A. Subject-matter of the dispute

23. The present proceedings were instituted by Ukraine following the events which occurred in eastern Ukraine and in Crimea from the spring of 2014, on which the Parties have different views. However, the case before the Court is limited in scope. With regard to the events in eastern Ukraine, the Applicant has brought proceedings only under the ICSFT. With regard to the situation in Crimea, Ukraine's claims are based solely upon CERD.

24. Article 40, paragraph 1, of the Statute and Article 38, paragraph 1, of the Rules of Court require an applicant to indicate the “subject of the dispute” in its application. Furthermore, the Rules require that the application “specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based” (Article 38, paragraph 2, of the Rules) and that the memorial include a statement of the “relevant facts” (Article 49, paragraph 1, of the Rules). However, it is for the Court itself to determine on an objective basis the subject-matter of the dispute between the parties, by isolating the real issue in the case and identifying the object of the claim. In doing so, the Court examines the application as well as the written and oral pleadings of the parties, while giving particular attention to the formulation of the dispute chosen by the applicant. It takes account of the facts that the applicant presents as the basis for its claim. The matter is one of substance, not of form (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), pp. 308–309, para. 48).

25. The Court observes that the Parties have expressed divergent views as to the subject-matter of the dispute brought by Ukraine before it.

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26. According to the Applicant, its claims under the ICSFT concern the alleged violations by the Russian Federation of its obligations to take measures and to co-operate under Articles 8, 9, 10, 12 and 18 of the ICSFT in the prevention and suppression of terrorism financing offences, as defined in Article 2 of the Convention. In this regard, Ukraine contends that the Russian Federation has failed to take all practicable measures to prevent and counter preparations in its territory for the commission of terrorism financing offences in the context of the events which occurred in eastern Ukraine starting from the spring of 2014 and to repress them. In its Application, Ukraine also claimed that the Respondent supplied funds to groups that engage in acts of terrorism, but has not put forward the same claim either in its Memorial or in the proceedings on preliminary objections. The Applicant indeed stated that “[its] claim is not that Russia has violated Article 2 of the ICSFT”, but rather “that Russia has violated ICSFT Article 18 and other related cooperation obligations”.

The Applicant submits that its claims on the basis of CERD concern alleged violations by the Russian Federation of its obligations under Articles 2, 4, 5, 6 and 7 of CERD. In this regard, Ukraine maintains that the Russian Federation engaged in a campaign directed at depriving the Crimean Tatars and ethnic Ukrainians in Crimea of their political, civil, economic, social and cultural rights and pursued a policy and practice of racial discrimination against those communities.

27. For its part, the Russian Federation considers that the dispute submitted by Ukraine to the Court in fact concerns matters which are unconnected to the two conventions relied on by the Applicant. It asserts that the Parties' rights and obligations under the ICSFT cannot be invoked by Ukraine, since the acts referred to by the Applicant do not constitute offences within the meaning of Article 2 of the Convention. The Russian Federation further asserts that the facts relied on and evidence submitted by the Applicant do not substantiate its claim that funds were provided or collected by various actors in the Russian Federation with the intention or knowledge that they were to be used to carry out acts of terrorism in eastern Ukraine. The Respondent also contends that the dispute does not concern its obligations under CERD and contests allegations that it is subjecting Crimean Tatar and Ukrainian communities in Crimea to a systematic campaign of racial discrimination. The Russian Federation argues that, under cover of allegations relating to violations of the ICSFT and CERD, Ukraine is seeking to bring before the Court disputes concerning alleged violations of “different rules of international law”. In particular, the Respondent contends that Ukraine is seeking to seise the Court of disputes over the Russian Federation's alleged “overt aggression” in eastern Ukraine and over the status of Crimea.

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28. As the Court has observed, applications that are submitted to it often present a particular dispute that arises in the context of a broader disagreement between the parties (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment of 13 February 2019, para. 36; Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 604, para. 32). The fact that a dispute before the Court forms part of a complex situation that includes various matters, however important, over which the States concerned hold opposite views, cannot lead the Court to decline to resolve that dispute, provided that the parties have recognized its jurisdiction to do so and the conditions for the exercise of its jurisdiction are otherwise met.

29. In the present case, the Court notes that Ukraine is not requesting that it rule on issues concerning the Russian Federation's purported “aggression” or its alleged “unlawful occupation” of Ukrainian territory. Nor is the Applicant seeking a pronouncement from the Court on the status of Crimea or on any violations of rules of international law other than those contained in the ICSFT and CERD. These matters therefore do not constitute the subject-matter of the dispute before the Court.

30. The Court observes that Ukraine requests the Court to adjudge and declare that the Russian Federation has violated a number of provisions of the ICSFT and CERD, that it bears international responsibility for those violations, and that it is required to cease such violations and make reparation for the consequences thereof.

31. The Court considers that it follows from the opposing views expressed by the Parties in the present case that the dispute consists of two aspects. First, the Parties differ as to whether any rights and obligations of the Parties under the ICSFT with regard to the prevention and suppression of the financing of terrorism were engaged in the context of events which occurred in eastern Ukraine starting in the spring of 2014, and whether terrorism financing offences, within the meaning of Article 2, paragraph 1, of the ICSFT, were committed. As a result of these differences of views, the Parties draw opposite conclusions as to the alleged breaches by the Russian Federation of its obligations under Articles 8, 9, 10, 12 and 18 of the ICSFT and as to its ensuing international responsibility. Secondly, the Parties disagree as to whether the decisions or measures allegedly taken by the Russian Federation against the Crimean Tatar and Ukrainian communities in Crimea constitute acts of racial discrimination and whether the Russian Federation bears responsibility in that regard for the violation of its obligations under Articles 2, 4, 5, 6 and 7 of CERD.

32. In view of the foregoing, the Court concludes that the subject-matter of the dispute, in so far as its first aspect is concerned, is whether the Russian Federation had the obligation, under the ICSFT, to take measures and to co-operate in the prevention and suppression of the alleged financing of terrorism in the context of events in eastern Ukraine and, if so, whether the Russian Federation breached such an obligation. The subject-matter of the dispute, in so far as its second aspect is concerned, is whether the Russian Federation breached its obligations under CERD through discriminatory measures allegedly taken against the Crimean Tatar and Ukrainian communities in Crimea.

B. Bases of jurisdiction invoked by Ukraine

33. The Court recalls that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 307, para. 42).

34. To establish the Court's jurisdiction in the present case, Ukraine invokes Article 24, paragraph 1, of the ICSFT and Article 22 of CERD (see paragraph 2 above). The first of these provisions reads as follows:

Article 22 of CERD provides that:

35. Ukraine and the Russian Federation are parties to the ICSFT, which entered into force for them on 5 January 2003 and 27 December 2002 respectively. Neither of them entered any reservations to the ICSFT.

Ukraine and the Russian Federation are also parties to CERD. The Convention entered into force for Ukraine on 6 April 1969. The instrument of ratification, deposited by Ukraine, on 7 March 1969, contained a reservation to Article 22 of the Convention; on 20 April 1989, the depositary received notification that this reservation had been withdrawn. The Russian Federation is a party to the Convention as the State continuing the international legal personality of the Union of Soviet Socialist Republics, for which CERD entered into force on 6 March 1969. The instrument of ratification, deposited by the Union of Soviet Socialist Republics on 4 February 1969, contained a reservation to Article 22 of the Convention; on 8 March 1989, the depositary received notification that this reservation had been withdrawn.

36. The Russian Federation contests the Court's jurisdiction to entertain the dispute on the basis of each of the two instruments invoked by Ukraine. In this regard, it argues that the dispute is not one which the Court has jurisdiction ratione materiae to entertain, either under Article 24, paragraph 1, of the ICSFT or under Article 22 of CERD, and that the procedural preconditions set out in these provisions were not met by Ukraine before it seised the Court. The Respondent further contends that Ukraine's claims under CERD are inadmissible, since, in its view, available local remedies had not been exhausted before Ukraine filed its Application with the Court.

37. The Court will address the preliminary objection raised by the Russian Federation to its jurisdiction on the basis of the ICSFT in Part II of the Judgment. It will then address, in Part III, the preliminary objections to its jurisdiction on the basis of CERD and to the admissibility of the Application in so far as it concerns the claims made by Ukraine under CERD.

A. Jurisdiction ratione materiae under the ICSFT

39. The Court recalls that its jurisdiction ratione materiae over the dispute under Article 24, paragraph 1, of the ICSFT covers “[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention”.

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40. The Russian Federation contests the Court's jurisdiction ratione materiae with regard to all aspects of the dispute submitted by Ukraine to the Court under the ICSFT. In the Russian Federation's opinion, the fact that the Parties entertain different views on the interpretation of a treaty containing a compromissory clause is not sufficient to establish the Court's jurisdiction ratione materiae. According to the Respondent, the Court must interpret the key provisions of the relevant treaty and “[s]atisfy itself that the facts pleaded and the evidence relied on by the applicant State plausibly support the asserted characterisation of its claims” as claims under that treaty. The Russian Federation does not request from the Court a complete analysis of the facts at the stage of a decision on preliminary objections, but contends that some consideration must be given to the facts.

41. The Russian Federation recalls that, in its Order of 19 April 2017 on the Request for the indication of provisional measures in the present case, the Court affirmed that Ukraine's claimed rights under the ICSFT were not plausible (I.C.J. Reports 2017, pp. 131–132, para. 75). In considering the plausibility of Ukraine's case at the present stage, the Russian Federation maintains that the Court must rely on its earlier assessment. According to the Respondent, Ukraine has not put forward any new evidence related to elements of intention, knowledge and purpose concerning the funding of acts of terrorism which would allow the Court to depart from the findings made at the stage of its decision on provisional measures.

42. More specifically, the Respondent maintains that no material evidence has been presented by Ukraine demonstrating that the Russian Federation provided weaponry to any entity “with the requisite specific intent or knowledge” under Article 2, paragraph 1, of the ICSFT that such weaponry would be used to shoot down flight MH17. With regard to four specific incidents of alleged indiscriminate shelling, the Russian Federation submits that no new evidence has been presented by Ukraine since the stage of provisional measures. In the Respondent's view, Ukraine fails to present any credible evidence that the perpetrators of the shelling acted with “the requisite specific intent to kill or seriously harm civilians” and that the locations were shelled “for the requisite specific purpose of intimidating the population or to compel a government to do or to abstain from doing any act”. Moreover, even if a plausible case of terrorism could be demonstrated with regard to those incidents, the Russian Federation argues that Ukraine would also be implicated in the commission of indiscriminate shelling during the same conflict. Concerning the further allegation of bombing that took place in Kharkiv, the Respondent maintains that no reliable evidence was submitted to show that the incident was perpetrated with the Russian Federation's support. The Russian Federation also maintains that, in diplomatic correspondence, it confirmed its interest in receiving from Ukraine “the concrete materials containing evidential data” relating to that incident, which Ukraine failed to provide. Furthermore, with regard to other alleged acts of extrajudicial killing, torture and ill-treatment of civilians, the Respondent contends that the evidence does not demonstrate that they were “plausible ‘terrorist’ acts within the meaning of Article 2 (1) (b) of the ICSFT”. According to the Russian Federation, such acts have in any case been committed by all parties to the armed conflict.

43. The Russian Federation is of the view that the ICSFT is a “law enforcement instrument” which does not cover issues of State responsibility for financing acts of terrorism. It bases its interpretation on a textual analysis of the Convention, as well as on considerations pertaining to the structure of the ICSFT, the preparatory work related to the drafting of specific articles, provisions of other conventions concerned with terrorism and subsequent State practice. The Russian Federation asserts that multiple attempts were made by delegations during the drafting of the ICSFT to bring public officials and State financing within the scope of the Convention, but all attempts failed.

44. The Russian Federation maintains that the Court must at this stage fully interpret the relevant provisions of the ICSFT, especially Article 2, paragraph 1. The Russian Federation submits that the term “any person” in Article 2, paragraph 1, has to be interpreted as meaning “private persons only” and does not cover State officials. It points out that Ukraine is asking the Court to find that the Russian Federation has not prevented its own officials from financing terrorism. In the Respondent's view, while State responsibility is excluded from the scope of the ICSFT, a finding that State officials are also covered would mean declaring that the Russian Federation is directly responsible for financing terrorism in accordance with Article 4 of the Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission.

45. The Russian Federation further argues that, in order to determine the scope of the ICSFT, the mental elements of the offence of terrorism financing must be defined. The terms “intention” and “knowledge” in Article 2, paragraph 1, of the ICSFT must therefore be interpreted. The Russian Federation maintains that these two terms are not synonymous. It is of the view that “intention” must be understood as “a specific intent requirement”. Following the interpretation given by the Respondent, “knowledge” refers to actual knowledge that the funds will be used to commit acts of terrorism, and not merely that they may be used to do so. According to the Russian Federation, recklessness is insufficient to establish knowledge. The Russian Federation accepts that the requirement of knowledge can be satisfied by the financing of groups that are notorious terrorist organizations. However, the Respondent argues that it is not sufficient for Ukraine to so characterize any entity unilaterally, particularly in the absence of any indication to that effect by an international organization.

46. The Russian Federation notes that an act constitutes an offence within the meaning of Article 2, paragraph 1 (a), of the ICSFT when it is “an offence within the scope of and as defined in one of the treaties listed in the annex” to the Convention. In this regard, the Respondent submits that in order to constitute an offence defined in Article 1, paragraph 1 (b), of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done in Montreal on 23 September 1971 (hereinafter the “Montreal Convention”), relied on by Ukraine with regard to the downing of flight MH17, there must be an intent to destroy or cause damage to a civilian aircraft in service. The Russian Federation also provides an interpretation of Article 2, paragraph 1 (b), of the ICSFT, under which acts of terrorism need to be performed with a specific intention and with the purpose of intimidating a population or compelling a government. According to the Respondent, intention under the same subparagraph refers to a “subjective aim, desire or plan” and “implicitly exclud[es] knowledge-based standards”.

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47. Ukraine contends that the Russian Federation's preliminary objections “improperly ask the Court to address the merits of the Parties' dispute”. In the Applicant's view, the Court should not provide a definitive interpretation of Article 2 of the ICSFT at the present stage of the proceedings, nor should it determine the plausibility of the alleged facts before it, but must only decide whether the dispute is one that concerns the interpretation or application of the ICSFT. Ukraine considers that the Russian Federation's contention that the Court should examine the plausibility of the case is based “on a flawed analogy between preliminary objections and provisional measures”. It argues that the Court, in determining whether it has jurisdiction, must provisionally assume that the facts alleged by Ukraine are true; it must therefore accept them pro tempore.

48. Despite its view that facts should not be assessed in terms of plausibility at the present stage of the proceedings, Ukraine contends that it has “more than plausibly” demonstrated that acts of terrorism within the meaning of the ICSFT have been committed by the Russian Federation's “proxies” on Ukrainian territory. The Applicant argues that its Memorial contains an “extraordinary level of evidence”.

49. Ukraine maintains that a number of events documented by the evidence presented by it establish offences covered by Article 2, paragraph 1, of the ICSFT. It asserts that Russian officials supplied the missile launching system that was used to shoot down flight MH17. Ukraine argues that this launching system was “knowingly provided” to a terrorist organization, and that the requirement of knowledge under Article 2, paragraph 1, was amply met. Ukraine contends that the shooting down of the aircraft constituted a violation of the Montreal Convention and that the supply of the launching system was an offence under Article 2, paragraph 1 (a), of the ICSFT. Moreover, Ukraine argues that its Memorial shows that bombing attacks by the Russian Federation's “proxies” constituted offences under the International Convention for the Suppression of Terrorist Bombings and that the alleged knowledge of financing the attacks, including through the supply of bombs, was covered by Article 2, paragraph 1 (a), of the ICSFT.

50. With regard to other incidents, Ukraine argues that the evidence presented demonstrates that certain events of indiscriminate shelling such as those that occurred in Volnovakha and Mariupol constituted acts of terrorism under Article 2, paragraph 1 (b), of the ICSFT because these acts were performed by the Russian Federation's “proxies” with the intent to kill civilians and for the purpose of intimidating a population or compelling a government. Concerning further allegations of acts of torture and killings, Ukraine submits that those acts were performed with the objective of terrorizing a civilian population.

51. Ukraine contends that the Russian Federation's arguments with regard to the interpretation of the different elements of Article 2 of the ICSFT belong to the merits, and that they do not have an impact on the Court's jurisdiction. The Applicant argues that, if the Court were now to proceed to such interpretation, it would “prematurely determine some elements of this dispute on the merits”. Ukraine submits that such issues of interpretation are “inseparable from the factual questions” and in any event do not possess an exclusively preliminary character.

52. If however the Court were to find it necessary to give an interpretation of Article 2 of the ICSFT at the present stage of the proceedings, Ukraine argues that the Russian Federation's restrictive reading should be dismissed. The Applicant submits that Article 2, paragraph 1 (a) and (b), of the ICSFT gives a broad and comprehensive definition of acts of terrorism. It also maintains that the notion of “‘funds’ under Article 1 of the ICSFT is a broad term covering all property, including weapons”.

53. In Ukraine's view, the term “any person” in Article 2, paragraph 1, includes both private individuals and public or government officials. Relying on a textual interpretation of the treaty provisions, read in their context, Ukraine contends that Article 18 imposes on States an obligation to prevent terrorism financing offences and that, according to Article 2, such offences may be committed by “‘any person’, without qualification”. It maintains that concluding otherwise would be “paradoxical” as the ICSFT would bind a State to prevent the financing of acts of terrorism, but would not prohibit financing by officials of the same State. Ukraine also argues that the Russian Federation's interpretation undermines the object and purpose of the ICSFT and that its own interpretation is, on the contrary, supported by the preamble, the context and the preparatory work of the Convention. The Applicant argues that the Russian Federation is conflating the States' duty under Article 18 of the ICSFT to prevent terrorism financing with the notion of State responsibility for committing terrorism financing.

54. Ukraine is of the view that providing funds to groups with the knowledge that such groups carry out acts of terrorism is sufficient to fulfil the requirement of knowledge under Article 2, paragraph 1, of the ICSFT, and that certainty that the funds will be used to commit specific acts is not required. Ukraine contends that the groups in question do not need to be designated as terrorist by, for instance, the Security Council, a competent organization or a considerable number of States, for a financing entity to have knowledge of the terrorist groups' activities.

55. Ukraine also addresses the terrorism offences referred to in Article 2, paragraph 1, of the ICSFT. As to the offence defined in Article 1, paragraph 1 (b), of the Montreal Convention, it holds that “the civilian or military status of the aircraft is a jurisdictional element of the offence, not subject to an intent requirement”. The Applicant also maintains that the phrase “act intended to cause death or serious bodily injury” in Article 2, paragraph 1 (b), of the ICSFT, does not refer to a specific mental element; it is “an objective statement, referring to the ordinary consequences of an act”. It points out that this provision further refers to the purpose of an act of terrorism to intimidate a population or compel a government. Ukraine states that in many cases the specific agenda of the perpetrators of acts of terrorism will be unknown, but that in such cases the requisite purpose can be inferred, as the provision suggests, from the “nature or context” of the act.

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56. The Court will now determine whether the dispute between the Parties is one that concerns the interpretation or the application of the ICSFT and, therefore, whether it has jurisdiction ratione materiae under Article 24, paragraph 1, of this Convention.

57. As the Court stated in the case concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), pp. 809–810, para. 16) and, more recently, in the case concerning Certain Iranian Assets (Islamic Republic of Iran v. United States of America) (Preliminary Objections, Judgment of 13 February 2019, para. 36), in order to determine the Court's jurisdiction ratione materiae under a compromissory clause concerning disputes relating to the interpretation or application of a treaty, it is necessary to ascertain whether the acts of which the applicant complains “fall within the provisions” of the treaty containing the clause. This may require the interpretation of the provisions that define the scope of the treaty. In the present case, the ICSFT has to be interpreted according to the rules contained in Articles 31 to 33 of the Vienna Convention on the Law of Treaties of 23 May 1969 (hereinafter the “Vienna Convention”), to which both Ukraine and the Russian Federation are parties as of 1986.

58. At the present stage of the proceedings, an examination by the Court of the alleged wrongful acts or of the plausibility of the claims is not generally warranted. The Court's task, as reflected in Article 79 of the Rules of Court of 14 April 1978 as amended on 1 February 2001, is to consider the questions of law and fact that are relevant to the objection to its jurisdiction.

59. The ICSFT imposes obligations on States parties with respect to offences committed by a person when “that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out” acts of terrorism as described in Article 2, paragraph 1 (a) and (b). As stated in the preamble, the purpose of the Convention is to adopt “effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators”. The ICSFT addresses offences committed by individuals. In particular, Article 4 requires each State party to the Convention to establish the offences set forth in Article 2 as criminal offences under its domestic law and to make those offences punishable by appropriate penalties. The financing by a State of acts of terrorism is not addressed by the ICSFT. It lies outside the scope of the Convention. This is confirmed by the preparatory work of the Convention, which indicates that proposals to include financing by States of acts of terrorism were put forward but were not adopted (United Nations, docs. A/C.6/54/SR.32–35 and 37). As was recalled in the report of the Ad Hoc Committee established by the General Assembly which contributed to the drafting of the ICSFT, some delegations even proposed to exclude all matters of State responsibility from the scope of the Convention (United Nations, doc. A/54/37). However, it has never been contested that if a State commits a breach of its obligations under the ICSFT, its responsibility would be engaged.

60. The conclusion that the financing by a State of acts of terrorism lies outside the scope of the ICSFT does not mean that it is lawful under international law. The Court recalls that, in resolution 1373 (2001), the United Nations Security Council, acting under Chapter VII of the Charter, decided that all States shall “[r]efrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts”.

61. When defining the perpetrators of offences of financing acts of terrorism, Article 2 of the ICSFT refers to “any person”. According to its ordinary meaning, this term covers individuals comprehensively. The Convention contains no exclusion of any category of persons. It applies both to persons who are acting in a private capacity and to those who are State agents. As the Court noted (see paragraph 59 above), State financing of acts of terrorism is outside the scope of the ICSFT; therefore, the commission by a State official of an offence described in Article 2 does not in itself engage the responsibility of the State concerned under the Convention. However, all States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person. Should a State breach such an obligation, its responsibility under the Convention would arise.

62. As the title of the ICSFT indicates, the Convention specifically concerns the support given to acts of terrorism by financing them. Article 2, paragraph 1, refers to the provision or collection of “funds”. This term is defined in Article 1, paragraph 1, as meaning:

This definition covers many kinds of financial instruments and includes also other assets. Since no specific objection to the Court's jurisdiction was made by the Russian Federation with regard to the scope of the term “funds” and in particular to the reference in Ukraine's submissions to the provision of weapons, this issue relating to the scope of the ICSFT need not be addressed at the present stage of the proceedings. However, the interpretation of the definition of “funds” could be relevant, as appropriate, at the stage of an examination of the merits.

63. An element of an offence under Article 2, paragraph 1, of the ICSFT is that the person concerned has provided funds “with the intention that they should be used or in the knowledge that they are to be used” to commit an act of terrorism. The existence of the requisite intention or knowledge raises complex issues of law and especially of fact that divide the Parties and are properly a matter for the merits. The same may be said of the question whether a specific act falls within the meaning of Article 2, paragraph 1 (a) or (b). This question is largely of a factual nature and is properly a matter for the merits of the case. Within the framework of the ICSFT, questions concerning the existence of the requisite mental elements do not affect the scope of the Convention and therefore are not relevant to the Court's jurisdiction ratione materiae. Should the case proceed to the examination of the merits, those questions will be decided at that stage.

64. In light of the above, the Court concludes that the objection raised by the Russian Federation to its jurisdiction ratione materiae under the ICSFT cannot be upheld.

B. Procedural preconditions under Article 24 of the ICSFT

65. The Court needs now to examine whether the procedural preconditions set forth in Article 24, paragraph 1, of the ICSFT (see paragraph 34 above) have been fulfilled. In this context, the Court will consider whether the dispute between the Parties could not be settled through negotiation within a reasonable time and, if so, whether the Parties were unable to agree on the organization of an arbitration within six months from the date of the request for arbitration.

A. Jurisdiction ratione materiae under CERD

79. It is the Russian Federation's position that the real issue in dispute between the Parties does not concern racial discrimination but the status of Crimea. The Russian Federation contends that the measures which Ukraine characterizes as racial discrimination are not in breach of CERD, since they are not based on any of the grounds set out in Article 1, paragraph 1, of CERD. According to the Respondent, Ukraine's claims of racial discrimination consist in asserting that measures allegedly taken by the Russian Federation in respect of members of certain ethnic communities were motivated by the opposition of these communities to the “purported annexation” of Crimea.

80. According to the Russian Federation, Ukraine's attempt to define “ethnic groups” within the meaning of CERD on the basis of political self-identification and opinions is misconceived. The Russian Federation argues that Ukraine's definition of “ethnicity” is not in consonance either with the ordinary meaning of CERD, or with the intention of its drafters, and is also unsupported both by State practice, and by the decisions of the Committee on the Elimination of Racial Discrimination (hereinafter the “CERD Committee”). The Russian Federation does not contest, in any event, that Crimean Tatars and ethnic Ukrainians in Crimea constitute distinct ethnic groups protected by CERD.

81. The Respondent argues that the claims that it discriminated between citizens and non-citizens are beyond the scope of CERD, in so far as they are incompatible with Article 1, paragraphs 2 and 3, of the Convention, which expressly excludes from its scope “distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”, and does not affect “in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization”.

82. The Russian Federation further contends that a number of rights invoked by Ukraine are not protected under CERD. According to the Respondent, Ukraine's argument that Article 5 of CERD includes a right “to return to one's country”, allegedly breached by Russian citizenship laws, was only made to circumvent Article 1 of the Convention, since such a right is not protected under CERD unless the person concerned is subject to racial discrimination within the meaning of the Convention. On this basis, the Russian Federation argues that the alleged imposition of Russian citizenship in Crimea could not be a breach of CERD.

83. In relation to the ban on the Mejlis of the Crimean Tatar People, the Russian Federation contends that the political right of the Crimean Tatars to retain their representative institutions is not protected under Article 5, paragraphs (c) and (e), of CERD, as those provisions protect only individual and not collective, political rights.

84. The Respondent also states that the right to education and training, to which Article 5, paragraph (e) (v), of CERD refers, does not guarantee an absolute right to be educated in one's native language, since this provision only aims to ensure the right of everyone to have access to a national educational system, irrespective of ethnic origin.

85. The Russian Federation contends that by claiming that Crimean Tatars have been discriminated against because of their Muslim faith, Ukraine misconstrues the scope of CERD, which does not include discrimination based on religious grounds.

86. According to the Russian Federation, a considerable part of the alleged violations of CERD to which Ukraine refers is based on the assumption that the application of Russian laws in Crimea amounts to a breach of certain rules of international humanitarian law, which, following Ukraine's logic, would in turn entail a breach of CERD. The Russian Federation contends that Ukraine is seeking to challenge the application of Russian laws in Crimea, purportedly on the basis of CERD, but actually by reference to certain rules of international humanitarian law.

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87. Ukraine argues that, while it is obliged to refer to the Russian Federation's “intervention” in Crimea in describing the alleged campaign of racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea, neither the substance of Ukraine's claims, nor the relief requested, concern the status of Crimea.

88. According to Ukraine, its claims under CERD fall squarely within the definition of “racial discrimination” under Article 1, paragraph 1, of the Convention. Ukraine alleges that the Russian Federation has implemented a “policy of discrimination in political and civil affairs” and a “campaign of cultural erasure” against Crimean Tatars and ethnic Ukrainians in Crimea. The Applicant claims that the Russian Federation has impaired the civil and political rights of the Crimean Tatar and Ukrainian communities in Crimea by a series of targeted murders and acts of torture; forced disappearances and abductions; arbitrary searches and detentions; the imposition of Russian citizenship on the residents of Crimea; and the ban on the Mejlis. The Applicant also claims that the Russian Federation has impaired the economic, social and cultural rights of these communities, by imposing restrictions on Crimean Tatar and Ukrainian media outlets; the degradation of their cultural heritage; the suppression of culturally significant gatherings of these communities; and the suppression of minority rights relating to education, and in particular restrictions placed on education in the Crimean Tatar and Ukrainian languages. It is the Applicant's position that these measures were principally aimed against the ethnic groups of Crimean Tatar and Ukrainian communities in Crimea and had the “purpose and/or effect” of disproportionately affecting these communities less favourably than other ethnic groups in Crimea. Accordingly, Ukraine maintains that these measures amount to racial discrimination within the meaning of Article 1, paragraph 1, of CERD.

89. Ukraine argues that its Memorial shows, “on an article-by-article basis”, that the Russian Federation's conduct has resulted in nullifying or limiting the rights and freedoms of the Crimean Tatar and Ukrainian communities protected under Articles 2, paragraph (1) (a) and (b), 4, 5 (a) to (e), 6 and 7, of CERD. Ukraine thus asserts that its claims relate to an aspect of the dispute which concerns the interpretation or application of CERD.

90. Moreover, Ukraine argues that freedom from deportation from one's country by an “occupying State” is a human right or fundamental freedom, the denial of which on a racial or ethnic basis constitutes a breach of CERD. Ukraine further argues that the denial of the right to return to one's country either by the territorial sovereign or by an “occupying State” also constitutes a breach of CERD. Ukraine also emphasizes that, considering Article 1, paragraph 3, of CERD, citizenship laws passed by States parties to the Convention may constitute a breach of CERD if they “discriminate against any particular nationality”. In this regard, Ukraine maintains that the law granting Russian citizenship to citizens of Ukraine and to stateless persons resident in Crimea, together with the Russian Federation's enforcement of this law, disproportionately and adversely affects Crimean Tatars and ethnic Ukrainians in Crimea. Ukraine disputes the Russian Federation's assertion that these measures fall outside of CERD by virtue of paragraphs 2 and 3 of Article 1.

91. Ukraine also submits that the protections provided by CERD do not exist solely with respect to those rights listed in the Convention, but extend to human rights and fundamental freedoms in other fields of public life. It is Ukraine's position that the Russian Federation's arguments on the interpretation of certain provisions of CERD confirm that the dispute between the Parties also concerns the interpretation of that Convention. According to Ukraine, the issues in dispute between the Parties concern the respect of the right of indigenous peoples to maintain their representative institutions, the right of minorities to be educated in their native language, the consideration of Article 49 of the Fourth Geneva Convention as a rule relevant to the interpretation of Article 5, paragraph (d) (ii), of CERD, and the relevance of Article 1, paragraphs 2 and 3, to claims relating to the imposition of Russian citizenship in Crimea. Ukraine submits that it is appropriate for the Court to decide these disputed issues at the merits stage of the proceedings.

92. In the alternative, Ukraine argues that, should the Court decide to address such issues at the preliminary objections stage, it should decide them in Ukraine's favour. The Applicant maintains that targeting the Mejlis constitutes an ethnicity-based distinction having the purpose or effect of impairing the human rights and fundamental freedoms of the Crimean Tatar people. Ukraine further states that Article 5 (e) (v) of CERD provides for a broad right to education and training, which also covers the right to be educated in one's own native language. Ukraine also clarifies that it is not requesting the Court to make any finding or grant any relief in respect of breaches of CERD resulting from discrimination on religious grounds. The Applicant further maintains that it is not asking the Court to decide claims of discrimination on the basis of political opinion.

93. According to Ukraine, the Russian Federation's claim that the extension of its laws in Crimea is equated by Ukraine to a violation of CERD is inaccurate; the Applicant argues that, in its Memorial, it referred to the introduction of such laws to describe the means by which the Respondent has pursued a campaign of discrimination in Crimea. Using as an example the breach of freedom of peaceful assembly, Ukraine submits that the alleged violations of CERD do not result from breaches of international humanitarian law, but from the discriminatory application by the Russian Federation of its domestic legislation as a means of repressing the Crimean Tatar and Ukrainian communities in Crimea.

*  *

94. In order to determine whether it has jurisdiction ratione materiae under CERD, the Court does not need to satisfy itself that the measures of which Ukraine complains actually constitute “racial discrimination” within the meaning of Article 1, paragraph 1, of CERD. Nor does the Court need to establish whether, and, if so, to what extent, certain acts may be covered by Article 1, paragraphs 2 and 3, of CERD. Both determinations concern issues of fact, largely depending on evidence regarding the purpose or effect of the measures alleged by Ukraine, and are thus properly a matter for the merits, should the case proceed to that stage.

95. At the current stage of the proceedings, the Court only needs to ascertain whether the measures of which Ukraine complains fall within the provisions of the Convention (see paragraph 57 above). In this respect, the Court notes that both Parties agree that Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic groups protected under CERD. Moreover, Articles 2, 4, 5, 6 and 7 of the Convention set out specific obligations in relation to the treatment of individuals on the basis of “race, colour, descent, or national or ethnic origin”. Article 2, paragraph 1, of CERD contains a general obligation to pursue by all appropriate means a policy of eliminating racial discrimination, and an obligation to engage in no act or practice of racial discrimination against persons, groups of persons or institutions. Article 5 imposes an obligation to prohibit and eliminate racial discrimination, and to guarantee the right of everyone to equality before the law, notably in the enjoyment of rights mentioned therein, including political, civil, economic, social and cultural rights.

96. The Court, taking into account the broadly formulated rights and obligations contained in the Convention, including the obligations under Article 2, paragraph 1, and the non-exhaustive list of rights in Article 5, considers that the measures of which Ukraine complains (see paragraph 88 above) are capable of having an adverse effect on the enjoyment of certain rights protected under CERD. These measures thus fall within the provisions of the Convention.

97. Consequently, the Court concludes that the claims of Ukraine fall within the provisions of CERD.

B. Procedural preconditions under Article 22 of CERD

98. Having established that the claims of Ukraine fall within the scope of CERD, the Court now turns to the examination of the procedural preconditions under Article 22 of the Convention.

C. Admissibility

122. The Court will now turn to the objection raised by the Russian Federation to the admissibility of Ukraine's Application with regard to claims under CERD on the ground that Ukraine did not establish that local remedies had been exhausted before it seised the Court.

*  *

123. The Russian Federation contends that the rule of exhaustion of local remedies is well established in international law, and that it also applies to inter-State claims under CERD. The Russian Federation submits that the rule of exhaustion of local remedies requires claims relating to alleged violations of individual rights to be, in essence, the same as those previously submitted to domestic courts. It follows, the Respondent maintains, that the allegations in Ukraine's Application should have been submitted to domestic courts as claims of racial discrimination. The Russian Federation further submits that, in its Written Statement, Ukraine formulated its claims differently from its Application and Memorial in order to overcome the objection based on the rule of exhaustion of local remedies.

124. According to the Respondent, Articles 11, paragraph 3, and 14, paragraph 7 (a), of CERD make it clear that the rule of exhaustion of local remedies applies to claims under the Convention. The Respondent further submits that the application of the rule of exhaustion of local remedies is consistent with Article 6 of CERD, which imposes an obligation on States parties to provide “effective protection and remedies, through the competent national tribunals and other State institutions”, to everyone within their jurisdiction. The Russian Federation also contends that the application of the rule of exhaustion of local remedies is consistent with the approach of other human rights treaties and is confirmed by the Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission.

125. The Russian Federation further relies on the approach of the CERD Committee that local remedies must be exhausted even if there are doubts as to their effectiveness. The Respondent argues that Ukraine has not established that local remedies were exhausted, or that cases were submitted before domestic courts, prior to it instituting proceedings under Article 22 of CERD. Moreover, according to the Russian Federation, the claims before domestic courts on which Ukraine relies did not concern allegations of racial discrimination.

*

126. Ukraine argues that local remedies must be exhausted only when a State brings a claim on behalf of one or more of its nationals. According to the Applicant, the rule of exhaustion of local remedies has no application in the present case since Ukraine's claims relate to an alleged pattern of conduct of the Russian Federation, and Ukraine is invoking the rights it holds as a State under CERD. Ukraine contends that the Russian Federation's objection is not persuasive because Ukraine did not bring the present case to vindicate individual rights. On the contrary, Ukraine seeks an end to the Russian Federation's alleged “systematic campaign of racial discrimination” in violation of CERD.

127. Ukraine states that both the structure of CERD and the plain language of its provisions contradict the Russian Federation's argument. Ukraine emphasizes that references to the rule of exhaustion of local remedies are contained in Part II of CERD concerning the procedure before the CERD Committee, whereas Article 22 is located in Part III of the Convention, which makes no reference to the rule of exhaustion of local remedies. On this basis, Ukraine infers that the rule of exhaustion of local remedies applies only in the context of the CERD Committee procedure. Ukraine further submits that, in any event, Article 11, paragraph 3, and Article 14, paragraph 7 (a), of CERD have no relevance in the present case: first, as a sovereign State, Ukraine cannot be expected to submit itself to the domestic courts of another sovereign State; secondly, bringing a dispute before the courts of the Russian Federation would be futile, as Ukraine could not expect a fair hearing of its claims.

128. Ukraine states that the cases heard by human rights courts on which the Russian Federation relies all concern claims by individuals or non-governmental organizations acting on their behalf. Ukraine relies on the jurisprudence of the European Court of Human Rights and of the African Commission on Human and Peoples' Rights, which, in its view, supports its position that the rule of exhaustion of local remedies does not apply in the present case. In particular, Ukraine refers to a decision in which the European Court of Human Rights held that the rule of exhaustion of local remedies “does not apply where the applicant State complains of a practice as such . . . but does not ask the Court to give a decision on each of the cases put forward as proof or illustrations of that practice” (Georgia v. Russia (II), Application No. 38263/08, Decision on Admissibility of 13 December 2011, para. 85). Ukraine concludes that the rule of exhaustion of local remedies does not apply in the present case and that its Application is consequently admissible.

*  *

129. The Court recalls that local remedies must be previously exhausted as a matter of customary international law in cases in which a State brings a claim on behalf of one or more of its nationals (Interhandel (Switzerland v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 27; Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment, I.C.J. Reports 1989, p. 42, para. 50; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 599, para. 42; see also Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, Report of the International Law Commission on the work of its fifty-third session, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, pp. 120–121; Draft Articles on Diplomatic Protection with Commentaries, Report of the International Law Commission on the work of its fifty-eighth session, Yearbook of the International Law Commission, 2006, Vol. II, Part Two, p. 44).

130. The Court notes that, according to Ukraine, the Russian Federation has engaged in a sustained campaign of racial discrimination, carried out through acts repeated over an appreciable period of time starting in 2014, against the Crimean Tatar and Ukrainian communities in Crimea. The Court also notes that the individual instances to which Ukraine refers in its submissions emerge as illustrations of the acts by which the Russian Federation has allegedly engaged in a campaign of racial discrimination. It follows, in the view of the Court, that, in filing its Application under Article 22 of CERD, Ukraine does not adopt the cause of one or more of its nationals, but challenges, on the basis of CERD, the alleged pattern of conduct of the Russian Federation with regard to the treatment of the Crimean Tatar and Ukrainian communities in Crimea. In view of the above, the Court concludes that the rule of exhaustion of local remedies does not apply in the circumstances of the present case.

131. This conclusion by the Court is without prejudice to the question of whether the Russian Federation has actually engaged in the campaign of racial discrimination alleged by Ukraine, thus breaching its obligations under CERD. This is a question which the Court will address at the merits stage of the proceedings.

132. The Court finds that the Russian Federation's objection to the admissibility of Ukraine's Application with regard to CERD must be rejected.

*

133. It follows from the findings made above that the Russian Federation's objections to the jurisdiction of the Court under Article 22 of CERD and to the admissibility of Ukraine's Application with regard to CERD must be rejected. Accordingly, the Court concludes that it has jurisdiction to entertain the claims made by Ukraine under CERD and that Ukraine's Application with regard to those claims is admissible.

*

*  *

134. For these reasons,

The Court,

(1) By thirteen votes to three,

Rejects the preliminary objection raised by the Russian Federation that the Court lacks jurisdiction on the basis of Article 24, paragraph 1, of the International Convention for the Suppression of the Financing of Terrorism;

(2) By thirteen votes to three,

Finds that it has jurisdiction on the basis of Article 24, paragraph 1, of the International Convention for the Suppression of the Financing of Terrorism, to entertain the claims made by Ukraine under this Convention;

(3) By fifteen votes to one,

Rejects the preliminary objection raised by the Russian Federation that the Court lacks jurisdiction on the basis of Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination;

(4) Unanimously,

Rejects the preliminary objection raised by the Russian Federation to the admissibility of the Application of Ukraine in relation to the claims under the International Convention on the Elimination of All Forms of Racial Discrimination;

(5) By fifteen votes to one,

Finds that it has jurisdiction, on the basis of Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, to entertain the claims made by Ukraine under this Convention, and that the Application in relation to those claims is admissible.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eighth day of November two thousand and nineteen, 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) Abdulqawi Ahmed Yusuf,President.

(Signed) Philippe Gautier,Registrar.

Vice-President Xue appends a dissenting opinion to the Judgment of the Court; Judges Tomka and Cançado Trindade append separate opinions to the Judgment of the Court; Judges Donoghue and Robinson append declarations to the Judgment of the Court; Judge ad hoc POCAR appends a separate opinion to the Judgment of the Court; Judge ad hoc SKOTNIKOV appends a dissenting opinion to the Judgment of the Court.

(Initialled) A.A.Y.

(Initialled) Ph.G.

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1. Compromissory Clause and the Justiciables' Right of Access to Justice

12. In effect, along the years, the ICJ has unfortunately been experiencing an unnecessary difficulty in understanding the rationale of a compromissory clause within a human rights Convention. May I recall that, in the aforementioned earlier case of the Application of the CERD Convention(Georgia versusRussian Federation, Judgment of 01.04.2011), I found it necessary to present my strong and extensive Dissenting Opinion furthermore sustaining that the ICJ's strict interpretation of its compromissory clause (Article 22) of the CERD Convention was mistaken: in my understanding | I explained | compromissory clauses such as that of Article 22 of the CERD Convention are directly linked to the justiciables' right of access to justice itself, under human rights treaties (para. 207).

13. In that case, the ICJ should, in my understanding, have dismissed the preliminary objections, by means of the interpretation of the compromissory clause in the light of the CERD Convention as a whole, keeping in mind its legal nature, its material content, and its object and purpose (paras. 64–78), mainly to protect the justiciables in situation of particular vulnerability (para. 185). Only in this way it would secure the CERD Convention's proper effects, to the benefit of human beings in need of protection (para. 78).

14. In that decision of 2011, the ICJ, in declaring itself without competence to proceed to the examination of the claim as to the merits, in my understanding failed to value, from the correct humanist perspective, the sufferings and needs of protection of the victimized population (summum jus, summa injuria) (paras. 145–166). Human rights Conventions are essentially victim-oriented, and can only be properly interpreted and applied from a humanist outlook, and not at all from a State-centric and voluntarist one.

15. In my aforementioned Dissenting Opinion I further sustained that the compromissory clause (Article 22) of the CERD Convention ought to be interpreted bearing in mind the nature and material content of that Convention, besides its object and purpose, as a human rights treaty (paras. 64–118), and I underlined the pressing need of the realization of justice on the basis of that compromissory clause; I thus disagreed with the voluntarist and restrictive posture assumed by the Court's majority in the cas d'espèce (paras. 1–214).

16. In the present case of Ukraine versus Russian Federation (2019), the ICJ once again reiterated its finding in the case of Georgia versus Russian Federation (2011) that the phrase any dispute which is “not settled by negotiation or by the procedures expressly provided for in this Convention” sets up procedural “preconditions” to be fulfilled by the Parties for the Court to be validly seized (para. 106).

17. On my part, just as I explained in my Dissenting Opinion attached to the ICJ Judgment of eight years ago in the aforementioned case opposing Georgia to the Russian Federation (2011), I keep on sustaining that Article 22 of the CERD Convention does not provide that “preconditions” should be fulfilled for seizing the ICJ (para. 92). As I then stressed, Article 22 of the CERD Convention, taking into account the object and purpose of the Convention, “a victim-oriented human rights treaty”, should have led the ICJ to interpret it as not setting forth any procedural “precondition” (paras. 92–96).

18. As to the present Judgment of the ICJ in the case of Ukraine versus Russian Federation (2019), I can live | not entirely pleased | with its finding that the “preconditions” set forth in Article 22 are not “cumulative”, as such characterization would not be reasonable in respect of the relevant CERD provisions; the “cumulative” approach creates an unnecessary obstacle to access to justice, and the ICJ itself ponders that this would not be reasonable (para. 110). Although I do not agree with the view that Article 22 of the CERD Convention sets out “preconditions” (supra), as the Court's majority here interprets rather distinctly that “preconditions” are alternative (not at all cumulative), I can then live with that, to the extent that it preserves the ICJ's jurisdiction.

19. In the present case of Application of the ICSFT and the CERD Conventions, the ICJ, in addressing what it considers the “preconditions” under Article 22 of the CERD Convention, rightly concluded that Article 22 “must also be interpreted in light of the object and purpose of the Convention” (para. 111, and cf. also para. 112). In this respect, I go further than the ICJ. The due attention to the object and purpose of a human rights Convention like CERD also calls, in my understanding, for a proper understanding of the relevance of the basis of jurisdiction under human rights Conventions (Article 22 of CERD), as I have already pointed out, with fundamental human rights and values standing well above a misguided search for State “consent” (paras. 4–10, supra).

20. After all, the approach (of alternatives) adopted by the ICJ in the cas d'espèce is confirmed by the nature and substance of the CERD Convention, a victim-oriented human rights treaty. To attempt to consider that the “preconditions” would be “cumulative” would be contrary to the object and purpose of the CERD Convention, as I warned in my Dissenting Opinion (para. 96) in the previous ICJ decision in the case of Georgia versus Russian Federation (2011). And as I further stated in my Dissenting Opinion in that earlier case of Application of the CERD Convention (Georgia versus Russian Federation),

21. In the present case of Ukraine versus Russian Federation (2019), once again, throughout the arguments of the parties on preliminary objections submitted to the ICJ, attention has been concentrated on Article 22 of the CERD Convention,Footnote ⁷ from two distinct approaches. Thus, in the Preliminary Objections it submitted, the Russian Federation presents its view that the requirements contained in Article 22 are cumulative, requiring Ukraine to have exhausted negotiations and to have attempted to resolve the dispute using the special procedures provided for in the CERD Convention itself (paras. 373–410).Footnote ⁸ Russia further refers to four other human rights Conventions,Footnote ⁹ arguing that the compromissory clauses found in them are similar to that in the CERD Convention, and that the cumulative requirements are to be complied with by the applicant State before seizing the ICJ (paras. 404–410).

22. For its part, Ukraine, in its Written Statement, firmly contests this view, holding that Article 22 of the CERD Convention does not contain preconditions, there being a misconstruction in reading Article 22 as requiring a dispute to be referred to the CERD Committee after negotiations have failed and before seizing the ICJ. Ukraine relies on the ordinary meaning of the disjunctive word ‘or’ in interpreting Article 22 of the CERD Convention, indicating alternatives (para. 314). To Ukraine, this is the most natural reading and the ordinary meaning of Article 22 (para. 315).

23. Ukraine contends that the CERD Committee procedures referred to in Article 22 are voluntary and not mandatory, and the respondent State's interpretation of it would deprive the compromissory clause of effect; moreover, Article 11 concerns only the application of the Convention. Ukraine adds that if the draftsmen of the CERD Convention had intended the ICJ's jurisdiction to be contingent upon the use of the CERD Committee procedures, they would have addressed such conditions in Part II and not in Part III of the Convention (paras. 316–323).

24. According to Ukraine, the drafting history of Article 22, and the object and purpose of the CERD Convention (the prompt elimination of racial discrimination), support the conclusion that Article 22 does not require recourse to the CERD Convention inter-State complaints procedure (paras. 324–327). In considering the ICJ's treatment of Article 22 of the CERD Convention in the earlier case of Georgia versus Russian Federation (paras. 341–348), Ukraine submits that the better interpretation of Article 22 (para. 346) is to read it as creating no “precondition” to the ICJ's jurisdiction to hear disputes concerning the interpretation or application of the CERD Convention.

2. Compromissory Clause Within a Victim-Oriented Human Rights Convention

25. On my part, may I recall that, in my Dissenting Opinion in the earlier Judgment of the ICJ (of 01.04.2011) in the case of Georgia versus Russian Federation, I sustained the understanding that Article 22 of the CERD Convention does not set up “preconditions” for the ICJ to be seized (para. 92); this is in conformity with the object and purpose of the Convention, “a victim-oriented” human rights treaty (para. 96). As I clearly explained in my Dissenting Opinion of eight years ago,

26. Moreover, from the standpoint of the justiciables, a compromissory clause such as that of Article 22 of the CERD Convention is directly related to their access to justice; the realization of justice thereunder can hardly be attained from a strict State-centered voluntarist perspective, and a recurring search for State “consent”. As I further sustained in that Dissenting Opinion,

27. In sum, in my aforementioned Dissenting Opinion of 2011, I firmly disagreed with the Court's majority in the cas d'espèce, and I stressed that Article 22 of the CERD Convention does not establish “preconditions” to the Court's jurisdiction; neither the ordinary meaning of Article 22, nor its drafting history, would support any such formal “preconditions” to the ICJ's jurisdiction. Article 22 refers only to “alternatives”, pursuant to a teleological approach, ensuring and rendering effective human rights protection under the CERD Convention (para. 116). Article 22 must therefore be interpreted in a manner that is conducive to ensuring human rights protection. To this effect, the ICJ is to construe the options contained in Article 22 as alternatives, and not at all as “preconditions”.

28. As I have already pointed out, in its present Judgment in the case of Ukraine versus Russian Federation (2019), the ICJ does not reiterate the strict outlook that it adopted in the earlier case of Georgia versus Russian Federation (2011), also under the CERD Convention, and does not sustain any of the corresponding preliminary objections; it correctly dismisses them. Yet, I find it necessary to reiterate my dissenting reflections of 2011 at this end of the present decade (2019), so as to keep on contributing to achieve a proper understanding of the rationale of the compromissory clause of the CERD Convention (Article 22) as well as of other U.N. human rights Conventions.

1. Undue Invocation of the Rule, in the Case of Application of the CERD Convention, Opposing Qatar to UAE

30. Moving now to the other point, this is not the first time that I deem it necessary to warn against the inadequacy of the invocation of the local remedies rule in an inter-State case before the ICJ pertaining to the Application of the CERD Convention. In a recent case of the kind, opposing Qatar to UAE, for example, I appended a Separate Opinion to the ICJ's Order of 23.07.2018, where I began by finding entirely inadequate and regrettable the invocation of the rule of exhaustion of local remedies at the early stage of a request for provisional measures of protection, and not on admissibility (para. 48).

31. And I added that the incidence of the local remedies rule in human rights protection is certainly distinct from its application in the practice of diplomatic protection of nationals abroad, there being nothing to hinder the application of that rule with greater or lesser rigour in such different domains (para. 49). And I then pondered that

32. In my same Separate Opinion in the case of Application of the CERD Convention (Qatar versusUAE), I further pointed out that, in its handling of successive cases under the CERD Convention, for example, the Committee on the Elimination of Racial Discrimination (CERD Committee) has deemed it necessary to single out that petitioners are only required to exhaust local remedies which are effective in the circumstances of the cas d'espèce (paras. 53–54). And I concluded, on this point, that

2. Undue Invocation of the Rule, in the Case of Application of the CERD Convention,Footnote ¹³ Opposing Ukraine to Russian Federation

33. In its Judgment in the present case opposing Ukraine to the Russian Federation, the ICJ, in the part of it relating to the CERD Convention, rightly dismissed the preliminary objection of alleged non-exhaustion of local remedies. In its submission, the Russian Federation intended to widen its scope (p. 223, para. 447) so as to cover any claim under the CERD Convention, | in the light of its Articles 11(3) and 14(7)(a), | including inter-State claims (p. 224, paras. 448–449).

34. Ukraine, for its part, contested the applicability of the local remedies rule in this context, and held that this rule applied only in claims by a State on behalf of specific individuals or entities; in the present case, however, | Ukraine added, | its claims under the CERD Convention related to “a broad pattern of conduct” by the respondent State resulting in breaches of its obligations under the CERD Convention (p. 199, para. 373).

35. As to my own position on the matter at issue, it is clear from the wording of Article 11(3) of the CERD Convention that the local remedies rule only applies to procedures before the CERD Committee. More specifically, it is only when the dispute is brought before the CERD Committee for the second time, because the matter is not adjusted to the satisfaction of both parties, that the Committee will ascertain that local remedies have been exhausted in the case at issue.

36. This is in contrast with the respondent State's argument of drawing the relevance of the wording in Articles 11(3) and 14(7)(a) of the CERD Convention, which cannot be sustained.Footnote ¹⁴ On the contrary, Article 22 of the CERD Convention, as the compromissory clause on the basis of which the ICJ is seized, makes no mention of a requirement to exhaust local remedies prior to seizing the Court. In effect, Article 22 is to interpreted in a way conducive to ensuring human rights protection, and thus provides alternative (not cumulative) options.

37. In the present case, Ukraine, instead of protecting nationals, complains of an alleged internationally wrongful act of the respondent State against it, in breach of the CERD Convention. As such, it cannot be litigated in domestic courts of another State, and the local remedies rule does not apply. Ukraine is thus correct in pointing to the impossibility of bringing such a case in the respondent State's domestic courts.

38. It is clear that individual rights are here also at stake, and human rights treaties such as the CERD Convention protect them to the benefit of the human persons concerned. But a breach of the CERD Convention also entails the commission of an internationally wrongful act by a State, and here the Convention's enforcement does not require the application of the rule of exhaustion of local remedies. In the cas d'espèce, Ukraine points out that it does bring its claim on behalf of the individuals concerned, but rather in its own right; as a result, the respondent State's preliminary objection of alleged non-exhaustion of local remedies does not stand, and has been rightly dismissed by the ICJ.

3. The Overriding Importance of Redress

39. In any case, the ultimate beneficiaries of the application of the CERD Convention, among other human rights treaties, are the human beings protected by them, even in an inter-State claim thereunder, as the present one. It is necessary to keep in mind that the fundamental rights of human beings stand well above the States, which were historically created to secure those rights. After all, States exist for human beings, and not vice-versa.

40. The prevalence of human beings over States marked presence in the writings of the “founding fathers” of the law of nations, already attentive to the need of redress for the harm done to the human person. This concern marks presence in the writings of the “founding fathers” of the XVIth. century, namely: Francisco de Vitoria (Second Relectio- De Indis, 1538–1539);Footnote ¹⁵ Juan de la Peña (De Bello contra Insulanos, 1545); Bartolomé de Las Casas (De Regia Potestate, 1571); Juan Roa Dávila (De Regnorum Justitia, 1591); and Alberico Gentili (De Jure Belli, 1598).

41. Attention to the need of redress is likewise present in the writings of the “founding fathers” of the following XVIIth. century, namely: Juan Zapata y Sandoval (De Justitia Distributiva et Acceptione Personarum ei Opposita Disceptatio, 1609); Francisco Suárez (De Legibus ac Deo Legislatore, 1612); Hugo Grotius (De Jure Belli ac Pacis, 1625, book II, ch. 17); and Samuel Pufendorf (Elementorum Jurisprudentiae Universalis — Libri Duo, 1672; and On the Duty of Man and Citizen According to Natural Law, 1673); and is also present in the writings of other thinkers of the XVIIIth. century. This is to be kept in mind.

42. The rationale of the local remedies rule in human rights protection discloses the overriding importance of the element of redress, the provision of which being a matter of ordre public; what ultimately matters is the redress obtained for the wrongs complained of, and not the mechanical exhaustion of local remedies. The incidence of the local remedies rule in human rights protection is certainly distinct from its application in diplomatic protection; as those two contexts are also distinct, there is nothing to hinder the application of that rule with lesser or greater rigour in such different situations.Footnote ¹⁶

43. This law of protection of the rights of the human person, within the framework of which international and domestic law appear in constant interaction, is inspired by common superior values: this goes pari passu with an increasing emphasis on the State's duty to provide effective local remedies. In sum, as I have been pointing out along the years,

1. Protection in Face of Vulnerability

45. In effect, even in an earlier stage of the handling of the cas d'espèce, I have appended a Separate Opinion to the ICJ's Order (of 19.04.2017) on Provisional Measures of Protection, wherein I have dwelt upon the importance of such measures in face of the aggravated human vulnerability and defencelessness of the segments of the population affected (paras. 21–29). As shown in the course of the proceedings, indiscriminate shelling against civilians (in eastern Ukraine) struck and damaged residential buildings, hospitals, schools, kindergartens, ambulances (paras. 30–31), causing physical injuries and imposing limitations on freedom of movement (paras. 32–35).

46. Hence the importance | I proceeded | of due consideration of the test of human vulnerability, insufficiently considered by the ICJ at that stage (paras. 36 and 41–44). I then deemed it fit to recall that

47. In effect, this is a consideration to be kept in mind in all stages of the handling of the present case, including the present one on preliminary objections, here duly dismissed. I then stressed that “the vulnerability of victims, with its implications, are (…) clearly acknowledged in contemporary international case-law, of distinct international tribunals” (para. 53). I recalled, e.g., that the European Court of Human Rights (ECtHR), has likewise been seized, since 2015, of two cases of Ukraine versus Russian Federation (paras. 60–61), | the matter remaining pending with itFootnote ¹⁸ to date (November 2019).

48. I then pointed out that the handling of the present case of the Application of the ICSFT Convention and of the CERD Convention requires “a humanist outlook”, going beyond the strict inter-State dimension, given the great need of protection of those in situations of great vulnerability or even defencelessness (paras. 84 and 86). I added that here “[t]he principle of humanity comes to the fore”; it “permeates the whole corpus juris of contemporary international law” with “a clear incidence on the protection of persons in situations of great vulnerability. The raison d'humanité prevails here over the raison d'État. Human beings stand in need, ultimately, of protection against evil, which lies within themselves” (paras. 90–91).

2. Protection against Arbitrariness

49. In cases of extreme violence like the present one, human beings stand in need of protection against arbitrariness on the part not only of State authorities, but also of other (unidentified) individuals. In a wider horizon, human beings need protection ultimately against themselves.Footnote ¹⁹ Human rights Conventions, like CERD, enable the exercise of protection against arbitrariness, in any circumstances. There is an absolute prohibition of arbitrariness in the rationale of those Conventions, in support of the imperative of access to justice lato sensu, the right to the Law (le droit au Droit, el derecho al Derecho), to secure the realization of justice even in situations of utmost human vulnerability.Footnote ²⁰

50. Fundamental principles of law reveal the right to the Law of which are titulaires all human beings in need of protection. Those principles do not depend on the State's “will” or “consent”, and the inalienable rights under human rights Conventions, like CERD, rest on the foundations of jus gentium itself.Footnote ²¹ Human beings in situations of great vulnerability or adversity stand in need of a higher standard of protection under human rights Conventions, like CERD. The Court cannot remain hostage of State “consent” to the point of losing sight of the imperative of realization of justice, also in these situations.

51. After all, the safeguard and prevalence of dignity of the human person, | even amidst utmost vulnerability and facing arbitrariness, | are identified with the end itself of Law. General principles of law conform the substratum of the legal order itself, guaranteeing its unity, integrity and cohesion. Such indispensable principles, consubstantial to the international legal order itself, form the jus necessarium (not a jus voluntarium), prior and superior to the State's “will”, and expressing an idea of objective justice, in the line of jusnaturalist thinking.

State responsibility

2. The first seven sentences of paragraph 59 of the Judgment read as follows:

3. There is nothing in the first four sentences to support the conclusion that “the financing by a State of acts of terrorism is not addressed by the ICSFT”. The first sentence simply reiterates that the offence is committed by a person, without undertaking any analysis of the meaning of the term “person”. The second sentence simply states that the preamble identifies the purpose of the Convention as the suppression of the financing of terrorism through the prosecution and punishment of the perpetrators of the offence; notably, it does this without indicating whether the term “perpetrators” includes public officials as well as private persons. The third sentence indicates that the Convention is devoted to offences committed by individuals. Since this conclusion is drawn from the first two sentences it reflects the failure to examine the meaning of the term “any person” in Article 2, paragraph 1, of the Convention. The fourth sentence simply refers to the obligation imposed by the Convention on States parties to establish the offences as criminal offences under their domestic law. It is clear that States could establish offences committed by public officials, in which event it is at least arguable that the question of the responsibility of their States for their acts could arise.

4. Consequently there is nothing in these sentences to support the conclusion that State financing of terrorism is outside the scope of the Convention. The result is that when the Judgment goes on in the seventh sentence to cite the preparatory work of the Convention as confirming its earlier conclusion, it is in reality seeking to confirm a finding that has no basis in an analysis of the text of the Convention. Preparatory work may be used to confirm the meaning of a term that results from the application of the general rule of interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties (hereinafter the “VCLT”). Since the relevant area of enquiry is the meaning of the term “any person” — and the Court had not at this stage of its reasoning established the meaning of that term in accordance with the general rule of interpretation in Article 31 of the VCLT — there is no basis for recourse to the preparatory work to confirm the Court's conclusion that State financing of acts of terrorism is outside the scope of the Convention.

5. Thus in arriving at the finding that State financing of acts of terrorism is outside the scope of the Convention the Court has not grappled with the real issue in the case, that is, the meaning of the term “any person”, and the impact, if any, that the resolution of this question has on the general rule of attribution to States of responsibility for the acts of their agents. One consequence of the Court's approach is that it renders questionable the finding in paragraph 61 of the Judgment that “the commission by a State official of an offence described in Article 2 does not in itself engage the responsibility of the State concerned under the Convention”.

6. In adopting this line of reasoning the Court appears to have put the proverbial cart before the horse, given that — at this stage of its reasoning — it had not yet considered the meaning of the term “any person” in Article 2. When the Court does in fact analyse the meaning of that term, it correctly concludes that it covers both private individuals and State agents. Here the Court has interpreted the term “any person” in accordance with its ordinary meaning in its context and in light of the object and purpose of the Convention. But by that time it had already concluded that State financing was outside the scope of the Convention. By this approach the Court foreclosed itself from considering the impact that its conclusion — that State agents are covered by the term “any person” — has on its analysis of the question whether or not States are also covered by the Convention. In other words the determination that State financing was outside the scope of the Convention should not have been made without the Court profiting from an analysis of the meaning of the term “any person”.

7. In any event the preparatory work of the Convention is far from being unequivocal in supporting the conclusion that State financing is outside the scope of the Convention. While the Judgment cites the preparatory work to support its conclusion that the Convention does not cover State financing, it is noteworthy that there are aspects of that work that support the contrary view. Thus, the Libyan Arab Jamahiriya stated that it

This statement is to be found in the same document cited in paragraph 59 of the Judgment and its existence points to the need for caution in relying on the preparatory work of a treaty, particularly when justification for recourse to such work has not been clearly established. In that regard there is a need to heed the admonition of Sir Humphrey Waldock (Special Rapporteur) in the “Third Report on the Law of Treaties”Footnote ¹. He stressed that travaux preparatoires were only a subsidiary means of interpretation, caution was needed in using them and that “their cogency depends on the extent to which they furnish proof of the common understanding of the parties as to the meaning attached to the terms of the treaty” (emphasis in original). In the circumstances of this case the conflicting statements in the preparatory work as to the application of the Convention to State financing of the acts constituting the offence under Article 2 cast doubt as to whether there was any common understanding of the Parties in relation to the question whether State financing is within the scope of the Convention. Consequently the preparatory work does not appear to shed any clear light on this question.

Conclusion

8. In conclusion, the Court has had recourse to the preparatory work of the Convention in circumstances not permitted by the customary rules of interpretation reflected in Articles 31 and 32 of the VCLT. Moreover the Court has adopted a line of reasoning that does not establish that the financing by a State of acts constituting the offence under Article 2 is outside the scope of the Convention.

References to acts of terrorism in the Judgment

9. The history of multilateral efforts to combat terrorism is marked by the failure to adopt any global treaty on the question (a failure principally explained by the difficulty in reaching agreement on a definition of terrorism), the consequential piecemeal approach reflected in the many suppression of crime treaties adopted since 1970,Footnote ² and a spate of resolutions on the topic adopted by the United Nations General Assembly since 1972.

10. The only global treaty on terrorism to have been adopted is the League of Nations Convention on the Prevention of Terrorism (1937), which received one ratification and never entered into force.

11. In 1972 the General Assembly adopted resolution 3034 (XXVII) which was devoted not only to measures to eliminate international terrorism but also to a study of its underlying causesFootnote ³. The question of the balance between measures to control terrorism on the one hand and its causes and political motivations on the other is the most significant aspect of the modern history of efforts to combat international terrorism. In the debate at the United Nations in the 1970s and 1980s there were differing views as to whether a study of the underlying causes of international terrorism should be a precondition for taking effective action against terrorism; there was also the concern of many countries that in the absence of a definition of the phenomenon of terrorism, the struggle of peoples for national liberation and independence might be characterized as terrorism.

12. In 1991 the reference to the underlying causes of international terrorism, which up to that time had appeared in the title of all the General Assembly resolutions on terrorism, was removed and not inserted in subsequent resolutions. With the change in title came a change in focus: the resolutions concentrated almost exclusively on the identification of effective measures to eliminate international terrorism.

13. The failure to adopt a multilateral treaty on international terrorism is mainly due to the difficulties that are encountered in defining that phenomenon. On the one hand there are States whose approach is to concentrate only on the heinous nature of the acts which an international convention would proscribe. On the other hand there are those countries which want to ensure that the underlying causes of terrorism would not be ignored in the adoption of any international instrument. In the view of these countries a definition of terrorism should exclude from its ambit measures adopted by peoples in the struggle for national liberation, self-determination and independence. In the preparatory work of the ICSFT there are very revealing statements by the delegates of Bahrain and Libya. They both emphasized the need to distinguish between the legitimate struggle of peoples for self-determination and terrorism. (United Nations, doc. A/C.6/54/SR.33, p. 10, para. 58 and doc. A/C.6/54/SR.34, p. 2, para. 7.)

14. In light of the failure to adopt a multilateral treaty that defines international terrorism States have concluded a large number of treaties at the global level,Footnote ⁴ which take the simpler and less problematic approach of creating offences by identifying certain acts which are characterized as offences. All of these treaties carefully avoid using the term “terrorism” in defining the acts constituting the offences they create. An examination of the nine treaties in the Annex referred to in Article 2 (1) (a) of the Convention shows that none of them describes the acts constituting the offence under the relevant treaty as terrorism.Footnote ⁵ Rather, they, like the ICSFT, only prohibit specific acts. Significantly even though the preamble of two of these conventions contains references to terrorism, there is absent from their articles, including the article creating the offence, any reference to terrorism.Footnote ⁶ In that respect the ICSFT is similar to those conventions in that there is a reference to terrorism in the preamble but no such reference in the article creating the offence or in any other article. All the treaties in the Annex were concluded in the shadow cast by the failure of the international community to agree on a definition of international terrorism. As such, they isolate acts to be criminalized as offences. However in view of the failure to reach agreement on the definition of international terrorism, they avoid characterizing these acts as terrorism. For example, the Convention for the Suppression of Unlawful Seizure of Aircraft (1970) criminalizes the act of seizing an aircraft (commonly called hijacking) but does not characterize the unlawful seizure as terrorism, even though in ordinary parlance it would be so described. In the same vein the (1979) Convention against the Taking of Hostages only criminalizes the act of taking hostages and does not characterize that act as terrorism, although in colloquial parlance it would be so described.

15. Moreover in the suppression of crime treatiesFootnote ⁷ adopted after the ICSFT a similar approach has been employed: the prohibited act is not described as terrorism; the conventions describe an offence that takes place when certain acts are carried out. Significantly, although the International Convention for the Suppression of Acts of Nuclear Terrorism (2005) has, like the ICSFT, a reference to terrorism in its title and in its preamble, there is no such reference in the article creating the offence.

16. What this legal history shows is that it is no mere happenstance that the ICSFT does not describe the offence in Article 2 as terrorism, even though its title and preamble refer to the phenomenon of terrorism. If during the negotiations Article 2 had been formulated to read “any person commits the offence of terrorism within the meaning of this Convention”, rather than “[a]ny person commits an offence within the meaning of this Convention”, the draft Convention would more than likely have met with serious objections from several countries which would have wanted to carve out an exception in respect of peoples struggling for liberation, self-determination and independence. It is for this reason that the Court's finding in paragraph 63 of the Judgment is problematic. In that paragraph the Court finds that “[a]n element of an offence under Article 2, paragraph 1, of the ICSFT is that the person concerned has provided funds ‘with the intention that they should be used or in the knowledge that they are to be used’ to commit an act of terrorism”. It is problematic because nowhere in any of the articles of the ICSFT — and in particular, nowhere in Article 2 which creates the offence — is there any reference to “an act of terrorism”. Of course it would be unobjectionable if the Judgment did not use terrorism as a term of art referring to the offence under Article 2. But here the reference to an “element of the offence” — that is, “the intention” (the mens rea) that is required by Article 2, paragraph 1, to establish the offence — makes it abundantly clear that by “an act of terrorism” what is meant is the offence established by the Convention. The Court should have followed the approach it took in the same paragraph when it referred to “an act fall[ing] within the meaning of Article 2, paragraph 1 (a)or (b)”. This comment applies to other parts of the Judgment where “terrorism” is used as a term of art referring to the offence under Article 2. In any event if the phrase “act of terrorism” were to be retained in paragraph 63, the more appropriate formulation would be an act of financing terrorism.

17. The Court's reference to acts of terrorism in describing the offence under Article 2 may lead some States to question how the acts in Article 2 could be said to constitute terrorism without any exception being carved out when those acts are committed by peoples struggling for liberation, self-determination and independence. Notably, on acceding to the ICSFT, Kuwait made a declaration that distinguished between terrorism and the “legitimate national struggle against occupation”.

(Signed) Patrick L. Robinson.

I. State financing and the ICSFT

3. On the first question the Court concludes that, since the ICSFT addresses offences committed by individuals, and Article 4 requires each State party to establish the offence set forth in Article 2 as a criminal offence under its domestic law and to make that offence punishable by appropriate penalties, the financing by a State of such an offence “is not addressed by the ICSFT”, and “[i]t lies outside the scope of the Convention” (Judgment, paragraph 59). I agree with this conclusion. A convention imposing on States parties the obligation to criminalize in their legislation a specific individual conduct, and to prevent and suppress it, inevitably presupposes that the States accepting the convention would not engage themselves in that conduct. Thus, imposing on them a corresponding obligation under the convention could appear superfluous.

4. However, should a State directly commit the offence described in Article 2, its responsibility would nevertheless be engaged under the Convention, not for the commission of the offence as such, but for not having taken appropriate measures for preventing and suppressing it. In any event, even if the conduct of a State lies outside the scope of the ICSFT, that State may still be responsible under customary international law for the commission of the offence. Furthermore, any other competent jurisdiction could rely, as the case may be, on the findings made by the Court as evidence for adjudicating a claim based on State responsibility under international law.

II. Financing of acts of terrorism by State officials

5. On the second question mentioned above, whether the perpetration by a State official of the offence of financing terrorism as described in Article 2, paragraph 1, of the ICSFT is covered by the said provision, the Court concludes that the expression “any person” “covers individuals comprehensively”, and that “the Convention contains no exclusion of any category of persons”, notably not of State agents (Judgment, paragraph 61). Therefore, “all States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person”. Although this matter has been the subject of an intense and articulated discussion between the Parties, I find that the Court's conclusion is obvious and compelling.

6. To reach that conclusion, the Court explicitly relies on the ordinary meaning of the expression “any person” referred to in Article 2, paragraph 1, of the ICSFT. While this reference is certainly sufficient, I am of the view that the Court's conclusion is also strongly supported by an analysis of the object and purpose of the ICSFT, in accordance with the general rule of interpretation set forth in Article 31 of the Vienna Convention on the Law of Treaties, as well as by international practice in the conclusion of similar treaties.

7. Firstly, the object and purpose of the ICSFT is to prevent and suppress the financing of terrorism through the criminalization by State parties of the conduct of any person who provides or collects funds with the intention that they should be used, or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) acts which constitute offences within the scope of and as defined in a list of other treaties, and (b) certain other acts against civilians or persons not taking part in the hostilities in a situation of armed conflict, which constitute violations of international humanitarian law. In light of this object and purpose of the Convention, it would be inherently contradictory to impose on States parties the obligation to take appropriate measures and to co-operate to prevent and suppress the commission of the offence of financing terrorism as described in Article 2, paragraph 1, and at the same time to exclude that obligation by letting States parties free not to do so when their State officials are involved. It has to be recalled in this regard that, since any prevention or suppression activity will have to be carried out by State officials, a legal recognition of their impunity would inevitably and definitely hamper a successful implementation of the purpose of the Convention. Thus, an exclusion of State officials from the scope of the expression “any person” would plainly contradict not only the text of Article 2, paragraph 1, but also the object and purpose of the ICSFT.

8. Secondly, this reading of Article 2 of the ICSFT is confirmed by international practice in the conclusion of similar treaties providing for the criminalization of unlawful conduct by individuals.

9. This is certainly the case for treaties that impose on States parties to criminalize acts that are commonly qualified as being terrorist acts, like the conventions and protocols referred to in Article 2, paragraph 1 (a), and listed in the Annex to the ICSFT. Most of them use the same expression “any person” or, in a couple of cases (Nos. 3 and 5 of the Annex), the expression “offender” without any further qualification, and without any exclusion of State officials. Thus, the provision for criminal jurisdiction also over crimes committed by public officials is by no means inconsistent with international practice. Rather, that practice even shows that, when a restriction is made, it goes the other way around and excludes private individuals from the scope of the criminal rule, by limiting the establishment of individual criminal responsibility to public officials. In this respect, e.g. the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, concluded on 10 December 1984, defines the crime of torture as being punishable, for the purposes of the Convention, “when . . . pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (Article 1, paragraph 1).

10. An unrestricted approach as to the qualification of the perpetrators has also been adopted by the conventions that impose on States parties the obligation to criminalize violations of international humanitarian law, as are the acts referred to in Article 2, paragraph 1 (b), of the ICSFT. In this respect, the relevant provisions of each of the four Geneva Conventions of 12 April 1949 and of Additional Protocol I of 8 June 1977, which institute the régime of the so-called “grave breaches”, provide that the State parties thereto “undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article” (Article 146, first paragraph of Geneva Convention IV. An identical provision is enshrined in the other three Conventions: Article 49 of GC I, Article 50 of GC II; Article 129 of GC III). No restriction is made as to the qualifications of those persons. However, as the Conventions and Additional Protocol I only refer to violations committed in international armed conflicts, the perpetrators will normally be State officials rather than private individuals. Again, if a restriction is made, it concerns the criminalization of act(s) committed by private persons, not by State officials.

11. Finally, it has to be recalled that a conclusion restricting the criminal responsibility of State officials as compared with that of private individuals would also go against domestic State practice in enacting criminal legislation. Domestic criminal laws of a democratic State do not make any distinction as to the qualification of perpetrators and, when they do, it is to provide that the qualification of public official is to be regarded as an aggravating circumstance for the purposes of the punishment of the author of the criminal activity at issue.

12. I conclude that both the ordinary meaning of the text and the object and purpose of the Convention, as well as the international practice of States in drafting similar treaties, show unequivocally that the expression “any person” contained in Article 2, paragraph 1, of the ICSFT must be understood as comprising private individuals and State officials.

III. Interpretation of the definition of “funds” is for the merits

13. Coming now to the third issue mentioned above, i.e. the interpretation of the definition of “funds” under Article 1, paragraph 1, of the ICSFT, the Court recalls that this term is defined in the said provision as meaning

14. The Court addresses the issue of the interpretation of this definition by stating in its Judgment:

15. I agree with the conclusion of the Court that the interpretation of the definition of “funds” is to be left to the stage of an examination of the merits. However, it seems to me that the reasons for reaching that conclusion should have been different. In paragraph 62 of the Judgment, the Court seems to infer that the question of the interpretation of the term “funds” is an issue that could have been the object of a preliminary objection if it had been raised by the Russian Federation, as relating to the scope of the ICSFT and thus possibly affecting the jurisdiction of the Court ratione materiae. I do not believe this is the case. First, it may be misleading to state succinctly that the definition of “funds” contained in Article 1, paragraph 1, of the ICSFT “covers many kinds of financial instruments and includes also other assets” (emphasis added). This provision, actually, refers principally to “assets of every kind, whether tangible or intangible, movable or immovable, however acquired” and refers to legal documents and instruments only as they may evidence title to such assets; these documents may also include, but are not to be limited to financial instruments. Thus, the provision puts the accent on assets, not on financial instruments, which may come into consideration only as evidence of the entitlement to assets. Considering further that the list of financial instruments is unlimited, in no case these legal documents and financial instruments may play a role in circumscribing the scope of the Convention.

16. As to the assets, the definition provided in paragraph 1 of Article 1 is also unlimited, as the provision refers to “assets of every kind”. In other terms, the issue is not to establish what kind of assets are included in the definition, but whether the ones used in a concrete situation are suitable to be used for committing the acts described in Article 2, paragraph 1 (a) and (b), of the ICSFT. The issue is therefore to establish which assets were actually provided or collected with the intention or the knowledge that they were to be used for unlawful purposes as described in Article 2, paragraph 1 (a) and (b). With regard to the existence of the requisite intention of the perpetrator, this issue raises problems of law but especially of fact that are properly a matter for the merits of the case.

17. I note, with respect to questions concerning the existence of the requisite mental elements, that the Court concludes that they “do not affect the scope of the Convention and therefore are not relevant to the Court's jurisdiction ratione materiae” (Judgment, paragraph 63). In my opinion, the Court should have adopted a similar reasoning as far as the interpretation of the notion of “funds” is concerned.

18. In conclusion, correctly, in my view, the Russian Federation did not raise the issue of the definition of “funds” to object to the jurisdiction of the Court. Had it done so such objection should have been rejected for the reasons expressed above.

(Signed) Fausto Pocar.

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