187

                SEPARATE OPINION OF JUDGE BHANDARI

                                   A. Introduction

   1. I am in agreement with the Court’s Order to indicate provisional
measures in respect of the International Convention on the Suppression
of All Forms of Racial Discrimination (CERD) 1. However, I feel com-
pelled to write this separate opinion in order to clarify my views concern-
ing the Court’s decision not to indicate provisional measures in relation
to the International Convention for the Suppression of the Financing of
Terrorism (ICSFT) 2. In the facts and circumstances of the case, on the
preliminary examination of the evidence provided by both Parties, I am
of the view that the Court ought to have indicated provisional measures
in relation to the ICSFT also.

   2. In this opinion, I will deal both with the breaches of the ICSFT as
alleged by Ukraine, and with the response of the Russian Federation, in
order to ascertain whether a case has been made for the indication of
provisional measures under Article 41 of the Statute.

  3. Ukraine invoked its rights under Article 18 of the ICSFT. Article 18
reads as follows :
            “1. States Parties shall cooperate in the prevention of the oﬀences
         set forth in article 2 by taking all practicable measures, inter alia, by
         adapting their domestic legislation, if necessary, to prevent and
         counter preparations in their respective territories for the commission
         of those oﬀences within or outside their territories, including :

         (a) Measures to prohibit in their territories illegal activities of persons
             and organizations that knowingly encourage, instigate, organize
             or engage in the commission of oﬀences set forth in article 2 ;

         (b) Measures requiring ﬁnancial institutions and other professions
             involved in ﬁnancial transactions to utilize the most eﬃcient
             measures available for the identiﬁcation of their usual or occa-
             sional customers, as well as customers in whose interest accounts

     1   660 United Nations, Treaty Series (UNTS) 195.
     2   2178 UNTS 197.

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          are opened, and to pay special attention to unusual or suspi-
          cious transactions and report transactions suspected of stemming
          from a criminal activity. For this purpose, States Parties shall
          consider :
            (i) Adopting regulations prohibiting the opening of accounts the
                holders or beneﬁciaries of which are unidentiﬁed or uniden-
                tiﬁable, and measures to ensure that such institutions verify
                the identity of the real owners of such transactions ;
           (ii) With respect to the identiﬁcation of legal entities, requiring
                ﬁnancial institutions, when necessary, to take measures to
                verify the legal existence and the structure of the customer by
                obtaining, either from a public register or from the customer
                or both, proof of incorporation, including information con-
                cerning the customer’s name, legal form, address, directors
                and provisions regulating the power to bind the entity ;

          (iii) Adopting regulations imposing on ﬁnancial institutions the
                obligation to report promptly to the competent authorities all
                complex, unusual large transactions and unusual patterns of
                transactions, which have no apparent economic or obviously
                lawful purpose, without fear of assuming criminal or civil
                liability for breach of any restriction on disclosure of infor-
                mation if they report their suspicions in good faith ;

          (iv) Requiring ﬁnancial institutions to maintain, for at least ﬁve
               years, all necessary records on transactions, both domestic or
               international.
        2. States Parties shall further cooperate in the prevention of
      oﬀences set forth in article 2 by considering :
      (a) Measures for the supervision, including, for example, the licens-
          ing, of all money-transmission agencies ;
      (b) Feasible measures to detect or monitor the physical cross-border
          transportation of cash and bearer negotiable instruments, subject
          to strict safeguards to ensure proper use of information and with-
          out impeding in any way the freedom of capital movements.

         3. States Parties shall further cooperate in the prevention of the
      oﬀences set forth in article 2 by exchanging accurate and veriﬁed
      information in accordance with their domestic law and coordinating
      administrative and other measures taken, as appropriate, to prevent
      the commission of oﬀences set forth in article 2, in particular by :

      (a) Establishing and maintaining channels of communication between
          their competent agencies and services to facilitate the secure and
          rapid exchange of information concerning all aspects of oﬀences
          set forth in article 2 ;

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         (b) Cooperating with one another in conducting inquiries, with
              respect to the oﬀences set forth in article 2, concerning :
                (i) The identity, whereabouts and activities of persons in respect
                    of whom reasonable suspicion exists that they are involved in
                    such oﬀences ;
               (ii) The movement of funds relating to the commission of such
                    oﬀences.
            4. States Parties may exchange information through the Interna-
         tional Criminal Police Organization (Interpol).”

   4. In its Order, the Court found that “Article 18 should be read
together with Article 2 of the ICSFT because under Article 18 States par-
ties must co-operate in the prevention of the oﬀences set forth in Arti-
cle 2” 3. Therefore, the obligation under Article 18 to co-operate to
prevent terrorism ﬁnancing only arises if the acts alleged by Ukraine
plausibly fall within the scope of Article 2. Article 2 reads as follows :

           “1. Any person commits an oﬀence within the meaning of this Con-
         vention if that person by any means, directly or indirectly, unlawfully
         and wilfully, provides or collects funds with the intention that they
         should be used or in the knowledge that they are to be used, in full
         or in part, in order to carry out :
         (a) An act which constitutes an oﬀence within the scope of and as
             deﬁned in one of the treaties listed in the annex ; or
         (b) Any other act intended to cause death or serious bodily injury to
             a civilian, or to any other person not taking an active part in the
             hostilities in a situation of armed conﬂict, when the purpose of
             such act, by its nature or context, is to intimidate a population,
             or to compel a government or an international organization to do
             or to abstain from doing any act.

            2. (a) On depositing its instrument of ratiﬁcation, acceptance,
         approval or accession, a State Party which is not a party to a treaty
         listed in the annex may declare that, in the application of this Conven-
         tion to the State Party, the treaty shall be deemed not to be included
         in the annex referred to in paragraph 1, subparagraph (a). The
         declaration shall cease to have eﬀect as soon as the treaty enters
         into force for the State Party, which shall notify the depositary of this
         fact ;
         (b) When a State Party ceases to be a party to a treaty listed in the
              annex, it may make a declaration as provided for in this article,
              with respect to that treaty.

     3   Order, para. 73.

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           3. For an act to constitute an oﬀence set forth in paragraph 1, it
         shall not be necessary that the funds were actually used to carry out
         an oﬀence referred to in paragraph 1, subparagraphs (a) or (b).

           4. Any person also commits an oﬀence if that person attempts to
         commit an oﬀence as set forth in paragraph 1 of this article.
           5. Any person also commits an oﬀence if that person :
         (a) Participates as an accomplice in an oﬀence as set forth in para-
             graph 1 or 4 of this article ;
         (b) Organizes or directs others to commit an oﬀence as set forth in
             paragraph 1 or 4 of this article ;

         (c) Contributes to the commission of one or more oﬀences as set
             forth in paragraphs 1 or 4 of this article by a group of persons
             acting with a common purpose. Such contribution shall be inten-
             tional and shall either :
               (i) Be made with the aim of furthering the criminal activity or
                   criminal purpose of the group, where such activity or purpose
                   involves the commission of an oﬀence as set forth in para-
                   graph 1 of this article ; or
              (ii) Be made in the knowledge of the intention of the group
                   to commit an oﬀence as set forth in paragraph 1 of this
                   article.”
   5. Ukraine requested the Court to ﬁnd that the requirements for the
indication of provisional measures in accordance with Article 41 of the
Statute are met in the facts and circumstances of the case 4.
   6. In the opinion, I will examine each requirement for the indication of
provisional measures in turn. First, I will discuss prima facie jurisdiction.
Second, I will examine plausibility, with speciﬁc reference to whether the
acts alleged by Ukraine fall within the scope of Article 2 of the ICSFT.
Third, I will turn to the existence of a real and imminent risk of irrepa-
rable prejudice. Fourth, I will examine the presence of a link between the
rights invoked by Ukraine and the provisional measures requested. In the
present case, both Parties adduced extensive evidence to the Court in
order to show that the requirements for the indication of provisional
measures were or were not met. It is of paramount importance to pre-
liminarily examine such evidence for it to be subsequently appraised in
accordance with the test laid down in the Court’s jurisprudence for indi-
cating provisional measures.

     4   CR 2017/1, p. 24, para. 18 (Zerkal).

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            B. The Procedural Preconditions for Indicating
                        Provisional Measures

  7. In order to examine the treaty provisions relied upon by Ukraine to
found the Court’s jurisdiction, it is essential to outline the test for prima
facie jurisdiction. In its 2016 Order on provisional measures in Equatorial
Guinea v. France, the Court stated that, in order to ﬁnd that it had prima
facie jurisdiction, it :

      “must ascertain whether the acts complained of by Equatorial Guinea
      are prima facie capable of falling within the provisions of [the Con-
      vention against Transnational Organized Crime (CTOC)] and
      whether, as a consequence, the dispute is one which the Court has
      jurisdiction ratione materiae to entertain” 5.
In that case, the Court found that “prima facie, a dispute capable of fall-
ing within the provisions of the [CTOC] and therefore concerning the
interpretation or the application of Article 4 of that Convention does not
exist between the Parties” 6.
   8. The situation before the Court in Equatorial Guinea v. France is
similar to the situation before the Court in the present case. Ukraine
alleged that certain acts amount to terrorism as deﬁned in Article 2 of the
ICSFT, while the Russian Federation denied that they do, and, as a
consequence, stated that such acts fall outside the scope of that provision.
The Russian Federation’s obligation to co-operate to prevent terror-
ism ﬁnancing under Article 18 of the ICSFT would thus not be engaged.
In this case, Ukraine relied on Article 24 of the ICSFT for the pur-
poses of prima facie jurisdiction. Article 24 of the ICSFT reads as
follows :
         “1. Any dispute between two or more States Parties concerning the
      interpretation or application of this Convention which cannot be set-
      tled through negotiation within a reasonable time shall, at the request
      of one of them, be submitted to arbitration. If, within six months from
      the date of the request for arbitration, the parties are unable to agree
      on the organization of the arbitration, any one of those parties may
      refer the dispute to the International Court of Justice, by application,
      in conformity with the Statute of the Court.

        2. Each State may at the time of signature, ratiﬁcation, acceptance
      or approval of this Convention or accession thereto declare that it

  5 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional

Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1159, para. 47. See also
Convention against Transnational Organized Crime, 2225 UNTS 209.
  6 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional

Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1160, para. 50.

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          does not consider itself bound by paragraph 1. The other States Par-
          ties shall not be bound by paragraph 1 with respect to any State Party
          which has made such a reservation.
             3. Any State which has made a reservation in accordance with par-
          agraph 2 may at any time withdraw that reservation by notiﬁcation
          to the Secretary-General of the United Nations.”

Under this provision, in order for the Court to have jurisdiction, there
must be (i) a dispute; (ii) that has not been settled “through negotiation
within a reasonable time” ; and (iii) a request for arbitration and no agree-
ment regarding the organization of an arbitration within six months of
the ﬁrst request. I will examine the evidence submitted by the Parties in
respect of these three elements.
   9. Ukraine argued that “[g]iven the two-year history of negotiations
between the Parties to resolve their dispute over the interpretation and
application of the Terrorism Financing Convention . . . and given the
lack of agreement on the organization of arbitration, prima facie jurisdic-
tion may readily be found” 7. According to Ukraine,

          “the dispute had crystallized long before. In a diplomatic note dated
          28 July 2014, Ukraine gave notice that it considered the Russian Fed-
          eration to be violating the Terrorism Financing Convention. In fur-
          ther correspondence and in-person negotiations, Ukraine continued,
          repeatedly, to inform the Russian Federation of the nature of its
          claims.” 8
   10. In its written documents, Ukraine submitted, regarding the exis-
tence of a dispute, the Notes Verbales exchanged between the Parties
from June 2014 until recently. Such Notes Verbales concern both the
interpretation of the ICSFT, and requests to negotiate in regard to their
respective obligations arising under the ICSFT 9. In the Court’s jurispru-
dence, a dispute is deﬁned as a “disagreement on a point of law or fact, a
conﬂict of legal views or interests between two persons” 10. In Georgia v.
Russia, the Court stated that that “[a]n express speciﬁcation [concerning
the subject-matter of the dispute] would remove any doubt about one
State’s understanding of the subject-matter in issue” 11. Ukraine’s Notes

     7
     CR 2017/1, p. 35, para. 3 (Cheek).
     8
     Ibid., para. 4 (Cheek).
     9
     E.g., Note Verbale dated 28 July 2014, Annex 85, Documents in support of Ukraine’s
Request for provisional measures; see also the Notes Verbales contained in Annexes 86-100
of the Documents in support of Ukraine’s Request for provisional measures.
     10   Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 11.
   11 Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 85, para. 30.

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193      application of the icsft and cerd (sep. op. bhandari)

Verbales speciﬁcally refer to the ICSFT, as well as speciﬁc acts it believed
to fall under the ICSFT, engaging the Russian Federation’s obligations.
For example, in a Note Verbale dated 28 July 2014, Ukraine stated that
“under the 1999 International Convention for the Suppression of the
Financing of Terrorism the Russian Side must take measures as neces-
sary . . . in order to investigate” the alleged ﬁnancing of terrorism in east-
ern Ukraine 12.
  11. Concerning the negotiations between the Parties to settle their dis-
pute, Ukraine contended that :
      “Ukraine spent nearly two years attempting to settle this dispute with
      the Russian Federation. Over that period of time,. . . the Parties
      exchanged 40 diplomatic notes and participated in four rounds of
      bilateral negotiations. Unfortunately, the Russian Federation largely
      ignored Ukraine’s claims and refused to discuss issues that Ukraine
      views as central to the dispute.” 13

Ukraine also submitted that it sent a request to initiate an arbitration
concerning potential ICSFT violations by the Russian Federation, but :

      “[t]he Parties were then unable to agree on the organization of an
      arbitration in the six-month period provided by the Convention. For
      the ﬁrst two months of that period, Ukraine’s request for arbitration
      simply received no response. Russia ﬁnally did respond, and eventu-
      ally the Parties met twice and exchanged correspondence concerning
      their respective proposals. By the end of the six-month period, how-
      ever, diﬀerences between the Parties remained.” 14

  12. Ukraine contended that the Parties attempted to resolve their
dispute through negotiation but failed to do so “within a reasonable
time” 15. Ukraine submitted evidence contending that the Parties have
engaged in four rounds of negotiations regarding their obligations under
the ICSFT between 2015 and 2016 16. Concerning the failure of such
negotiations and its aftermath, Ukraine argued that a request to arbitrate
was communicated to the Russian Federation, and an agreement on the
composition of the arbitration was not reached within six months of
Ukraine’s ﬁrst request. On 16 April 2016, Ukraine submitted a Note Ver-
bale requesting the Russian Federation to submit a proposal regarding

   12 Note Verbale dated 28 July 2014, Ann. 85, Documents in support of Ukraine’s

Request for provisional measures.
   13 CR 2017/1, p. 36, para. 7 (Cheek).
   14 Ibid., p. 37, para. 10 (Cheek).
   15 Article 24, ICSFT.
   16 Note Verbale dated 19 April 2016, Ann. 28, Documents in support of Ukraine’s

Request for provisional measures (noting that negotiations were held on 22 January 2015,
2 July 2015, 29 October 2015, and 17 March 2016).

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194      application of the icsft and cerd (sep. op. bhandari)

the establishment of an arbitration in accordance with Article 24 of
the ICSFT 17.
   13. The Russian Federation argued that the events Ukraine relied on
for invoking the ICSFT, particularly in the context of Article 18, could
not fall under the ICSFT, and thus that a dispute did not exist between
the Parties 18. However, this shows that at a prima facie level the Parties
appear to be in disagreement regarding mutual legal obligations that are
“positively opposed by the other” 19. Concerning the negotiation attempts
under the ICSFT, the Russian Federation argued that these negotiations
were not conducted in good faith, and “without any kind of willingness to
engage in a meaningful discussion . . . on issues falling within the scope of
the ICSFT” 20. The Russian Federation also argued that Ukraine “con-
sistently came forward with allegations well beyond the scope of the
ICSFT”, most notably with allegations concerning the use of force 21.
While the Russian Federation argued that the negotiations were not con-
ducted in good faith 22, the validity of this argument cannot be assessed
by the Court at this stage in the proceedings without prejudging the deci-
sions to be made in the subsequent phases of the case. At this stage
Ukraine must simply show that the Parties made “some attempt” at
negotiation that subsequently failed 23. The Russian Federation argued
that the request to arbitrate was not genuine, as Ukraine took the posi-
tion that an ad hoc chamber at the Court should be created to adjudicate
the dispute 24. However, examining whether Ukraine’s attempt to arbi-
trate was genuine, or whether the proposal to refer the dispute to an ad
hoc Chamber of the Court could satisfy the arbitration requirement, is
improper at this stage of the proceedings.

  14. The preliminary examination of the evidence before the
Court shows that the three conditions for the Court to have prima
facie jurisdiction under Article 24 of the ICSFT are met. First, regard-
ing the existence of a dispute, Ukraine submitted numerous Notes
Verbales exchanged by the Parties from June 2014 until recently,
which concern both the interpretation of the ICSFT, and requests to
negotiate with respect to their respective obligations arising under the

   17 Note Verbale dated 19 April 2016, Ann. 28, Documents in support of Ukraine’s

Request for provisional measures.
   18 CR 2017/2, p. 16, para. 2 (Rogachev).
   19 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary

Objections, Judgment, I.C.J. Reports 1962, p. 328.
   20 CR 2017/2, p. 47, para. 61 (Zimmermann).
   21 Ibid., para. 62.
   22 Ibid.
   23 Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October
2008, I.C.J. Reports 2008, p. 388, para. 114.
   24 CR 2017/2, p. 48, para. 68 (Zimmermann).

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195      application of the icsft and cerd (sep. op. bhandari)

ICSFT 25. Second, Ukraine has prima facie shown that the Parties
attempted to resolve their dispute through negotiation but failed to do so
“within a reasonable time”. The Parties have engaged in four rounds of
negotiations regarding their obligations under the ICSFT between 2015
and 2016 26. As Ukraine must simply show that the Parties undertook
“some attempt” 27 at negotiation that subsequently failed, the requirement
to engage in negotiations is satisﬁed for purposes of prima facie jurisdic-
tion. Third, Ukraine has prima facie shown that a request to arbitrate
was communicated to the Russian Federation, and an agreement on the
composition of the arbitration was not reached within six months of
Ukraine’s ﬁrst request. On 16 April 2016, Ukraine submitted a Note Ver-
bale requesting the Russian Federation to submit a proposal regarding
the establishment of an arbitration in accordance with Article 24 of the
ICSFT 28. The fact that Ukraine made an “explicit oﬀer . . . to have
recourse to arbitration” 29 is suﬃcient for establishing prima facie jurisdic-
tion at this stage.

             C. Whether the Acts Alleged by Ukraine Fall
                    within the Scope of the ICSFT

  15. A principal issue that faces the Court is whether the acts alleged by
Ukraine fall within the scope of the ICSFT. Speciﬁcally, the question is
whether the acts Ukraine alleged could amount to terrorism, as deﬁned in
Article 2 of the ICSFT. In its Order, the Court assessed this matter by
applying the plausibility test.

                              1. The Plausibility Test
  16. The Court introduced the plausibility requirement in the aftermath
of LaGrand. As developed since its ﬁrst appearance in Belgium v. Sene-
gal 30, the plausibility test entails a two-step examination by the Court :

  25 E.g., Note Verbale dated 28 July 2014, Annex 85, Documents in support of Ukraine’s

Request for provisional measures; see also Annexes 86-100 of the Documents in support of
Ukraine’s Request for provisional measures.
   26 Note Verbale dated 19 April 2016, Ann. 28, Documents in support of Ukraine’s

Request for provisional measures (noting that negotiations were held on 22 January 2015,
2 July 2015, 29 October 2015, and 17 March 2016).
   27 Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October
2008, I.C.J. Reports 2008, p. 388, para. 114.
   28 Note Verbale dated 19 April 2016, Ann. 28, Documents in support of Ukraine’s

Request for provisional measures.
   29 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),

Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 150, para. 52.
   30 Ibid., p. 151, para. 57.

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196           application of the icsft and cerd (sep. op. bhandari)

ﬁrst, whether the rights asserted by the applicant State exist in the abstract ;
second, whether the applicant State holds such rights in the circumstances
of the case. The applicant State does not need to show that it has good
chances to succeed on the merits, the so-called fumus boni iuris 31. Con-
versely, the applicant State must show that the rights it invokes are not
manifestly unfounded, the so-called fumus non mali iuris 32.

                   2. The Financing of Alleged Acts of Terrorism
   17. Ukraine contended that the travaux préparatoires reﬂect that ter-
rorism ﬁnancing by State actors is covered by the ICSFT 33. It clariﬁed
that the ICSFT does not cover terrorist acts carried out by State actors,
but simply terrorism ﬁnancing by State actors, and that it would be a
“twisted reading . . . to assume that a State can simply look the other way
if its own public organs and oﬃcials are engaged in the ﬁnancing of
terrorism” 34. While the Court is likely to analyse whether the ICSFT cov-
ers terrorism ﬁnancing by State actors in the further stages of the pro-
ceedings, to make such a legal determination at this stage would prejudge
the merits of the case.

   18. Pursuant to Article 2, it must be determined whether there exist
instances of terrorism ﬁnancing falling within the scope of the Conven-
tion. While Ukraine submitted evidence of the transmission of cash to
armed groups in eastern Ukraine 35, it also relied on evidence regarding
the transmission of weapons. Ukraine submitted various pieces of evi-
dence. For instance, a New York Times article reported that certain sepa-
ratist groups solicit donations through their websites, and that “[a]n
examination . . . of the groups’ websites, social media postings and other
records found more than a dozen groups in Russia that are raising money
for the separatists, aiding a conﬂict that has killed more than 6,400
people” 36. The article also reported that “[a]ccording to their own online
appeals, the organizations have directed that donations be made via
State-owned or State-controlled banks in Russia, including the country’s
largest, Sberbank, or credit cards issued by those banks, some branded

    31 This was the version of the plausibility test wrongly suggested by the Russian Feder-

ation, see CR 2017/2, p. 23, para. 6 (Wordsworth); ibid., p. 25, para. 10 (Wordsworth);
ibid., p. 30, para. 22 (Wordsworth); CR 2017/4, p. 21, para. 37 (Wordsworth); ibid., p. 25,
para. 55 (Wordsworth).
    32 On this point, see Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provi-

sional Measures, Order of 13 July 2006, I.C.J. Reports 2006, separate opinion of Judge
Abraham, pp. 140-141, para. 10.
    33 CR 2017/3, p. 21, para. 22 (Koh); ibid., pp. 46-49, paras. 36-45 (Cheek).
    34 Ibid., p. 47, para. 40 (Cheek).
    35 Jo Becker and Steven Lee Myers, “Russian Groups Crowdfund the War in Ukraine”,

The New York Times, 11 June 2015, Ann. 51, Documents in support of Ukraine’s Request
for provisional measures.
     36   Ibid.

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197          application of the icsft and cerd (sep. op. bhandari)

with MasterCard and Visa logos” 37. In this regard, the Russian Federa-
tion “which strictly regulates nongovernmental organizations to monitor
opposition political activity, has done little to stop the fundraising” 38.
Moreover, a report of the Atlantic Council stated that

          “[s]eparatist forces have been relying on a steady ﬂow of Russian
          supplies, including heavy weapons such as tanks, armored personnel
          carriers, artillery, and advanced anti-aircraft systems, including the
          Buk surface-to-air missile system . . . that shot down Malaysia Air-
          lines Flight 17 in July 2014” 39.

  19. In an aﬃdavit submitted by Ukraine and dated 27 February 2017,
Colonel V. V. Skibitskyi stated that there is a continuous ﬂow of weap-
onry from the territory of the Russian Federation into Ukraine. He stated
that “[b]ased on . . . intelligence reports gathered in the regular operations
of my oﬃce, I have personal knowledge of the supply of weapons by the
Russian Federation” 40. According to Colonel Skibitskyi, “the only way
weapons can get to [the Donetsk People’s Republic (DPR)] and [the
Luhansk People’s Republic (LPR)] is through the uncontrolled part of
the Russian-Ukrainian border in Luhansk and Donetsk Oblasts” 41.

  20. The Russian Federation questioned whether the ICSFT covers ter-
rorism ﬁnancing by State actors, or whether it is limited to terrorism
ﬁnancing by private individuals. The Russian Federation argued that the
Convention’s travaux préparatoires suggest that the ICSFT excludes State
actors and State responsibility from its scope, and that it was intended by
the drafters to cover only terrorism ﬁnancing by private individuals.
According to the Russian Federation,
          “the text of the ICSFT is largely based on a working document ori-
          ginally submitted by France . . . That French draft convention had
          contained in its Article 5, paragraph 5, a speciﬁc provision on State
          responsibility, which stated that . . .: ‘[t]he provisions of this art-
          icle cannot have the eﬀect of calling into question the responsibility
          of the State as a legal entity.’” 42

     37
      Cf. note 35 supra.
     38
      Ibid.
   39 The Atlantic Council, Hiding in Plain Sight, May 2015, Ann. 44, Documents in

support of Ukraine’s Request for provisional measures.
   40 Aﬃdavit of Testimony of Colonel V. V. Skibitskyi, 27 February 2017, Ann. 79,

Documents in support of Ukraine’s Request for provisional measures.
   41 Ibid.
   42 CR 2017/2, p. 41, paras. 27-28 (Zimmermann).

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198       application of the icsft and cerd (sep. op. bhandari)

                            3. Intent or Knowledge
  21. Article 2 of the ICSFT requires that a private individual provide
funds with the knowledge or intent that they might be used for acts
deﬁned in Article 2. The Russian Federation argued that such knowledge
or intent was not shown by Ukraine, and thus that the instances of ﬁnanc-
ing Ukraine relies upon do not fall within the scope of the ICSFT 43. On
this issue, the Court found that “Ukraine has not put . . . evidence which
aﬀords a suﬃcient basis to ﬁnd it plausible that these elements are
present” 44. However, the Court’s ﬁnding does not seem entirely war-
ranted based on the assessment of the evidence on record.

   22. The question of whether funds were supplied with the requisite
intent is delicate, and one that the Court must assess with prudence in
order to leave the merits of the dispute untouched. At this stage it must
only be shown that individuals allegedly ﬁnancing terrorism had at least
knowledge that the funds might be used for carrying out acts deﬁned in
Article 2 of the ICSFT. Knowledge in this case could be inferred from a
pattern of behaviour, namely previous actions that could plausibly fall
under Article 2, thus putting individuals allegedly ﬁnancing terrorism “on
notice” regarding how funds may be used should they be provided. In this
case, such individuals were “on notice” that civilians may be deliberately
targeted in order to spread terror following the shooting of civilian air-
craft MH17 in July 2014. Additionally, such individuals were also “on
notice” that the DPR and LPR were engaging in shelling in civilian areas
indiscriminately and, perhaps, intentionally, which put them “on notice”
that funds may be used in the future for a similar purpose. Ukraine sub-
mitted reputable news reports indicating that individuals allegedly ﬁnanc-
ing armed groups in eastern Ukraine continued to do so despite being
“on notice” as to the potential use of the funds provided 45. Ukraine also
submitted that the so-called “Buratino”, a weapon that ﬁres indiscrimi-
nately, was provided to armed groups in eastern Ukraine 46.

  23. The evidence as submitted by Ukraine aﬀords a basis on which the
Court could have found that “funds” have been plausibly provided to the
DPR and LPR with intent or knowledge that they would be used, or are
     43
      CR 2007/2, p. 24, para. 7 (Wordsworth).
     44
      Order, para. 75.
     45
      Jo Becker and Steven Lee Myers, “Russian Groups Crowdfund the War in Ukraine”,
The New York Times, 11 June 2015, Ann. 51, Documents in support of Ukraine’s Request
for provisional measures; “Sergei Mironov Received a Thank You Letter from the Head
of the LPR Valery Bolotov”, Ann. 58, Documents in support of Ukraine’s Request for
provisional measures.
  46 BBC News, “Ukraine Rebels Have Powerful New Russian-made Rockets — OSCE”,

2 October 2015, Ann. 47, Documents in support of Ukraine’s Request for provisional
measures.

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199          application of the icsft and cerd (sep. op. bhandari)

to be used, to carry out the acts referred to in subparagraph (b) of Arti-
cle 2 (1).

                                4. Attacks on Civilians
   24. The Russian Federation argued that the incidents Ukraine relied
on could not fall under the deﬁnition of terrorism in Article 2 of the
ICSFT, and, at most, could amount to violations of international human-
itarian law (IHL) 47. However, at this point the Court need only deter-
mine that it is not manifestly unfounded that the acts, evidence of which
was provided by Ukraine, might fall within the scope of the ICSFT. What
the deﬁnition of terrorism under Article 2 exactly covers should not be
decided at this time, as it would prejudge the merits of the case. For
instance, wading too deeply into the travaux préparatoires of the Conven-
tion, as the Russian Federation suggested 48, is inappropriate at this stage
of the proceedings.
   25. In its oral submissions, Ukraine argued that in and around the ter-
ritory controlled by the DPR and LPR there is a pattern of attacks on
civilians. Speaking of the escalation of violence in Avdiivka, Ukraine
stated that “[a]s a result of indiscriminate shellings, the city has suﬀered
widespread destruction of residential buildings and critical infrastructure,
leaving civilians without electricity, water supplies, and even heat, at
harsh temperatures far below zero” 49. Similarly, speaking of Avdiivka
and Mariupol it contended that “[o]nly weeks after Ukraine ﬁled its
Application in this Court, Russian-supplied rockets rained down on civil-
ians living in the town of Avdiivka. The civilians of Mariupol, already
victims of large-scale terrorism, live in fear” 50. With respect to violence
in Mariupol, Ukraine argued that “[t]he United Nations Under-
Secretary-General conﬁrmed to the Security Council that the civilian
population had been ‘knowingly targeted’” 51. Moreover, Ukraine also
stated that :

          “[t]he destruction of Flight MH17 with a Russian Buk system did not
          stop Russian ﬁnancing of terrorism. With that continued support, we
          suﬀered an attack on a bus at Volnovakha. A mere two weeks later,
          Mariupol was bombarded, and Kramatorsk a few weeks after that.
          In Kharkiv, a peaceful population was terriﬁed by a string of bomb-
          ings. These were not isolated incidents, but the result of Russia’s spon-
          sorship of terrorism.” 52

     47 CR 2017/2, p. 17, paras. 5-8 (Rogachev).
     48 Ibid., p. 41, para. 26 (Zimmermann).
     49 CR 2017/1, p. 22, para. 7 (Zerkal).
     50 Ibid., p. 25, para. 1 (Koh).
     51 Ibid., p. 28, para. 12 (Koh).
     52 Ibid., p. 22, para. 8 (Zerkal).

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200        application of the icsft and cerd (sep. op. bhandari)

  26. According to Ukraine,
        “[o]ver the last decade Russia’s interference in Ukrainian aﬀairs has
        steadily escalated. It reached dangerous levels in 2014. Russia decided
        to intervene in Ukraine militarily ; sponsor illegal groups that commit
        acts of terrorism on Ukrainian soil ; and violate the human rights of
        millions of people of Ukraine. Including, for too many, their right to
        life.” 53

In relation to the shooting down of Flight MH17, Ukraine argued that

          “Russian-supported ﬁghters ruthlessly shot it down over eastern
        Ukraine, murdering 298 innocent civilians, including citizens from
        many . . . nations . . .. The MH17 shoot-down was nothing less than
        an attack on humanity : nationals of the Netherlands, Australia, Bel-
        gium, Canada, Germany, Indonesia, Malaysia, New Zealand, the
        Philippines, the United Kingdom, and the United States of America
        were all killed.” 54

In addition, Ukraine argued that violence on civilians spread well beyond
the immediate conﬂict zone. It argued that
        “[a]s 2014 turned into 2015, Russian-ﬁnanced terrorists launched a
        concerted bombing campaign against Kharkiv, Ukraine’s second-
        largest city, far from active hostilities. In November 2014, Russian-
        backed terrorists struck a nightclub popular with supporters of the
        Revolution of Dignity. Three months later, they carried out a deadly
        attack on a peaceful parade and rally.” 55

   27. In its written documents, Ukraine submitted that the DPR and
LPR forces indiscriminately bombarded civilian areas and deliberately
attacked the civilian population far from military targets. One example is
the well-documented destruction of civilian aircraft MH17 56. In that case,
the aircraft, entirely boarded with civilians, was shot down in a heavily
traﬃcked civilian-only ﬂy zone, well above the airspace used by Ukrai-
nian military aircrafts, as reported in the Dutch Safety Board’s investiga-

   53 CR 2017/1, p. 23, para. 13 (Zerkal).
   54 Ibid., p. 25, para. 10 (Koh).
   55 Ibid., pp. 28-29, para. 13 (Koh).
   56 The destruction of Flight MH17 plausibly falls within the scope of the 1971 Montreal

Convention (974 UNTS 177). By virtue of Article 1 of the ICSFT, which incorporates
oﬀences under the 1971 Montreal Convention within the scope of the ICSFT, the destruc-
tion of Flight MH17 also falls within the scope of the deﬁnition of terrorism under
the ICSFT.

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201      application of the icsft and cerd (sep. op. bhandari)

tive report 57. Ukraine also submitted evidence regarding a rocket blast
hitting a civilian bus in Volnovakha, killing 12 persons and injuring
17 others 58. The OSCE report stated that :

        “A Grad rocket struck close to a civilian bus when it stopped at a
      Ukrainian Armed Forces checkpoint approximately 2 km north of
      Volnovakha . . .. The [Special Monitoring Mission (SMM)] arrived
      at the location of the incident at 17:45hrs and . . . witnessed the
      removal of two of the dead from the bus. The bus had shrapnel dam-
      age consistent with a nearby rocket impact, estimated by the SMM
      to be 12-15 metres from the side of the bus. The SMM visited the
      Volnovakha hospital where the staﬀ conﬁrmed that ten persons on
      the bus were killed instantly, while two died later in the hospital.
      Another 17 passengers were injured.” 59

 28. Furthermore, the OSCE reported of shelling in residential areas of
Mariupol. According to the report :
         “The SMM in government-controlled Mariupol heard at its loca-
      tion incoming massed Multi-Launch Rocket System (MLRS) attacks
      from a north-east direction, consisting of an extremely heavy barrage
      lasting 35 seconds. Twenty minutes later the SMM received informa-
      tion from the Joint Centre for Control and Co-ordination (JCCC) in
      Mariupol and other sources, that shelling had occurred in the area of
      Olimpiiska Street, in Ordzhonikidzevskyi district, 8.5 km north-east
      of Mariupol city centre, approximately 400 metres from a Ukrainian
      Armed Forces checkpoint . . .. The SMM observed in an area of
      1.6 km by 1.1 km, including an open market, multiple impacts on
      buildings, retail shops, homes and a school. The SMM observed cars

   57 Dutch Safety Board, “Crash of Malaysian Airlines MH17: Hrabove, Ukraine”,

17 July 2014, October 2015, Ann. 34, Documents in support of Ukraine’s Request for
provisional measures.
   58 Organization for Security and Co-operation in Europe (OSCE), Latest from OSCE

Special Monitoring Mission (SMM) to Ukraine Based on Information Received as of
18:00 (Kiev time), 13 January 2015, 14 January 2015, Ann. 13, Documents in support
of Ukraine’s Request for provisional measures; OSCE, Latest from OSCE Special Moni-
toring Mission (SMM) to Ukraine Based on Information Received as of 18:00 (Kiev time),
16 January 2015, 17 January 2015, Ann. 14, Documents in support of Ukraine’s Request
for provisional measures.
   59 OSCE, Latest from OSCE Special Monitoring Mission (SMM) to Ukraine Based on

Information Received as of 18:00 (Kiev time), 13 January 2015, 14 January 2015, Ann. 13,
Documents in support of Ukraine’s Request for provisional measures.

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202      application of the icsft and cerd (sep. op. bhandari)

      on ﬁre and windows facing the north-eastern side of a nine-storey
      building shattered. The SMM was able to count 19 rocket strikes and
      is certain there are more. Four hospitals and the emergency service in
      the city informed the SMM that at least 20 people died and 75 people
      were injured and hospitalized.” 60

In February 2017, the OSCE also reported that civilian monitors were
targeted. 61 The United Nations Under-Secretary for Political Aﬀairs clas-
siﬁed the bombings in Mariupol as incidents of “knowingly targeting”
civilians 62. Additionally, in February 2017 comments of the OSCE Spe-
cial Monitoring Mission in Ukraine reported of artillery, mortar, and
MLRS strikes in and around residential areas on both sides of the conﬂict
line 63. Whether such attacks and shelling took place in the vicinity of
military targets, which might justify them under IHL, is a question to be
determined at the merits stage of the proceedings.

   29. The UN Oﬃce of the High Commissioner for Human Rights
(OHCHR) also reported of summary killings and arbitrary executions in
eastern Ukraine. The report on accountability for killings in Ukraine
from January 2014 to May 2016 stated that
      “[o]n 18 April 2014, the bodies of Horlivka city councillor, Mr. Volo-
      dymyr Rybak, and of a student and Maidan activist, Mr. Yurii
      Popravko, were found in the river of Kazennyi Torets, near the set-
      tlement of Raigorodok (Sloviansk district, Donetsk region), bearing
      signs of torture. According to the forensic expertise, before his death,
      Rybak was tied ; his abdomen ripped oﬀ, and he was thrown into the
      water. On 28 April, the body of a student and Maidan activist,
      Mr. Yurii Diakovskyi, was recovered from the river at the same site,
      also bearing signs of torture.” 64

   60 OSCE, Spot Report by OSCE SMM to Ukraine, 24 January 2015: Shelling Incident

on Olimpiiska Street in Mariupol, 24 January 2015, Ann. 21, Documents in support of
Ukraine’s Request for provisional measures.
   61 OSCE, OSCE Chief Monitor in Ukraine Condemns Targeting of Monitors and

Seizure of Unmanned Aerial Vehicle, 24 February 2017, Ann. 18, Documents in support of
Ukraine’s Request for provisional measures.
   62 UN doc. S/PV.7368, 26 January 2015, Ann. 4, Documents in support of Ukraine’s

Request for provisional measures.
   63 Transcript of Alexander Hug, Principal Deputy Chief Monitor of the OSCE Special

Monitoring Mission to Ukraine, Ann. 22, Documents in support of Ukraine’s Request for
provisional measures.
   64 OHCHR, Accountability for Killing in eastern Ukraine from January 2014 to May

2016 (2016), para. 33, Ann. 6, Documents in support of Ukraine’s Request for provisional
measures.

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203       application of the icsft and cerd (sep. op. bhandari)

The OHCHR reported also that :
       “[o]n 8 June 2014, in the town of Sloviansk then controlled by armed
       groups, the parishioners of the evangelical church ‘Transﬁguration of
       Christ’ were holding the Sunday worship. By the end of the worship,
       armed men arrived at the church yard, designated four cars, and
       ordered their owners to come forward and have a talk with them. The
       deacons, Mr. Viktor Bradarskyi and Mr. Volodymyr Velichko, and
       two sons of the church’s Head — Mr. Albert Pavenko and Mr. Ruvim
       Pavenko — came forward. The armed men forced them to get into
       their own cars and drove away.” 65
The bodies of the above-mentioned persons were later found, alongside
bodies of other people. They
       “displayed multiple gunshot wounds and signs of torture. The other
       bodies belonged to victims of executions ordered by the ‘martial
       court’ of the ‘Donetsk people’s republic’ in Sloviansk and individuals
       who either died or was killed during the armed hostilities in the
       town.” 66

                       5. Intimidation of the Population
   30. Ukraine also cited several instances of intimidation of the local
population. In June 2014, the OHCHR reported a pattern of “systematic
persecution” against civil society in areas controlled by the DPR and
LPR, aimed at suppressing support for Ukrainian unity 67. The OHCHR
speciﬁcally reported that the systematic persecution of activists, journal-
ists, and councillors led to a spreading of fear in the Donetsk and Luhansk
regions due to “an increasing number of acts of intimidation and violence
by armed groups, targeting ‘ordinary’ people who support Ukrainian
unity or who openly oppose either of the two ‘people’s republics’” 68. This
was reported again by the OHCHR in 2016 : the interviewees, largely
activists, journalists, and local community leaders, stated that they were
targeted by the armed groups, and believed it was due to their pro-
Ukraine positions 69.

 31. In its oral submissions, the Russian Federation argued that the acts
mentioned by Ukraine could not fall within the scope of the ICSFT, and
  65 Cf. note 64 supra, para. 39.
  66 Ibid., para. 41.
  67 OHCHR, Report on the Human Rights Situation in Ukraine, 15 June 2014, Ann. 7,

Documents in support of Ukraine’s Request for provisional measures.
  68 Ibid.
  69 OHCHR, Report on the Human Rights Situation in Ukraine 16 February-
15 May 2016 (2016), Ann. 8, Documents in support of Ukraine’s Request for provisional
measures.

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204       application of the icsft and cerd (sep. op. bhandari)

therefore could not be considered to be acts of terrorism. However, the
Russian Federation did not deny that the events to which Ukraine
referred took place. For instance, it argued that “most of the civilian
casualties are in the DPR and the LPR, and multiple sources conﬁrm that
Ukrainian armed forces are themselves responsible for numerous acts of
indiscriminate shelling” 70, pointing out that “[s]hould the Applicant’s
approach to the applicability of the ICSFT be accepted, Ukraine’s own
conduct would constitute a central feature of these very proceedings” 71.
According to the Russian Federation, “about 40 per cent of all expenses
of the DPR/LPR-controlled territories are covered by trade, taxes and
other ﬁnancing by Ukraine” 72. Concerning the shooting down of
Flight MH17, the Russian Federation submitted that :

       “[t]he investigation of this tragedy is still ongoing. Russia has co-op-
       erated extensively with the Dutch Safety Board (DSB) and the Joint
       Investigative Team (JIT), in particular by providing them with the
       assistance requested. The Russian authorities and experts have
       expressed disagreement with the ﬁndings of the DSB and the JIT20,
       and note that much evidence was left untouched by the investigators
       as, for example, recorded by two Dutch journalists who recently vis-
       ited the accident site.” 73
In relation to the Ukrainian contention that there is a continuous ﬂow of
arms from the Russian Federation into the DPR and LPR-controlled ter-
ritories, it was argued that
       “the primary source of weapons and ammunition to the military of
       the DPR and the LPR are stockpiles inherited by Ukraine in 1991
       from the Soviet Army that was formerly tasked to hold oﬀ the entire
       NATO. A lot of these stockpiles were deposited in the old mines of
       Donbass and later captured by rebels. Another source of weapons
       was the retreating Ukrainian army itself.” 74

   32. The Russian Federation principally argued that the OSCE
and OHCHR reports submitted by Ukraine do not make any connec-
tion between the shelling of civilian areas and terrorism. In respect of
the OHCHR report concerning accountability for killings in Ukraine
from January 2014 to May 2016, the Russian Federation contended
that “civilian casualties [were] caused by ‘indiscriminate shelling’ on

  70 CR 2017/2, p. 17, para. 6 (Rogachev).
  71 Ibid., p. 18, para. 7 (Rogachev).
  72 Ibid., p. 19, para. 13 (Rogachev).
  73 Ibid., pp. 19-20, para. 14 (Rogachev).
  74 Ibid., pp. 20-21, para. 19 (Rogachev).

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205       application of the icsft and cerd (sep. op. bhandari)

areas controlled by both sides, not terrorism” 75. Similarly, it was argued
that
       “when the Court goes through the multiple reports of the OHCHR,
       the OSCE and the [International Committee of the Red Cross
       (ICRC)], it will see that the acts of indiscriminate shelling by all par-
       ties to the conﬂict in East Ukraine are never characterized as acts of
       ‘terrorism’. Instead, these acts are characterized by the OHCHR and
       the ICRC as violations of the IHL principles of distinction, propor-
       tionality and precaution.” 76
Moreover, the Russian Federation argued that the shelling of civilians
alleged by Ukraine was not the sole responsibility of the DPR and LPR
forces, but also of Ukraine’s military. However, these arguments do not
show that the acts alleged by Ukraine cannot be terrorist acts under the
ICSFT, but simply that they could also be regarded as IHL violations
committed by both Parties to the conﬂict in eastern Ukraine.

            6. Examination of the Evidence in regard to Plausibility
   33. The part of the Court’s Order dedicated to the plausibility of the
rights invoked by Ukraine under the ICSFT could have beneﬁtted from a
closer discussion of the evidence submitted by the Parties. The evidence
presented by Ukraine eﬀectively shows that the elements set out in Arti-
cle 2 of the ICSFT are met, and therefore that the acts alleged by Ukraine
plausibly amount to terrorism under the Convention. Ukraine submitted
evidence of the continuous ﬂow of weapons, which could plausibly be
considered to be “funds” across the Russian-Ukrainian border. Article 1
of the ICSFT states that funds are “assets of any kind, whether tangible
or intangible, movable or immovable”. This appears to encompass
“funds” other than ﬁnancial assets, which might include weapons. At this
stage, a careful examination of the exact deﬁnition of “funds” would be
inappropriate, as it would prejudge the Court’s decision in the later stages
of the proceedings. The Court should have just noted, at this stage, that
the Convention plausibly covers items such as weapons in its deﬁnition of
“funds”. In any event, Ukraine also provided evidence of ﬁnancial assets
being transferred through the Russian banking system, thanks to the
DPR and LPR’s reliance on online appeals for ﬁnancial contributions.

  75   CR 2017/2, p. 25, para. 14 (Wordsworth).
  76   Ibid., pp. 25-26, para. 15 (Wordsworth).

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206     application of the icsft and cerd (sep. op. bhandari)

   34. The provision of “funds” through the State-owned banks in the
Russian Federation is also instrumental to plausibly showing that “funds”
are provided with the requisite intent or knowledge that they will be used
or are to be used in order to commit one of the oﬀences in Article 2. As
stated above, knowledge in this case could be inferred from a pattern of
behaviour relating to the indiscriminate targeting of civilians. This would
put potential individuals providing “funds” on notice that such “funds”
may be used to carry out acts falling within the scope of Article 2 of
the ICSFT.

   35. Moreover, it is plausible that the acts Ukraine alleged were aimed
at targeting civilians or persons not taking direct part in hostilities. The
evidence put forward by Ukraine plausibly shows that weapons are used
which ﬁre indiscriminately, and that certain attacks have seemingly been
carried out in areas far removed from military objectives. Instances of
this were the shooting down of Flight MH17, the attack on the bus in
Volnovakha, the attacks in Mariupol’s residential areas, as well as the
attack in a night club in Kharkiv. The targets of such attacks, namely
civilians and persons not taking direct parts in hostilities, plausibly show
that they were “intended to cause death or serious bodily injury to a civil-
ian, or to any other person not taking an active part in the hostilities in a
situation of armed conﬂict”, within the terms of Article 2.

   36. Finally, Ukraine’s evidence also demonstrated that the “purpose of
such act[s], by [their] nature or context, is to intimidate a population”. I
referred to a pattern of targeting civilians and persons not taking direct
part in hostilities, in areas far removed from military objectives. At this
stage in the proceedings, such a pattern is suﬃcient to plausibly show that
the acts alleged by Ukraine have the purpose of intimidating the popula-
tion. More detailed determinations are inappropriate at this stage, and
should only be made in the subsequent phases of the proceedings.

   37. By adducing evidence that the acts alleged by it are capable of
falling within the scope of the ICSFT, Ukraine has demonstrated that
the plausibility requirement for indicating provisional measures is
satisﬁed.

   D. The Existence of a Real and Imminent Risk of Irreparable
           Prejudice to the Rights Invoked by Ukraine

  38. In the Court’s jurisprudence, irreparable prejudice and urgency are
compounded into one single requirement, namely that there must be an
“imminent risk that irreparable prejudice may be caused to the rights in

106

207      application of the icsft and cerd (sep. op. bhandari)

dispute before the Court has given its ﬁnal decision” 77. Appraising irrepa-
rable prejudice and urgency is closely connected to the facts of a case.
According to the Court’s most recent orders on provisional measures,
prejudice to a State’s rights is “irreparable” if, without indicating provi-
sional measures pending the Court’s judgment disposing of a case, it
would be impossible to restore the status quo ante once the dispute is
ﬁnally settled 78. Clear cases of irreparable prejudice are the so-called
“death penalty cases”, such as LaGrand and Avena, in which it would be
impossible to restore a State’s rights under the Vienna Convention on
Consular Relations (VCCR) once the individual whose consular assis-
tance was denied has been executed 79.

   39. In Georgia v. Russia, the Court found that “the power of the Court
to indicate provisional measures will be exercised only if there is urgency
in the sense that there is a real risk that action prejudicial to the rights of
either party might be taken before the Court has given its ﬁnal decision” 80.
The Court, in assessing whether urgency exists in the circumstances of a
case, must determine whether the acts allegedly carried out by the respon-
dent State might create a situation in which it would be impossible to
restore the rights of the applicant State to the status quo ante. In this
perspective, the possibility to suﬀer irreparable prejudice is a precondition
of urgency, as there cannot be urgency if the acts allegedly carried out by
the respondent State are not capable of causing irreparable prejudice to
the rights of the applicant State.

  40. The ICSFT aims to assist States in combating terrorism ﬁnancing.
Article 18 requires States to “take all practicable measures . . . to prevent
and counter preparations in their respective territories for the commission
of those oﬀences within or outside their territories”. However, it is logi-
cally unsound to state that, while a State has an obligation to co-operate

   77 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning

the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional
Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), p. 548, para. 47.
   78 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional

Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1169, para. 90; Ques-
tions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v.
Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014, p. 154,
para. 32.
   79 LaGrand (Germany v. United States of America), Provisional Measures, Order of

3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 24; Avena and Other Mexican Nationals
(Mexico v. United States of America), Provisional Measures, Order of 5 February 2003,
I.C.J. Reports 2003, p. 91, para. 55. See also 596 UNTS 261.
   80 Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of
15 October 2008, I.C.J. Reports 2008, p. 392, para. 129. See also Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of
28 May 2009, I.C.J. Reports 2009, p. 152, para. 62.

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208      application of the icsft and cerd (sep. op. bhandari)

to prevent terrorism ﬁnancing, it does not also have an obligation to pre-
vent terrorism ﬁnancing. Although it is not necessary, at the present stage
of the proceedings, to make deﬁnitive ﬁndings in this regard, it is possible
that the former obligation is a corollary of the latter. While Article 18 of
the ICSFT only refers to an obligation of co-operation to prevent, it
could also be read to entail an obligation to prevent, which could thus
be seen to be incumbent upon the States party to the ICSFT. To state
otherwise would deprive the provision under Article 18 of the ICSFT of
effet utile.

   41. Ukraine alleged that the Russian Federation failed to “take all
practicable measures” to co-operate under the ICSFT, and has allowed
its territory to serve as a conduit for the ﬁnancing of terrorism in eastern
Ukraine. As already detailed above, there have been numerous civilian
deaths, including the attack on civilian Flight MH17, intense shelling in
Avdiivka, Mariupol and Kramatorsk, attacks on a civilian bus at a check-
point in Volnovakha, as well as numerous others. Besides constituting a
loss for humanity, every civilian death amounts to irreparable prejudice
to the rights of Ukraine to seek compliance by the Russian Federation
both with its obligation to co-operate to prevent terrorism ﬁnancing, and
with its obligation to prevent terrorism ﬁnancing. From this perspective, it
must be concluded that the rights of Ukraine are suﬀering and are likely
to suﬀer irreparable prejudice before the Court may hand down the judg-
ment disposing of the case.

   42. From the point of view of irreparable prejudice, the present case
resembles LaGrand. In that case, Germany invoked Article 36, para-
graph 1 (b), of the VCCR as the rights it sought to protect on the mer-
its 81. That provision confers on individuals the right, to be informed
“without delay of [the] rights under this subparagraph”, namely that the
consular post of the State of nationality of foreign individuals be informed
of their detention. The Court found that Walter LaGrand’s “execution
would cause irreparable harm to the rights claimed by Germany in this
particular case” 82. Although it did not say so explicitly, the Court found
that there was irreparable prejudice since, as Germany had argued 83, it
would not have been possible to restore the status quo ante after Walter
LaGrand’s death. First, the present case also concerns the loss of human
life, which, similarly to LaGrand, makes it is impossible to restore the
status quo ante. Second, similarly to LaGrand, in the present case a State
argued that a right it plausibly holds under international law could be

   81 LaGrand (Germany v. United States of America), Provisional Measures, Order of

3 March 1999, I.C.J. Reports 1999 (I), p. 14, para. 16.
   82 Ibid., p. 15, para. 24.
   83 Ibid., p. 12, para. 8.

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209      application of the icsft and cerd (sep. op. bhandari)

irreparably prejudiced by acts aimed at depriving individuals of their life.
Third, similarly to LaGrand, the Court is asked to protect the rights of a
State, not the rights of an individual, and the loss of human life would be
the cause of irreparable prejudice to the State’s right. Consistency in the
Court’s jurisprudence would require in this instance a decision similar to
the one in LaGrand.

   43. Ukraine alleged that urgency exists particularly in light of the
recent escalation of violence in Avdiivka. The OSCE, the ICRC, and
reliable news agencies have reported on the increase in violence in
civilian areas in Avdiivka since early 2017, as well as on incidents of indis-
criminate shelling in the town’s residential areas 84. Alexander Hug,
Principal Deputy Chief Monitor of the OSCE Special Monitoring
Mission to Ukraine, noted that it was the worst violence the area has
seen in months 85. Such violence has led to violations of the
Minsk II Package of Measures by both sides of the conﬂict 86. In
addition to the increase in violence, there are several reports that
OSCE representatives have not had full access to conﬂict areas, as well
as border regions, in order to suﬃciently monitor the situation. For
example, one OSCE report highlighted that monitors were blocked
by LPR members from accessing an area close to the Russian

    84 Transcript of Alexander Hug, Principal Deputy Chief Monitor of the OSCE Special

Monitoring Mission to Ukraine, Ann. 22, Documents in support of Ukraine’s Request
for provisional measures; ICRC, ICRC Warns of Deteriorating Humanitarian Situation
amid Intensifying Hostilities in Eastern Ukraine, 2 February 2017, Ann. 42, Documents
in support of Ukraine’s Request for provisional measures; “Avdiivka Civilian Caught in
Crossﬁre as Clashes Rage: Thousands without Heating or Electricity in Town of Avdiivka
as Ukrainian Troops and Rebels Remain Locked in Fighting”, Al Jazeera, 5 February
2017, Ann. 45, Documents in support of Ukraine’s Request for provisional measures;
Christian Borys, “‘Everything Is Destroyed’: On the Ground as Latest Surge of Deadly
Violence Strikes Eastern Ukraine”, The Independent, 4 February 2017, Ann. 48, Documents
in support of Ukraine’s Request for provisional measures; Christian Borys, “Losing Every-
thing in Ukraine: As Violence Escalates in Eastern Ukraine Front, One Family Copes with
Losing Their Livelihood in the Shelling”, Al Jazeera, 5 February 2017, Ann. 49, Docu-
ments in support of Ukraine’s Request for provisional measures; John Wendle, “Avdiivka,
evacuating again as ﬁghting escalates — Civilians in Avdiivka wonder if they will survive
the cold nights and random, incessant shelling”, Al Jazeera, 8 February 2017, Ann. 52,
Documents in support of Ukraine’s Request for provisional measures.

   85 Transcript of Alexander Hug, Principal Deputy Chief Monitor of the OSCE Special

Monitoring Mission to Ukraine, Ann. 22, Documents in support of Ukraine’s Request for
provisional measures.
   86 Ibid.

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210      application of the icsft and cerd (sep. op. bhandari)

border 87. Moreover, an aﬃdavit dated 15 February 2017 from an inter-
rogated DPR member also reported that areas of the border are used as
gateways for transporting weapons 88. Both sides of the eastern Ukrainian
conﬂict have restricted access to conﬂict areas, raising concerns that the
situation cannot suﬃciently be monitored. This raises hurdles for the
assessment of the urgency of the situation. However, the need to stop the
documented violence involving the civilian population leads me to con-
clude that there is grave urgency in the circumstances of the case. The
Court held in Georgia v. Russia that a situation could be urgent if it is
“unstable and could rapidly change” 89. The events in eastern Ukraine, and
especially those in Avdiivka, are perfect examples of an “unstable” situa-
tion that could “rapidly change”. This justiﬁes the ﬁnding that the urgency
of the situation requires the indication of provisional measures by the
Court.

   44. The Minsk II Package of Measures does not remove a real and
imminent risk of irreparable prejudice, as argued by the Russian Federa-
tion 90. First, international observers such as the OSCE and the OHCHR
have reported of violations of the Minsk II Package of Measures by both
Parties. Second, the Court’s jurisprudence shows that the existence of
binding international obligations incumbent upon the States party to a
case before it does not remove real and imminent risk of irreparable prej-
udice. For example, in Timor-Leste v. Australia the Court found that
there was a real and imminent risk of irreparable prejudice despite the
Attorney-General of Australia having made a solemn undertaking, bind-
ing on its State under international law, that the documents seized from
Timor-Leste’s lawyer would not be used except for reasons of national
security 91. In the present case it is not yet clear whether the Minsk II
Package of Measures could be considered to be a binding treaty, and
therefore contain binding international obligations. The Security Council
merely endorsed it, which conveys that it has not acquired binding force
by virtue of being included in a Security Council resolution under Arti-

   87 OSCE, Latest from OSCE Special Monitoring Mission (SMM) to Ukraine Based on

Information Received as 27 September 2015, 28 September 2015, Ann. 15, Documents in
support of Ukraine’s Request for provisional measures.
  88 Record of Interrogation of Detained Anonymous Soldier No. 1 Self-Proclaimed

“Donetsk People’s Republic”, Security Service of Ukraine, 15 February 2017, Ann. 30,
Documents in support of Ukraine’s Request for provisional measures.
   89 Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of
15 October 2008, I.C.J. Reports 2008, p. 396, para. 143.
   90 CR 2017/2, p. 50, para. 76 (Zimmermann).
   91 Questions relating to the Seizure and Detention of Certain Documents and Data

(Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports
2014, pp. 158-159, paras. 46-48.

110

211      application of the icsft and cerd (sep. op. bhandari)

cle 25 of the United Nations Charter ; moreover, Security Council resolu-
tion 2202 (2015) was not taken under Chapter VII. A fortiori, it should
not be seen as the reason removing a real and imminent risk of irrepara-
ble prejudice in the circumstances of this case.

       E. The Link between the Provisional Measures Granted
           and the Rights which Ukraine Seeks to Protect

   45. In its 2011 Order on provisional measures in Certain Activities, the
Court held that “a link must exist between the rights which form the sub-
ject of the proceedings before the Court on the merits of the case and the
provisional measures being sought” 92. Arbitral Award of 31 July 1989 was
the only case in which the Court refused to grant provisional measures
owing to the absence of a link between the provisional measures requested
and the rights whose protection the applicant State sought. Guinea-
Bissau instituted proceedings against Senegal arguing that the arbitral
award of 31 July 1989 93, which had settled the maritime delimitation
dispute between the two States, was invalid as a matter of international
law. Pending the Court’s judgment, Guinea-Bissau asked for provisional
measures to be indicated under Article 41 of the Statute, requesting only
that Senegal “abstain in the disputed area from any act or action of any
kind whatever, during the whole duration of the proceedings until the
decision is given by the Court” 94. The Court found that :

      “the Application . . . asks the Court to pass upon the existence and
      validity of the award [of 31 July 1989] but does not ask the Court to
      pass upon the respective rights of the Parties in the maritime areas
      in question ; . . . accordingly the alleged rights sought to be made
      the subject of provisional measures are not the subject of the pro-
      ceedings before the Court on the merits of the case” 95.
The only provisional measure requested by Guinea-Bissau was not linked
to the rights claimed in the main proceedings, which concerned the valid-

   92 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nica-

ragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 18,
para. 54.
   93 Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal (Guinea-

Bissau/Senegal), Award of 31 July 1989, RIAA, Vol. XX, p. 119.
   94 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures,

Order of 2 March 1990, I.C.J. Reports 1990, p. 65, para. 3.
   95 Ibid., p. 70, para. 26.

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212     application of the icsft and cerd (sep. op. bhandari)

ity of the arbitral award of 31 July 1989. Therefore, Guinea-Bissau’s
request for provisional measures was denied.
   46. In the present case, the provisional measures requested by Ukraine
in relation to the ICSFT are all linked to the right claimed on the merits,
which concerns co-operation to prevent terrorism ﬁnancing. Some of the
provisional measures requested by Ukraine could be seen to touch upon
the merits of the dispute. However, the Court could have indicated some
of the provisional measures requested. For example, the Court could
have indicated a provisional measure requiring both the Russian Federa-
tion and Ukraine to co-operate to eﬀectively control the Russian-
Ukrainian border in order to monitor and prevent the transfer of
“funds” for the commission of acts plausibly amounting to terrorism.
Furthermore, the Court could have reminded both Parties of their treaty
obligation to co-operate under Article 18 of the ICSFT, and perhaps
given some concrete guidance on how to implement such a provisional
measure.

                             F. Conclusion

  47. The preliminary examination of the entire evidence on record
aﬀords a suﬃcient basis to arrive at a plausible view that all elements
under Article 2 of the ICSFT are satisﬁed in this case. Therefore, the
Court ought to have indicated provisional measures in relation to the
ICSFT.

                                          (Signed) Dalveer Bhandari.

112