Brussels Ukraïna Review

Ukraine v Russia: major courtroom battles lie ahead

Netherlands court MH17

Ukraine vs RussiaLarge-scale Russian aggression against Ukraine has created a number of new challenges for all civilised states. The threat and use of force, aggression, and pressure from a major, nuclear-armed world power and permanent member of the United Nations (UN) Security Council inhibits smaller states from effectively protecting their sovereignty and territorial integrity.

This issue is of a particular relevance in the context of recent statements by the Russian Embassy in Norway. According to one statement, the Spitzbergen archipelago “is not an ancestral Norwegian territory.” Some experts have, therefore, already raised concerns about the possibility of a new territorial confrontation in Europe in a repeat of the scenario used by Russia to annex the Crimea.

In February 2020, Ukrainian President Volodymyr Zelensky said at the 56th Munich Security Conference, “We now realise that, unfortunately, a strong army or nuclear weapon or NATO can protect the independence and integrity of one country or another. No documents, no signatories, no memorandums provide such protection. This is what we are telling you as Ukrainians, on our own example. Because, in fact, the Budapest Memorandum of 1994 appeared to be not worse a paper it is written on for Ukraine.”

“Nobody guarantees anything, unfortunately, although we talk a lot about international law. The 21st century – the right of the strongest,” Zelensky continued.

However, the entire civilised world understands that compliance with agreements, treaties, and even deals is the basis of a mutually beneficial and peaceful existence. Having crossed this line, humanity is slipping towards widespread international conflicts. So, in this context, of course, developed countries support Ukraine, which has had to endure attacks of a strong neighbour and blatant breaches of international agreements.

Meanwhile, it is very important not to be complacent, but instead to document and record all acts of aggression and all damage caused by the Russian Federation. After all, in the time of globalisation, it is possible to resist an aggressor not only in the trenches but also in international courts: seizing the enemy’s assets abroad, limiting its business opportunities, and forcing it to pay the heavy cost of breaching an agreement.

Work in this regard has long been underway in Ukraine and already the first major achievements offer hope for further successful lawsuits against Russia, although establishing guilt for international crimes is extremely difficult.

As early as 27 March 2014, at a special session of the UN General Assembly, a resolution on the recognition of Ukraine’s territorial integrity was adopted. The so-called referendum in the Crimea was declared invalid.

In 2016, the office of the Prosecutor of the International Criminal Court (ICC) released an assessment of the situation in the Crimea and qualified the hostilities as an international armed conflict between Ukraine and Russia. At the same time, it was noted that “in the Crimea and Sevastopol, [a] state of occupation actually remains.” In 2018, the Prosecutor’s office reiterated its assessment of developments in the Crimea since Russian aggression began. Such a qualification created the legal basis for submitting reports on offences in the occupied peninsula to the ICC.

Everyone demands compensation

Ukrainian state and private companies that lost assets due to the annexation of the Crimea are filing compensation claims at arbitration. About 10 such cases (individual and collective litigation) are currently before tribunals in the Netherlands, France, and Switzerland.

In 2015, 12 Ukrainian companies appealed to the Permanent Court of Arbitration at the Hague and demanded compensation for the damage caused as a result of the confiscation of their assets in the Crimea following Russia’s annexation of the peninsula in spring 2014.

After five years of litigation, the Federal Court of Switzerland upheld an arbitration decision in Geneva, which obliged the Russian Federation to pay compensation of CHF 80 million (approximately $82.1 million USD).

In November 2018, the Arbitration Tribunal in Paris issued a verdict in favour of the Oschadbank and ordered the recovery of $1.3 billion and interest from the Russian Federation for the bank’s losses due to the annexation of Crimea, plus interest, which accrues from the time of the decision until the moment of compensation is paid.

The Ministry of Justice of the Russian Federation declared that Russia did not recognise the arbitration decision and would not pay. However, the litigation continued. On 22 October 2019, the Paris Court of Appeal decisively resolved the case by ruling in favour of the Oschadbank.

As noted by the financial institution, the implementation of decisions of international courts may be enforced at the expense of Russian state property.

Oschadbank’s interests in this matter were protected by the international law firm Quinn Emanuel Urquhart & Sullivan LLP and the Ukrainian law firm Asters. As Svitlana Chepurna, an Asters partner working on this project, noted: “This arbitral award was the first victory in the history of the Ukrainian state-owned company involving the restoration of rights and interests related to the Crimea with the help of the international investment protection mechanism.”

In February 2019, the Permanent Court of Arbitration at the Hague ruled that the Russian Federation illegally seized PrivatBank assets in the Crimea in 2014 and that the company is entitled to full compensation for its losses. The case is ongoing, and the Court of Arbitration has to determine the amount of compensation. At the same time, PrivatBank expects to receive more than $1 billion for its assets.

These and other cases not only give Ukrainian companies the opportunity to be compensated for their lost assets in the Crimea, but also set a precedent: it is the first time in the history of commercial arbitration that the issue of protection of investments in illegally controlled territories has been considered. And every decision in favour of Ukraine increases the number of those who want to apply to court to receive compensation.

The investigation into Russia’s shootdown of MH17

One of the most promising cases against Russia is the investigation into the crash of Malaysian Airlines MH17, which was shot down over Donbas on 17 July 2014. The airliner was flying from Amsterdam to Kuala Lumpur, with 298 passengers and crew on board, including citizens of the Netherlands, Malaysia, Australia, and Indonesia. Nobody survived.

Despite Russia’s attempts to deny involvement in the shootdown, and its efforts to shift responsibility for the disaster to Ukraine and various manipulations of the circumstances of the tragedy through the Russian media, the investigation has been constantly moving forward.

In 2016, the International Investigation Team – consisting of representatives from the Netherlands, Australia, Belgium, Malaysia, and Ukraine – officially released the results of the investigation. The investigation found that the plane was hit by a missile fired by a BUK missile system, which was delivered to Donbas from Russia. This BUK-M1 missile system belonged to the 53rd Missile Brigade of Russia’s Armed Forces. The military unit is based near Kursk.

The BUK-M1 missile system, together with its Russian crew, was delivered to Donetsk by mercenary militants who carried out orders of the Russian military. After the Boeing aircraft was shot down, the BUK-M1 system was returned to Russia. The prosecution has detailed information about the routes that the anti-aircraft missile system took. It was brought to Donbas and then returned to a military unit based in the Kursk region of the Russian Federation. As the investigators discovered, the Russians transported not one, but two BUK-M1 systems to the territory of temporarily occupied and uncontrolled territories of Ukraine, but the second did not engage in “combat duty.”

The prosecution in the Hague has witness statements, which it claims prove that at least several dozen Russian military and Russian-funded mercenaries took part in guarding the BUK-M1 anti-aircraft missile system.

For now, the Netherlands’ Prosecutor’s Office has filed charges against four individuals and summonsed them to the investigation. In June 2019, the International Investigation Team named the four suspects, including three Russians and one Ukrainian: former Defence Minister of the so-called Donetsk People’s Republic (DNR) Igor Girkin-Strelkov; Major-General of the Russian Army Sergii Dubinskyi (a subordinate of Strelkov); head of second department of Main Intelligence Directorate (GRU) of the DNR Oleg Pulatov (the subordinate of Dubinskyi) and Ukrainian citizen Leonid Kharchenko (who is believed to have accompanied, with Pulatov, the BUK missile system to Snizhne, from where the missile that shot down MH17 was fired).

The investigators claim that the BUK-M1 system could enter Ukraine without the permission of the top military political leadership of the Russian Federation, and certainly unbeknownst to Vladimir Putin. They are personally responsible for the special operation of transferring the BUK-M1 to Ukraine, which resulted in the destruction of the plane and the deaths of 298 people.

The trial of the M17 aircraft crash began on 9 March 2020 in The Hague District Court, which is famous for its objectivity and scrupulous approach to details.

Netherlands chief prosecutor Fred Westerbeke, who heads the International Investigation Team, accused the Russian authorities of not providing any assistance in the investigation of the disaster. Furthermore, the Russian Federation interfered with investigators, falsified evidence, intimidated witnesses, and conducted large-scale disinformation operations. Russian agents tried to influence the composition of the investigation team and to hack into the computers of Malaysian and Dutch experts involved in the MH17 case. As soon as the Russian Federation gained access to the investigation materials through the Colonel Pulatov’s lawyer, fragments of documents constituting secret information began to appear in various media reports. Experts believe that, in this way, the Russian special services are trying to disseminate false information in order to raise doubts about the International Investigation Team’s conclusions and the future court decision.

After all, according to lawyers, responsibility for the crashed aircraft lies with the state in control of the persons who violated international humanitarian law. Accordingly, this country has to pay compensation for the damages caused, to apologise, and provide assurances that such actions will not occur again in the future. In addition, criminal charges should be brought against all involved in the crime – including those who directly used the BUK missile system, their officers, and those who ordered the transfer of weapons.

Thus, if Russia’s involvement in the MH17 tragedy can be established, new judicial prospects will open for Ukraine. After all, the case concerns the use of the Russian Armed Forces’ BUK missile system on the occupied territory of another sovereign state.

Meanwhile, relatives of MH17 victims filed a separate lawsuit against Vladimir Putin and Russia in the European Court of Human Rights. In accordance with the laws of the Kingdom of the Netherlands, a person involved in committing a crime, even if not present at the time and place the crime was committed, is considered guilty. In this case, it is obvious that the criminal chain leads only to the Kremlin, and all the stories that the militants in Donbas could manage the complex BUK-M1 system on their own are nothing more than tales.

The Azov crisis: no resolution is reached

In November 2018, Russian border guards detained three Ukrainian ships at gunpoint in the Kerch Strait: the tugboat Yany Kapu and two small, armoured boats, Berdiansk and Nikopol. The vessels were heading to the Ukrainian port in the Sea of Azov – Mariupol. Twenty-four Ukrainian soldiers were arrested and accused of illegally crossing the border of the Russian Federation. At the same time, Russia refused to recognise them as prisoners of war.

In response to these actions, the Ministry of Foreign Affairs of Ukraine appealed to the UN International Tribunal for the Law of the Sea (ITLOS), requesting that coercive measures be applied against Russia in order to liberate the Ukrainian sailors.

On 25 May 2019, the Tribunal ordered Russia to “unconditionally and immediately” release the Ukrainian sailors and return the captured ships. However, Russia used various methods to delay the implementation of the decision and then included all arrested sailors on prisoner exchange lists.

On 7 September 2019, the sailors and other Kremlin captives arrived at the Boryspil airport, although Russia continued its persecution of the Ukrainian sailors in absentia.

On 18 November 2019, the three captured ships were returned to Ukraine, and Russia called this action an “act of good will.”  Violating the ITLOS decision, Russians seized weapons, communication facilities, documents, and equipment from the vessels. Specialists additionally discovered that all three vessels were damaged.

According to the Deputy Permanent Representative of Ukraine to the international organizations in Vienna, Igor Lossovskyi, the amount of the damages on ships amounted to at least UAH 55.5 million ($2.24 million USD).

Yet the return of the Ukrainian sailors and ships does not mean that the dispute has been settled, nor that Russia has respected the ITLOS decisions.

On 21 November 2019, the Hague Arbitration Tribunal officially started hearing a case on the arrest of three Ukrainian naval detainees and their crew.

Ukrainian lawyers believe Ukraine has a very high chance of winning, but patience is necessary as the arbitration may take years to resolve. The Tribunal must now determine whether Russia has actually violated the immunity of the Ukrainian naval vessels and their crew members and what damages were caused. At a later stage, Ukraine will raise the issue of compensation from the Russian Federation for losses (both material and moral).

On 21 February 2020, ITLOS acknowledged that it had jurisdiction in the case and ruled that it would consider important aspects of Ukraine’s claims, including those related to violations by Russia of maritime law in the Kerch Strait and the Sea of Azov.

The Tribunal agrees with Ukraine that Russia’s demand regarding inland water status is not a proper reason to deny jurisdiction; this issue must be resolved at the merits stage of the case. The decision implies the need for a legal examination of legality of the Kerch Bridge construction by Russia and the stopping of ships in the Azov Sea, which is detrimental to international shipping. As noted by the Foreign Ministry of Ukraine, the Tribunal’s decision has again confirmed the evident international consensus on the non-recognition of the illegal annexation of the Crimea by the Russian Federation.

International Court of Justice

On 16 January 2017, Ukraine filed a lawsuit to the United Nations International Court of Justice (ICJ) accusing Russia of violating the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination.

Moscow officially appealed against the jurisdiction of the ICJ, and yet, in November 2019, the Court acknowledged its jurisdiction in the case, which means that it can proceed to consider the case on the merits. At the same time, the Court stressed that Ukraine had properly followed all legal pre-trial procedures.

Russia has been charged with: the provision of weapons and other aids to illegal armed forces; shooting down Malaysian Airlines flight MH17; shelling residential areas in Mariupol and Kramatorsk; the GRAD rocket attack on a civilian bus near Volnovakha; the explosion during the peaceful protests in Kharkiv; discrimination against Ukrainian and Crimean Tatar communities; the ban on activities of the majlis of the Crimean Tatar people; the disappearance and murders of activists, as well as unauthorized searches and detentions; and restrictions on teaching the Ukrainian and the Crimean Tatar languages.

Russia has until 8 December 2020 to file its defence. The Court’s final decision in this case is not expected until 2022.

The fight in the courts is ongoing, and for Ukraine it is the beginning of a long legal process. In this context, the use of international conventions is one of the possible mechanisms to respond to Russia’s hybrid aggression.

The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards requires its 159 States Parties to recognise and implement international arbitration rulings. Enforcement of such rulings is possible by seizing property that is not protected by sovereign immunity. Such recovery, however, is problematic, according to lawyers.

Nevertheless, international court and arbitration victories allow Ukraine to prepare for future, comprehensive consideration by the UN of Russia’s aggression against Ukraine. Currently, it is impossible to use this platform as the Russian Federation, being a permanent member of the UN Security Council, has veto power. The world is constantly changing, however, and Ukraine should be ready to exploit the first opportunity to make its voice heard and assert its rights.

Ilya Tarasyuk is a well-known Ukrainian journalist whose articles have been published by leading Ukrainian business publications for the last 15 years. He specializes in economic and political topics. He graduated from the Kyiv-Mohyla Academy with a degree in Philology.

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