Why Ukraine failed to win against Russia in the International Court in The Hague

Last week, the International Court of Justice issued two rulings in the cases against Russia, but neither of them is in favour of Ukraine, and at least one of them is capable of causing direct harm.

But this is not a tragedy. Although Ukraine did not achieve the success it had been hoping for in The Hague, legally this outcome is not a "defeat". Ukraine will indeed, however, have to change its strategy, because unfortunately this will not be the last case whose outcome may disappoint us.

Read more about why Ukraine couldn't succeed in The Hague and whether these complaints were flawed and doomed to failure from the very beginning in the analysis by Sergiy Sydorenko, the European Pravda's editor – Why Ukraine failed in The Hague, and what it needs to change to win cases against Russia.

Ukraine has formally advanced to the next stage for consideration of the case on its merits under the Genocide Convention. 

While dismissing the accusations against Russia, the Court will continue to consider the complaint regarding Ukraine's claims that it did not commit genocide in Donbas.

However, this is by no means the worst outcome for Ukraine.

Should Ukraine obtain a ruling in its favour and its wording is sufficiently clear, then it will have a legal basis to counter Russian propaganda for the first time since 2014. Russia continues to successfully peddle the myth worldwide that Kyiv was persecuting Russians in the East and Moscow was forced to intervene.

And there is little doubt that Ukraine will prevail in these absurd proceedings. The absence of both "Donbas peoples" and "genocide" by Ukraine has been confirmed by many UN institutions. All that is required is for the Court to issue a ruling on the merits. 

On 31 January, the Court issued a ruling on the merits that rejected the vast majority of Ukraine’s accusations in The Big Case.

Ukraine did obtain a ruling on Russia's violation of both conventions (the Terrorism Financing Convention and the Racial (Ethnic) Discrimination Convention), but only in minor respects (read more about this here).

In both cases, the Court rejected most of Ukraine's positions and arguments regarding Russia’s international crimes. Most importantly, it dismissed Ukraine's key accusations, which formed the core of and were the reason for its complaint to the ICJ.

So such negative rulings for Ukraine were extremely disappointing.

However, the Court did recognise Russia as a violator of international law, which should also be taken into account. It’s just that the extent of this recognition is much more limited than Kyiv had expected.

In rejecting Ukraine’s claims, the ICJ was not declaring Russia's actions to have been correct and appropriate. It was saying that the Court cannot consider Ukraine's allegations on their merits.

Ukraine’s claims regarding the persecution of Ukrainians and particularly Crimean Tatars in Crimea were, however, rejected in substance. And this creates real problems.

Now Russia has a deadly counterargument against all of Ukraine's arguments. They have obtained a UN Court ruling that is difficult to counteract.

Kyiv needs to prepare a new strategy for action and communication on "traditional" Crimean issues right now.

This is the most obvious consequence of Ukraine's setback in the UN Court.

It looks as if Ukraine has indeed become a hostage to the fact that most ICJ judges tend towards a conservative interpretation of international law. And it is not certain that other arguments would have convinced them.

Ukraine must now reconsider its approach to international proceedings.

It is difficult to deny that one of the reasons is the general change in attitude towards Ukraine worldwide. This is clear, given the comments on the genocide case. 

Unfortunately, the world’s unconditional support of Kyiv dissipated sometime in 2022.