Legal battle: How Ukraine sues Russia in international courts
Article by: Oleksiy Vynohradov
There are quite a few international judicial instances in Europe and each court has its own jurisdiction. And it is not so easy to puzzle out differences between them. Ukraine had filed lawsuits in all those courts. RFE/RL’s radio Donbas.Realii has put together a review of Ukrainian state-level legal actions for damage and casualties of war, in which Russia is the defendant.
The largest number of Ukrainian lawsuits against Russia are filed in the European Court of Human Rights (ECHR). According to the official website of the Ministry of Justice of Ukraine, the country has lodged there two actions for human rights violations in Crimea, two more for those in eastern Ukraine, and one lawsuit for the abduction of orphans and children with disabilities by representatives of the LDNR groups (Russia-run sham statelets of the Luhansk and Donetsk “people’s republics” – Ed.) and the illegal transfer of those children to Russian territory. These suits were filed in 2014-2015.
In late 2018, Ukraine filed another international claim against Russia for violating the rights of political prisoners. And in early 2019, for violating the rights of captured Ukrainian naval sailors. All the cases are at different stages of the proceeding.
Additionally, individual citizens file their claims with the ECHR. For example, to recover damages caused in the course of the armed conflict in the Donbas. However, individual complaints are not currently being considered. Oleh Tarasenko, a senior strategic lawyer at the “Right to Defense” charity, says, they won’t until the court makes a decision in Ukraine’s international lawsuit against Russia and determines who exercises effective control over the territory of the ORDLO (“the Certain Areas of Donetsk and Luhansk oblasts,” the official designation of the occupied territories in the east of Ukraine – Ed).
Sponsorship of terrorism, discrimination in Crimea
UN’s International Court of Justice (ICJ) considers one more lawsuit against Russia. Its first claim concerns Russia’s failure to fulfill its international obligations to counter the financing of terrorism.
The main premise of Ukraine is that Russia does nothing to terminate its supply of weapons to the LDNR militants. In this way, the Russian Federation contributed to the attacks of the militants on the civilian population. In particular, to the rocket attack on a bus near Volnovakha, the bombardments of Mariupol and Kramatorsk, as well as the destruction of the Malaysia Airlines flight MH17.
The second claim concerns Russia’s discrimination of Ukrainians and Crimean Tatars in Crimea. In particular, it is about the banning of the ruling body of the Crimean Tatar community, the Mejlis, and about arrests of activists. Ukraine filed these claims in early 2017. And within a few months, the court imposed provisional measures in the second charge, ordering Russia to refrain from violations of the human rights of the Crimean Tatars and to secure the right to study in the Ukrainian language on the peninsula.
In 2018, Ukraine provided evidence on the claims. According to then Foreign Minister Pavlo Klimkin, the documents were in 29 volumes and weighed more than 90 kilograms.
Russian representatives denied the terrorism sponsorship charges saying that Russian weapons were not shipped to the Donbas and that what was in possession of the LDNR formations were Soviet-made weapons preserved in the mines of Bakhmut and the ones seized from the Ukrainian army. The clarifying question on where the militants acquired the pieces of the newest Russian types of weapons remained unanswered by the representatives of the Kremlin.
However, Russia’s key point was to challenge the jurisdiction of the UN’s International Court of Justice in the case. In November 2019, the court has rejected all Russia’s objections and is going to proceed to direct examination of a case on its merits. It was reported in an editorial by ex-deputy minister Olena Zerkal published last year in late December by “Dzerkalo Tyzhnia.”
According to her, Russia now has time until 9 December 2020 to file its counter-memorandum. Ms. Zerkal believes that Ukraine has a good chance to win in these cases and prove in the international judiciary instances that Russia has been violating international law. The only way for the Russian Federation to obstruct that is to withdraw from the case or to make Ukraine somehow withdraw its claim.
«Battle for the seas»
Another institution, the Permanent Court of Arbitration (PCA), shares the same building in The Hague with the UN Tribunal. And Ukraine also filed one more lawsuit against Russia in the PCA. Kyiv is trying to prove in court that Russia has been illegally using natural resources in the waters of the Black and Azov seas.
Among the named violations are the seizure of the Odesa gas field, as well as gas deposits near the Crimean peninsula. Other charges are blocking transit sea traffic in the Kerch Strait, constructing the bridge there, and controlling the fish production in the region.
As earlier in the ICJ, Russia tries to challenge the jurisdiction of the PCA to consider the case. If the court rejects Russia’s objections, the hearing on the merits may begin in 2021.
Recently, the Prosecutor-General’s Office of Ukraine (PGO) reported that it had conveyed the report on the forced passportization of ORDLO residents with LDNR-issued passports in order to complement the existing claims filed in the International Criminal Court. This institution deals with war crimes and crimes against humanity.
Since 2014, the court has been examining the case “Situation in Ukraine,” dealing with the killings amid the Revolution of Dignity, as well as the further developments in the Crimea and the Donbas.
The lawsuit has been periodically complemented with new evidence. For example, in late 2019, the PGO submitted materials on the extrajudicial executions of 9 Ukrainian servicemen during the battles of Ilovaisk and Debaltseve to the Office of the Prosecutor at the International Criminal Court.
Also, human rights organizations provide materials. For example in 2019, the Kharkiv Human Rights Group and the Myrnyi Bereh (“Shore of Peace”) NGO passed to the ICC a report on violent crimes in 2014-2018 committed amid the armed conflict in the east of Ukraine. The report discovers murders of civilians, torture, extrajudicial killings.
So far, the activities of the International Criminal Court are limited to annual reports on the situation in Ukraine. It is unknown when the hearing on Ukraine would start and whether it will start at all since the court considers such cases with less than 1,000 victims when it is proved that a state has no capacity or is not willing to investigate such crimes on its own.