Ukraine takes battles with Russia to the courtroom
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After Russia invaded Ukraine last year, lawyers acting for Kyiv looked at how they could use international law to fight Russian aggression in the courtroom, as well as on the battlefield.
Just two days after the invasion, representatives of the law firm Covington went before the International Court of Justice (ICJ) — the principal judicial court of the UN — to argue on Ukraine’s behalf for a court order against Russia. Led by former British diplomat Jonathan Gimblett and acting pro bono on behalf of Ukraine, the lawyers claimed Moscow had violated the genocide convention by falsely accusing Ukraine of being a perpetrator of genocide.
The case was brought under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both Russia and Ukraine have ratified. It was highly unusual for such a case to be brought so soon after an invasion, rather than being filed after the conflict had ended.
Following Ukraine’s successful application, the ICJ ordered Russia to suspend immediately all military operations against Ukraine, which Russia did not do.
Ukraine is now set to pursue the full trial against Russia on the merits of the case and will claim that Russia’s aggression is founded on baseless claims of genocide. It plans to seek full damages for the harm Russia has caused.
“There is no question that Russia is required to make reparation for its violations of international law,” Gimblett says. “Given the scale of the damage it has inflicted on Ukraine and Ukrainians over the past 18 months, that will translate into a very significant financial obligation.”
The case also shines a light on what might happen when the war ends and how financial reparations might be paid to Ukraine. A debate is under way about whether western states that have frozen Russian central bank assets may, first, lawfully confiscate them and, second, transfer them to Ukraine.
Any ruling from the ICJ on the amount, after a trial ordering reparations, would only reinforce the argument that those Russian assets should be used to compensate Ukraine.
The ICJ case is just one way in which Ukraine is attempting to harness the rule of law, by bringing legal cases in the criminal and civil courts.
Last year, the International Criminal Court, based in The Hague, launched an investigation into war crimes in Ukraine. In March 2023, it issued an arrest warrant for Russia’s president Vladimir Putin and other senior Russian leaders for deporting children from Ukraine. Further warrants may follow.
A civil lawsuit has also been lodged before the European Court of Human Rights by the Ukrainian government, which is alleging mass and gross human rights violations committed by the Russian Federation in its military operations on the territory of Ukraine.
Some law firms were already acting for Ukraine in lawsuits that predate the 2022 invasion. These cases will now be carefully watched by the legal community because they concern the aggressive behaviour of Russia in the years before the 2022 invasion.
One such case received the go-ahead to go to full trial in early 2023, from the UK’s Supreme Court.
Kyiv secured the right to defend itself in a full-blown trial in London against Moscow’s claims that it owes $3bn for failing to repay a bond that was issued shortly before Ukraine’s 2014 revolution.
This long-running dispute, which centres on whether Ukraine illegally defaulted on $3bn worth of debt that was owned by Russia, can now be heard in a High Court trial with evidence and witnesses. Moscow had wanted the case to be determined by a judge without a trial and witnesses.
The lawsuit has been running since 2016 — six years before Russia’s full-scale invasion of Ukraine. Lord Robert Reed, president of the Supreme Court, said the court concluded that the validity of Kyiv’s defence — that it had issued the bond under duress from Russia — could not be determined without a trial.
Ukraine president Volodymyr Zelenskyy tweeted that the ruling was “another decisive victory against the aggressor” and added: “Justice will be ours”.
Ukraine law firm Asters is acting as Ukrainian counsel in this case, advising Ukraine’s finance ministry, with London firm Quinn Emanuel acting as English counsel.
Oksana Legka, a lawyer at Asters, whose expertise includes dispute litigation, argues that the case is significant because it will show everyone the pressure Ukraine was under to sign documents in the years before the 2022 invasion.
“Ukraine will be able to provide the full facts relating to Russia’s behaviour towards Ukraine, which are relevant to the bonds for the scrutiny of the court,” she says.
“All of the recent cases which have been filed by Ukraine against Russia in the courts such as the European Court of Human Rights are about holding Russia to account in a public forum,” she adds.