Rostislav Ishchenko: Time Trouble and International Justice

Translated by Ollie Richardson & Angelina Siard


The International Court of Justice of the UN in the Hague, the European Court of Human Rights, the Stockholm court of arbitration, the London High Court – this is far from being a complete list of the instances in which Ukraine tried to seize something from Russia, sometimes submitting claims of Homeric content in terms of both the structure of the charges and the demanded compensation. At the same time there is the impression that the Kiev authorities aren’t interested so much in victory in the courts as they are in the fact of the process taking place.

Even concerning the decision of the Stockholm arbitration – unexpectedly successful for Ukraine – concerning the dispute between “Gazprom” and “Naftogaz”, the claims of Kiev were formulated so unsuccessfully that the political involvement of the arbitrators was obvious, and this allowed Russia to challenge the verdict and to achieve a suspension of its implementation before new consideration. In the same way, last year’s claims of Kiev concerning “aggression” and the “occupation” of Donbass were rejected by the International Court of Justice of the UN in the Hague. This court also refused to resolve the issue of the status of Crimea. In the form of a handout to Ukraine, they made a decision obliging Russia to satisfy the cultural requirements of the population of the peninsula – including access to education in the Ukrainian language. But in Crimea there are already more possibilities to satisfy the Ukrainian cultural and language requirements (including receiving an education) than the number of people who are interested in them. Nevertheless, during the current year Poroshenko announced the submission of a similar claim in the same court.

These processes have some small value as informational pretexts to spread the internal political propaganda and PR of the Kiev authorities. But the fact is that even without all of this, these informational pretexts are constantly present in the agenda of the Ukrainian media, and the Ukrainian authorities use occasionally arising additional opportunities so clumsily that it is better if they didn’t use them at all. As for external propaganda, here the resources of Ukraine are so weak and the performers are so unprofessional that they will ruin even the most brilliant opportunity. At the same time, ensuring legal and informational support for judicial claims costs money, and this money isn’t small by Ukrainian measures. And meanwhile, affairs hit a brick wall.

Two questions arise:

1. Why does Ukraine strain itself, foreknowing that all of this achieves nothing, and doesn’t especially try to reverse the situation?

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2. Why does Russia mostly agree to participate in these processes (except in examples that are too egregious)?

We will make two preliminary remarks.

Firstly, Ukrainian politicians and officials are so limited that they aren’t able to independently think up, develop, and implement a plan for judicial war with Russia. This doesn’t mean that they were ordered to start such a war. Legends of omnipotent “curators” remain legends for marginals, but in practice even the leaders of bantustans and protectorates as a rule aren’t given orders, but are delicately advised. For example, they are asked: “Why don’t you use such a beautiful mechanism of combat as the International Courts of Justice? Here is, for example, …” (an example follows of how someone somewhere won a process against someone else and everyone lived happily ever after, loved each other, and died on the same day). After this the natives start to stir, and it even seems to them that this beautiful idea came into their not-burdened-with-intelligence brains by itself – as a result of long reflections “about the destinies of the Motherland and the revolution”.

Secondly, there was never any unity in Europe when it came to Ukrainian judicial activity. If Eastern European limitrophes in general encouraged Kiev and even thought about whether or not they themselves want to seize something from Russia for the “Soviet occupation” in 1944-1945, then the leaders of the EU – France, Germany, and also Italy – constantly tried to convince the leaders in Kiev that it is impossible to try to agree on something, on the one hand, within the framework of the “Normandy Format”, and on the other hand to aggravate the situation by launching senseless judicial provocations. But since Ukraine didn’t plan to somehow sort out its relationship with Russia, it desired to implement the “Minsk Agreements” even less, so the admonitions of “old Europe” didn’t influence it.

It is clear that in this situation it is the Americans who have the right to be proud of authoring the idea about judicial war with Russia. It is they who prompted Kiev to do it, and it is also they who substantially neutralised the pressure the EU was putting on Kiev – by contrasting the French-German position with the position of their vassals from Eastern Europe. Even the illusion of there being the possibility to seize something was organised by precisely the US (no other country in the world had the opportunity to convince the judges of the Stockholm court of arbitration of the desirability of an obviously illegal and politically motivated decision in favor of “Naftogaz”).

The question is: why does the US need to do this? The answer lies on the surface.

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Let’s remember that the US started to destroy the existing system of international relations (political, diplomatic, military, trade-economic, financial) already before Trump came to power. Without having the opportunity to maintain control over the globalised world, they, after 2008, started its systematic stage-by-stage chaotization, which at first washed away countries, then regions, and at the final stage moved onto international organisations that are system-forming, from the point of view of today’s international relations.

But the US never wanted to assume responsibility for the destruction of the acting world order. They with pleasure assigned this to Islamic radicals, “the axis of evil”“dictator’s regimes” overthrown by “Arab springs”, “Russian ambitions”, the “Iranian threat”, “Chinese expansion”, etc. Sometimes it was successful, but more often than not it wasn’t, but its “creators” in Washington didn’t let their heads drop because of a lack of success.

Meanwhile, the system of international justice always annoyed the US. They wanted to be the only judge and to be immune to the judgement of others. But if earlier this was a small trouble, then nowadays, when Washington has sharply weakened, this system became a threat. The hypothetical coercive delivery of American politicians and military personnel to the Hague and bringing charges to them within the framework of the ICC is still perceived by many as something exotic, but not as something absolutely impossible. International financial-economic sanctions against the US, separate American companies, and certain politicians also ceased to belong to the realm of fantasy.

Control over the system of international justice slowly but surely slips from the grasp of the US and in three-five years (time passes quickly) it can become a threat to America and its leaders. And within the framework of the general dismantlement of the system of international law and the chaotization of the world that just escaped from the control of the Americans, the International Courts of Justice should be destroyed, since there can’t be international justice where (according to the plan of the US) international law must disappear.

I will repeat that the first obvious actions for the dismantlement of the existing global system happened during Obama’s reign. Trump just continues this line. He changed tactics, and works more insolently and more openly. But this is the inevitable result of America losing control over the time factor. They are already working on borrowed time. They need to be in time before Zeitnot.

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If we look at the actions of Ukraine through the prism of the interests of the US, then we will find out that Kiev banally provokes Russia into refusing to recognise the competency of international legal proceedings in the most different domains. The absurd claims and demands for Homeric compensation for what didn’t actually happen served for precisely this purpose. The US, in turn, organising decisions like the Stockholm one, hints that Moscow shouldn’t count on receiving justice. If it doesn’t refuse to recognise the jurisdiction of the International Courts of Justice, then Russia will be legally obliged to make grandiose payments for the most unrealistic claims over and over again. Eventually, Russia can be blamed for the existence of the dark side of the Moon, and God knows what else… But as soon as Russia refuses to recognise the jurisdiction of the International Courts of Justice, it will become possible to pin the responsibility for dismantling the system of international justice on precisely Russia.

To date, Moscow defends itself in all courts confidently enough, having missed only one hit (in Stockholm), and even this isn’t final. Two things work for Russia. Firstly, the judges understand that if they will make obviously illegal decisions, then their court will lose its international status. A new court with other judges may be created from the existing national courts to resolve political problems and economic disputes. The States where courts and arbitrations that consider economic disputes are located also aren’t eager to lose this source of political prestige and concrete income, that’s why they don’t approve of the political involvement of judges.

But this factor couldn’t work at full capacity if there wasn’t a second thing. The US obviously weakened and continues to lose its positions, while the countries that they declare as their enemies become stronger. Certain states, certain politicians, and also certain judges can’t but consider this factor. The “wonderful new world” in which the winners can bring the very ardent myrmidons of Washington to justice is already quite palpable. Far-sighted people think about their future. And only the Ukrainian politicians who have no future and for who it is better to not remember the past, with the persistence of the doomed, hope for a miracle to work off America’s interests.

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