the Crimean Tatar community to the Council of Crimean Tatars”.

31. Based on the uncontroverted facts presented by both Parties, it is clear that while the original Qurultay has traditionally been elected by the Crimean Tatar people themselves, by contrast, the “Qurultay of the Muslims of Crimea” is made up of delegates chosen by local religious organizations. It is also clear that the “Shura” chosen by the Qurultay of Muslims of Crimea is clearly a distinct body from that of the Mejlis. Consequently, the ban of the Mejlis had the effect of impairing the cultural rights of the Crimean Tatar community to elect their representatives, in violation of Articles 2 and 5 (d) (viii) and (ix) of CERD.

32. Secondly, I disagree that the ban of the Mejlis was based purely or exclusively upon the political positions and activities of its members in opposition to the Russian Federation rather than on their ethnicity (paragraphs 271-272 of the Judgment). As stated above, where the political views and activities of an ethnic minority or group are inextricably intertwined with its ethnic identity, one cannot preclude the possibility that a measure may also have been based upon ethnicity and national origin and was therefore discriminatory in effect. The same measure may have multiple rationales and these different bases of motivation are not mutually exclusive. The political opposition of the Mejlis to Russian control over Crimea is linked with their ethnic identity, given the history of persecution of the Crimean Tatar community by the Soviet authorities. Thus, the ban had the effect of impairing the civil rights of the individual members of the Mejlis, including their right to freedom of opinion, freedom of expression, freedom of association and freedom of peaceful assembly. Furthermore, even to the extent that the activities of individual members of the Mejlis may have justified measures being taken against them as individuals, there is no reason why such activities required the full-scale dissolution of the institution of the Mejlis as such. Instead, measures could have been taken against the individual members of the Mejlis alleged to have engaged in criminal activities and the Qurultay could have been permitted to elect new members to replace them, thereby maintaining the operation and activities of the Mejlis as an institution. I am therefore of the view that the Russian Federation violated its CERD obligations including under Article 2 and Article 5 (d) (viii) and (ix) by banning the institution of the Mejlis.

1. The level of scrutiny required

8. Article 26 of the International Covenant on Civil and Political Rights provides:

Other international human rights treaties of a general nature, such as the European Convention on Human Rights (Art. 14 of the Convention and Art. 1 of Protocol No. 12) and the American Convention on Human Rights (Art. 1), contain analogous non-discrimination provisions.

9. The international courts and monitoring bodies established under these international human rights treaties have used similar frameworks for interpreting these non-discrimination provisions and for determining whether a differentiation of treatment constitutes discrimination. A differentiation of treatment is generally considered to constitute discrimination, “unless the criteria for such a differentiation are reasonable and objective”; in other words, “unless [the differentiation] pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved”Footnote ⁷.

10. Article 1, paragraph 1, of CERD defines “racial discrimination” as follows:

The definition of racial discrimination in this provision comprises two elements. First, a measure must constitute a distinction, exclusion, restriction or preference based on one of the prohibited grounds, namely “race, colour, descent, or national or ethnic origin”. Second, the measure must have the “purpose or effect” of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights. The Court makes a statement to the same effect (Judgment, paragraph 195).

11. In its General Recommendation XIV on Article 1, paragraph 1, of the Convention, the CERD Committee states that “a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention”Footnote ⁸. The Committee seems to be of the view that a differentiation of treatment based on race, colour, descent, or national or ethnic origin can be justified “if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate”. This test does not appear to require rigorous scrutiny and is thus questionable.

12. Racial discrimination is one of the most invidious forms of discrimination. A measure based on a prohibited ground listed in Article 1, paragraph 1, of CERD (“race, colour, descent, or national or ethnic origin”) is inherently suspect and must be subjected to the most rigorous scrutiny. The ECtHR has stated that “[w]here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”Footnote ⁹. The ECtHR has gone so far as to declare that “[n]o difference in treatment based exclusively or to a decisive extent on a person's ethnic origin is capable of being justified in a contemporary democratic society”Footnote ¹⁰. In my view, where a measure is based on “race, colour, descent, or national or ethnic origin”, a State bears a very heavy burden of demonstrating that the measure pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The level of scrutiny must be most rigorous and the threshold must be especially high. In particular, a measure based on race, colour or ethnic origin is hardly justifiable in a democratic society, unless it qualifies as a temporary special measure taken for the sole purpose of securing the adequate advancement of certain racial or ethnic groups or individuals (Art. 1 (4) and Art. 2 (2) of CERD; also commonly referred to as “affirmative action”).

2. Indirect discrimination

13. According to the definition of racial discrimination set out in Article 1, paragraph 1, of CERD, if a measure has the “purpose or effect” of discrimination based on one of the prohibited grounds, it constitutes racial discrimination. The object and purpose of CERD is to eliminate racial discrimination “in all its forms and manifestations” (preamble, paras. 4, 5 and 10; see also Arts. 2 (1) and 5). It is consistent with this object and purpose that CERD seeks to eliminate all forms of racial discrimination, including those that not only have the “purpose” but also the “effect” of racial discrimination.

14. Effects-based discrimination, often referred to as indirect discrimination, can be explained in relation to racial discrimination as follows. If a rule, measure or policy that appears on its face to be neutral has an unjustifiable disproportionate prejudicial impact on a group distinguished by race, colour, descent, or national or ethnic origin, it constitutes racial discrimination, even if it is not specifically aimed at that group. The analysis of disproportionate impact requires a comparison to be made between different groups. A disproportionate prejudicial impact on a group is unjustifiable, unless such an impact can be justified by a legitimate reason that does not implicate any of the prohibited grounds under Article 1, paragraph 1, of CERD. The context and circumstances in which the differentiation was introduced must be taken into account in determining whether it amounts to racial discrimination.

15. International human rights courts and treaty bodies have adopted the notion of indirect discrimination. For example, the CERD Committee states in its General Recommendation XIV on Article 1, paragraph 1, of the Convention that, “[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin”Footnote ¹¹. In L. R. v. Slovakia, it recalled that

16. Other human rights treaty bodies have explained the notion of indirect discrimination in analogous terms. The Human Rights Committee has recalled that

The Committee on Economic, Social and Cultural Rights has declared that “[b]oth direct and indirect forms of differential treatment can amount to discrimination under article 2, paragraph 2, of the Covenant”, defining indirect discrimination as “laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination”Footnote ¹⁴. The Committee on the Elimination of Discrimination against Women has also stated that “States parties shall ensure that there is neither direct nor indirect discrimination against women”, adding:

17. International human rights courts have explained the notion of indirect discrimination in a similar manner. For example, the ECtHR has stated that “a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group”Footnote ¹⁶. The IACtHR has also considered that

18. In the present case, even though the Court has refrained from using the term “indirect discrimination”, it has embraced the notion and laid down a framework for analysing indirect discrimination under CERD in the following terms:

This framework is consistent with the notion of indirect discrimination adopted by other international human rights courts and treaty bodies.

19. After laying down the framework for indirect discrimination, the Court adds that “[m]ere collateral and secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention” (Judgment, paragraph 196, referring to Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, para. 112). This addition is wholly unnecessary, because the framework adopted by the Court can fully explain why “collateral and secondary effects” do not constitute racial discrimination. “Collateral and secondary effects” do not constitute racial discrimination because “such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1”. Indeed, the Court does not refer to the concept of “collateral or secondary effects” when analysing the Russian citizenship régime in Crimea (see Judgment, paragraph 287).

20. In the present case, the Russian Federation does not deny the notion of indirect discrimination as such. Indeed, during the oral proceedings, it stated that, “contrary to what is claimed by our opponents, Russia in no way denies that racial discrimination in effect can constitute a violation of the Convention”Footnote ¹⁸. Rather, it challenges the “very broad notion” as put forward and defined by UkraineFootnote ¹⁹. It takes issue with the idea, set out in an expert report submitted and adopted by Ukraine, that “[i]ndirect discrimination recognises that equal treatment which has a disproportionate effect on a group defined by the enumerated grounds is itself discriminatory”Footnote ²⁰. The Respondent argues that this notion, “which eliminates differentiation of treatment”, is not compatible with the definition of racial discrimination in CERD, which requires a “distinction, exclusion, restriction or preference”, and it maintains that “equality of treatment cannot . . . constitute racial discrimination”Footnote ²¹.

21. Article 1, paragraph 1, of CERD defines racial discrimination as “any distinction, exclusion, restriction or preference” based on one of the prohibited grounds. Normally, it is differential treatment based on a prohibited ground that falls within this definition. However, a measure that appears on its face to be neutral and equal can have an unjustifiable disproportionate prejudicial impact on a protected group and can thus constitute racial discrimination. Indeed, the CERD Committee has acknowledged that “to treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same”Footnote ²². Therefore, in accordance with the notion of indirect discrimination, equal treatment can also constitute racial discrimination if it has an unjustifiable disproportionate prejudicial impact on a protected group under CERD.

(Signed)

IWASAWA Yuji.

1. The concept of “funds”

2. Many of the incidents where, according to Ukraine, the Russian Federation breached its obligations under the International Convention for the Suppression of the Financing of Terrorism (“ICSFT”) involve the provision or collection of such items as weapons or training camps. Do such items constitute “funds” within the meaning of the ICSFT so that their provision or collection may constitute the offence under Article 2 if all other conditions are fulfilled?

3. The Court concludes that the term “funds” “refers to resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps” (Judgment, para. 53). I do not subscribe to this conclusion. Under the applicable customary rules of treaty interpretation, means used to commit acts of terrorism may come within the scope of the concept of “funds” under the ICSFT.

4. The Court accepts that the term “funds” is not confined to financial assets. This is clear from the wording of the definition, which covers “assets of every kind”, including immovable assets. It is also consistent with the drafting history of the Convention, which suggests that the term “funds” was understood as synonymous to “property”Footnote ¹.

5. The Court thus considers that the term “funds” in principle extends to a broad range of assets, from precious metals to artwork (Judgment, para. 48). However, the Court insists that such assets are only covered by the definition where they “are provided for their monetary value and not as a means of committing acts of terrorism” (Judgment, para. 48).

6. There is a certain appeal in the Court's view, in so far as it captures the main focus of the Convention. The title and preamble of the Convention indicate that the primary concern behind its adoption was the aim to deprive groups committing acts of terrorism of their financial resources (Judgment, para. 50). This is also reflected in the fact that some of the obligations under the Convention apply primarily, if not exclusively, in situations where the “funds” in question are financial or monetary in character (Judgment, para. 49).

7. It is unsurprising that the focus of the ICSFT is on assets that are traded and transferred with little trace of their origin. But a treaty's focus is not the same thing as its scope. So, the fact that some provisions of the Convention are not applicable unless the assets in question are financial is of limited interpretative value. In Oil Platforms, the Court had to grapple with the meaning of “commerce” under Article X, paragraph 1, of the Treaty of Amity, Economic Relations, and Consular RightsFootnote ² between the parties to that case. The Court gave

This logic applies with even greater force where the term in question is defined under the applicable treaty. For example, Article 37, paragraph 1, of the Vienna Convention on Diplomatic RelationsFootnote ⁴ assumes that the diplomatic agent is accompanied by family members and only applies in such situations, but few would rely on Article 37 to argue that persons not accompanied by family members do not qualify as “diplomatic agents” under Article 1 (e) of the Vienna Convention. Likewise, the fact that some provisions of the ICSFT apply to some types of “funds” and not to others does not detract from a broader interpretation of “funds”. Indeed, some of the provisions the Court relies on — for example, Article 18, paragraph 2 (b) — are equally inapplicable to assets that are covered by the Court's interpretation — for example, energy resources provided for their monetary value.

8. It seems artificial to include non-financial assets in the concept of “funds” when they are used “for their monetary and financial value” but to exclude them when they serve as the means used to commit acts of terrorism. An asset does not lose its financial value when it serves as the means for the commission of an act of terrorism. Following the Court's reasoning, provision by a sponsor of a building will be considered provision of “funds” where the sponsored entity (the “terrorist group”, for want of a better term) rents out the building and uses the proceeds to rent a hideout for its activities. But provision of the same building will not be considered provision of “funds” where the terrorist group uses that building as its hideout. In both cases the building has improved the financial situation, or the equity, of the terrorist group; whether it has done so directly or indirectly is not legally relevant.

9. The Court's complicated delineation of the concept of “funds” with reference to the function of the relevant assets is further obscured by the fact that, under the terms of Article 2, the critical function is the one intended or perceived by the sponsor. So, a person who provides a building in the knowledge that it will be used “for [its] financial value” — for example, that it will be rented out by the sponsored terrorist group — commits an offence. This is so even if the sponsored terrorist group eventually decides to use the building as a hideout: under Article 2, paragraph 3, of the ICSFT, the actual fate of the funds provided is not decisive for the purpose of establishing an offence. By contrast, a person who provides a building in the knowledge that it will be used as a hideout does not commit an offence even if the sponsored terrorist group eventually decides to rent out the building instead and to use the proceeds to finance other acts. Thus, the function of the assets provided, and consequently the question whether they constitute “funds” within the meaning of the ICSFT, is relegated to the mental state of the person who provides them — it is part of the requisite mental elements for the establishment of the offence under Article 2.

10. There is a more fundamental point about the scope of the term “funds” and thus about the scope of the offence under Article 2. As the Court observes, the question whether a party to the ICSFT is required to perform its obligations thereunder will depend on the applicable threshold evidence of terrorism financing (Judgment, para. 84). The obligations invoked in the present case arise regardless of whether the offence of terrorism financing has been proved (see, for example, Judgment, paras. 92, 103 and 138). Yet the function of an asset in a specific situation — whether or not it is provided or collected “for [its] monetary and financial value” — is one of the elements that will be ascertained on the basis of the relevant evidence. On occasion, the existing evidence may leave no doubt as to the function of a non-financial asset provided to a terrorist group. Often, however, the function will not emerge so clearly — even less so the function intended or perceived by the sponsor. Preliminary evidence may indicate that a non-financial asset, such as a building or a weapon, was provided for its financial value, namely in order to be traded to support acts of terrorism. But upon further investigation and closer assessment of the evidence, it may emerge that the asset was provided to be used as a means for the commission of acts of terrorism. The opposite may of course also be true: a non-financial asset that initially seemed to have been provided as a means for the commission of acts of terrorism may turn out to have been provided for its financial value.

11. Following the logic of the Judgment, a party's obligations under the ICSFT may arise in the former situation, where there is some evidence that a non-financial asset is used for its financial value, even if this evidence is eventually rebutted, thereby precluding the commission of the offence. By contrast, in the latter situation, where preliminary evidence indicates that a non-financial asset is used as a means for the commission of an act of terrorism, then the obligations under the ICSFT do not arise, even if it eventually turns out that this asset is used for its financial value (and perhaps even if it turns out that the offence of terrorism financing was actually committed).

12. This counter-intuitive conclusion complicates the application of the ICSFT in practice, because it creates confusion as to the situations in which the parties are to take action under the Convention. I think that this fact alone undermines the object and purpose of suppressing terrorism financing.

2. The obligation to afford assistance under Article 12

13. The Court concludes that it has not been established that the Russian Federation violated its obligations under Article 12, paragraph 1, of the ICSFT (Judgment, para. 131). It considers that the evidence accompanying Ukraine's requests was insufficient to require the Russian Federation to attend to them by affording its assistance (Judgment, para. 130). I do not share this conclusion. Article 12 requires States parties to “afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings” in respect of offences under Article 2. In addition to my doubts, expressed above, that obligations under Article 12 only come into play in the context of the provision of financial assistance, I do not agree with the Court's analysis of the type of obligation imposed by Article 12.

14. The obligation to afford assistance in another State party's investigations under Article 12 bears some similarities to the obligation to investigate under Article 9, which the Court finds to have been violated in the present case. Similarly to the obligation to investigate, the obligation to afford assistance is to be performed with a view to ascertaining whether an offence has been committed. Assistance in investigations, like investigations themselves, is most valuable at a point when the details surrounding the alleged offence are not yet known and the facts provided are general in nature (see Judgment, paragraph 103). With respect to the obligation to investigate under Article 9, the Court notes that unsubstantiated allegations do not give rise to a duty to initiate an investigation (Judgment, para. 104). This proposition is based on the terms of Article 9 (“shall take such measures as may be necessary under its domestic law”; emphasis added). It is not clear however that the same qualification applies to the obligation to afford assistance to another State party in its investigations: the text of Article 12 does not hint at it, nor is it warranted by the character of the obligation to assist another State in its investigations, which is normally significantly less onerous than the obligation to initiate one's own investigation.

15. Even if a State party to the ICSFT has no obligation to provide assistance to another State's investigations unless there is sufficient evidence of the offence in question, Ukraine's two requests were detailed enough to require action by the Russian Federation. For example, the request of 11 November 2014 recounts in some detail an alleged decision by the suspect (deputy of the State Duma of the Russian Federation and head of a political party faction) to fund the Luhansk People's Republic, and the contemporaneous launch by the political party of a fundraiser for the benefit of an organization otherwise unknown to the Ukrainian authoritiesFootnote ⁵. In its request, Ukraine documented the alleged decision and the launch of the fundraiser (including the bank details of the beneficiary organization), and it requested the Russian Federation's assistance in questioning officials of the organization as witnesses and in providing details concerning the suspectFootnote ⁶. Similar details with reference to a different suspect were provided in Ukraine's request of 3 December 2014Footnote ⁷. In my view, the obligation under Article 12 to afford the greatest measure of assistance to Ukraine in its criminal investigations entailed a duty of the Russian Federation to react to these requests. Given that one of the Convention's aims is to enhance international co-operation among States parties for the effective punishment of terrorism financing, as stated in the preamble of the ICSFTFootnote ⁸, such a reaction should be timely, especially if it consists in the refusal rather than the provision of assistance. Unjustified delay in responding to a request for assistance hampers the requesting State's efforts to suppress terrorism financing and thus thwarts the performance of its own obligations under the ICSFT.

16. The Russian Federation responded to Ukraine's requests more than eight months later in each caseFootnote ⁹. Such a delay contrasts to the promptness with which the Russian Federation has responded to requests for legal assistance generally (see Judgment, paragraph 110). The Russian Federation did not provide any grounds for its delay in its responses to Ukraine or in its pleadings before the Court. This conduct alone would sustain a breach of the Russian Federation's obligation to afford Ukraine the greatest measure of assistance under Article 12.

17. It is in principle possible under the conventions of mutual legal assistance in force between the Parties, which are to be observed in such situations pursuant to Article 12, paragraph 5, of the ICSFT. Specifically, the European Convention on Mutual Assistance in Criminal Matters and the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases permit the refusal of legal assistance where granting such assistance may prejudice the sovereignty, security or essential interests of the requested StateFootnote ¹⁰. In its responses, the Russian Federation invoked these provisions to refuse assistance to Ukraine. While reliance on such grounds as sovereignty and security may entail a certain measure of discretion, the refusing State is still expected to state the reasons for its refusal. This is not only mandated under the terms of one of the conventions but, as the Court observed in a similar context, “[i]t also allows the requested State to substantiate its good faith in refusing the request”Footnote ¹¹. Against this background, I think that the Russian Federation's terse reference to the permissible grounds of refusal under the applicable conventions does not discharge its obligations under those conventions and, by extension, under the ICSFT. Relatedly, I do not think that this explicit obligation of justification has somehow been extinguished because it may have been breached by both Parties in the pastFootnote ¹².

1. Scope of the case

19. As the Judgment recalls, Ukraine's claim under CERD consists in an allegation that the Russian Federation has engaged in a pattern of conduct that is in breach of its obligations under CERD (Judgment, para. 159). To address Ukraine's claim concerning the existence of “a pattern of racial discrimination”, the Court framed the appropriate enquiry, stating that a significant number of individual acts together would constitute a pattern of racial discrimination (Judgment, para. 161).

20. So, in the present case, the Court does not examine whether individual instances have given rise to violations of the Respondent's obligations under CERD for the simple reason that it was not called upon to do so by the Applicant in this case (Judgment, para. 161). It is therefore important to emphasize that the conduct giving rise to racial discrimination does not need to consist of multiple actsFootnote ¹³. An individual act of racial discrimination against one victim is wrongful under CERD, regardless of whether it forms part of a pattern of racial discrimination. Moreover, a pattern of racial discrimination may emerge from a single measure to the extent that it introduces changes affecting an undefined number of persons — as regulatory measures usually do. The Judgment accepts this when it finds that legislative and other practices applying to an undefined number of persons constitute a pattern of racial discrimination (Judgment, para. 369).

21. I should also clarify that the pattern of racial discrimination need not in all cases be composed of acts having the same character or belonging to the same “category of violations” (Judgment, para. 161). As with the decision to ascertain the existence of a pattern of racial discrimination, the structure of the Court's reasoning on the basis of the different types of alleged acts — physical violence, law enforcement measures, etc. — is simply a result of the manner in which the Applicant presented and argued its case. I do not read the Judgment as suggesting that a pattern of racial discrimination cannot emerge from a series of acts that are of a diverse character.

2. The concept of racial discrimination

22. Article 1, paragraph 1, of CERD defines the term “racial discrimination” as

23. The text of the Convention thus clarifies that prohibited racial discrimination may arise from the purpose of particular acts as well as from their effect. Effects-based discrimination may occur when laws, policies and practices (which the Judgment refers to collectively as “measures”), while generally applicable (or “neutral”), can be shown to have a disparate adverse effect on the human rights of persons of a particular protected group.

24. A finding that a measure produces a disparate adverse effect on the rights of members of a protected group does not in itself amount to a finding of racial discrimination. It does, however, call for close scrutiny. As the Judgment emphasizes, the disparate adverse effect must be explicable in a way that does not relate to the prohibited grounds (Judgment, para. 196). This requirement for explanation, or justification, has been identified by the Committee on the Elimination of Racial Discrimination (“CERD Committee”), the independent body established specifically to supervise the interpretation and application of CERDFootnote ¹⁴. When addressing comparable provisions prohibiting discrimination, other treaty monitoring bodies and international courts have similarly affirmed the need for an objective and reasonable justification of measures that produce a disparate adverse effect on a given person or groupFootnote ¹⁵.

25. Once it has been established that a measure has produced a disparate adverse effect on members of the protected group, the burden will normally fall on the State imposing (or tolerating) the measure, which is expected to show that this effect is justified, in the sense that it is unrelated to the prohibited grounds (see Judgment, paragraph 196)Footnote ¹⁶. When the group experiencing the disparate adverse effect of a measure is identified with reference to the characteristics protected under CERD, the justification given must be subjected to rigorous scrutiny. As observed by the European Court of Human Rights (“ECtHR”), “[w]here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible”Footnote ¹⁷. In this regard, the measures producing the disparate adverse effect ought to be applied pursuant to a legitimate aim, and they ought to be proportional to the achievement of this aimFootnote ¹⁸. Only in such circumstances will the explanation of the disparate adverse effect produced by the measure in question be deemed unrelated to the prohibited grounds under CERD (see Judgment, para. 196).

3. Application in the present case

26. Against this background, the Court's assessment of Ukraine's claims in the present case is not fully consistent, especially with regard to the question of proof for the justification of measures that produce a disparate adverse effect. On occasion, the Court, upon affirming that a given measure produces such an effect, thoroughly inspects the explanations given by the Respondent. This is the case with the measures relating to education (Judgment, paras. 338-370). At times, however, in my view, the majority is too quick to conclude that the Respondent has discharged its duty for justification of measures producing a disparate adverse effect. This is best illustrated by the Court's approach to the Russian Federation's law enforcement measures and its ban of the Mejlis which, I consider, both give rise to discrimination against persons of Crimean Tatar ethnic origin.

27. As the Judgment acknowledges, the Russian Federation's application of measures of law enforcement produced a disparate adverse effect on persons of Crimean Tatar ethnic origin (Judgment, para. 238). This has been extensively documented in reports by the Secretary-General and by the Office of the High Commissioner for Human Rights and noted with deep concern by the General Assembly (see ibid.). This being so, the Russian Federation is expected to explain this effect, and its justification ought to be rigorously scrutinizedFootnote ¹⁹. The Judgment states that the application of law enforcement measures to persons solely on the basis of an assumption that they are prone to specific types of behaviour owing to their ethnic origin is unjustifiable (Judgment, para. 237). For its part, the CERD Committee has condemned the practice of racial profiling as a violation of CERD and has warned that the practice is committed through such acts as arbitrary searches, investigations and arrestsFootnote ²⁰.

28. The Russian Federation justifies its conduct with reference to considerations of security (notably, the “fight against religious ‘extremism’ and ‘terrorism’”) and of public health (Judgment, paras. 239-240). However, reports of the Office of the High Commissioner for Human Rights paint a different picture. They express concern “about the growing number of large-scale ‘police’ actions conducted with the apparent intention to harass and intimidate Crimean Tatars”Footnote ²¹, and they document that some searches against Crimean Tatars “were conducted without presenting any authorization”Footnote ²². The reports observe that “[t]he raids often involved excessive use of force and an extent of searches not warranted by circumstances, going beyond the lawful objective of preventing crime and protecting the rights and freedoms of others”Footnote ²³.

29. In these circumstances, invocation of grounds of security and public health does not suffice to discharge the burden on the Russian Federation to provide an objective and reasonable explanation for its conduct. In fact, the Court acknowledges that the “stated purpose of certain measures appears [in some cases] to have served as a pretext for targeting persons who, because of their religious or political affiliation, the Russian Federation deems to be a threat to its national security” (Judgment, para. 241). Crucially, the religious or political affiliation in question (and thus the risk to national security) may itself not be manifested but instead conjectured on account of the individual's ethnic origin as a Crimean Tatar.

30. Against this background, I think that the Court should have required more convincing evidence from the Russian Federation that its law enforcement measures were indeed justified. In the absence of such a convincing explanation, I think that a finding of violation was warranted.

31. Similar considerations apply with respect to the Russian ban on the Mejlis. The ban, by its very nature, produces a disparate adverse effect on persons of Crimean Tatar originFootnote ²⁴. Although the Court acknowledges such an effect (Judgment, para. 270), it then proceeds to find that “the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin” (Judgment, para. 271).

32. In so doing, the Judgment seems to regard the various justifications for differential treatment as mutually exclusive: if differential treatment is “due to . . . political activities”, it cannot also be based on grounds of ethnic origin. Yet a common feature of measures that produce a disparate adverse effect on specific groups is that they rely on a variety of justifications. This accords with human experience that almost all actions have multiple motives. So, a finding that differential treatment is based on political grounds does not preclude it being also based on prohibited grounds, such as ethnic origin. In this sense, the Court did not comprehensively examine whether the explanation provided by the Russian Federation relates to one of the prohibited grounds under CERD.

33. Still less persuasive is the ensuing reversal of the burden of proof back to the Applicant, which is expected to provide convincing evidence that the measure was based on prohibited grounds (Judgment, para. 272). This move may in part be the result of the way in which Ukraine itself described the measure in this case (see Judgment, para. 271). However, the shift of the burden of proof from the applicant to the respondent and then back to the applicant can be criticized as a matter of principle. In my view, the Russian Federation has not successfully discharged its burden of establishing that the ban on the Mejlis is justified. Neither the domestic court decisions nor the pleadings of the Russian Federation convincingly explain why an outright ban of the entire institution was the appropriate measure in the circumstances. One can easily imagine, for example, measures prosecuting the individual members of the Mejlis who are accused of extremism, and even banning their participation in the activities of the Mejlis, while preserving the operation or activities of the institution and ensuring that the prosecuted members are replaced by new members elected by the Qurultay Footnote ²⁵.

1. Aggravation of the dispute

35. In its Order of 19 April 2017, the Court indicated that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”Footnote ²⁶. The Court explains only briefly why the Russian Federation violated this obligation.

36. In my view, this obligation is an aspect of the obligation to use exclusively peaceful means for the settlement of disputes. Elaborating on the principle of the peaceful settlement of international disputes, which the Court considers “essential in the world of today”Footnote ²⁷, the Friendly Relations Declaration explains:

Accordingly, provisional measures of non-aggravation reflect a pre-existing general duty of litigant parties that stems from the very purpose of dispute settlementFootnote ²⁹. Several Members of this Court have described non-aggravation measures as a means to contribute to the purpose of maintaining international peace and security, which is entrusted to the United Nations and to the Court as its principal judicial organFootnote ³⁰.

37. Therefore, conduct that is incompatible with the obligation to use peaceful means for the settlement of disputes is in principle likely to aggravate a dispute pending before the Court. On occasion, the Court has linked the risk of aggravation of the dispute with ongoing or probable use of forceFootnote ³¹. The Chamber of the Court in Frontier Dispute explicitly treated the use of force as incompatible with the duty not to aggravate the dispute. Specifically, the Chamber observed that some types of conduct “not merely are likely to extend or aggravate the dispute but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes”Footnote ³².

38. In the same vein, the Court has suggested that the use of force by litigant parties undermines the ongoing judicial proceedings. In Tehran Hostages, the Court expressed its concern with respect to the United States' intrusion into Iran after the Court's hearings in the case but before the delivery of the Judgment. Recalling its order of provisional measures, whereby it “had indicated that no action was to be taken by either party which might aggravate the tension between the two countries”, the Court felt “bound to observe that an operation undertaken in those circumstances [in which the Court was deliberating upon the pending dispute], from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations”Footnote ³³.

39. So, conduct amounting to the use of force undermines the dispute settlement proceedings pending before the Court and, in doing so, aggravates the ongoing disputeFootnote ³⁴. As recorded in the Judgment, since the Court's Order of 19 April 2017 the Russian Federation has launched a “special military operation”, which entails the use of force. In my view, this conduct is incompatible with the Russian Federation's obligation to use peaceful means for the settlement of its dispute with Ukraine in the present case, and therefore is incompatible with its obligation to refrain from actions that might aggravate the dispute submitted to the Court.

40. This conclusion does not bear on the compatibility of the Russian Federation's “special military operation” with international law in general. Rather, the Court's task here is confined to examining its compatibility with the very specific obligation imposed on it under the terms of the Court's Order of 19 April 2017. In this regard I note that, at least before the Court, the Russian Federation has not invoked any circumstance that might preclude the wrongfulness of the conduct that breaches its obligations under the Order, including self-defenceFootnote ³⁵.

41. Under the terms of the Court's Order, the obligation to refrain from actions that might aggravate the dispute was addressed to both Parties. However, the Russian Federation has not claimed that Ukraine has breached the obligation through its own conduct. For this reason, the Court's finding concerning the Russian Federation's violation is without prejudice to the question as to whether Ukraine also failed to comply with this provisional measureFootnote ³⁶.

2. Availability of education in the Ukrainian language

42. Unlike the majority, I consider that the Russian Federation has also breached the provisional measure relating to ensuring the availability of education in the Ukrainian languageFootnote ³⁷. In order to ascertain the scope of the provisional measure indicated by the Court, it is important to appreciate the context in which it was indicated, and specifically the risk of irreparable prejudice to which this provisional measure responded. In the Order of 19 April 2017, the Court had regard to two reports that documented a decline in the use of Ukrainian as a language of instruction, coupled with allegations of pressure for its discontinuanceFootnote ³⁸. Relying on these reports, the Court concluded, on a prima facie basis, that there might have been restrictions in terms of the availability of Ukrainian-language education in Crimean schoolsFootnote ³⁹. In directing the Russian Federation to “[e]nsure the availability of education in the Ukrainian language”, the Court aimed at mitigating the risk posed by such restrictions.

43. Seen against this background, the measure does more than provide for simply making education in Ukrainian available in some areas pending the Court's final decision in the case. Rather, this measure obliges the Russian Federation to ensure that students in Crimea wishing to be educated in the Ukrainian language are able to do so. There is evidence indicating that the demand for instruction in Ukrainian was not always met. Specifically, the Secretary-General has documented in consecutive reports that the availability of instruction in Ukrainian has not always satisfied demandFootnote ⁴⁰. In addition, he has raised doubts as to the extent to which Ukrainian, while formally available as a language of instruction, is used in practice in the curriculumFootnote ⁴¹. To this, one can add the reported indifference, if not discouragement, from school administrations in the face of requests for enrolment in Ukrainian-language curriculaFootnote ⁴². The limited availability in practice of Ukrainian has raised concern as to the impact that it could have on the well-being and development of children belonging to the Ukrainian ethnic minorityFootnote ⁴³. In my view, this evidence points towards a violation by the Russian Federation of its relevant obligation under the Court's Order.

(Signed) Hilary CHARLESWORTH.

1. Application of the Vienna Convention on the Law of Treaties and interpretation of the term “funds”

2. A significant part of Ukraine's claims in this case depends on the question of whether the term “funds” under the ICSFT encompasses items used operatively to carry out terrorist acts, in particular weapons, ammunition and explosives. In its Judgment, the Court concludes that

3. I cannot support this conclusion. The interpretation of the term “funds” must be undertaken in accordance with the rules of interpretation laid down in Articles 31 to 33 of the VCLT, which, in addition, are reflective of customary international lawFootnote ². Under Article 31 (1), a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. However, according to Article 31 (4) of the VCLT, a special meaning shall be given to a term if it is established that the parties so intended. Such a special meaning is clearly expressed in Article 1 (1) of the ICSFT, which defines “funds” as

4. The ordinary meaning of “assets” is already quite broad, sometimes defined in dictionaries as “all the property of a person”Footnote ³. As such, it would clearly encompass weapons or other property used operatively by terrorist groups. This broad scope is further emphasized by the addition of the phrase “of every kind”. Nevertheless, the Judgment seems to suggest that the meaning of “assets of every kind” — in direct contrast to its ordinary meaning — is in fact “assets of some kind”. In doing so, the Judgment highlights the list of documents or instruments in Article 1 (1) that may evidence title to or interest in assets, such as “bank credits, traveller's cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit”Footnote ⁴. The Judgment then concludes:

5. As I have already pointed out in my separate opinion to the 2019 Judgment on preliminary objections, the focus of the definition of “funds” in Article 1 (1) lies on the term “assets” and refers to legal documents and instruments only in so far as may evidence title to such “assets”Footnote ⁶. Therefore, the list of documents and instruments included in Article 1 (1) — which is expressly defined as non-exhaustive by the words “but not limited to” — can by no means be used to circumscribe the type of assets included under that provision.

6. The Court's reductive interpretation of the term “assets” can also not be explained with a reference to the apparent context of the Convention. The Judgment stipulates that the fact that certain provisions of the Convention explicitly deal with “bank secrecy”, “cross-border transactions” or “fiscal offences” must mean that the term “funds” (or “assets of every kind” for that matter) is limited to “resources that possess a financial or monetary character”Footnote ⁷. At the same time, however, the Judgment acknowledges that the definition of “funds” enshrined in Article 1 (1) explicitly lists immovable and intangible property, for example real estate or patents, which do not possess a monetary character and could equally not be the subject of these specific provisions.

7. The Court also aims to find further support for its narrow interpretation by invoking the object and purpose of the Convention. The Judgment asserts that “the object of the ICSFT is not to suppress and prevent support for terrorism in general, but rather to prevent and suppress a specific form of support, namely its financing”Footnote ⁸. But this argument is circular. The meaning of “financing” is “to raise or collect funds”Footnote ⁹. “Funds”, however, are explicitly defined in Article 1 (1), namely as “assets of every kind”.

8. Ultimately, the Court acknowledges that the term “funds” under the Convention encompasses assets other than “traditional financial assets”, for example oil, artworks or precious metals, and therefore implicitly accepts that financing can occur “in-kind”Footnote ¹⁰. However, the Judgment also stipulates that such other assets are included only to the extent that they are “provided for their monetary value and not as means of committing acts of terrorism”Footnote ¹¹. By excluding the transfer of assets used operatively from the scope of the Convention, the Court introduces — in essence — an unwritten additional element of intent. It is well known that weapons and ammunition (just like oil or precious metals) have an inherent monetary value and are subject to a large black market all over the world. This means an individual can commit the offence of terrorism financing by transferring weapons to a terrorist group with the knowledge that the group will sell the weapons; but that person will not commit the offence if he or she knows that the group aims to use these weapons directly. Similarly, the offence of terrorism financing would be completed if an individual transfers real estate to a terrorist group in the knowledge that the group will trade the property for weapons, but not if the group sets up its command centre in said property or uses it to hold hostages.

9. This outcome lacks any basis in the text of the ICSFT. Indeed, Article 2 (1) prescribes that the perpetrator intends or knows that the “funds” are to be used to “carry out” the acts defined in subparagraphs (a) or (b). Nowhere does it say that the “funds” must first be used to purchase or acquire equipment or used as a reward for those carrying out such acts. This leads to an absurd incentive for terrorism supporters to directly acquire and transfer weapons and other goods used operatively for terrorist acts rather than to “only” provide “monetary” assistance. Therefore, the Court's conclusion squarely contravenes the object and purpose of the Convention.

10. Finally, the Judgment aims to justify its conclusion by a selective survey of the travaux préparatoires. It notes that the record of the negotiations “expressed a focus on the issue of financial or monetary support”Footnote ¹². However, the initial draft prepared by the ad hoc Committee defined “funds” as “cash, assets or any other property, tangible or intangible, however acquired”Footnote ¹³. The informal summary of the working group recorded that

Ultimately, the term “other property” was deleted from the text. However, this was not done in order to remove arms and explosives but because “property” was already encompassed by the phrase “assets of every kind”:

Therefore, while it may well be that the focus of the negotiations was on “monetary support”, including through “real or spurious charitable institutions”Footnote ¹⁶, these extracts show that this was certainly not the sole concern of the drafters, and that the provision of weapons and arms was explicitly discussed. Rather than to confirm the narrow interpretation adopted by the Court, the travaux thus indicate that the term “property” was associated with “arms, explosives and similar goods”, and that “property” was also considered as encompassed by the ultimate definition of “funds” as “assets of every kind”.

11. In conclusion, I am convinced that the Court has erred in its interpretation of the term “funds”. As a result, the Court put itself in the position not to be able to evaluate predicate acts the commission of which was solely sustained by the supply of weapons or other means to commit such actsFootnote ¹⁷, among others the shooting down of MH17 that has been widely litigated by the PartiesFootnote ¹⁸. Consequently, it dismissed a significant number of complaints and requests for assistance submitted by Ukraine to the Russian Federation under Articles 9, 12 and 18 as outside the scope of the ConventionFootnote ¹⁹. In addition, the Court's interpretation will likely have considerable impact beyond the present case as domestic courts may rely on today's decision in interpreting domestic legislation aimed to implement the ICSFT. Regrettably, this could lead to a significant gap in the legal framework aimed at preventing terrorism.

2. Relationship between Articles 9 and 10 of the ICSFT

12. In its Judgment, the Court found that the Russian Federation has failed to co-operate with Ukraine and to undertake the necessary investigations prescribed by Article 9 of the ICSFTFootnote ²⁰. I agree with this conclusion. However, the decision then proceeds to analyse the obligation to prosecute or extradite found in Article 10, paragraph 1, of the ICSFT. The Court notes that this obligation is

13. The Judgment then continues to dismiss Ukraine's claim under Article 10 on the basis that the information provided by Ukraine to the Russian Federation did not give rise to “reasonable grounds to suspect that terrorism financing offences within the meaning of Article 2 of the ICSFT had been committed”Footnote ²². However, the Judgment also acknowledges the Court's prior findings in the case of the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), in which the Court has dealt with an obligation similar to the one contained in Article 10 (1) of the ICSFT (commonly known as the principle of aut dedere aut iudicare). In that case, the Court found that the similarly worded Article 6 (1) of the Convention against Torture

14. Therefore, irrespective of whether the evidence submitted by Ukraine was sufficient or not to prosecute the accused individuals, Article 10 nevertheless requires that the matter at least be brought to the attention of the relevant prosecutorial authorities, who, after making preliminary inquiries, will then decide whether the evidence warrants the filing of charges against the suspects. In the present case, it appears that the matter was not even submitted to the relevant authorities and that no genuine preliminary inquiry was made. The lack of action appears sufficient to justify a breach of Article 10, irrespective of whether a State has previously complied with its obligation to investigate under Article 9.

3. The Court's dismissal of Ukraine's claims under Article 12 of the ICSFT

15. In its assessment of Ukraine's claims under Article 12 of the ICSFT, the Judgment concludes that

16. This conclusion is problematic for several reasons. First, Article 12 (1) does not stipulate that the State requesting assistance must submit any specific information regarding the commission of predicate acts, or the intention of the funders, it simply obliges each State to provide “the greatest measure of assistance” in connection with criminal investigations in relation to the offence of terrorism financing. It is therefore not clear to me where the Court takes the above-mentioned evidentiary requirements from.

17. Second, Article 2 (3) of the ICSFT makes clear that it is not necessary that predicate acts are actually carried out by the recipients of the funds in order to complete the offence of terrorism financing. Accordingly, information relating to the commission of predicate acts cannot be an indispensable requirement to trigger the obligation of another State to assist with investigations. Nor can a State be expected to provide detailed information about the intention of suspected funders. It is in the nature of criminal investigations that certain elements of a potential crime, in particular the mental element, have yet to be established. It is precisely for this reason that Articles 9 and 12 provide for assistance by other States who might be in a position to supply information establishing such elements. This becomes even more pertinent in the case of terrorism financing, which is per definition a cross-border offence (see Article 3 of the ICSFT).

18. Third, and most importantly, Articles 9 and 12 represent two sides of the same coin. Whereas Article 9 deals with investigations to be carried out by the requested State, Article 12 regulates assistance to be given to the requesting State in relation to its own investigations. It makes no sense to conclude that the evidentiary basis was sufficient to trigger one obligation (Article 9) but not the other (Article 12). Indeed, such difference in relation to the applicable threshold finds no support in the text of Articles 9 and 12.

19. Finally, I note that the Court dismissed nine out of twelve relevant requests for legal assistance that have been submitted by Ukraine on the basis that they concerned the alleged transfer of weapons, ammunition or military equipment and therefore fall outside the scope of the ConventionFootnote ²⁵. In this regard, I reiterate my strong dissent from the Court's erroneous interpretation of the term “funds” discussed above. Moreover, even under the Court's own definition of funds, the transfer of weapons would be encompassed by the Convention as long as such weapons are not intended to be used operatively but for their monetary value. The precise intention of the suspected individuals mentioned in these nine additional requests for legal assistance, however, can only be established by criminal investigations, including those foreseen by Articles 9 and 12. Therefore, the Court erred in summarily dismissing these requests without further analysis.

1. The definition of discrimination under the CERD

21. At the outset, I would like to address the Court's definition of racial discrimination in paragraph 196 of the Judgment. There, the Court states that

22. In my view, the phrase “unless such an effect can be explained in a way that does not relate to the prohibited grounds” remains ambiguous. It seems to suggest that prohibited discrimination must always contain an intentional element, whether concealed or not. However, as confirmed by the CERD Committee, requiring proof of “discriminatory intent is inconsistent with the Convention's prohibition of conduct having a discriminatory effect”Footnote ²⁶. Even a measure that is entirely neutral and implemented in good faith can nevertheless produce a disparate adverse effect on the rights of a group distinguished by race, colour, descent, or national or ethnic origin. In such a case, the State in question must demonstrate that the measure was taken for a legitimate aim and is proportionate in relation to the achievement of that aimFootnote ²⁷. For example, where measures create a disparate adverse effect on the civil rights protected by Article 5 (d) of the CERD, restrictions may be imposed under the same requirements as prescribed by the International Covenant on Civil and Political Rights (“ICCPR”)Footnote ²⁸.

23. The general principle in proceedings before the Court is onus probandi actori incumbit, meaning that it is the party seeking to establish a fact who bears the burden of proving itFootnote ²⁹. However, this principle is not absolute. Once a prima facie case of discrimination is established by demonstrating the disparate adverse impact on a group distinguished by race, colour, descent, or national or ethnic origin, it is up to the respondent to demonstrate that the measure in question was taken for a legitimate aim and in a proportionate manner. This practice is well established in the case law of international courts and quasi-judicial bodies. The European Court of Human Rights, for example, has noted that once an applicant establishes “a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory”Footnote ³⁰. A similar practice can be found in the case law of the CERD CommitteeFootnote ³¹, the UN Human Rights CommitteeFootnote ³² and the European Court of JusticeFootnote ³³.

24. I believe that the Court should have applied this principle to Ukraine's claims under the CERD, in particular in relation to the law enforcement measures taken by the Russian Federation against the Crimean TatarsFootnote ³⁴, as well as to the ban of the Mejlis discussed below.

2. The ban of the Mejlis

25. The present Judgment dismisses Ukraine's claims in relation to the ban of the Mejlis instituted by the Russian authorities in Crimea. First, the Court distinguishes between the Mejlis, which can be described as a self-government body with quasi-executive functions, and the Qurultay, the highest representative body of the Crimean Tatar people, which is composed of directly elected representativesFootnote ³⁵. The Judgment then notes that since only the Mejlis but not the Qurultay has been banned, the Court is “not convinced that Ukraine has substantiated its claim that the ban on the Mejlis deprived the wider Crimean Tatar population of its representation”Footnote ³⁶. This statement is problematic as it assumes that only measures that deprive a protected group of all representation can constitute a violation of the CERD. This cannot be correct. Article 1 (1) of the Convention explicitly recognizes that prohibited racial discrimination can be brought about by restrictions that have the purpose or effect of “nullifying or impairing” the rights protected under the Convention.

26. Ultimately, the Judgment admits that the ban of the Mejlis produces “a disparate adverse effect on the rights of persons of Crimean Tatar origin”, even though it acknowledges such effect only “in so far as the members of the Mejlis are, without exception, of Crimean Tatar origin”Footnote ³⁷. However, the Court then concludes “that Ukraine has not provided convincing evidence that the ban of the Mejlis was based on the national or ethnic origin of its members, rather than its political positions and activities” and, therefore, that the ban cannot “constitute an act of discrimination within the meaning of Article 1, paragraph 1, of CERD”Footnote ³⁸. This statement is at odds with the above- mentioned shift of the burden of proof once an applicant has made a prima facie case of racial discrimination. Since Ukraine had convincingly demonstrated that the ban of the Mejlis has a disparate adverse effect on Crimean Tatars, it should have been the duty of the Russian Federation to provide evidence that the ban was not based on race or ethnicity but pursued for a legitimate aim and in a proportionate manner.

27. The Judgment also notes that the evidence shows that “the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin”. Even if this was correct and the main reason for measures against Crimean Tatars was their political opposition to Russia's occupation and annexation of Crimea, this does not automatically exclude the deliberate targeting of Crimean Tatars to the extent that their political opinion is presumed on the basis of their ethnicity. In my view, the Russian Federation has not produced sufficient evidence to dispel this presumption.

28. Finally, even assuming that the ban was based exclusively on the political opinion of certain Crimean Tatars rather than their ethnicity, this alone is not sufficient to justify the disparate adverse impact on the Crimean Tatar community as a whole. As mentioned above, any measure creating such adverse impact must pursue a legitimate aim and be implemented in a proportionate manner. The Russian Federation has argued that multiple Mejlis leaders were engaged in “extremist acts” such as the setting up of trade and transport blockades of Crimea, and that the Mejlis was banned for security reasons under neutral anti-extremism lawsFootnote ³⁹. Public security and the combat against terrorism and extremism are, in principle, legitimate aims. However, the Russian Federation never claimed that the Mejlis as a collective was responsible for such acts. Rather, it only mentioned that the Mejlis “failed to disassociate itself” from these actionsFootnote ⁴⁰. Neither the Russian Federation nor its domestic courts convincingly explained why it was necessary and proportionate to dissolve the Mejlis as such, rather than to take measures against the three individual members alleged to have orchestrated the blockade of Crimea (in particular, Mr Chubarov, Mr Dzhemilev and Mr Islyamov). I therefore conclude that the ban constitutes a violation of the Russian Federation's obligations under the CERD.

3. The right to minority language education under the CERD

29. The present Judgment concludes that the Russian Federation has violated its obligations under Article 2 (1) (a) and Article 5 (e) (v) of the CERD by the way in which “it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language”Footnote ⁴¹. I concur with this conclusion. However, some of the statements made by the Court in relation to the protection of language education under the CERD warrant additional remarks.

30. At the beginning of its analysis, the Court notes that

The wording chosen by the Court gives the impression that the protection of language rights under the CERD is rather limited. While the Convention does indeed not explicitly mention a right to education in a minority language, I believe that it does protect minority language education more broadly than acknowledged in the present Judgment.

31. In particular, I think that the relevant provisions of the CERD must be interpreted in the light of the relevant subsequent practice and agreements in relation to States' obligations with regard to education in minority languages. In this regard, it is appropriate to draw attention to the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic MinoritiesFootnote ⁴³. The Declaration was adopted by consensus by the United Nations General Assembly and aims to promote, inter alia, “the principles contained in the . . . Convention on the Elimination of All Forms of Racial Discrimination”. Therefore, it arguably constitutes a subsequent agreement, or at least subsequent practice to the Convention under Article 31 (3) (a) and (b) of the VCLTFootnote ⁴⁴.

32. Article 1 (1) of the Declaration stipulates that “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities” (emphasis added). The use of the word “shall” points towards more than a mere recommendation. In addition, Article 4 (3) indicates that States should take “appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue”. In the light of this language, I do not believe that a State enjoys the type of “broad discretion” indicated by the Court in relation to changes in school curricula and the primary language of instructionFootnote ⁴⁵.

4. Compliance by the Russian Federation with the Court's provisional measures in relation to the availability of Ukrainian-language education

33. In its Order of 19 April 2017, the Court instructed the Russian Federation to ensure the availability of education in the Ukrainian languageFootnote ⁴⁶. As mentioned above, in the present Judgment, the Court found that “the Russian Federation has violated its obligations under Article 2 (1) (a) and Article 5 (e) (v) of CERD by the way in which it has implemented its educational system in Crimea after 2014 with regard to the school education in the Ukrainian language”Footnote ⁴⁷. Simultaneously, the Court found that the Russian Federation has not violated its obligations under the Order of 19 April 2017, in so far as it was obliged to ensure the availability of education in the Ukrainian languageFootnote ⁴⁸. The Court reaches this conclusion by noting that the Order of 19 April 2017 required the Russian Federation only to ensure that education in the Ukrainian language remains “available”Footnote ⁴⁹ and that Ukraine has not sufficiently established that education in the Ukrainian language was unavailable for those who wish to choose this possibilityFootnote ⁵⁰.

34. I cannot concur with this finding. Ukraine has submitted as evidence credible reports by the United Nations Secretary-General and the Office of the United Nations High Commissioner for Human Rights (“OHCHR”), which noted, inter alia, the “rapid decline”Footnote ⁵¹ of institutions offering instruction in the Ukrainian language, the failure to meet the demand for Ukrainian-language educationFootnote ⁵², as well as intimidation of parents wishing to enrol their children in Ukrainian language classesFootnote ⁵³. In my view, this shows that access to such education has been impeded to an extent that constitutes a violation of the Court's Order of 19 April 2017. Moreover, a State cannot escape its obligation to ensure the availability of language education by artificially reducing demand, including by displacement and intimidation. For these reasons, I believe the Court should have held that the Russian Federation has breached its obligations “to ensure the availability of education in the Ukrainian language”.

(Signed) Fausto POCAR.

1. The Court has found no evidence of terrorism or financing of terrorism in this case, and rejected Ukraine's claim that DPR and LPR were “notorious terrorist organizations”

7. From the very beginning, Ukraine's ICSFT case seemed incredibly far-fetched. Of course, attempting to cast political and military opponents as “terrorists” is nothing new; but defending these claims in the World Court turned out to be a whole different matter.

8. As early as in 2017, at the provisional measures stage, the Court had stated that Ukraine's allegations regarding the ICSFT were implausibleFootnote ². Ukraine's attempt to make the case about “State-sponsored terrorism”Footnote ³ did not even pass the preliminary objections phase and was rejected in 2019 for lack of jurisdiction. Now, after six years of litigation, and having considerably scaled down its allegations, Ukraine still failed to provide any evidence of “acts of terrorism” attributable to DPR/LPR and “terrorism financing” by the Russian State or Russian persons.

9. One quote cited during the proceedings quite succinctly summarizes the essence of the case:

10. The Donetsk and Lugansk People's Republics were not “terrorist organizations”, but entities created by the people of Donbass to implement their right to self-determination, in response to the nationalistic régime seizing power in Kiev through an armed and violent coup in 2014. It was this new unelected Kiev Government, relying on neo-Nazi groupsFootnote ⁵, which launched a military operation against Donbass to suppress the self-determination movement, thus igniting the internal armed conflict which served as the backdrop for this case.

11. The main incidents cast by Ukraine as “acts of terrorism” allegedly triggering the ICSFT occurred in the course of these hostilities and involved attacks against military targets (real or perceived). This fact presented a major obstacle for Ukraine to prove the necessary elements of a terrorism financing offence — the special terrorist intent to harm civilians for the purpose of spreading terror, and the intent or knowledge on behalf of the financier that the financing will go towards those goals.

12. The Court has steadfastly rejected all attempts by Ukraine to unduly expand the scope of the Convention through misinterpretation of its provisions regarding intent and knowledge. The relevant parts of the Judgment are very illustrative and leave little to add.

13. Failing to prove actual intent and knowledge, Ukraine resorted to claiming that DPR and LPR were “notorious terrorist organizations” and thus Russia was obliged to act against them, even if Ukraine itself never supplied the relevant evidence of their “terrorist” nature. It is with regard to this claim that the Court made its fundamental finding on the absence of evidence that DPR and LPR were engaged in terrorist activity:

14. This conclusion is well founded. Out of all the fighting which took place in Donbass from 2014 (the start of the conflict between Kiev's unelected new Government and its opponents in Donbass) to 2017 (when Ukraine submitted its Application to the Court), only four combat-related incidents were portrayed by Ukraine as “acts of terrorism”: the downing of Flight MH17 and three episodes of shelling, respectively, of the Ukrainian military checkpoint at Volnovakha, the city of Mariupol and the city of Kramatorsk. Much of the case revolved around whether these incidents constituted predicate acts under the ICSFT.

15. Firstly, the Court did not determine that these attacks were even attributable to Donbass forces. Secondly, in all cases, there was a distinct lack of terrorist intent, even if proceeding from Ukraine's own materials.

16. The MH17 incident was, of course, Ukraine's “flagship case”. However, its very prominence acted against Ukraine's efforts to paint it as a “terrorist attack”. Ukraine's reliance on the findings of the Dutch investigation, the JIT group and the Hague District Court backfired, as none of these entities found evidence of terrorism or even a war crime in the event, but rather viewed it as a mistake of targeting in the heat of an ongoing armed conflict between Ukrainian and Donbass forcesFootnote ⁷.

17. Had the Court chosen to examine this incident more deeply, it would have had to confront the numerous gaps and inconsistencies in the reports of the Dutch authorities and JIT, which seemed all too keen to put the blame on DPR while exonerating Ukrainian forces. One such apparent lapse by those authorities was how utterly oblivious they were to evidence pointing towards possible Ukrainian involvement in the disaster, ranging from the decision not to close the airspace over the conflict zone, to the deployment of multiple active Ukrainian BUK anti-aircraft systems in that zone, including in the vicinity of the crash area (confirmed, inter alia, by the Netherlands' own intelligence service report on radar activity)Footnote ⁸, as well as the fact that the markings on the missile fragments allegedly found at the crash site indicated that it had been part of the Ukrainian armed forces inventoryFootnote ⁹.

18. The JIT also ignored Ukraine's own notoriety for shooting down civilian airliners: in 2001 its armed forces, engaged in military exercises and firing live missiles, destroyed a Russian civilian airliner en route from Tel Aviv to Novosibirsk with a stopover in Sochi, killing all 77 passengers and crew on board. Back then, Ukraine's President Kuchma had said: “We are not the first, nor the last; let's not make a tragedy out of this”Footnote ¹⁰. Whether inadvertently or not, Mr Kuchma may have been referring to the shooting down of the Iranian civilian airliner by the USS Vincennes over the Gulf, killing all 290 people aboardFootnote ¹¹. Neither Ukraine, nor the United States have ever faced any international responsibility for these acts. Incredibly, during the hearings Ukraine's counsel made the argument that Ukraine did not act unlawfully and its forces acted under “legal authority” when shooting down the Russian civilian airlinerFootnote ¹².

19. If Ukrainian air defence had previously managed to shoot down a civil aircraft in the perfect conditions of military exercises, how much more probable would such an event be in the fog of an actual ongoing armed conflict, with multiple BUK units actively seeking enemy targets in an airspace where warplanes mingled with civilian aircraft? This is exactly the reason why civil air traffic is normally shut down over conflict zones; but Ukraine chose not to do so to continue garnering payments for the use of its airspace by international civil aviation, hence airliners entering danger zones unbeknownst to their crews and likely becoming civilian shields for the Ukrainian air force against DPR's air defences. Other combat-related incidents referred to by the Applicant were even more clear-cut due to the presence of obvious military targets (the militarized checkpoint at frontline Buhas, which Ukraine chose to task with civilian traffic control; the Kramatorsk military airfield hosting a staff headquarters; the Ukrainian military positions in Mariupol and Avdeevka). Furthermore, even Ukraine's own evidence, such as alleged intercepts of communications and witness statements, pointed towards the absence of terrorist intent on behalf of DPR forces. Moreover, the attribution of the attacks to DPR remained in doubt.

20. The same can be said regarding the rest of the incidents (so-called “bombings”, “killings” and “disappearances”): Ukraine has failed to prove both their attribution to DPR/LPR and their allegedly “terrorist” nature. In fact, not a few of the incidents bore distinct hallmarks of staged operations by the Ukrainian Security Service (SBU), whose notoriety for such “false flags” is illustrated by the case of a journalist being reportedly “assassinated” by “Russian spies” only to emerge afterwards safe and sound, publicly declaring the entire stint to be an SBU operationFootnote ¹³. One alleged “terrorist attack” involved a purported firing of an incendiary grenade launcher at a bank building — which for some reason happened at night, when the bank was closed and there were no people in the vicinity to be harmed by the act or witness it; moreover, the grenade did not even explode and was “extracted” by Ukrainian special services on the next day (something technically impossible according to a munitions expert report presented to the Court)Footnote ¹⁴. Other acts were blamed on Russia because the arms used were allegedly of Russian manufacture; however, they turned out to be generic Soviet-era weaponry now part of Ukrainian military inventory.

21. For the Court to go deep into an examination of all these incidents would undoubtedly have proven embarrassing to the Applicant. The Judgment merely glosses over them. Nevertheless, the fact remains that none of the incidents were found to be acts of terrorism, nor any evidence of terrorism financing was discovered by the Court.

22. The frivolity of the Applicant's allegations was further illustrated by reports of the Financial Action Task Force (FATF), the world's leading body charged with combating terrorism financing. FATF had brushed aside Ukraine's complaints about Russia's alleged lack of co-operation concerning DPR and LPR as pertaining to a “political dispute”Footnote ¹⁵ and rejected Ukraine's calls to “black-list” Russia. At the same time, FATF criticized Ukraine for not providing sufficient evidence in its requests for assistance and co-operationFootnote ¹⁶. Would it not follow that FATF did not accept Ukraine's characterization of the DPR and LPR as terrorist organizations, nor was it aware of their “notoriety” as suchFootnote ¹⁷?

2. Absence of terrorism financing should have excluded a violation of ancillary obligations to co-operate under Article 9

23. This is one of the Judgment's most puzzling parts: the decision to find a violation of an ancillary obligation of a treaty in the absence of a violation of the treaty's principal obligation.

24. The ICSFT, and by extension the agreement of the Respondent to be subject to ICJ jurisdiction with regard to the ICSFT, covers terrorism financing. Therefore, in matters unrelated to terrorism financing, the Convention does not apply. Yet the Majority has decided that, in this case, the Convention should apply and, moreover, be capable of being breached, even though the Court has not found a single instance of terrorism financing allegations advanced by Ukraine to be true, nor established any reason to expect that such allegations were true, since DPR and LPR were not “notorious terrorist organizations”.

25. Presumably a treaty cannot be rendered applicable simply on the basis of a claim by one State party that it is applicable — a claim that is later proven to be false. Apparently, the Majority believed otherwise.

26. It has been a long-standing staple of the Court's case law that fulfilment of subsidiary (ancillary, accessory) obligations, such as those on co-operation or prevention, is hinged upon the existence of predicate offences. The seminal example was provided by the Court in Bosnia Genocide:

27. The Court then clarified the difference between circumstances when an obligation of prevention may be considered breached and circumstances when it merely arises:

28. This is in line with the International Law Commission's Articles on State Responsibility, according to which “[t]he breach of an international obligation requiring a State to prevent a given event occurs when the event occurs”Footnote ²⁰.

29. All of the co-operation obligations in the ICSFT are ultimately aimed at preventing and punishing terrorism financing. They are, in effect, obligations to co-operate in order to prevent and punish. This is made clear not only from their wording and context, but directly from the explicit provision in the preamble of the Convention specifying its object and purpose:

30. As such, these provisions all hinge upon the offence of terrorism financing, which in turn depends upon commission, or at least planning of, actual acts of terrorism (the criteria of intent and knowledge). To put it simply, if no terrorism financing occurred, then no obligations for its prevention or suppression could have been breached. Article 9, paragraph 1, specifically only covers situations involving “an offence set forth in article 2”; the absence of such an offence should have excluded the possibility of a breach of this provision.

31. Even if, quod non, it appeared that terrorism financing might have occurred (which was not the case, as Ukraine failed to provide such evidence by any standard of sufficiency), the mere fact that it had not occurred in reality should have excluded the possibility of a breach of the co-operation obligation, due to the absence of the subject-matter of said co-operation.

32. In the present case, Ukraine has failed to produce convincing evidence of terrorism or terrorism financing. Normally, that would mean that no breach of subsidiary obligations by the respondent could be established. There can be no breach of the obligation to prevent or punish a crime, or to co-operate in order to prevent or punish, if no crime has been committed and the allegations were false from the outset.

33. Nevertheless, in the present case the Judgment states that

34. By stating that, the Judgment divorced the obligations to co-operate from the primary goal of the Convention to prevent and punish terrorism financing — in other words, from the very subject-matter of the Convention, making those obligations an end in themselves. The Court, rather its Majority, also seems to have stepped away from the previously drawn distinction between the arising of an obligation (quod non, as in my view no obligation has ever arisen under the ICSFT in the present case) and its capacity of being breached. Furthermore, by introducing a variable threshold of evidence, and by setting its bar so low as to be basically non-existent for triggering certain obligations, the Court has effectively held that obligations under a treaty may arise and be breached even in the absence of a violation of the treaty's subject-matter.

35. Summing up, the Court, by a majority, found a breach of an obligation ancillary to the principal obligation to combat terrorism financing, even though there had been no terrorism financing — or, in fact, terrorism — to combat. This decision appears to be at a significant deviation from the previous approach of the Court and it is not unlikely that it will have serious consequences for the future of international dispute resolution.

3. The threshold adopted by the Court with regard to Article 9 was far too low

36. Article 9, paragraph 1, of the ICSFT does not contain an unconditional obligation to investigate a person who has committed, or is alleged to have committed, a terrorism financing offence. It is, in fact, explicitly conditional upon the following factors:

1. 1. the offence should fall under Article 2, which contains the definition of terrorism financing — i.e. it is not sufficient to simply allege terrorism financing, the criteria of the definition should actually be met;

2. 2. measures to be taken are those that may be necessary under domestic law of the requested party;

3. 3. these measures only concern investigation of facts contained in the information.

37. All of these factors are required for Article 9 to be triggered; in my view, none of them have been shown to exist in the present case.

38. None of Ukraine's allegations met the requirements of Article 2for the simple reason of absence of any terrorism financing in the first place.

39. Russia's domestic law required sufficient evidence to launch an investigationFootnote ²²; no such evidence was provided by Ukraine (and as these proceedings have demonstrated, Ukraine was never in possession of such evidence).

40. No facts were provided by Ukraine, rather there were only unsubstantiated claims regarding “terrorist activities” of DPR and LPR — which were not accepted by this Court.

41. Furthermore, there was an important additional factor specific to the circumstances of the present case: the context of Ukraine's allegations suggested that they had a political rather than terrorism-combating purpose. After all, the allegations were aimed at DPR, LPR and people supporting them — i.e. persons in direct political opposition to the Government in Kiev. International monitors such as the United Nations Office of the Human Commissioner for Human Rights (hereinafter OHCHR) have repeatedly raised concerns about the Ukrainian Government creating a “climate of fear” through repeated human rights violations, including enforced disappearances and false allegations of “terrorism financing”, conducted by the Security Service of Ukraine (SBU)Footnote ²³, the so-called “volunteer battalions” (of neo-Nazi leaning), and other entities under the control of the Government in KievFootnote ²⁴.

42. Due to the real danger of trumped-up charges of terrorism and terrorism financing being used as tools for political persecution, exercise of caution was not merely justified but required, in particular under human rights obligations. The European Court of Human Rights, specifically, on numerous occasions adjudicated that international legal assistance in the criminal law field was subordinate to human rights guarantees (rulings on cases involving the Russian Federation and other States parties to the European Convention on Human Rights)Footnote ²⁵. The Organization for Security and Co-operation in Europe (hereinafter the OSCE) warned that to ensure protection of human rights, the decision to start an investigation “must be based on reasonable suspicion that a terrorism-related offence, as defined in domestic law, has been committed” (emphasis added)Footnote ²⁶. In addition, United Nations, General Assembly resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (doc. A/RES/62/148)) reads as follows:

43. In this context, regard should be had to a noteworthy and prudent statement in the Judgment that “[c]redible information . . . may give rise to the obligation to investigate” under Article 9, and that “Article 9 does not require the initiation of an investigation into unsubstantiated allegations of terrorism financing. Requiring States parties to undertake such investigations would not be in line with the object and purpose of the ICSFT”Footnote ²⁷ (emphasis added).

44. I am in complete agreement with this position of the Court. However, the Majority veered away from this legally impeccable approach when formulating the level of evidence required to trigger Article 9 in.the present case:

45. Hence, in the opinion of the Majority, it is sufficient to merely “allege” the commission of the offence under Article 2, and it is not necessary to present “facts” except those of a “general nature” (whatever that may mean). Whether these allegations are “credible” or “substantiated” does not seem to factor in anymore.

46. And then we come to the actual information provided by Ukraine. According to the Court, it included

In other words, Ukraine simply claimed that the DPR and LPR were engaged in terrorist activity, named certain people whom it accused of financing the Republics, and gave their bank account data. Neither “substantiation” nor “credibility” of these claims was taken into account by the Majority conclusion that “such information met the relatively low threshold set by Article 9”Footnote ³⁰. The Majority also did not properly weigh in Ukraine's known practice of using trumped-up allegations of terrorism as a tool against political opponents.

47. To sum up and to reiterate:

1. — while the Court believes that only substantiated allegations of terrorism financing supported by credible evidence are capable of triggering Article 9;

2. — while the Court found no evidence of terrorism financing with regard to DPR and LPR after six years of proceedings;

3. — while the Court found no grounds to consider DPR and LPR to be “notorious terrorist organizations”, so the mere reference to them as such could not have been sufficient;

4. — while Ukraine's Government was, in fact, notorious for using false allegations of terrorism and terrorism financing to persecute its political opponents;

5. — the Court, rather its Majority, has nevertheless found, in this case, that Ukraine's allegations which contained nothing more than claims that certain persons were engaged in financing terrorism — and provided no substantiation of those claims — were sufficient to trigger Article 9 of the ICSFT.

48. In other words, by merely accusing certain persons of terrorism financing, in a situation when neither a terrorist act nor terrorism financing has actually occurred, Ukraine, in the opinion of the Majority, has managed to meet the threshold for engaging Article 9 for purposes of State responsibility.

49. In light of the Court's previously held position that the level of certainty should be appropriate to the seriousness of the allegationFootnote ³¹, I can only conclude that due to a practically non-existent level of certainty threshold adopted by the Court, the latter perceived Ukraine's allegation to be not at all serious. It is unfortunate that this was still considered by the Majority as sufficient to decide there was a breach of the ICSFT; however, the level of seriousness attributed by the Court to the allegation will surely colour this decision, as well.

50. This aspect of the Judgment may well lead to negative consequences, as lowering the threshold of State responsibility under Article 9 to a level that requires every State party to arrest its citizens and freeze their assets on the basis of manifestly unsubstantiated allegations from a foreign country creates a real danger of anti-terrorism provisions being abused for political persecution and harms genuine inter-State co-operation in the field of combating terrorism.

51. An impartial reader should be perplexed by a laconic narration of the positions of the Parties and the Court's reasoning in this part of the Judgment. Considering the importance of the case, and that this is the only part of the case where the Majority have actually discovered some kind of violation, its treatment deserved to be more meticulous. However, the part of the Judgment devoted to this sole “violation” is not even 1,700 words long, with the Respondent's counter-arguments summarized in a single paragraph and confined to only 220 words. Apparently, going deeper into the arguments of the Parties would have exposed the flimsy foundations of this decision.

4. In any event, the Respondent did engage in adequate co-operation with the Applicant under Article 9

52. No less baffling would appear the Majority's apparent reluctance to consider the full spectrum of materials submitted by the Parties — materials which show that the Russian Federation had in fact engaged in sufficient co-operation with Ukraine in respect of Article 9. The Judgment fails to even properly summarize the arguments of the Respondent, electing to omit or making a mishmash of some of them, perhaps in order to decrease the visibility of challenges to its own position.

53. To begin with some context: in the relevant period of 2014-2017, Russia received around 1,000 requests from Ukraine for international legal co-operation, the vast majority of which were properly executedFootnote ³². Of these requests, at least 91 (as claimed by Ukraine) were related to terrorism financing. Of these 91, Ukraine only brought 12 to the CourtFootnote ³³. Of these 12, 9 were rejected by the CourtFootnote ³⁴. The remaining three Notes Verbales concerned 19 individuals, but Russia has supplied Ukraine with relevant information on most of those individuals, which leaves, by my estimate, only about five persons who could not be found or otherwise remained unidentified. It is therefore evident that the entire issue represented only a minuscule part of legal co-operation between Russia and Ukraine on criminal matters, even if limited to the field of combating terrorism financing. Furthermore, the Ukrainian Notes Verbales, neither by their form, content or channel of communication, represented proper requests for assistance under the relevant mutual legal assistance (MLA) treaties applicable in accordance with Article 12 (5) of the ICSFTFootnote ³⁵.

54. This entire issue appears to boil down to Russia's alleged failure to identify some of the persons from a list of alleged offenders sent by Ukraine in two Notes Verbales in August 2014. While the Court confirms that Russia did respond to these Notes and did perform certain investigative measures, there are two aspects where the Court found Russia's conduct at odds with requirements of the ICSFT.

55. First, the Judgment noted

56. Second, the Judgment opined that

57. However, Russia did send requests to Ukraine for additional information and Russia's first response containing such a request came precisely “within one to two months” of the August 2014 Ukrainian NotesFootnote ³⁶. Specifically, in the Note Verbale of 14 October 2014 responding, inter alia, to Ukraine's Notes Verbales of 12 and 29 August 2014, Russia had asked for “factual data”, information on Ukrainian criminal investigations, as well as stressing the need to observe proper channels and requirements under the applicable MLA treatyFootnote ³⁷. These requests were repeated in Russia's follow-up Note of 31 July 2015.

58. Importantly, these requests by Russia could very well be considered a form of investigation of Ukraine's alleged facts. Since Ukraine claimed that acts of terrorism and financing of terrorism had occurred, but did not substantiate these claims, it was all too logical for Russia to request further information, precisely to investigate these claims or to gather enough evidence for launching an investigation.

59. However, Ukraine did not respond to this or other requests for information, neither through diplomatic channels, nor MLA channels, nor during bilateral consultations between the Parties on this subjectFootnote ³⁸.

60. Thus, it was actually Ukraine which deliberately stalled co-operation with Russia by refusing to provide substantiating information that might have helped to identify the alleged perpetrators and investigate their alleged misdeeds. Russia reported to Ukraine on its inability to identify or locate some of the persons due to lack of data, which should be considered an effort to move forward representing a sufficient amount of co-operation, given the particular circumstances of the case.

61. In this light, even from a factual perspective, I cannot agree with the decision regarding a “breach” of obligation under Article 9 by the Respondent.

5. The Court was correct in finding an absence of violation of Article 12

62. I agree with the Court's decision that there has been no violation of Article 12 by the Respondent. I should offer a few additional comments to that general statement.

63. Firstly, all three of the Ukrainian MLA requests addressed by the Court (dated 11 November 2014, 3 December 2014 and 28 July 2015) did not refer to terrorism financing offences, nor to the ICSFT, but rather cited Article 258-3 of the Ukrainian Criminal Code, which covered “creation of terrorist organizations” — a matter outside the scope of the ICSFT. Neither did these requests conform to the requirements of applicable MLA treatiesFootnote ³⁹, such as the need for translation into the Russian languageFootnote ⁴⁰.

64. Secondly, while in Djibouti v. France the Court did note the insufficiency of a bare reference to an exception clause and the need for a “brief further explanation”, it was not unconditional, but dependent upon the goal of allowing “the requested State to substantiate its good faith in refusing the request” and “enabl[ing] the requesting State to see if its letter rogatory could be modified so as to avoid the obstacles to implementation”Footnote ⁴¹. In the case of France, the refusal was on the obscure grounds of “contravention to France's fundamental interests”. Doubtlessly, such refusal needed further elucidation to be considered in good faith. In Russia's case, however, the refusals were on the basis of sovereignty and national security, and the applicability of these exceptions was self-evident: Ukraine's requests concerned the actions of deputees of the Russian State Duma (i.e. parliamentarians) and of the Chief of the General Staff of the Russian armed forces. There can be little doubt that such persons are directly related to the exercise of sovereign power and/or matters of national security, and there is little space for any further elucidation. Whereas in cases when grounds for refusal were less clear, the Russian authorities have provided more detailed explanationsFootnote ⁴².

65. Thirdly, established practice between the Parties should be taken into account. Ukraine itself has repeatedly rejected Russian requests for legal assistance with essentially the same terse formulations when referring to the same grounds for refusal under MLA treatiesFootnote ⁴³.

66. Finally, regarding the timing of the replies, the scale of MLA correspondence between the two countries needs to be taken into account. Considering the amount of MLA requests Ukraine has been sending to Russia, including those allegedly concerning terrorism financing, and the complexity of the matters involved, it is not surprising that delays occasionally occurred.

6. The Court was correct in establishing the meaning of “funds”

67. I concur with the Judgment's finding that “funds” do not encompass weapons within the meaning ascribed to the term by the Convention, but I feel the matter merits additional commentary.

68. There are two main elements essential for understanding terms in the interpretation of treaties: the ordinary meaning of the term and its special meaning for the purposes of the treatyFootnote ⁴⁴.

69. The starting-point should be the meaning of the Convention's key term: “financing”. Its “ordinary meaning” is “the money needed to do a particular thing, or the way of getting the money”Footnote ⁴⁵. The “ordinary meaning” of funds is “amount of money that has been saved or has been made available for a particular purpose”Footnote ⁴⁶.

70. This understanding seems to have been shared by the authors of the Convention: according to its travaux, the initial draft by France explicitly defined “funds” as “any type of financial resource”Footnote ⁴⁷ and a proposal by Japan — as “pecuniary benefit”Footnote ⁴⁸ (“pecuniary” meaning “of or relating to money; consisting of or given or exacted in money or monetary payments”Footnote ⁴⁹).

71. The term “financial resources” was later replaced with “assets”, and eventually the term “funds” was equated with “assets of every kind”Footnote ⁵⁰. There does not seem to be any indication that this replacement was meant to deviate from the original understanding of “funds” as limited to financial resources: a French proposal, for example, defined “assets/property of every kind” as “including but not limited to cash, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit or any other negotiable instrument in any form, including electronic or digital form”Footnote ⁵¹. Weapons were conspicuously absent from this list, which made it almost verbatim to the final text of the Convention. Quite to the contrary — suggestions to include, apart from “funds”/“assets”, also “other property” understood to be “covering only arms, explosives and similar goods”Footnote ⁵² were explicitly rejected, and the final text of the Convention lacks this language.

72. Thus, the ordinary meaning of the terms and the development history of the Convention support the view that funds and assets were both understood to mean financial resources, while supply of arms was considered to be distinct and not intended to fall under the Convention.

73. The structure and contents of the ICSFT also indicate that it was not designed to be a general treaty against any and all support of terrorism, but one specifically targeted against financial flows to terrorists.

74. The preamble, where normally the object and purpose of a treaty are formulated, sets the goal of the Convention to “prevent and counteract movements of funds suspected to be intended for terrorist purposes without impeding in any way the freedom of legitimate capital movements”, while no mention of the freedom of trade in goods is made. In fact, the preamble directly mentions “illicit arms trafficking” as a different unlawful activity than terrorism financing, in which an organization that finances terrorism might “also” be engaged (but which the Convention is not intended to cover).

75. Furthermore, in Article 1, the “legal documents or instruments . . . evidencing title to, or interest in, such assets” only relate to purely financial resources (“bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit”).

76. Finally, the Convention's entire section on international co-operation — including Articles 8, 12, 13 and 18 — does not include any measures specifically aimed against arms trafficking, while there are plenty of rules concerning financial assets (identification, detection and freezing or seizure; bank secrecy; fiscal offences; “money-transferring agencies”, etc.)Footnote ⁵³.

77. Considering the important role played by weapons in terrorist activity, it would be illogical to assume that the authors of the Convention have left such an obvious gap in its preambular and operative provisions.

78. While FATF, OECD and other organizations have their own specific terminology, it does not necessarily coincide with the terms of international treaties. FATF, particularly, has noted that its recommendations aim to implement United Nations Security Council resolutionsFootnote ⁵⁴, which represent a wider range of obligations than specific treaties like ICSFT. Even so, FATF recommendations make a distinction between “funds” (which are defined similarly to the ICSFT definition) and “other assets”Footnote ⁵⁵; such “other assets” being understood to include “e.g. weapons or vehicles”Footnote ⁵⁶.

79. The ICSFT is, of course, a United Nations Convention and should be interpreted as such. In UN Security Council resolutions devoted to combating terrorism, there is a difference between terrorism financing and supply of weapons to terrorists. When referring to the ICSFT, these UN Security Council resolutions only associate it with the former, not the latterFootnote ⁵⁷. The same approach is taken by UN counter-terrorism bodies, such as the United Nations Office on Drugs and Crime (UNODC), which provides a very illustrative example of this approach in its Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols:

80. UNODC, therefore, considers supply of weapons to fall under UN Security Council counter-terrorism resolutions, but not under the ICSFT.

81. National legislation likewise commonly draws a line between supply of weapons to terrorists and financing of terrorism. These are considered different criminal acts in the Russian Federation and other jurisdictionsFootnote ⁵⁹.

82. Summing up, my understanding is that while the term “assets of every kind” may create an impression that “funds” encompass anything that may have monetary value, the drafters of the Convention, aiming to cover financing and not every possible form of support, ascribed a more specific meaning to this term as only encompassing “every kind” of pecuniary (financial) resources. In contrast, the term “other property”, viewed as a reference to weapons, was not included in the final text. The verity of this approach is upheld by State practice as reflected in Security Council resolutions and guiding documents of competent United Nations bodies such as UNODC.

83. In my opinion, this view is not contradictory to the task of combating terrorism. After all, the ICSFT is not the only international instrument active in this field: e.g. the Arms Trade Treaty was concluded in 2013 with the explicit aim “to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts”Footnote ⁶⁰ and, of course, all States remain obliged to implement the counter-terrorism resolutions of the UN Security Council.

7. The Court missed an opportunity to apply the “clean hands” doctrine, choosing instead to destroy the doctrine itself

84. Yet another remarkable aspect of this case is the Majority's treatment of the clean hands doctrine. It is, of course, trite that this defence has long been a “black sheep” of Court practice and notoriously difficult to prove and apply (see Judgment, para. #37). However, the possibility of this defence was never brushed aside by the Court — at least not until now. Ironically, the present case is, in my opinion, an exemplary occasion of unclean hands shown by the Applicant, finally satisfying all of the criteria tentatively laid out in previous Court proceedings. The fact that the Court's Majority elected to end decades of uncertainty and completely eliminate the “clean hands” doctrine as a concept, rather than risk its application in the present case, speaks volumes. Indeed, on all previous occasions the Court was never forced to pronounce its position on the existence of clean hands as a defence, since it could instead refer to some or all of these criteria being, in any event, unsatisfied. Apparently, in the present case such an option was not open to the Court and the choice was between exonerating Russia on the basis of Ukraine's unclean hands or elimination of the clean hands doctrine as such. The Majority chose the latter, neglecting to provide any concrete reasoning for its abrupt decision.

85. As a tribute to this venerable doctrine, which, by happenstance, had its swan song while I appeared on the Bench, I feel obliged to outline the reasons why it should have been applicable in the circumstances of the present case.

86. One might opine that Russia did not directly assert that Ukraine has, through its alleged conduct, violated its obligations under the ICSFT. What Russia did, however, was to show that Ukraine had been itself engaged in the conduct of which it accuses the Russian Federation, if not worse, and which it considers to be a violation of the ICSFT. For example, Russia has demonstrated that Ukraine had been supplying DPR and LPR with funds, despite alleging them to be “notorious terrorist organizations”; that Ukrainian forces have been systematically shelling and bombing residential areas in Donbass (such shelling of civilian objects being considered by Ukraine as “terrorism”); that Ukraine had refused to fulfil MLA requests from Russia regarding certain persons and organizations on the basis of sovereignty or the fact that it did not consider such organizations to be of a terrorist nature; etc.

87. The fact that Russia itself did not consider funding DPR and LPR to be terrorism financing, or actions committed by armed forces in time of war to be terrorism only because they might have caused damage to civilians, should not have excluded the possibility of a quod non argument — that is, assuming Ukraine's allegations be taken at face value, they should have been dismissed due to Ukraine being engaged in the same, or worse, kind of conduct. To rule otherwise would imply that unclean hands can only exist when the applicant is in breach of certain other rules of the relevant treaty that it accuses the respondent of breaching — or that the respondent would have to first concede that such actions as it is being accused of (and which the applicant is also engaged in) are a breach of the treaty, before raising the clean hands defence. Neither of these conditions were to be found in preceding Court practice regarding clean hands.

88. The basics of the doctrine, which Russia invoked in its arguments, were laid down in the Judgment of 28 June 1937 rendered by the Permanent Court of International Justice (PCIJ) in the case concerning Diversion of Water from the Meuse (Netherlands v. Belgium) Footnote ⁶¹, as well as the ICJ cases concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Footnote ⁶² and Certain Iranian Assets (Islamic Republic of Iran v. United States of America), where traces of the clean hands principle application can be foundFootnote ⁶³.

89. In Certain Iranian Assets, the Court has indicated the following conditions for the unclean hands doctrine, as a defence on the merits, the absence of which “in any event” precluded its application:

1. 1. a wrong or misconduct must have been committed by the applicant or on its behalf;

2. 2. a nexus between the wrong or misconduct and the claims being made by the applicant must exist;

3. 3. there should be a sufficient level of connection between the wrong or misconduct and the applicant's claim, dependent on the circumstances of the caseFootnote ⁶⁴.

90. In that case, the applicant, Iran, when suggesting a definition for the conditions of applicability of the “clean hands” doctrine, elected to define them as follows: “when the claimant is engaged in ‘precisely similar action, similar in fact and similar in law’ as that of which it complains”Footnote ⁶⁵.

91. In Diversions of Water from the Meuse, Judge Hudson defined the principle (which he couched in terms of general equity) as “that where two parties have assumed an identical or a reciprocal obligation” and that “one party . . . is engaged in a continuing non-performance of that obligation” while, at the same time, there is “a similar non-performance of that obligation by the other party”Footnote ⁶⁶.

92. In my view, all these conditions are met in the present case. In contrast to Certain Iranian Assets, when there was no question of inconsistency between Iran's allegations and its own performance under the Treaty of Amity, the present case appears to be a textbook example of “unclean hands”, where the applicant is actually committing the very same actions it accuses the respondent of, indeed on a larger scale, yet does not recognize these actions as being in breach of any international obligations, including those under the ICSFT.

8. Regarding remedies

107. Notably, the Court rejected all remedies requested by Ukraine (“cessation . . . of ongoing violations, guarantees and assurances of non-repetition, compensation and moral damages”)Footnote ⁸⁵, beyond a formal declaration of a violation of Article 9, paragraph 1. Isn't it anything other than the apprehension of the shaky ground on which the Majority's position regarding Article 9 stands, and reluctance to implicate itself even further by providing tangible remedies? The Judgment's remark that Russia “continues to be required under Article 9 of the Convention to undertake investigations into sufficiently substantiated allegations of acts of terrorism financing in eastern Ukraine” (emphasis added) should be interpreted in this light. The allegations presented by Ukraine were, of course, not sufficiently substantiated. They contained nothing more than dubious claims that DPR and LPR were engaged in terrorist activities, claims which Ukraine failed to prove during these proceedings. Nor were these claims credible, considering Ukraine's tendency to use allegations of terrorism financing as a tool for political persecution, as recognized by international bodies such as the OHCHR.

108. Therefore, while I believe the declaration of violation to be improper, even in accordance with the Court's own criteria as expressed in this Judgment, it is appropriate that the Court did not award any further remedy to Ukraine.

1. The Court properly found no evidence of racial discrimination regarding the vast majority of Ukraine's allegations

109. Over the entire course of the proceedings, Ukraine has levelled at least 17 distinct allegations against Russia concerning CERD, claiming 47 (or so) incidents of “racial discrimination” with regard to Ukrainians and Crimean Tatars in Crimea. I agree with the Court's decision that Ukraine has failed to produce evidence of any racial discrimination regarding alleged “disappearances” and “murders”, law enforcement measures, citizenship, cultural heritage, cultural institutions, culturally significant gatherings and media outlets, as well as every individual “incident” of discrimination alleged by Ukraine.

110. In total, no racial discrimination at all was discovered by the Court with regard to the Crimean Tatar people. As regards the Ukrainian people living in Crimea, no discrimination was found either, with the sole exception of school education in the Ukrainian language. This last finding was rather perplexing, since school education in the Ukrainian language is and has been available in Crimea, with Ukrainian being one of the Crimean State (official) languages protected by the Constitution of the Republic of Crimea and relevant legislation of the Russian FederationFootnote ⁸⁶; the Court itself confirms this in its JudgmentFootnote ⁸⁷. Rather, the Majority found an issue with the fact that Crimeans in large numbers have, of their own will, switched the language of education of their children from Ukrainian to Russian after Crimea's reunification with Russia — which should not have come as a surprise, considering that Russian has always been the language of choice for the vast majority of the population of Crimea, and even during Ukraine's control over the peninsula most Crimeans — including most ethnic Ukrainians — preferred to receive education in Russian (as evidenced by Ukraine's own official statistics)Footnote ⁸⁸.

111. I shall endeavour to shed some light on this matter further on, after a few remarks on other topics.

2. The Court properly did not support Ukraine's attempt to make political views an element of “ethnic origin”

112. One of the most surprising clashes of opinions in the CERD case was a debate regarding the notions of “ethnic origin” and “ethnic group”. In its effort to broaden the scope of the Convention, Ukraine argued that political views, such as those concerning the status of Crimea, were a part of Ukrainian and Crimean Tatar ethnicityFootnote ⁸⁹. In other words, according to the Applicant, those Ukrainians in Crimea and Crimean Tatars who supported Crimea's self-determination and joining the Russian Federation, were not “real” Ukrainians and Crimean Tatars, since all “true” Ukrainians and Crimean Tatars supported Crimea remaining part of Ukraine.

113. I found this entire line of argument to be highly dubious not only because of the plain meaning of the term “ethnic origin” and the Court's clear prior pronouncement that it is a “characteristic inherent at birth”Footnote ⁹⁰ rather than acquired like political views, nor from the standpoint of elementary logic (Crimea only became part of an independent Ukraine in 1991, so any “ethnic link” of Crimean Tatars to Ukraine or of Ukrainians to Crimea made little sense), but also proceeding from the object and purpose of the Convention itself. It would seem apparent that assigning the political views of certain members of an ethnic group to be an “inherent quality” of the group as a whole is an evil kind of stereotyping waiting to turn into something worse. Crimean Tatars have already suffered from similar stereotyping under Stalin; and then it was the Ukrainian Government that took an official position regarding the same ethnic group and painting part of that group as some kind of “ethnic traitors” based entirely on their political preferences. Likewise, hearing Ukraine's argument that a “frequently observed characteristic of ethnic groups is a desire to live together within a common political State”Footnote ⁹¹ raised questions not only about Ukraine's own inability to recognize the desire of mostly ethnic Russians of Crimea and Donbass to rejoin Russia, but also about the fate of those people in a “Ukrainian ethnostate”.

114. Prudently, the Court found, in no uncertain terms, that “the political identity or the political positions of a person or a group are not a relevant factor for the determination of their ‘ethnic origin’ within the meaning of Article 1, paragraph 1, of CERD”Footnote ⁹², thus putting an end to unwholesome speculations on this matter.

3. The Court rightly considered the ban of the “Mejlis” to not constitute racial discrimination

115. From the very start of the proceedings, the question of the “Mejlis” ban was at the forefront of the CERD debate: it was the only concrete matter in the entire case on which the Court had deemed it appropriate to issue a specific provisional measure in 2017.

116. In my opinion, the Russian Federation has convincingly argued in its pleadingsFootnote ⁹³ that:

1. — neither the CERD nor other human rights instruments include a right of ethnic minority groups to establish and maintain their own representative institutionsFootnote ⁹⁴;

2. — the Mejlis and its former leaders represented hardly any of the Crimean Tatars during the entire period of this institution's existenceFootnote ⁹⁵;

3. — the Mejlis was not a representative body, but an executive body subordinate to the QurultayFootnote ⁹⁶;

4. — in any event, the Crimean Tatar community is represented by other bodies such as the QurultayFootnote ⁹⁷ and the Council of Crimean TatarsFootnote ⁹⁸;

5. — the ban on the Mejlis was necessary to safeguard national security and public order against a grave and imminent peril (extremist activity)Footnote ⁹⁹.

117. The Court has taken a lot of these arguments to heart and issued an appropriate decision worthy of quoting in its entirety:

118. While all those reasons are perfectly valid, the key factor in favour of considering the ban of the “Mejlis” to be lawful was its role in the blockade of Crimea. Regrettably, the Court, usually considerate of views of international bodies, chose to neglect the OHCHR reports on the human rights situation in Crimea which called attention to the actions of the “Mejlis” leadership (including Mustafa Dzhemiliev and Refat Chubarov), together with Ukrainian neo-Nazi armed groups (“Right Sector”), in organizing the blockade of trade routes, communications and water and electricity supply to CrimeaFootnote ¹⁰³, culminating in the bombing and destruction of power plant towers and high-voltage lines by which electricity was supplied from Ukraine to CrimeaFootnote ¹⁰⁴. As a result of this total blockade, all of the Crimean population, including Crimean Tatars, suffered greatly from shortages of water, electricity, medicine, basic goods and other necessities. By this act alone the “Mejlis” had disavowed any representation of the interests of Crimean Tatars.

119. I thus support the Court's decision not to consider the ban of the “Mejlis” as racial discrimination. Should the Court have judged otherwise, it would have created a very problematic situation, when a body claiming to represent a certain ethnicity received carte blanche on violence, up to and including acts of extremism and terrorism, with any action to counter such activity running the risk of being declared a breach of the Convention. Certainly, such an outcome would be contrary to the interests of society as a whole and of the very ethnic groups these bodies claimed to represent.

4. The Court was correct in dismissing Ukraine's concept of “indirect discrimination”

120. Basic terms of the Convention that were challenged during the proceedings included the definition of racial discrimination itself. According to CERD's Article 1:

121. The first prong of the definition is “differentiation” (distinction, exclusion, restriction or preference) that is based on a protected quality. The purpose or effect of this differentiation (nullifying or impairing exercise of existing human rights on an equal footing) constitutes the second prong. Both are necessary for racial discrimination to occur. This rather obvious understanding is entrenched in legal doctrineFootnote ¹⁰⁵. Russia stood on this position, stressing the need to establish “differentiation of treatment” alongside an “unjustifiable disparate impact” in order to find racial discriminationFootnote ¹⁰⁶. Up to a certain point, Ukraine seemed to share that understanding: the Court itself in its 2019 Judgment on jurisdiction stated that “[i]t is the Applicant's position that these measures were principally aimed against the ethnic groups of Crimean Tatar and Ukrainian communities”Footnote ¹⁰⁷.

122. However, in its apparent effort to artificially expand the scope of the Convention as much as possible, Ukraine advanced a particularly broad concept of “indirect discrimination”, the key feature of which was rejecting the need to prove “differentiation of treatment” with regard to so-called “effects-based discrimination claims”Footnote ¹⁰⁸ (thus removing the first prong of CERD's definition) and claiming that “equal treatment which has a disproportionate effect on a group defined by the enumerated grounds is itself discriminatory”Footnote ¹⁰⁹. Ukraine further claimed that it was not necessary to prove the existence of such “effect-based discrimination” by specific statisticsFootnote ¹¹⁰.

123. However, this concept is clearly not rooted in the ConventionFootnote ¹¹¹. The plain text of CERD and extensive history of its elaborationFootnote ¹¹² show that it is precisely the goal of ensuring equal treatment of persons belonging to various protected groups that lies at the core of the Convention régime.

124. Ukraine's experts, conversely, called for “unequal treatment” in order “to achieve genuine equality”Footnote ¹¹³. While the Convention in its Article 1 (4) does recognize the possibility of certain measures of so-called “positive discrimination”, which it exempts from the notion of “racial discrimination”, it nevertheless does not consider such measures to be mandatory — and neither did Ukraine accuse Russia of violating this provision of CERD. Moreover, according to CERD such measures must not “lead to the maintenance of separate rights for different racial groups” and “shall not be continued after the objectives for which they were taken have been achieved”.

125. Judicial practice likewise did not support Ukraine's position. In Qatar v. United Arab Emirates, the Court has already rejected the concept of “indirect discrimination” even in a less radical form than the one advanced by UkraineFootnote ¹¹⁴. In Minority Schools in Albania and other related cases, the PCIJ distinctly stated that equal treatment (or “equality in law”) “precludes discrimination of any kind”, giving an interpretation of Article 4 of the Albanian Declaration (which is very close to Article 1 (1) of CERD) as stipulating “equality before the law”, “régime of legal equality” and “equality of treatment”Footnote ¹¹⁵. Similarly, Ukraine's reliance on General Recommendation 14 of the CERD Committee was to no avail: the document only confirmed that difference in treatment (or “distinction”) was a necessary element of the definition of racial discriminationFootnote ¹¹⁶.

126. Thus, to even begin establishing discrimination, Ukraine would have had to first demonstrate distinction or other differentiation based on a protected quality. As the Court stated earlier in Qatar v. United Arab Emirates, CERD “was clearly not intended to cover every instance of differentiation between persons”Footnote ¹¹⁷. Qatar's claim was rejected mainly because it concerned differentiation on the grounds of nationality which are not covered by the Convention; whereas Ukraine apparently did not provide any evidence of differentiation whatsoeverFootnote ¹¹⁸.

127. The Court supported the two-prong approach in its Judgment:

128. The Court further added that even when “a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin”, it would still not constitute racial discrimination, by itself, if such an effect is not related to the prohibited grounds of discrimination set out in Article 1 (1): “Mere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention”Footnote ¹²⁰.

129. Unfortunately, the Majority appeared not to follow these principles when dealing with the question of education, as will be shown in the following section.

5. The Majority erred with respect to school education in the Ukrainian language

130. To begin with, the Judgment admits that CERD “does not include a general right to school education in a minority language”Footnote ¹²¹ and “[t]he fact that a State chooses to offer school education in only one language does not, in and of itself, give rise to discrimination under CERD against members of a national or ethnic minority who wish to have their children educated in their own language”Footnote ¹²². Normally, that would be sufficient to conclude a lack of violation, since in the absence of a right there cannot be racial discrimination with regard to the exercise of that right.

131. However, access to education in Ukrainian was not even at issue in the present case. It is a fact that free public education in Ukrainian is available in Crimea and Ukrainian is one of Crimea's State languages.

132. In the eyes of the Majority, the real issue is different. According to the Judgment,

proceeding with the following explanation:

133. It is, firstly, difficult to understand how, in the absence of a right to education in a minority language, there can reasonably exist an arguable right not to subject education in a minority language to discontinuance. Despite the profound legal discussion on this particular topic during both the written proceedings and the oral hearings, the Majority refrains from grounding its position in any specific treaty provisions, case law, State practice or legal doctrine.

134. What is even more confusing, though, is how the Court applied this principle to the circumstances of the present case:

135. Thus, even in the absence of convincing evidence of any pressure on parents to educate their children in Russian rather than Ukrainian, the Majority, apparently, simply assumed that such a decline could only have taken place as a result of some kind of policy of racial discrimination pursued by the Respondent, and that by no means could this decline have occurred as simply an objective consequence of the Crimean population — already predominantly Russian and Russian-speaking — reverting to the ubiquitous use of the Russian language as a result of Crimea's return to Russia and cessation of Ukraine's educational policies aimed at overwhelmingly installing the Ukrainian language. In other words, the Majority failed to follow the Court's own position that “[m]ere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention”Footnote ¹²⁶.

136. In so opining, the Majority has apparently paid little heed to the fact that selection of language of education in Crimea is a voluntary choice of the pupils and their parents. It appears that the Majority had difficulty believing that Crimeans would voluntarily choose to be educated in Russian and not in Ukrainian, that choice being rooted in their historical and cultural heritage and outlook for the future.

137. Neither was much weight given by the Majority to the opinion, though cited, of the OHCHR “that the main reasons for this decrease include a dominant Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean residents to mainland Ukraine”Footnote ¹²⁷.

138. The Judgment also fails to mention that no law or other regulation in the Russian Federation prohibits Ukrainian-language private schools (despite Minority Schools in Albania, where solely access to private schools was in question, being so prominent in the proceedings).

139. The Court seems to have completely ignored the vast statistical evidence submitted by the Respondent, which showed how, according to Ukraine's own data, even during Ukrainian rule the majority of Crimeans still preferred to be educated in Russian — remarkably, even most of those who were ethnic Ukrainians, and despite Ukraine's own policy of promoting the Ukrainian languageFootnote ¹²⁸. This mere fact ought to have indicated that there existed a strong preference for Russian-language education in Crimea.

140. Finally, it remains entirely unclear what “measures” the Russian Federation could have implemented beyond those it had already taken, i.e. making Ukrainian one of the State languages in Crimea and making free school education in Ukrainian available to all who so desired, unless the Majority expected Russia to force Crimean children to continue studying in Ukrainian when they and their parents desired to study in Russian.

141. The Judgment concludes that

142. The Judgment, however, does not point out any particular “legislative and other practice” that would actually be stopping Crimeans from being educated in Ukrainian, if they so desire, either in a free public school or in a private institution. It seems that the mere fact of Crimeans flocking to study in Russian instead of Ukrainian is already considered by the Majority to be proof of a “pattern of racial discrimination”. In other words, the “result” is considered to be evidence of a specific “cause”, despite the abundance of alternative explanations and in contravention of the Court's own rejection of the “indirect discrimination” approach.

143. I cannot concur with this reasoning or conclusion. In my opinion, there is no evidence of any “pattern of racial discrimination” or “disparate effect” on existing human rights, or even adverse differentiation of treatment — on the contrary, the Ukrainian language enjoys in Crimea a constitutional status rarely awarded to minority languages in any country: that of a State (official) language, with the possibility for anyone to receive free education in Ukrainian in public schools. Compared to how other States parties to CERD regulate minority language education and especially how Ukraine itself treats the Russian language — subjecting it to elimination and erasure despite the vast number of ethnic Russians and Russian-speakers in Ukraine — the treatment of the Ukrainian language in Crimea is far more preferential. If that is what constitutes “racial discrimination” in the opinion of the Majority, then a lot of States parties will have to reflect on their education policies.

144. To make matters worse, the remedy formulated by the Court includes a vague and uncertain phrase that Russia “remains under an obligation to ensure that the system of instruction in the Ukrainian language gives due regard to the needs and reasonable expectations of children and parents of Ukrainian ethnic origin”Footnote ¹³⁰. First of all, CERD does not impose any obligations to serve undefined “needs and reasonable expectations” beyond the duty to uphold actually existing human rights obligations without racial discrimination. Secondly, the Russian system of education already gives such “due regard” by providing all Crimeans with the opportunity to educate their children in Ukrainian language. This is confirmed by the Court's own decision that Russia conformed to the relevant part of the provisional measures Order. There is nothing more that could be done by Russia, and the Court never suggests any measure beyond those already undertaken by Russia to ensure access to education in Ukrainian language. My conclusion is, therefore, that this phrase is only intended to address possible new and prospective educational reforms.

6. The doctrine of clean hands was also applicable to the CERD case

145. The Respondent has provided extensive information on how Ukraine systematically violated the rights of Russians and other ethnic groups — including the Crimean Tatar community it now purports to protectFootnote ¹³¹. Disturbingly, this policy seems to be a consequence of the current Kiev régime's leanings towards ideological continuity with the Organization of Ukrainian Nationalists (OUN) and the Ukrainian Insurgent Army (UPA) — infamous collaborators of Nazi Germany during World War IIFootnote ¹³².

146. This historical background is essential both with regard to “clean hands” and to the general context of the CERD case.

147. After the defeat of Nazi Germany, the leaders, prominent members and fighters of the OUN and UPA, who were responsible for numerous war crimesFootnote ¹³³ — including mass executions of prisoners of war and civilians, guarding Nazi concentration camps, Jewish pogroms, etc.Footnote ¹³⁴ — emigrated abroad, continuing subversive activities aimed at Soviet Ukraine. With the collapse of the Soviet Union, these leaders and their descendants and adherents re-emerged in the newly independent Ukraine, creating neo-Nazi organizations which openly declared their succession to the OUN and UPA. The Respondent demonstrated how at least 15 radical neo-Nazi organizations have been created in Ukraine from 1991 to the present day, allying with each other and transforming into new neo-Nazi partiesFootnote ¹³⁵. Some of them even openly adopted Nazi symbols (such as the Wolfsangel Footnote ¹³⁶) as their logos. Seemingly, Ukraine did nothing to prevent the growth of this neo-Nazi sentiment in Ukraine and effectively failed to ban dissemination of its fascist and racist ideasFootnote ¹³⁷, rather creating a favourable environment for their flourishing, as illustrated by multiple examples offered by the RespondentFootnote ¹³⁸.

148. Against this historical backdrop, it is unsurprising that the current Ukrainian Government is pursuing a policy of glorification of Nazism in violation of Article 4 of the CERD. Stepan Bandera and Roman Shukhevych — by far the most notorious of Nazi collaborators — have been awarded the title of Hero of Ukraine, as have many other members of the OUN-UPAFootnote ¹³⁹. Streets in Kiev and other cities of Ukraine have been renamed after themFootnote ¹⁴⁰. They are presented as heroes in school textbooksFootnote ¹⁴¹. On 12 October 2007, Ukraine's President Viktor Yushchenko signed a decree on awarding Roman Shukhevych the title of Hero of Ukraine; on 10 January 2010 the same title was conferred on Stepan BanderaFootnote ¹⁴².Concurrently those disagreeing with neo-Nazi inclinations were suppressed by violent and military means, as evidenced not only by deadly attacks on protesters, as gruesomely proven by the burning alive of 48 opponents of the Maidan coup d'état in the building of the House of Trade Unions on 2 May 2014 in.OdessaFootnote ¹⁴³, but, on a more massive scale, by multiple loss of life inflicted on the civilian population of Donbass, predominantly ethnic Russians and Russian speakers, in the course of the so-called “Anti-Terrorist Operation” launched on 14 April 2014Footnote ¹⁴⁴.

149. Other ethnic minorities in Ukraine have also been subjected to mistreatment and violence even before the so-called EuromaidanFootnote ¹⁴⁵. International monitoring mechanisms repeatedly reported on infringement of their cultural and educational rightsFootnote ¹⁴⁶. Xenophobic and anti-Semitic sentiment has been growing for yearsFootnote ¹⁴⁷. Attacks on Jews, Roma, Africans and other national minorities have taken place systematicallyFootnote ¹⁴⁸. No effort to counter manifestations of xenophobia has been exerted by the Government, itself apparently supporting radical nationalism in UkraineFootnote ¹⁴⁹.

150. As with theICSFT, Ukraine has not engaged substantively with the facts cited by Russia, inter alia, regarding Kiev's policy of glorification of Nazism contrary to Article 4 of the CERD, dismissing them as mere “Russian propaganda”Footnote ¹⁵⁰. Conversely, the Respondent, in support of its position, predominantly refers to Ukrainian and international sources, such as Ukraine's high-ranking officials' “scientific” worksFootnote ¹⁵¹, documents of international organizations and monitoring institutionsFootnote ¹⁵², Ukrainian and foreign mass mediaFootnote ¹⁵³, as well as Ukraine's own legislationFootnote ¹⁵⁴. Indeed, concern about the resurgence of Nazism in Ukraine has been mounting for many years. Although fringe neo-Nazi movements may exist in various countries, what makes Ukraine unique is that, perhaps for the first time in post-WWII history, such movements organized and led violent armed protests, successfully overthrew a legitimately elected government, installed their own régime, put their people in charge of military, security and propaganda bodies, launched a campaign of fear and intimidation against the general population, brutally murdered dissenters and even conducted a full-fledged military operation against a part of their own country where people of another ethnicity resisted the new régime, killing and injuring thousands of civilians in the process.

151. In view of the aforesaid, there are adequate grounds for the application of the “clean hands” doctrine as a defence on the merits, since Ukraine itself is engaged in acts which are contrary to the obligations under CERD aimed at combating Nazism in all its forms.

152. Furthermore, as shown by the Respondent, Ukraine has been conducting policies with regard to the Russian-speaking population which Ukraine itself considers contrary to CERD (such as removing Russian-language education from schools, including those in predominantly Russian-speaking areas).

153. Hence, as in the case of the ICSFT, Ukraine's claims under CERD should have been dismissed in limine due to unclean hands of the Applicant. Ukraine's own actions against its ethnic minorities appear to be much more severe than anything that Ukraine even alleged against Russia.

1. The Court rightly found no violation of the provisional measures Order with regard to education in the Ukrainian language

154. I certainly concur with the Court's decision on this matter: taking note of a report by the UN OHCHR, according to which “instruction in Ukrainian was provided in one Ukrainian school and 13 Ukrainian classes in Russian schools attended by 318 children”, the Court found that “instruction in the Ukrainian language was available after the adoption of the Order” and therefore “the Russian Federation has not violated the Order in so far as it obliged it to ensure the availability of education in the Ukrainian language”Footnote ¹⁵⁵. However, this decision, which is, of course, based on objective fact, further highlights the unfathomable stance of the Majority regarding a “violation” of CERD in respect of education in the Ukrainian language. It is difficult to comprehend how a right could be at the same time non-existentFootnote ¹⁵⁶, upheldFootnote ¹⁵⁷, and impaired (due to racial discrimination, no less)Footnote ¹⁵⁸. Yet all of these findings were made by the Majority in this Judgment regarding the same circumstances. It presumably leads to a bizarre conclusion — that a State party which actually provides its national minorities with freely accessible public education in their native language might find itself in violation of CERD, simply because its citizens elect not to use this right; and a State party that quashes the ethnic identity of minorities by eliminating all opportunities of education in their native languages would not be in violation, so long as it does so gradually.

155. One can only imagine the reasons behind this incongruous position other than that the Majority treading some unseen boundary between the aim of somehow implicating the Respondent and the need to avoid making a wider and far-reaching pronouncement which may also implicate other States parties. Whatever the reasons, though, the Court is now put into an untenable position: if it is ever faced with allegations against a State party that provides manifestly less language rights to ethnic minorities than Russia, it will be hard-pressed to follow the Majority's approach in this Judgment while keeping to the principles of impartiality and judicial integrity.

2. There could be no violation of the provisional measures Order regarding the ban on the “Mejlis”, since the Court found this ban to not be in contravention of CERD

156. This is another surprising and inexplicable decision of the Majority that contradicts the Court's own position taken in the Judgment. The Court has, of course, decided that the ban on the “Mejlis” did not constitute racial discrimination and was not in violation of CERDFootnote ¹⁵⁹. All the more surprising that the Majority found a violation of a provisional measure concerning this same banFootnote ¹⁶⁰.

157. By itself, the provisional measure in respect of the “Mejlis” ban was definitely ill-founded: even prima facie, Russia had sufficient grounds for the measure, considering that entity's non-representative character and overt involvement in acts that would, in practically any country, be qualified as criminal, extremist or even terrorist. Several judges have expressed their disagreement with this part of the Order, having provided convincing argumentsFootnote ¹⁶¹. However, that is not the primary issue now.

158. Even when issuing the provisional measures Order in 2017, the Court had been careful to indicate that the measure was to be implemented by Russia “in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination”Footnote ¹⁶². The Court has now found that Russia conformed to its obligations under CERD with respect to the “Mejlis”. Therefore, no violation of the provisional measures Order could have been established.

159. By adopting a decision that there was a violation of the Order, despite the Court's Judgment on the merits of the issue, the Majority seems to be attempting to use provisional measures as an independent tool of assigning State responsibility, completely divorced from whatever findings the Court might make on the merits. And since provisional measures operate on the principle of prima facie evaluation of plausibility, rather than establishing actual circumstances based on convincing evidence, this tool is immeasurably less balanced than the Court's final judgments, affording a wide discretion for decisions that have no actual bearing on law or fact.

160. This is, of course, in contravention of the Statute of the Court and the basic principles of justice, including international justice. Provisional measures have long been a controversial topic, with their binding character only affirmed by the Court relatively recentlyFootnote ¹⁶³ and arguments being consistently raised against such binding force. According to the Statute, the sole purpose of a provisional measure is “to preserve the respective rights of either party”, “[p]ending the final decision”Footnote ¹⁶⁴. If it turns out that a party to the dispute had no such right from the beginning, it only means that there had been no need for provisional measures, as the right was never in peril. It cannot mean that, despite being exonerated on the merits, the other party is still somehow “responsible” for not taking measures to preserve a right that was either non-existent in the first place or successfully preserved (whichever way you look at it).

161. As a result, by taking such a clearly unjustified decision, the Majority has (perhaps inadvertently) undermined the very status of provisional measures that the Court sought to buttress in recent years. Indeed, if provisional measures orders are going to be used as an “alternative” way of assigning State responsibility, based on extremely vague and uncertain criteria that lead to conclusions which demonstrably fly in the face of reality, it will only serve to strengthen the non-acceptance among States of the binding character of such measures.

3. The Majority's decision regarding the provisional measure on non-aggravation was manifestly ill-founded

162. If the Majority's decision regarding the provisional measure on the “Mejlis” ban is an attempt to expand the scope of provisional measures beyond the circumstances established by the Court, then the similar decision concerning non-aggravation seems to be an attempt to expand this scope beyond the subject-matter of the dispute and even the Convention itself.

163. In the view of the Majority, the Russian Federation's actions of recognizing DPR and LPR and conducting a special military operation “severely undermined the basis for mutual trust and co-operation and thus made the dispute more difficult to resolve”Footnote ¹⁶⁵.

164. To begin with, it seems self-evident that events of 2022 did not relate to the subject-matter of the present dispute, which is limited entirely to circumstances predating 2017 that were fundamentally different in nature. As set out in the 2017 provisional measures Order itself, “the case before the Court is limited in scope”Footnote ¹⁶⁶.

165. Secondly, it is difficult to imagine how the events of 2022 could have “aggravated” or “interfered with” a dispute that had been brought by the Applicant to the Court in 2017, had already been under consideration for five years, and concluded with final hearings on the merits soon after these events transpired. It seems obvious that no new solution to the matters under dispute could have been discovered in these few months, that would not have been available during the previous years. And in reality, these events have had no noticeable impact on the Parties' legal reasoning or their representation at the Court.

166. In LaGrand, on which the Court relies to support the binding character of provisional measuresFootnote ¹⁶⁷, no measure related to non-aggravation was issued. In Georgia v. Russian Federation (2008) the Court did issue such a measure — however, despite the applicant calling for a pronouncement of a violation of the order by the respondent, the Court did not even entertain these calls on substance and restricted itself, in its Judgment on jurisdiction and admissibility, to stating the following:

167. This, in my view, is the true extent of the effect of a non-aggravation provisional measure after the case has been successfully concluded. There had been no “aggravation” of the Georgia v. Russian Federation dispute on CERD in 2008 (despite the military clash and tensions between the two countries), as there had been no “aggravation” of the ICSFT/CERD dispute in the present case.

168. Thirdly, the 2017 Order concerning non-aggravation was addressed to both Russia and Ukraine: “Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”Footnote ¹⁶⁹ (Emphasis added.)

169. The Court, however, never even attempted to examine whether Ukraine was also complying with this provisional measure, despite Russia drawing attention to the fact that Ukraine continued its attacks on Donbass and consistently refused to implement the UN-backed peaceful solution to the crisis (the Minsk Agreements)Footnote ¹⁷⁰, as well as Ukraine's refusal to enter into negotiations concerning a possible settlement between the PartiesFootnote ¹⁷¹.

170. Summing up, the Majority's decision on this matter goes beyond the scope of the provisional measures Order, the scope of the entire case, even the scope of the Convention itself, and does not conform to the principle of impartiality and equal treatment of the Parties. In any event, the Court does not afford Ukraine any specific remedy with regard to this decision, so it will have no particular impact on the current situation.

(Signed) Bakhtiyar TUZMUKHAMEDOV.