Eastern European History in the International Court of Justice

In recent years, disputes involving Eastern European history have increasingly taken center stage before the International Court of Justice (ICJ): Georgia v. Russia, Ukraine v. Russia I, Armenia v. Azerbaijan (pending), Azerbaijanv. Armenia (pending), and Ukraine v. Russia II (pending). Despite this recent rise in cases involving Eastern European countries, the ICJ is not well acquainted with Eastern European history, as this region has rarely been the subject of ICJ litigation before Russia’s wars in Georgia and Ukraine and its meddling in the Nagorno-Karabakh conflict between Armenia and Azerbaijan. Ukraine brought two major lawsuits against Russia in the ICJ: in 2014, following Russia’s occupation of Crimea and proxy war in Donbas, on the basis of the alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of all Forms of Racial Discrimination (CERD); and in 2022, following Russia’s full-scale invasion of Ukraine, on the basis of alleged violations of the Genocide Convention. With these two disputes, the ICJ sits at the epicenter of unraveling tragic modern history in Eastern Europe, which has ruptured the international legal order.

While the ICJ is adjudging modern history linked to the Russia-Ukraine war, both parties made references to pre-2014 historical events, which, although not litigated before the ICJ, formed an important part of the background to the proceedings. The historical arguments advanced by the parties fall into the three major periods: (a) contemporary history (2014-present), characterized by the occupation of Crimea, the war in Donbas, and culminating in Russia’s full-scale invasion of Ukraine; (b) recent history (1991-2014), the period following the dissolution of the USSR and the end of the Cold War, which saw the emergence of Russia and Ukraine as sovereign states, until the Maidan protests, which fractured the “fraternal” bond between the two states and led to war; and (c) Soviet history (1922-1991), marked by repressions, persecution, and genocide targeting ethnic Ukrainians, Crimean Tatars, and other minorities, alongside an exaggerated portrayal of the Soviet role in achieving victory over the Nazis during World War II. Both Ukraine and Russia have used historical arguments to support their legal claims in the ICJ, but the ICJ judges’ limited engagement with the regional historical context inadvertently weakened the quality of judicial legal reasoning.

Crimea

Although the status of Crimea was not litigated before the ICJ, the issue lingered in the background. Throughout the proceedings, Ukraine sought to demonstrate that Russia’s recent actions in occupied Crimea were a continuation of Russia’s long-standing policy of “cultural erasure,” aimed at altering the multiethnic composition of the peninsula through discriminatory actions targeting Crimean Tatars and ethnic Ukrainians. In contrast, Russia alleged that Ukraine’s dispute about its alleged discriminatory practices in Crimea against ethnic Ukrainians and Crimean Tatars was artificially constructed by Ukraine to “disguise its sovereignty dispute with Russia over Crimea under the ill-fitting clothes of racial discrimination.” Accordingly, one of Russia’s historical arguments was the alleged “improper” transfer of Crimea to the Ukrainian Soviet Socialist Republic by the USSR in 1954 and that the same scenario allegedly played out in 1991 when Ukraine proclaimed independence. However, Russia’s argument overlooks the fact that in 1991, a majority of 54 percent of the Crimean population voted in a democratic referendum in favor of Ukraine’s declaration of independence. Russia nevertheless attempted to reinforce its historical narrative that Crimea always belonged to Russia, that it was transferred by short-sighted Soviet leaders to the Ukrainian Soviet Socialist Republic by mistake, and that it was rightfully reunited with Russia in 2014. As emphasized by Russian President Vladimir Putin in his March 18, 2014, speech, Crimea holds a sacred meaning for Russia as the place of Prince Vladimir the Great’s baptism. For years, Russia has attempted to portray itself as a savior of the Crimean people—who Russia claims suffered from injustices imposed by the Ukrainian government in the years the region was part of independent Ukraine. Putin claims that the Ukrainian government denied the people of Crimea their “historical memory” and “Russian language.” This argument runs like a red thread in Russia’s CERD Counter-Memorial submitted to the ICJ, which alleged the mistreatment of ethnic Russians and Crimean Tatars by the Ukrainian government prior to 2014. Equally important, Russia argued that the Maidan protests—which they also have described as a “coup d’etat”—had a profound impact on Crimeans who feared the armed assault from “radical right-wing groups” in Kyiv and, therefore, opted to secede from Ukraine in favor of a shared future with Russia as its historical homeland.

In its Memorial, Ukraine attempted to rebut the Kremlin’s myth that Crimea has always been part of Russia by drawing attention to the complex and violent history of the peninsula. Prior to its annexation by the Russian empire under Catherine the Great in 1783, Crimea was an independent state known as Crimean Khanate. Russian imperial rule was marked by a deliberate policy of “russification,” which encouraged the settlement of ethnic Russians in Crimea and the emigration of Crimean Tatars. These demographic changes led to a sharp decline in the number of Crimean Tatars, who no longer constituted the majority of the peninsula’s population and became a minority. Nearly 150 years later, Crimean Tatars faced another wave of persecution and repression under Soviet rule, when the entire population of Crimean Tatars—which included approximately up to 200,000 people—was deported to Central Asia and Siberia under the pretext of their collaboration with the Nazis. Crimean Tatars only began returning to their ancestral home in the early 1990s, after Ukraine gained independence.

It is against the backdrop of this contested historical narrative that Russia and Ukraine litigated the CERD portion of the dispute. Although in many instances the majority found that the alleged discriminatory measures against Ukraine produced a “disparate adverse effect” on the rights of Crimean Tatars (for example, the ban on the Mejlis), they explained that this effect was “due to the political activities carried out by the [Crimean Tatar] leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin.” In other words, the majority was quick to discard allegations under CERD when it could describe the purpose or effect of Russia’s alleged discriminatory measures through political grounds rather than those enumerated in CERD, without further probing into the possibility of “double of multiple discrimination” in line with the CERD Committee’s intersectionality approach. By failing to engage with the history of ethnic minorities in Crimea, the majority overlooked the broader context in which discrimination on account of political views is intertwined with discrimination on ethnic grounds. After all, the political opposition of ethnic Ukrainians and Crimean Tatars to the Russian regime can be explained by Russia’s long-standing unjust treatment of ethnic minorities in Crimea. Echoing this, Judge Joan Donoghue found it problematic that “ethnic identity can be isolated from [Crimean Tatars’] political views” and deferred to the expert opinion of Sandra Fredman, a leading expert on anti-discrimination law, that “ethnic minorities have political concerns which are closely bound up with their ethnic identity.” Donoghue is the only judge on the ICJ bench who attempted to engage with the complex and painful history of the Crimean Tatar people as a way to explain their strong political opposition to Russia’s 2014 occupation of Crimea.

World War II, Nazism, and Genocide

In 2022, Ukraine initiated another lawsuit against Russia, alleging that it violated the Genocide Convention by invoking the purported “genocide” in Donbas as a pretext for launching its full-scale war of aggression against Ukraine. As a matter of law, Ukraine argued that Russia’s false claim of genocide amounted to an abusive bad-faith interpretation of the Genocide Convention and, therefore, violated the duty to prevent and punish genocide. Ukraine sought a declaratory judgment that there was no credible evidence to support Russia’s allegations of genocide. The case is pending to be adjudged on the merits, with only one part of the case to proceed further, which concerns Ukraine’s reverse compliance claim that it has not committed genocide in Donbas.

At first glance, the case may seem to pertain solely to contemporary events of the Russia-Ukraine war, but there is an important historical dimension to Ukraine’s legal claim. Ukraine endured genocide orchestrated by the Stalin regime in the Soviet Union known as Holodomor in 1932 and 1933, for which it received no public apology or recognition from Russia. Under Putin’s rule, Russia has systematically downplayed the significance of Holodomor, portraying the famine as a result of unfortunate collectivization policies rather than a deliberate attempt to quell national resistance in Ukraine. For Ukrainians, millions of whom perished in the Soviet-era genocide for which the current Russian leadership continues to deny any responsibility, Russia’s false accusation of genocide—while defending themselves against Russia’s ongoing “genocidal” war—is a revival of grave historical injustice. The ICJ, however, avoided weighing in on the contested issue of Russia’s abusive interpretation of the Genocide Convention by limiting the scope of its jurisdiction. This approach risks sanitizing the Russian narrative regarding the pretext for its aggressive war against Ukraine.

In the ICJ courtroom, Russia denied that the word “genocide” was accorded its legal meaning when it was used by Russian officials, including Putin, who made reference to this in his Feb. 24, 2022, speech:

The purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime. To this end, we will seek to demilitarise and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation. (Emphasis added.)

Putin’s mention of genocide is closely tied to his references to the goals of denazification and demilitarization underlying Russia’s so-called “special military operation.” The Soviet defeat of the Nazis during World War II, known in Russia as the Great Patriotic War, holds sacred significance for contemporary Russia. It is no coincidence that the justification for the war against Ukraine echoes Soviet rhetoric of combating Nazism. Russia posits that a democratically elected government in Ukraine is a “neo-Nazi regime” that “glorifies Nazi war criminals, adopts Nazi symbolism and does not ban neo-Nazi groups.” Russia has strategically invoked this historical narrative of combating Nazism to lend legitimacy to the war against Ukraine. In the ICJ proceedings, Russia asserts that it exercised its right to self-defense under Article 51 of the UN Charter when it came to the rescue of the self-proclaimed Donetsk and Luhansk People’s Republics in Ukraine. However, the ICJ avoided delving into the relevance of the historical context for adjudging Ukraine’s claims under the Genocide Convention, having found that the issues pertaining to the use of force—even exercised under the false pretext of genocide—and the recognition of states were extrinsic to the convention and governed by other rules of international law.

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What lessons can be drawn from the ICJ’s encounter with Eastern European history? First, the ICJ plays an important role in shaping the international community’s understanding of both past and contemporary history. Second, the historical and cultural awareness of ICJ judges is crucial for understanding any given dispute and its underlying claims. History is more than a mere background, as it provides a significant context and nuance that illuminates contemporary events litigated before the ICJ. Third, in an age of disinformation, when modern history is often vehemently contested by litigating parties, the ICJ becomes an important arbiter of truth, especially in the context of modern conflicts marred by gross human rights violations and atrocity crimes. Ultimately, the ICJ judges’ failure to engage with Ukraine and Russia’s contrasting historical accounts, especially in the case of Ukraine v. Russia (ICSFT and CERD), led to poorer legal reasoning, unintentionally sanitized certain Russian historical narratives, and may have inadvertently affected the outcome of proceedings. It remains to be seen to what extent the ICJ judges will engage with historical context on the merits in Ukraine’s pending case regarding the false claim of genocide, as well as in other lawsuits from the Eastern European region.