Human Rights Reparations and Fact-Finding Quandaries in the 2024 ICJ Judgments in Ukraine v. Russian Federation

Perhaps more than any other time in the history of the International Court of Justice, international human rights law has never been more ubiquitously and stridently deployed at the World Court by so many States, several of whom do not necessarily have the usual nationality linkages when it comes to the assertion of injuries and harms from asserted breaches of international human rights obligations of States. While there has rightly been much commentary accumulating (especially here at EJIL:Talk!) on live developments in the International Court of Justice’s growing docket of post-Bosnia v. Serbia Genocide Convention contentious cases (The Gambia v. Myanmar, Ukraine v. Russian Federation, South Africa v. Israel, Nicaragua v. Germany) as well as the Court’s parallel pending international human rights treaty cases (the Convention Against Torture in Canada and The Netherlands v. Syria, and the Convention on the Elimination of All Forms of Racial Discrimination in Armenia v. Azerbaijan), among others, it is especially significant to examine the Court’s 31 January 2024 Judgment on the Merits in Ukraine v. Russian Federation (on the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination), and the Court’s 2 February 2024 Judgment on Preliminary Objections to Jurisdiction in Ukraine v. Russian Federation (on Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide). 

Both recent Judgments in the Ukraine v. Russian Federation cases provoke questions about the Court’s fact-finding methodologies (which have in the past been heavily critiqued for its alleged lack of predictability and rigor, for example, here), and its at-times selective silence or methodological opacity on (any) victim reparations for the Court’s adjudicated breaches of international human rights law (as I discussed previously in another post examining the Court’s 2022 Reparations Judgment in DRC v. Uganda).  As I show in this post, both Judgments reveal significant choices by the World Court to determine findings of fact (often without specifically citing to the record of evidence before it), while also exercising significant restraint and judicial parsimony when it comes to articulating the legal consequences of a State’s international responsibility for violations of international human rights treaty law.  These choices raise legitimate questions on the overall effectiveness of the paradigm of inter-State international human rights law adjudication at the International Court of Justice, most especially from the standpoint of the lived experiences of affected civilian populations that have suffered (and continue to suffer) harms from these treaty breaches.  Paraphrasing the late ICJ Judge Antonio Cancado Trindade’s 2020 book, is humankind truly a “subject of international law” — an active rights-bearer and not just the passive object of protection by States — when the International Court of Justice issues these landmark judgments on international human rights treaty law?  The ICJ’s 2024 Judgments in Ukraine v. Russian Federation still suggest that there remains a vast gulf for humankind (populations, groups, peoples, and non-State actors) to ever be constituted and treated as active rights-bearers before the Court.

The 31 January 2024 Judgment on the Merits on alleged violations of the International Convention on the Suppression of the Financing of Terrorism) (ICSFT) and the International Convention on the Elimination of Racial Discrimination (ICERD)

While not all of Ukraine’s submissions were upheld on the merits in this case involving the Russian Federation’s alleged conduct in relation to its annexation of Crimea in 2014, it is nonetheless important to note that this Judgment on the Merits does find the Russian Federation internationally responsible for the following:

1. The violation of its obligation under ICSFT Article 9(1), by failing to take measures to investigate facts contained in the information received from Ukraine regarding persons who allegedly committed an offence in ICFST Article 2 (e.g. acts that constitute an offence within the scope of treaties listed in the annex to the Convention, or any other act intended to cause death or serious bodily injury to a civilian or any other person not taking an active part in the hostilities when the purpose of such act is to intimidate a population or to compel a government or an international organization to do or to abstain from doing any act).  The Court explicitly noted that the evidentiary threshold for a violation of this obligation “is relatively low” (Judgment on the Merits, para. 103).  It found that three Notes Verbales sent by Ukraine’s Foreign Ministry to the Russian Federation’s Foreign Ministry “contained sufficiently detailed allegations to give rise to an obligation by the Russian Federation to undertake investigations into the facts alleged therein” (Judgment on the Merits, para. 107).  The Court specifically noted that “almost one year after receiving the Ukrainian allegations, the Russian Federation appeared to have failed even to identify several of the alleged offenders…to the extent [the Russian Federation] encountered difficulties ascertaining the location or identity of some of the individuals named in the Ukrainian communications, it was required to seek to cooperate with Ukraine to undertake the necessary investigations and specify to Ukraine what further information may have been required.” (Judgment on the Merits, para. 110).
2. The violation of ICERD Article 2(1)(a) (e.g. the undertaking of a State Party not to engage in any act or practice of racial discrimination and to ensure that all public authorities act in conformity with this obligation), in relation to the right to education and training under ICERD Article 5(e)(v).  The Court found on the evidence before it that the Russian Federation’s changes to the educational system in Crimea to promote Russian language and culture resulted in “a steep decline in the number of students receiving their school education in the Ukrainian language…an 80 percent decline in the number of students receiving an education in the Ukrainian language during the first year after 2014 and a further decline of 50 percent by the following year.” (Judgment on the Merits, paras. 358-359).  While the Court could not conclude — on the basis of witness statements submitted by both Ukraine and the Russian Federation — that parents have indeed been subjected to harassment or manipulative conduct aimed at deterring them from articulating their language preferences, the Court declared that “the Russian Federation has not demonstrated that it complied with its duty to protect the rights of ethnic Ukrainians from a disparate adverse effect based on their ethnic origin by taking measures to mitigate the pressure resulting from the exceptional ‘reorientation of the Crimean educational system towards Russia’ on parents whose children had until 2014 received their school education in the Ukrainian language” (Judgment on the Merits, para. 363).  The Court found that this conduct “constitutes a pattern of racial discrimination” (Judgment on the Merits, para. 369).

Both these landmark declarations of the Russian Federation’s international responsibility for violation of the ICSFT and ICERD were not accompanied by any further remedy than the declaration of the violations themselves.  Ukraine had asked the Court for various remedies apart from the declaration of violations, such as an order to the Russian Federation to cease ongoing violations, provide guarantees and assurances of non-repetition, compensation, and moral damages.  However, without any discussion or elaboration whatsoever, the Court merely stated that it did “not find it necessary or appropriate to order any other remedy requested above” (Judgment on the Merits, identical paragraphs in paras. 150 and 374), apart from declaring these treaty violations.

The Court likewise maintained the same silence on any other remedies other than its declaration of breaches (Judgment on the Merits, para. 403) committed by the Russian Federation with respect to the Court’s Order of 19 April 2017 indicating provisional measures (Judgment on the Merits, para. 392) (e.g. by the Russian Federation’s failure to eliminate the ban on the Mejlis (a representative body of Crimean Tatars) and failure to not act in ways that could aggravate the dispute)  The Court stated that restitution could not be had for the former case (Judgment on the Merits, para. 402), because the Court ultimately did not find that the ban violated the Russian Federation’s ICERD obligations (Judgment on the Merits, para. 275).

The Court’s deafening silence when it came to providing any substantive elaboration or legal reasoning whatsoever on its choices not to award any reparations whatsoever to Ukraine — except for a declaratory judgment of  treaty breaches — is problematic both from the standpoint of international law and the Court’s institutional legitimacy to States Parties submitting treaty-based disputes, especially those involving international human rights treaties where harm or injury is experienced by populations of the injured State.  To recall, the Court has had little trouble awarding reparations (however contested, methodologically), apart from simply issuing declarations of treaty breaches in its judgments in contentious cases determining human rights violations, such as the civil, political, economic, social and cultural rights treaty violations for which compensation was granted in Democratic Republic of Congo v. Uganda, and Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo, as well as the compensation granted for environmental damage in Certain Activities Carried Out in the Border Area by Nicaragua (Costa Rica v. Nicaragua).  In contrast, nowhere in the 31 January 2024 Judgment on the Merits in Ukraine v. Russian Federation does the Court explain its silence on how and under what grounds it reached the legal conclusion that it was allegedly not “necessary or appropriate to order any other remedy”.  Significantly, the Court also does not indicate whether it received any evidence (whether from the States parties to this dispute, or from independent expert sources, or from the actual humans that experienced harms from the Russian Federation’s treaty breaches) before it reached its legal conclusion that no other remedy other than a declaration of treaty breaches was ‘necessary or appropriate’ in this case.

Most importantly, Article 56(1) of the Court’s own Statute requires that its judgment “shall state the reasons on which it is based”. The Court’s own Rules of Court Article 95(1) require the Court’s judgment to state “the reasons in point of law”. Accordingly, simply declaring in one sentence (or multiple identical one-sentence statements, as shown above in the 31 January 2024 Judgment on the Merits in Ukraine v. Russian Federation) that the Court “does not find it necessary or appropriate to order any other remedy” — still does not discharge the Court’s continuing duty to state reasons for its explicit judgment not to award any further reparations outside of a declaration of treaty violations.

As rightly cautioned by Sir Hersch Lauterpacht in 1958, the absence of reasons “unavoidably creates the impression of arbitrariness” (at p. 39).  The Court itself has notably applied this standard to evaluating whether an arbitral tribunal even provided any reasoning at all as required in its arbitral award, in paras. 42-43 of the Court’s 1991 Judgment in Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal). Following the Court’s own analysis in this 1991 case and thus its own understanding of the reasons requirement, at the very least, there ought to have been any scintilla of reasoning to explain the Court’s sudden conclusion in the 31 January 2024 Judgment on the Merits in Ukraine v. Russian Federation that it did not find it ‘necessary or appropriate to order any other remedy’.  Surprisingly, there was none.

Finally, Article 28 of the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts very clearly states that “the international responsibility of a State which is entailed by an internationally wrongful act...involves legal consequences as set out [in Part Two of the ILC Articles“, which includes duties of performance, cessation and non-repetition, and reparation (e.g. Articles 29-31 in Chapter I of Part Two of the ILC Articles, plus Articles 34-39 in Chapter II of Part Two of the same ILC Articles).  For the Court to narrowly declare that the Russian Federation committed internationally wrongful acts, without adjudicating or determining the legal consequences of such acts, demonstrates that the Court did not abide by its legal duties to adjudicate the actual scope of the international responsibility of the Russian Federation in this case. 

This pathological result in the 31 January 2024 Judgment on the Merits in Ukraine v. Russian Federation calls to mind Yale Law Professor W. Michael Reisman’s famous cautionary observation: “the expectation that international tribunals will follow the law…also serves as a type of latent control function.  This is the larger systemic function of judicial reasoning.  A deterioration in the expectation of a court’s respect for its own jurisprudence will deter potential litigants, who have other places to go, from seeking applications of the law by institutions whose behavior has become increasingly unpredictable.  This problem appears to be bedeviling…the International Court [of Justice] with regard to its case law…” (W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair, 1992, at p. 32).

The 2 February 2024 Judgment on Preliminary Objections to Jurisdiction on Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide

Much has been written on the effects of the 2 February 2024 Judgment on Preliminary Objections (e.g. see Marko Milanovic’s commentary here, and Marc Weller’s commentary here), that I will limit my observations to the Court’s astonishing statement of facts in this case and its methodological opacity when it abruptly bifurcated Ukraine’s two-element argument in its Application to the Court.  To recall, the Court declined to exercise jurisdiction on the Russian Federation’s use of force against Ukraine since 24 February 2022 as an alleged violation of Articles I and IV of the Genocide Convention, as well as in the matter of the Russian Federation’s recognition of independence of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on 21 February 2022 also as an alleged violation of Articles I and IV of the Geneva Convention (2 February 2024 Judgment on Preliminary Objections, para. 151 in relation to para. 178(c) and (d) of Ukraine’s Memorial).  Instead, the Court determined that it would exercise jurisdiction over one aspect of Ukraine’s argument (e.g. para. 178(b) of Ukraine’s Memorial, which sought to have the Court ‘adjudge and declare that there is no credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donestk and Luhansk oblasts of Ukraine’).  It is this aspect alone, in the Court’s view, which satisfies the existence of a dispute between Ukraine and the Russian Federation under Article IX of the Genocide Convention (e.g. “Disputes between the Contracting Parties relating to the interpretation, application, or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III”). 

As the Court itself summarized, “Ukraine contends, in essence, that the Russian Federation has made false allegations that [Ukraine] committed genocide in the Luhansk and Donetsk oblasts (administrative territorial units), and that the [Russian Federation] cannot lawfully, on the basis of such allegations, take any action against Ukraine under the Genocide Convention, in particular the recognition of the independence of the “Donetsk People’s Republic” and the “Luhansk People’s Republic” and the launch of the “special military operation”.” (Judgment on Preliminary Objections, para. 38).  This was the two-element argument of Ukraine, which the Court decided at the outset has “distinct” essential characteristics that had to be examined separately. (Judgment on Preliminary Objections, para. 53).  Accordingly, it characterized the “first aspect of the dispute” as allegedly Ukraine’s request to have the Court adjudicate that Ukraine “has not committed genocide” (Judgment on Preliminary Objections, para. 54).  The Court then said that the “second aspect of the dispute” is Ukraine’s request to have the Court adjudicate that “the Russian Federation has acted unlawfully with respect to the Genocide Convention” (Judgment on Preliminary Objections, para. 55).  The Court declared that it had jurisdiction over the alleged “first aspect of the dispute”, but did not have jurisdiction over the alleged “second aspect of the dispute”.

However, nowhere in the 2 February 2024 Judgment on Preliminary Objections does the Court provide any  legal reasoning for the Court’s surprising bifurcation of Ukraine’s argument into “two aspects”.  Instead, the Court simply reduces this as a matter of Ukraine allegedly asking the Court for a “a judicial finding that it has itself not committed the wrongful acts that the Russian Federation has, falsely in Ukraine’s view, imputed to it in public statements” (Judgment on Preliminary Objections, para. 54), and allegedly, a separate request where Ukraine “seeks to invoke the international responsibility of the Russian Federation by imputing internationally wrongful conduct to it”. (Judgment on Preliminary Objections, para. 56).  The Court instead refers to the distinct enumeration of items of reparation requested by Ukraine in para. 178 of its Memorial as the alleged source of the bifurcation.  (Judgment on Preliminary Objections, para. 54 third sentence, and para. 56 second sentence).  

But why would the Court read Ukraine’s argument in its own Memorial disjunctively and separately, rather than as one integrated two-step argument to invoke the Russian Federation’s international responsibility?  Ukraine’s own Memorial repeatedly states that the alleged ‘first aspect of the dispute’ that the Court refers to (e.g. that the Russian Federation accuses Ukraine of allegedly committing genocide) is pretextual justification for all the internationally wrongful acts that Ukraine identifies in its Memorial (see Chapters 2 and 3 of Ukraine’s Memorial).  (In fact, Ukraine’s Memorial states the word “pretext” 55 times to emphasize this point.) Chapter 2 of Ukraine’s Memorial simply indicates the Factual Background asserted by Ukraine, which deals with the pretextual assertion of alleged genocide made by the Russian Federation to justify its recognition of atrocities and internationally wrongful acts specified in this Chapter 2.  Chapter 3 of Ukraine’s Memorial argues that the Russian Federation actions were taken on the pretext of preventing and punishing genocide, but were actually in violation of the Genocide Convention itself. Nowhere is there any distinct or separate section in Ukraine’s Memorial that exclusively and in isolation supposedly asks for the Court to determine that Ukraine did not commit the alleged genocide, as in fact the entire 117-page Ukraine Memorial emphasizes that this issue is to be read in conjunction with the Russian Federation’s actions themselves that relied on this pretextual justification introduced by the Russian Federation. For the Court to engage in rereading Ukraine’s own Memorial and summarily bifurcating Ukraine’s own argument, allegedly because there was a list of items of reparation requested in Ukraine’s Memorial, is a confounding (and altogether unreasoned) exercise of the Court’s judicial function.

The Court stated that a declaratory judgment on this supposed first aspect of the dispute (e.g. whether there was credible evidence that Ukraine is responsible for committing genocide) “would have the effect of clarifying whether the Applicant acted in accordance with its obligations under the Article I of the [Genocide Convention]”. (Judgment on Preliminary Objections, para. 79).  But Ukraine’s Memorial very clearly describes the dispute with the Russian Federation as “Russia’s use of force against Ukraine on the pretext of preventing and punishing an alleged genocide in the Donbas region” (Ukraine Memorial, para. 163), for which several declarations were requested by Ukraine (including a declaration that “there is no credible evidence of genocidal acts…[allegedly] committed by Ukraine in the Donetsk and Luhansk oblasts of Ukraine”, Ukraine Memorial, para. 164).  For the Court to engage in the practice of isolating this one declaration away from the actual and full terms of Ukraine’s own Memorial, is quite unprecedented in the history of the Court’s own jurisprudence, which has tended to confine itself to the nature of the parties’ respective records of submissions in their written communications to the Court.  This sudden bifurcation of Ukraine’s own arguments in its Memorial, as found in the Court’s Judgment on Preliminary Objections, is also specifically important, because it is a judgment that is “final and without appeal” (Article 60 of the Statute of the International Court of Justice).

The Court’s unexplained bifurcation of Ukraine’s arguments in its Memorial has corresponding consequences on the facts that the Court ultimately declared in paragraphs 29 to 35 of the 2 February 2024 Judgment on Preliminary Objections.  This narrative singularly reproduces the Russian Federation’s reasons for its alleged ‘special military operation’ on 22 February 2022, and does not enter into any detail or engage in any discussion about contested narratives over the conflict between Ukraine and the Russian Federation from the annexation of Crimea in 2014 to the ‘special military operation’ that began in 2022.  Nowhere do these findings of fact by the Court reflect any of the United Nations General Assembly Resolutions on the status of Crimea and the territorial integrity of Ukraine (e.g. A/RES/68/262 dated 1 April 2014) or the complex history of strongly contested narratives at the United Nations Security Council on the Russian Federation’s alleged ‘special military operation’ that began in 2022. Neither is there any indication within the 2 February 2024 Judgment on Preliminary Objections if the Court ever availed of its own independent fact-finding powers under Articles 49-51 of the Statute of the Court (e.g. the power to require agents of the disputing parties to “produce any document or supply any explanations”; the power to “entrust any individual, body, bureau, commission or other organization it may select, with the task of carrying out an enquiry or giving an expert opinion”; or the power to put “relevant questions…to witnesses and experts”), before the Court issued its factual narrative in paragraphs 29 to 35 of the 2 February 2024 Judgment on Preliminary Objections.

It is the burden of proof of the party seeking to establish a fact to produce evidence in support of such a fact (actori incumbit probatio), but it is not clear at all from the Court’s 2 February 2024 Judgment on Preliminary Objections if paragraphs 29 to 35 therein were facts that the parties themselves stipulated, facts that the Court determined motu proprio, or facts that the Russian Federation had already proven in this case. The absence of reasoning on how the Court determined the facts in paragraphs 29 to 35 of the 2 February 2024 Judgment on Preliminary Objections, does not appear to be in accord with the Court’s own stated responsibility when it comes to fact-finding in contentious cases:

“…it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate.  Thus, in keeping with its practice, the Court will make its own determination of the facts, on the basis of the evidence presented to it, and then it will apply the relevant rules of international law to those facts which it has found to have existed.” [Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment on the Merits, 20 April 2010, at para. 168].

Ultimately, by not elaborating the legal reasons for its sudden bifurcation of Ukraine’s own arguments in its Memorial, and for its adoption of facts in paragraphs 29 to 35 of its 2 February 2024 Judgment on Preliminary Objections that appear to reproduce only the Russian Federation’s narrative justification for its ‘special military operation’, one can well ask whether the Court’s 2 February 2024 Judgment satisfies the Court’s duty under Article 56(1) of its Statute to state “reasons on which [the judgment] is based”.

Conclusion

Both the 31 January 2024 Judgment on the Merits (on ICSFT and ICERD violations) and the 2 February 2024 Judgment on Preliminary Objections (on alleged violations of the Genocide Convention) are significant past decisions of the International Court of Justice, that provide insight to some troubling recent trends in the Court’s adjudicative methodologies on fact-finding, interpretation, and reparations in cases that involve international human rights treaty violations.  As more of the States of the world initiate cases at the International Court of Justice based on alleged violations of international human rights treaty law, it behooves us all — the “humankind” that former ICJ Judge Antonio Cancado Trindade characterized as subjects of international law — to pay close attention to the ultimate effectiveness of the Court in delivering human rights outcomes (or not) from the inter-State dispute settlement paradigm.  Those human rights outcomes that those of us in ‘humankind’ seek from international human rights treaty law may not necessarily be forthcoming with the uncertainties of inter-State adjudication at the International Court of Justice. As of this writing, while the Russian Federation has been declared in breach of its international treaty obligations under ICFST and ICERD, the Court chose not to declare legal consequences of cessation, guarantees of non-repetition, or reparations (or even to truncate the proceedings to a future reparations phase as it did in previous cases such as DRC v. Uganda).  Likewise, the Court decided it has no jurisdiction over Ukraine’s allegations of internationally wrongful acts committed by the Russian Federation under the Genocide Convention, but instead bifurcated Ukraine’s own arguments to isolate the alleged pretextual justification for the Russian Federation’s actions in violation of the Genocide Convention as a supposed ‘aspect of the dispute’ where the Court could allegedly exercise jurisdiction — on whether there is credible evidence that Ukraine committed genocide in the Donbas and Luhansk regions.

Human rights breaches could well end up without remedies for harms. Human rights plaintiffs could well end up being human rights respondents.  These cautionary paradoxes — so antithetical to the ultimate goal of reaching human rights outcomes for ‘humankind’ experiencing injury and damage from violations of international human rights treaty law — very unfortunately appear from the tenor and content of the 2024 ICJ Judgments in Ukraine v. Russian Federation. This is not at all promising for the pending and future disputes on international human rights treaty law at the International Court of Justice.