Comments on the ICJ Judgment on 31 January 2024 on Application of the International Convention  for the Suppression of the Financing of Terrorism and the International  Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)

Kaja Kowalczewska; Barbara Pauli

doi:10.21697/2024.13.2.08

Published: 2025-02-27

Vol. 13 No. 2 (2024)

Comments on the ICJ Judgment on 31 January 2024 on Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)

Kaja Kowalczewska

, Barbara Pauli

Polish Review of International and European Law

Section: Case comments

https://doi.org/10.21697/2024.13.2.08

Abstract

This commentary explores key aspects of the ICJ’s January 2024 judgment in Case No. 166, examining Ukraine’s claims against Russia under the ICSFT and CERD. The authors analyze five pivotal issues affecting the interpretation of international law and offering strategic insights for states considering similar legal approaches. The ICJ’s ruling on the ‘clean hands’ doctrine, dismissing it as a defense in interstate disputes, marks an important precedent, as does its interpretation of ‘funds’ under the ICSFT, limited to financial assets and excluding weapons—a decision that could influence the effectiveness of anti-terrorism financing efforts. The judgment also highlights the challenges in evidence gathering for states without territorial control. Importantly, the judgment distinguishes between compliance with provisional measures and substantive treaty violations, though it underscores the Court’s limited capacity to enforce its orders. Overall, this judgment reflects both the utility and limitations of the ICJ in conflict-related disputes, signaling a need for a more comprehensive legal framework to address state violations in war and peace.

Keywords:

International Convention for the Suppression of the Financing of Terrorism (ICSFT), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), International Court of Justice (ICJ), Ukraine, Russia

Download files

Citation rules

Kowalczewska, K., & Pauli, B. (2025). Comments on the ICJ Judgment on 31 January 2024 on Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation). Polish Review of International and European Law, 13(2), 251–275. https://doi.org/10.21697/2024.13.2.08

Cited by / Share

Licence

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.

References

Anderson, Janet. “Episode 62 – Black and White, Chagos at the ICJ with Philippe Sands.” Asymmetrical Haircuts. September 15, 2022. Podcast, 59 min 26 sec. https://www.asymmetricalhaircuts.com/episodes/episode-62-black-and-white-chagos-at-the-icj-with-philippe-sands/.
Google Scholar

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Application instituting proceedings and request for the indication of provisional measures, ICJ, 29 December 2023.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Separate Opinion of Judge Iwasawa, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Declaration of Judge Yusuf, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Declaration of Judge Abraham, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Separate Opinion of Judge Bhandari, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Separate Opinion of Judge ad hoc Pocar, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Separate Opinion of Judge Charlesworth, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Separate Opinion, Partly Concurring And Partly Dissenting, of Judge ad hoc Tuzmukhamedov, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),Separate Opinion of President Donoghue, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Declaration of Judge Tomka, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Declaration of Judge Brant, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Declaration of Judge Bennouna, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Declaration of Judge Yusuf, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Merits, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Request for the Indication of Provisional Measures, ICJ order of 19 April 2017, ICJ Reports 2017.
Google Scholar

Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Dissenting Opinion of Judge Sebutinde, ICJ Judgment of 31 January 2024, ICJ Reports 2024.
Google Scholar

Czepek, Jakub. “ECtHR Case-law Concerning Russian Aggression on Ukraine and the Events Taking Place after 2014.” Baza Wiedzy 25, no. 6 (2023): 573–588. https://doi.org/10.1163/18719732-bja10115.
Google Scholar

Diversion of Water from the Meuse Case (Netherlands v. Belgium), Individual Opinion by Mr. Hudson, PCIJ Judgment of 28 June 1937, PCIJ ser. A/B, No. 70.
Google Scholar

Farnelli, Gian Maria. “Consistency in the ICJ’s Approach to the Standard of Proof: An Appraisal of the Court’s Flexibility.” The Law & Practice of International Courts and Tribunals 21, no. 1 (2022): 98-121. https://doi.org/10.1163/15718034-12341466.
Google Scholar

Guillard Sazhko, Anna. “War in Ukraine: Recourse Against Russia Through Investment Arbitration.” The American Review of International Arbitration 34, no. 2 (2023): 259-265.
Google Scholar

International Law Commission. “Report of the International Law Commission.” UN Document A/60/10, 2005. https://legal.un.org/ilc/documentation/english/reports/a_60_10.pdf.
Google Scholar

Kałduński, Marcin. “Principle of ‘clean hands’ and Protection of Human Rights in Investment Arbitration.” Polish Review of International and European Law 4, no. 2 (2015): 69-101.
Google Scholar

Klein, Pierre. “International Convention for the Suppression of the Financing of Terrorism.” United Nations Audiovisual Library of International Law (2009): 1-5.
Google Scholar

Kwiecień, Roman. “The Aggression of the Russian Federation Against Ukraine: International Law and Power Politics or ‘What Happens Now?’” Polish Review of International and European Law 11, no. 1 (2022): 9-21.
Google Scholar

Lavalle, Roberto. “The International Convention for the Suppression of the Financing of Terrorism”. Max Planck Institute (2000).
Google Scholar

Lingsma, Tjitske. “Register of Damages for Ukraine: ‘The Biggest Claims Program in History.’” Justice Info, June 14, 2024. https://www.justiceinfo.net/en/133217-register-damages-ukraine-biggest-claims-program-history.html.
Google Scholar

Marchuk, Iryna. “Unfulfilled Promises of the ICJ Litigation for Ukraine: Analysis of the ICJ Judgment in Ukraine v Russia (CERD and ICSFT).” EJIL Talk, February 22, 2024. https://www.ejiltalk.org/unfulfilled-promises-of-the-icj-litigation-for-ukraine-analysis-of-the-icj-judgment-in-ukraine-v-russia-cerd-and-icsft/
Google Scholar

Milanović, Marko. “ICJ Delivers Preliminary Objections Judgment in the Ukraine v. Russian Federation Genocide Case, Ukraine Loses on the Most Important Aspects”. EJIL Talk, February 2, 2024. https://www.ejiltalk.org/icj-delivers-preliminary-objections-judgment-in-the-ukraine-v-russia-genocide-case-ukraine-loses-on-the-most-important-aspects/
Google Scholar

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Dissenting opinion of Judge Schwebel, ICJ Judgment of 27 June 1986, ICJ Report 1986.
Google Scholar

Nuridzhanian, Gaiane. “International Enough? A Council of Europe Special Tribunal for the Crime of Aggression.” Just Security, June 3, 2024. https://www.justsecurity.org/96320/council-of-europe-ukraine-tribunal/.
Google Scholar

Oil Platforms (Islamic Republic of Iran v. United States of America), Separate Opinion of Judge Higgins, ICJ Judgment of 6 November 2003, ICJ Reports 2003.
Google Scholar

Oral, Nilüfer. “Ukraine v. The Russian Federation: Navigating Conflict over Sovereignty under UNCLOS.” Stockton Centre for International Law 97, no. 1 (2021): 478-508.
Google Scholar

Peters, Anne. “The Russian Invasion of Ukraine: An Anti-constitutional Moment in International Law?” Ruch Prawniczy, Ekonomiczny i Socjologiczny 86, no. 2 (2024): 5-36. https://doi.org/10.14746/rpeis.2024.86.2.01
Google Scholar

Pomson, Ori. “The ‘clean hands’ Doctrine in the Yukos Awards: A Response to Patrick Dumberry.” Journal of World Investment & Trade 18, no. 4 (2017): 712–740. https://doi.org/10.1163/22119000-12340056
Google Scholar

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Separate Opinion of Judge Greenwood, ICJ Judgment of 20 April 2010, ICJ Reports 2010.
Google Scholar

Ratner, Steven R. “The Aggravating Duty of Non-Aggravation.” European Journal of International Law 31, no. 4 (2020): 1307–1342. https://doi.org/10.1093/ejil/chaa081.
Google Scholar

Rose, Cecily, and Bram Burger. “Tackling the Overflowing Caseload at the International Court of Justice.” The Auxiliary Chamber, October 21, 2024. Podcast, 43 min 54 sec, https://the-auxiliary-chamber.simplecast.com/episodes/tackling-the-overflowing-caseload-at-the-international-court-of-justice.
Google Scholar

Toh, Raelee. “Did the ICJ Wash Its Hands Out of the Controversies Behind the ‘clean hands’ Doctrine in Its 2024 Judgment on the Application of the ICSFT and CERD (Ukraine v Russia) (Merits)?” Opinio Juris, May 21, 2024. https://opiniojuris.org/2024/05/21/did-the-icj-wash-its-hands-out-of-the-controversies-behind-the-clean-hands-doctrine-in-its-2024-judgment-on-the-application-of-the-icsft-and-cerd-ukraine-v-russia-merits/.
Google Scholar

United Nations General Assembly. Aggression against Ukraine, ES-11/1, March 2, 2022.
Google Scholar

United Nations General Assembly. Report of the International Court of Justice, 1 August 2023–31 July 2024, A/79/4, August 1, 2024.
Google Scholar

United Nations General Assembly. Territorial Integrity of Ukraine, 68/262, March 27, 2014.
Google Scholar