On 31 January 2024, the International Court of Justice announced its decision in Ukraine v Russian Federation concerning the 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 (CERD).

In relation to CERD, Ukraine’s claim was that Russia had systematically discriminated against Crimean Tatar and ethnic Ukrainian communities in Crimea, in particular by: supressing their freedom of expression and cultural identity, perpetrating a campaign of disappearances, torture, murders, harassment etc, failing to investigate such violations and by using laws (viz. citizenship laws) and law enforcement (searches, investigations and prosecution) to discriminate against them.

All but one claim under CERD failed for the reason that the majority did not find that Ukraine had established that the treatment complained of was ‘based on’ the grounds of racial discrimination mentioned in article 1(1) of CERD (viz. race, colour, descent, or national or ethnic origin); and in particular that the treatment of Crimean Tatars and ethnic Ukrainians was based on their ethnic origin rather than their political opposition to Russia.

The last time the Court struggled with the grounds of racial discrimination under CERD was in Qatar v United Arab Emirates concerning the application of the International Convention on the Elimination of All Forms of Racial Discrimination, where it reduced grounds listed in article 1(1) to those inherent at birth so as to exclude nationality as a ground from the scope of CERD.

This time around, the majority reduced grounds listed in article 1(1) and in particular the ground of ethnic origin to exclude political opinion. With this, by a majority of 10-5, the Court found that any discriminatory treatment or effect (except for discrimination in provision of school education in Ukrainian language) suffered by Crimean Tatars and ethnic Ukrainians was thus a result of their political and ideological positions and not related to prohibited grounds under CERD.

This post does two things. First, it explores why the majority’s understanding of ethnic origin is flawed: because it failed to appreciate the link between political opinion and ethnic origin. Second, it explores how the majority is able to overcome its restrictive reading of grounds of racial discrimination in the case of language: precisely because it was able to appreciate the link between language and ethnic origin. This inconsistency reveals the Court’s continued lack of a clear conceptual understanding of what both ethnic origin, and more broadly, racial grounds are. Racial grounds in article 1(1) of CERD are not objective or physical characteristics which are inherent at birth. They are categories which are defined in reference to the relevant social, economic cultural and indeed political context in which they exist. They are ‘markers of discrimination’ (Thornberry 2016, pp. 126, 134–137) which exists within these specific contexts rather than global categories which can be given objective and fixed meaning aside of the context.

Ethnic Origin

Both Parties and the Court agreed that Crimean Tatars and ethnic Ukrainians constitute ethnic groups protected under CERD (Judgment [200]). But the question before the Court was whether they had been discriminated ‘based on’ their ethnic origin.

In this context, the Court recalled its finding in Qatar v UAE where it had held that ‘references to ‘origin’ denote, respectively, a person’s bond to a national or ethnic group at birth’, as do ‘the other elements of the definition of racial discrimination, . . . namely race, colour and descent’ (Preliminary Objections, Judgment [81]). Thus, ethnic origin, according to the majority was what was present at birth such that ‘the political identity or the political position of a person or a group is not a relevant factor for the determination of their “ethnic origin” within the meaning of Article 1, paragraph 1, of CERD’ (Judgment [200]).

The majority relayed evidence from the Office of the High Commissioner for Human Rights (OHCHR) as well as intergovernmental reports which showed that ‘several targeted persons were pro-Ukrainian activists’ and that ‘the victims were attacked for their political and ideological positions, in particular for their opposition to the March 2014 referendum held in Crimea and their support for the Ukrainian Government’ (Judgment [214]). To the majority, the evidence indicated that the victims were targeted for their political opinions and not their ethnic origin (Judgment [214]). This defeated the claim of direct discrimination.

For the claim of indirect discrimination, the majority relied on the fact that persons of Russian and Central Asian origin were also subjected to violence (Judgment [216]) and that Ukraine lacked access to Crimea and hence had limited statistical evidence to prove that Crimean Tartars and ethnic Ukrainians ‘were subjected to acts of physical violence based on their ethnic origin’ (Judgment [217]). The majority concluded that: ‘any disparate adverse effect on the rights of Crimean Tatars and ethnic Ukrainians can be explained by their political opposition to the conduct of the Russian Federation in Crimea and not by considerations relating to the prohibited grounds under CERD’ (Judgment [217]).

The problem with this analysis lies in the Court’s misunderstanding of ethnic origin as dissociated from political opinion. Ukraine, relying on Sandra Fredman’s expert report, had argued that ‘ethnic minorities have political concerns which are closely bound up with their ethnic identity’ (Second expert report by Professor Sandra Fredman, 21 April 2022 [50]). Further, as President Donoghue stated in her separate opinion: ‘The distinct ethnic identity of a particular group goes beyond shared physical characteristics and can be forged or strengthened by a variety of forces, including the way in which that group is characterized and treated by governmental authorities’ (President Donoghue, separate opinion [18]). In fact, to say that political opinion ‘is not a relevant factor for the determination’ of ethnicity, is to assume that ethnicity is objective and fixed at birth, an assumption President Donoghue thought was an ‘oversimplification’ (President Donoghue, separate opinion [18]). But this conceptual oversimplification fed into the Court’s expectation for smoking gun evidence for racial discrimination—as if only explicit references to some objective ethnic characteristics could show that Crimean Tatars and ethnic Ukrainians were targeted ‘based on’ their ethnic origin (Judgment [250]).

This oversimplification then is a conceptual error. It fails to appreciate ethnicity as complex and determined in reference to a ‘long shared history’ of ‘cultural traditions’ which can be determined in reference not only to race or religion but, as the UK House of Lords in Mandla v Lee recognised, by a host of other factors including descent, region, language, literature, and importantly, the characteristic of being a minority within a society (Mandla v Lee [1983] 1 All ER 1062, 1063; Thornberry 2016, p. 125). Minority status in particular cannot be extricated from political marginalisation (Young 1990, pp. 53-58). Thus, if Crimean Tatars and ethnic Ukrainians in Crimea are understood as ethnic minorities they have to be understood as also defined by their political marginalisation and indeed opposition to the Russian Federation.

Instead, the majority stuck with its narrow view of racial grounds as ‘inherent at birth’. The result is that it has solidified the mistaken view of racial grounds as having biological, scientific or objective truth; a view that not only has ‘largely passed into history’ (Thornberry 2016, p. 18), but also runs counter to CERD’s object and purpose of eliminating all forms of racial discrimination.

Language

The only claim that succeeded under CERD by a majority of 13-2 was in respect of changes to school education in the Ukrainian language in Crimea. The majority agreed that the reduction of school education in Ukrainian language constituted a violation of the prohibition of racial discrimination under Article 2(1)(a) and the right to education under Article 5(e)(v) of CERD. The majority was able to reach this conclusion because it was able to overcome its narrow view of racial grounds in article 1(1). This was primarily because, instead of the ground of ethnic origin, this claim was seen as pertaining to language. Language, according to the majority, ‘is often an essential social bond among the members of an ethnic group (Judgment [355]). It thus concluded that reduction of school education in ‘a minority language’ (Ukrainian) constituted racial discrimination on the basis of ethnic origin (Judgment [354]–[357]).

The reliance on minority status in the context of language is in sharp contrast with the ignorance of minority status (and its consequent political marginalisation) above when the Court considered the ethnicity of Crimean Tatars and ethnic Ukrainians as detached from their political opinion. Nothing explains this inconsistent understanding of the same ground—ethnic origin—in article 1(1) of CERD.

The link between language and ethnic origin however leaves open possibilities for a broader understanding of racial grounds under article 1(1). It especially leaves open the possibility of moving away from the currently dominant, but mistaken, view of the ICJ that racial grounds are about characteristics inherent at birth.