The author of this blog is Ritika Sharma. She is the Founder of the blog, HUMAN.DROITS, and is also an LL.M. Graduate from the Geneva Academy of International Humanitarian Law and Human Rights. She can be reached at ritika4523@gmail.com.  | |
| Brown mallet on gray wooden surface |
This blog is the collection of provisions, conventions and significant points stated by the representatives of Ukraine in the matter pertaining to Racial Discrimination in their first round of oral arguments presented on 6th June.
Russia's baseless defense
Professor Harold Hongju Koh commenced the arguments by first mentioning the origin of the International Convention on the Elimination of All Forms of Racial Discrimination ["CERD"]. He recapitulated that the treaty was adopted in the year 1965 and emerged from the toxic patterns of colonialism, the Holocaust, racist practices, etc.
The Preamble of the convention obligates every state party to take necessary actions to suppress racial discrimination in all its forms and manifestations. Professor Koh, then, mentioned that the treaty's obligations are absolute in nature and it contains no exceptions and does not allow derogation in any manner. He also highlighted that Russia identified Crimean ethnic communities as obstacles to its invasion and regional domination and talked about Crimean Tatar and Ukrainian Opposition to Russia's Occupation of Crimea. Russia occupied the Crimean Parliament Building and raised its flag.
Russian authorities aimed at closing in Orthodox Church in Crimea and Professor Koh showed how Russia attempted to induce the Ukrainian and Crimean Tatar Communities to support the purported annexation by making them sign a document stating that everything was calm and quiet and no illegal actions were taken against Kyiv Patriarchate, the head of Crimean Orthodox Church. Russia also tried spreading fear and hatred in Russian ethnic communities against Crimean communities through a vigorous disinformation campaign.
He then pointed out that Russia forcefully brought machinery and used it selectively to destroy the human rights of Crimean communities and also abused its position as occupying power to promote its own culture.
Instead of explaining how its conduct in Crimea can be reconciled with the CERD obligations, Russia's response throughout these proceedings has instead been deflection and evasion to evade accountability for its blatant violations of CERD, Russia has erected a paper castle of unsupported legal arguments, but on examination, these empty arguments collapse and the illegality of its actions cannot be denied.
By elaborating on the history of Ukrainian ethnic communities, Professor Koh stated that the existence of ethnic groups is firmly rooted in history and dates back centuries.
Then Professor Koh talked about Russia's claim that the Ukranian defense of ethnicity is merely a litigation tactic to further its goal to challenge the status of Crimea. However, by negating this claim, he asserted that the Ukrainian claim is not related to political opinion, but that it relates to the point of how strongly the ethnic communities identify themselves as the relevant factor in assigning ethnicity. History shows that ethnic communities prefer to stay together under a political setup.
Then, he illuminated Russia's reference to the case of Qatar v. UAE (2021) and pointed out that the case was related to national origin but not ethnic origin, hence irrelevant to the matter at hand. Professor Koh alleged that Russia, instead of answering straightforward questions is referring to irrelevant cases or their domestic cases and statutes. Russia's National Security Defense also does not withstand scrutiny.
Concluding the arguments, Professor Koh stated that Russia's contentions are egregious and that Russia has engaged in systematic violations of CERD, mistreating ethnic communities, i.e., Crimean Tatar and Ukranian communities.
Russia's approach to leave CERD without teeth
Miss Marney Cheek then talked about the legal obligations of Russia under CERD. She pointed to the definition of 'racial discrimination' under Article 1(1) of the CERD and stated that it covers the broad prohibition of all forms of racial discrimination. Russian actions singled out the Crimean and Ukrainian ethnic communities which met racial discrimination factors specified under Article 1(1). Russia's rejoinder claimed that where discrimination could be reasonably justified, it will not amount to 'racial discrimination' under the definition. To this, Miss Cheek replied that reasonable justification is not an appropriate standard. She further elaborated on it by stating,
The conduct resulting in disparate impact would constitute racial discrimination unless the relevant measure is (i) necessary; (ii) it has a legitimate aim; and (iii) is proportional and that the expected benefit and furtherance of legitimate aim outweighs any adverse impact on human rights. This is an objective assessment that precludes Russia from invoking its self-judgment justification or hiding behind its national laws to racially discriminate.
Further, Russia claims that Ukrainian allegations are based on political aims. Miss Cheek argued that had Russia right in claiming this, every state would cite political reasons to escape from CERD obligations. She stated that distinction, exclusion, or preference does not fall out of the definition of racial discrimination simply because the perpetrator may also have political reasons for discriminating against these ethnic communities. Ukraine's claims are solely based on the discriminatory purpose and effect with regard to Crimean Tatars and Ukranian ethnic communities.
Furthermore, she discussed Russia's violations under Articles 2, 5, 4, 6, and 7. Referring to Article 5, she argued that Russia has directly engaged in patterns of violation, including enforced disappearances, murders and abductions. Also, she explained how Russia violated Articles 4 and 7, by engaging in a misinformation campaign and overlooking the language of the ethnic communities in providing education, respectively.
Then, Miss Cheek answered the allegation of the Russian Federation that the Ukrainian case is limited in scope and has not provided conclusive proof, by calling it a claim based on mischaracterization and misreading. She presented the CERD committee's statement that the intent factor is not required to prove to claim violations under the CERD and that Ukraine has to show just the discriminatory purpose and effect. She elaborated that Russia has asked for statistical data just to avoid their liability as statistical data may be used but is not essential to prove CERD violations. She referred to the Corfu Channel Case (1949) in which a similar observation was made by the Court. In the end, she stated that "Russia's approach would leave the CERD without teeth".
Sham Justifications by the Russian Federation
Miss Clovis Trevino presented her arguments and stated that Russia has violated almost every obligation of the CERD. She discussed the conduct of arbitrary searches, detentions, silencing of media, and destruction of the cultural heritage and language and history of Ukranians. She started the discussion with the question— "whether Russia's conduct has the purpose or effect of defeating fundamental rights and fundamental freedoms of the Crimean Tatars and Ukrainian ethnic communities?
She highlighted the incidents of the widespread pattern of suppression by citing examples of people who disappeared, were abducted and murdered. For example, she gave the example of Mr R.M. Amatov who was abducted and brutally murdered after 2 weeks of his disappearance. Similarly, various Ukranian activists or common people were abducted and killed. Russia failed to investigate these matters. She, then, illuminated that acts of physical violence against ethnic Ukrainians and Crimean Tatars exhibit a pattern. She also referred to the OHCHR reports to show that these were the communities which were disproportionately impacted. Furthermore, there were incidents of arbitrary searches of members of Mejlis.
Russian measures have disproportionately impacted Crimean Tatars who have been deprived of their political leadership and their ability to enforce further rights through Centre Representation Institution. Unable to dispute facts on the line of Ukranian's claims, Russia hides behind familiar sham justifications— National Security, Public Order.
Then she reiterated that CERD provides no room for justification. Also, this third tool of suppression, i.e., arbitrary searches and detention breach the civil rights and equal treatment principle. And again Russia defends these by sham labels. She also showed a video in which a café was raided by armed personnel and the raid was conducted against the activists and other people belonging to the Crimean Tatars. Miss Trevino referred to the OHCHR reports of growing public arrests and raids against Crimean Tatars. According to the report, "From 1st January 2017 to 30th June 2019, OHCJR recorded 186 searches, 140 of which concerned homes, private businesses or meeting places of Crimean Tatars".
Furthermore, she stated that Russia has not contested measures taken in public events. Russia prohibited all culturally significant gatherings of the Crimean population and to defend this Russia relies on its anti-extremist legislation. She then talked about how Russia suppressed Russian cultural education by cutting off resources. In 2013-2014 the enrolment in the Ukrainian language education was 12,694 which declined drastically to 190 in 2022-2023. Russia imposed Pro-Russian Curricula to distort the cultural education of the Ukrainians.
In the end, Miss Trevino reiterated that the assault on Crimean Tatars and Ukranian ethnic communities still continues by distorting the history, cultural and language education and instilling in them the emotions of fear and intimidation, robbing them off of the ability to pass off their culture.
Violations of Ordinance 2019
The last speaker of Ukraine's first round of oral arguments was Professor Jean-Marc Thouvenin. He talked about the violation of 3 provisional measures mentioned in the Ordinance dated 19th April 2019 by Russia. The 3 provisional measures imposed on Russia are:
- To refrain from maintaining or imposing limitations on the ability of the Crimean Tatar or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.
- To ensure the availability of education in the Ukrainian language.
- To refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
Professor Thouvenin explained how Russia violated the binding obligations under the Provisional Measures. Firstly, the oppression of Mejlis still continues to violate the first provisional measure. Secondly, there's been discrepancies in the provision of the Ukranian language in Russia. Russia cited the 'lack of interest' as a reason for the lower student enrolment in Ukranian language courses, however, the real reason was insufficient hours, low quality of teaching or unavailability of instructors for such shift in preferences by the students. Thirdly, he stated that Russia has also aggravated the situation and made matters worse by discriminating against ethnic communities. Russia is targeting these groups increasingly and the aggression has extended to other Ukranian territories. He then elaborated that Russia is asserting historical superiority and used the term 'colonialism' to describe its actions.
Professor Thouvenin concluded the presentation by showing the picture of the abduction of children to the Members of the Court and stated it to be the "nightmarish portrait painted conscientiously by Russia".
To watch the ICJ proceedings: Click here
To read Ukraine's Arguments against Russia on Terrorism Financing, Click here
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