Introduction

Among the opening salvos of what we now know as an intensely hostile relationship was
Ukraine’s initiation of proceedings against Russia in 2017 at the International Court of Justice
(ICJ) for violation of the Terrorism Financing Convention (ICSFT), and the Convention for
Elimination of All Forms of Racial Discrimination (CERD).
More specifically, Ukraine claimed that Russia had financed and supplied arms to non-state
actors in Donetsk and Luhansk to foment an armed rebellion against Ukraine’s democratically
elected government, in violation of Russia’s obligations not to do so under the Terrorism
Convention. It further claimed that Russia’s failure to act in preventing such financing also
violated the Terrorism Financing Convention. Among the allegedly terrorist acts committed by
Russia, or which Russia failed to prevent, were the shooting down of the MH17 Malaysian
Airlines flight, and civilian casualties in multiple locations. Ukraine wished the Court to direct
Russia to withdraw existing support to allegedly terrorist armed groups, prevent further support
(for example, in the forms of weapons and financing), cooperate with Ukrainian investigations
into the incidents, and pay reparations. Russia denied each claim.
With regard to CERD, Ukraine claimed that Russia was following a policy of ‘cultural erasure’
of the ethnic Ukrainians and Crimean Tatars, which included the suppression of Ukrainian and
Tatar cultural events, the ban of the Mejlis (the highest representative body of Crimean Tatars),
silencing of Ukrainian and Tatar media, enforced disappearances, arbitrary detentions and
searches, suppression of Tatar and Ukrainian language education, and the holding of an illegal
referendum that deprived Ukrainians and Tatars of self-determination.
The Court made clear in the Judgement on Preliminary Objections, that the dispute was reducible
to only these two claims in respect of the ICSFT and CERD, since the Court’s jurisdiction was
founded on jurisdictional clauses in these two conventions. This meant that the Court would not
be able to consider larger and deeper issues such as the legality (or lack thereof) of the
annexation of Crimea, and Russian aggression toward Ukraine in general.
This article will be even more limited in scope and highlight certain criticisms of the Court’s
reasoning in connection only with alleged violations of the ICSFT, and not of CERD.
“Any person”
One of the preliminary matters decided by the Court was the scope rationae personae of the
ICSFT.
Article 2(1) of the ICSFT reads:
“1. Any person commits an offence within the meaning of this Convention if 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:
(a) An act which constitutes an offence within the scope of and as defined in one of the treaties
listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other
person not taking an active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population, or to compel a
government or an international organization to do or to abstain from doing any act.”
First, the Court reiterated its finding in the Judgement on Preliminary Objections that Article 2
lays down the scope rationae personae of the ICSFT - that “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.”
(emphasis supplied). In its 2019 Judgement, the Court sought to make clear that the ICSFT did
not deal with the question of state responsibility for terrorism financing. It stated, “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…”
This paragraph, read with the previous extract (which the Court quoted in its 2024 Judgement)
would seem to indicate that while state officials – natural persons – are included in the scope of
the ICSFT, the realm of state responsibility for terrorism financing is not. For example, if a
governmental official funded terrorist activity, then his act would be an offence under Article 2.
It does not mean, per the ICSFT, that the state itself is liable for the financing of terrorism under
the law of state responsibility. The ICSFT is concerned with the illegality of the act of the
individual, not of the state, even if that state’s act were, in fact, illegal. The determination that the
state’s act was illegal would be in the domain of the law of state responsibility, and would
involve the question of whether the act of the government official is attributable to the state. In
fact, the Court stated as much in the 2019 judgement – “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.”
2024 Judgment
However, later, when Ukraine alleged a violation of Article 18(1) ICSFT due to Russia’s failure
to prevent state officials from financing terrorism, the Court cited its above determination – that
state financing of terrorism was outside the scope of the ICSFT – to find against Ukraine. The
Court stated that “In essence, Ukraine requests that the Court find that the Russian Federation
violated its obligations under the ICSFT not because of actions taken by State officials in their
individual capacity, but because of the Russian Federation’s alleged policy of financing armed
groups in eastern Ukraine.” However, this was not Ukraine’s request. Ukraine had submitted
“that the Russian Federation failed to take measures to prevent its State officials from financing
terrorism...”.
To accuse a state official is not to accuse a state. Ukraine was not requesting the ICJ to find that
the acts of state officials would be actually attributable to Russia. It merely asked the Court to
find that state officials financed terrorism, and Russia did not prevent them from doing so. A
sovereign state is assumed to have a certain degree of control over its official machinery, and
Ukraine’s request was that the official machinery identify those who were financing terrorism
and require them to desist. This would not have amounted to a determination that Russia itself
financed terrorism.
The Court did not even enter into the question of whether state officials actually funded
terrorism, and whether the Russian Government sought to prevent them. It dismissed, in a
peremptory paragraph, Ukraine’s claim which was very much within the scope rationae
personae of the ICSFT.
It is precisely such responsibility under the Convention that Ukraine requested – the
responsibility for failure to prevent its state officials from funding terrorism. If every allegation
against a state official is treated as an allegation against a state, and therefore held to be outside
the scope of the ICSFT, this would have two rather undesirable effects – first, the Court’s
determination that “any person” referred to in Article 2(1) would refer to all categories of
persons, including state officials, would be meaningless since one could never accuse a state
official without accusing a state. Second, it would mean that the ICSFT’s scope rationae
personae would effectively be reduced only to private parties.
In conclusion, the point here is quite simple. First, the Court determined in its 2019 judgement
that the Article 2(1) reference to “any person” covers all categories of persons including
government officials. It clarified that, per the travaux preparatoires of the ICSFT, it did not cover
states, and that states would not automatically be liable if a governmental official committed an
Article 2(1) offence – they would only be liable if they failed to prevent such an action. Ukraine
requested the Court for precisely such a finding – that Russia was liable under the ICSFT for
failing to prevent its government officials from financing terrorism (not for financing terrorism
itself). The Court equated this request with a request to hold Russia liable for financing terrorism,
and dismissed it. When then, can states hold governmental officials of another state liable for
terrorism financing? – a possibility that the ICJ has itself admitted.