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Ukraine vs. Russia in The Hague: key arguments

Members of the Delegation of Ukraine on the second day of the hearings. Copyright: UN Photo/ICJ-CIJ/Frank van Beek.

On 8 March, the Ukrainian representatives took the floor once again in the International Criminal Court in The Hague to answer Russia’s legal arguments and rebuttals to Ukraine’s accusations of funding terrorism and discriminating against Ukrainians and Crimean Tatars, which included clear fakes and lies

Here we publish the condensed version of the key speech of the Ukrainian side, given by Professor Harold Hongju Koh.

Overview of the case:

  • Ukraine has filed a lawsuit against Russia due to violations of the international law by Russia’s actions in Ukraine, specifically – of breaching the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) by funding and supporting militants in the Donbas, and of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
  • Russia has claimed that the court has no jurisdiction over the case and that it has not violated the abovementioned conventions.
  • According to Ukraine’s Agent Olena Zerkal, Ukraine’s strategy is to prove that Russia violates numerous UN conventions and show that ICJ has the necessary jurisdiction to rule on the subject. Russia, it its turn, tries to outline the case as the armed conflict, so that it would be regulated by international humanitarian law—the ICJ has only limited jurisdiction in this sphere.
  • Although the ICJ has no means to enforce its decisions, if its prima facie in this case will be definitively established, the international community would not have to beg Russia to stand down. It would be able to demand doing this instead.
  • If the ICJ takes on the case, its hearings could take several years, which is why Ukraine is requesting to apply provisional measures to Russia immediately, among which is enforcement of the Russian-Ukrainian border and the cessation of the ban on the Crimean Tatar Mejlis.

Professor Harold Hongju Koh’s speech on 8 March 2017

President, Members of the Court: In its opening presentation, Russia challenged Ukraine’s request by twisting the law and distorting the facts.

Russia’s Agent opened by saying that this case seeks to merge two disparate cases, concerning terrorism financing in eastern Ukraine and violations of the Race Discrimination Convention in Crimea.

But as I noted in my opening presentation, the treaty violations here stem from a common source: the Russian Federation’s profound contempt, during the course of its illegal intervention, for the human rights of the Ukrainian people.

We do not ask you to pass on the merits of this case.  Nor do we—or will we–ask you to determine the legality of Russia’s aggression or to confirm Ukraine’s sovereignty over Crimea, notwithstanding the staged “referendum.”

But it does not take a deep investigation to see why provisional measures are warranted.


The Terrorism Financing Convention

Yesterday, in a remarkable display of legal gymnastics, Russia’s counsel asked you to read two treaties that squarely bar terrorism financing and all forms of racial discrimination to allow those acts.

Wordsworth argued that somehow, in times of armed conflict, the Terrorism Financing Convention does not bar Russia from sending lethal weapons to Russian-backed armed groups in eastern Ukraine.

This is so, he suggested, even when those groups then deliberately use those weapons to target and attack innocent civilians in peaceful Ukrainian cities, and even when they fire Russian-supplied missiles to shoot civilian airliners out of the sky, killing nearly 300 civilians, including three tiny infants.

Wordsworth never denied an absolutely critical fact: that Russia has been knowingly supplying lethal weapons to groups that attack civilians in eastern Ukraine.

By his silence, he apparently conceded such weapons supply is happening, but because of multiple intent requirements that he imposed on the Convention’s language, he claimed that the provision of such lethal weapons did not rise to the level of a Convention violation.

In seeking to minimize its legal violations in eastern Ukraine, Russia’s counsel sought to brush aside – but did not ultimately deny – undisputed facts offered by Ukraine in its opening presentation, which have been authoritatively found by the United Nations Secretary-General, the UN High Commissioner for Human Rights, OSCE monitors, the Dutch Safety Board, reputable human rights groups, and respected investigative journalists.

When there is “armed conflict,” Mr. Wordsworth suggested, there cannot be “terrorism.”

Even indiscriminate acts of shelling innocent civilians “are not correctly—or even to the standard of reasonable possibility” he claimed, “characterised as terrorist acts within” the meaning of Article 2 of the Terrorism Financing Convention.

But on its face, this is not a plausible reading of Article 2 of the Terrorism Financing Convention.  That provision makes it an offence under the Convention if a person “by any means” “provides … funds” ‒ defined as “assets of every kind”, tangible or intangible ‒ “in the knowledge that they are to be used, in full or in part, in order to carry out”

  • (a) a violation, inter alia [of the Montreal Convention which bars unlawful acts against the safety of civil aviation, or]
  • (b) “[a]ny 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… ”

Article 2.1(a) renders Russia’s providing Buk missile launchers to fighters who would shoot down the civilian aircraft MH17 a flagrant offence under the Convention, and 2.1(b) makes it an offense for Russia to provide Grad missiles to fire upon civilian neighborhoods in Volnovakha, Mariupol, Kramatorsk, Kharkiv, and Avdiivka when in context, such launches inevitably have the effect of intimidating and demoralizing the civilian population of those areas.

Wordsworth claimed that in times of armed conflict, international humanitarian law (IHL) is the sole “body of law [that] prohibits the spread of terror among the civilian population.” But as Ms. Cheek noted in her opening presentation, “the Convention recognizes that acts of terrorism and a state of armed conflict are not mutually exclusive.”

By defining a terrorist act as one “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,” Article 2.1(b) makes clear that –even in times of armed conflict– civilians living far from conflict zones who are not taking an active part in hostilities can still be victims of terrorist attacks financed by external suppliers of war materiel.


Thus, the fact that the Donetsk Peoples Republic (DNR) may engage in armed conflict with Ukrainian forces in active warzones in no way exonerates Russia from liability under the Convention when it provides rockets to fighters who then launch them indiscriminately to kill civilians and others who are not taking part in active hostilities in residential neighborhoods far from “hot battlefields.”

Attacking civilians for political ends is terrorism, whether or not an armed conflict is also ongoing. Russia’s proxies in Ukraine both fight Ukraine’s armed forces and conduct terrorism against civilians, as defined in the Convention, intimidating the Ukrainian people to give in to their demands.

Mr. Wordsworth makes the bold allegation that “the indiscriminate shelling that appears to be such a feature of this conflict is at least as much down to acts of, or attributable, to Ukraine.”

Of course this is a matter of considerable doubt and factual dispute, which will surely be the subject of evidentiary debate as this case proceeds to the merits.  But any fair-minded observer of the eastern Ukraine situation knows that the overwhelming victims of such indiscriminate attacks have been Ukrainian civilians. And make no mistake: The Government of Ukraine takes its obligations under international law seriously.  It has prosecuted, for example, the volunteer battalions mentioned by the other side for crimes against civilians.  

Regrettably in armed conflict, some civilian casualties cannot be avoided. But that does not mean that Russia may supply weapons to an illegal armed group that indiscriminately shells civilian areas, on the mere pretext that a possible military objective may be spotted somewhere nearby.

When Russia’s proxies have just been raining down rockets on Avdiivka from within residential areas, it is ironic to say the least, for Russia to focus on photographs of tanks defending a Ukrainian city from armed groups.

Yet another red herring is Russia’s repeated, misleading reference to the ongoing Minsk Process as an impediment to this Court’s grant of provisional measures under the Terrorism Financing Convention.

Wordsworth finds it “inconceivable” that the parties or the Security Council would have agreed to the pardon and amnesty provision for events in the Donetsk and Luhansk regions “if the acts of indiscriminate shelling on which Ukraine now focuses were truly acts of terrorism.” Professor Zimmermann adds that “Russia submits that there is an imperative need to demonstrate sensitivity to the ongoing political processes, and that the Court should refrain from indicating measures, which would undermine such processes…”

But Ukraine did not agree to such an amnesty, which excluded grave breaches.

Certainly no amnesty agreement was ever intended to foreclose prosecution for the perpetrators of the MH17 shootdown or other heinous terrorist acts.  

Ukraine has made clear that it does not consider the “DNR” or “LNR” to be official parties to the Minsk process, although it is historically quite common for States to negotiate with terrorist groups—as Colombia did with the FARC for many years– in an effort to reach a peaceful resolution to a longstanding conflict.

Professor Zimmermann never explains precisely how provisional measures would interfere with the Minsk process.

To the contrary, if anything, the judicial relief Ukraine requests would bring Russia into compliance with its Minsk obligations.

More broadly, this Court has heard this argument before and has not been moved – in the case of Nicaragua v. United States 30 years ago

Perhaps the most startling piece of legal gymnastics in Russia’s opening presentation, was Professor Zimmermann’s ingenious extraction from the text of Article 18 of the Terrorism Financing Convention of an elaborate seven-part cumulative test for when states actually have a legal obligation to cooperate to prevent terrorism. The key element of his ornate multi-pronged test was his claim that the Terrorism Financing Convention was never intended to address state action, as opposed to individual violators.

To accept Professor Zimmermann’s novel reading of the Convention as not reaching state-sponsored terrorism would perversely allow private actors to funnel funds to collusive government entities to support terrorist acts, while shielding that terrorism financing from scrutiny under the Convention.

But even assuming direct state responsbility were not implicated, Russia may still be held responsible under the Convention for its failure to prevent any individuals, including those employed by its government—who under Article 2 plainly constitute “any person…providing or collecting funds” for terrorism–from providing financing to armed groups who attack civilians in eastern Ukraine.

If Russia knows of particular individuals within its territory who, for example, aided the movement of the Buk missile launcher into Ukraine and back to Russia again after the MH17 shootdown, it has obligations to investigate and prosecute them under various provisions of the Convention. And if it knows such individuals are still providing powerful weapons to the same groups, Russia must take “all practicable measures” to stop them.

For a country such as Russia, simply controlling its own borders to block the flow of Buk missiles and Grad rockets into Ukraine would constitute an eminently “practicable measure.”

In short, notwithstanding Mr. Wordsworth’s and Professor Zimmermann’s novel legal theories, Russia cannot so easily escape its obligations – if individuals within the Federation, inside or outside the government, gave support to armed groups committing terrorist acts in eastern Ukraine, Russia is directly liable under the Terrorism Financing Convention.

The Convention for the Elimination of All Forms of Racial Discrimination (CERD)

Similarly, Russia distorts the facts and twists the law when it claims that it does not violate the Convention for Elimination of All Forms of Racial Discrimination in Crimea.

The Russian Federation has no lawful basis to occupy Crimea. But so long as it does, it is legally bound to respect the multi-ethnic population that lives there.

Ukraine’s claims under the CERD simply ask that Russia keep its commitment not to discriminate on grounds of race and ethnicity.

The occupation authorities in Crimea have installed a policy of “russification” that inflicts collective punishment and pervasive discrimination against other cultures. Together, these acts amount to a campaign of cultural erasure: a concerted effort to deny non-Russian groups their cultural identities.

By promoting ethnic Russian dominance, Russia targets for discrimination non-Russian groups, particularly the Crimean Tatar and ethnic Ukrainian populations. These facts have been widely documented by authoritative human rights organizations.

Just a few months ago, the United Nations condemned the persistent pattern of discrimination in occupied Crimea. But apart from the Agent’s breathtaking praise yesterday for Russia’s “great effort to promote the harmonious development of all ethnic groups in Crimea,” you heard no plausible defense of Russia’s campaign of cultural erasure—

a concerted effort to intimidate Crimean Tatars and ethnic Ukrainians, to disappear and kidnap Tatar leaders without serious investigation, to exile or persecute Crimean Tatar leaders, to dismantle the Tatar media, and to ban the Mejlis, culturally significant Ukrainian gatherings and Ukrainian language schools.

In his presentation yesterday, Professor Forteau engaged in legal gymnastics that would twist that treaty out of shape. Strangely, he claimed that the CERD does not forbid the cultural erasure by Russian authorities of the language, culture, and political independence of Crimean Tatars and ethnic Ukrainians, because not all of these acts of persecution against the Tatars were “based on” race. They were instead, he suggested, motivated by some other reason.  As Professor Forteau put it:

“It does not suffice, then, to allege that a prejudice has been suffered by someone or that one of his rights has been infringed. It must be shown that this prejudice or this infringement of a right is of a discriminatory nature. Ukraine must therefore establish that Russia had adopted these measures that affect in a discriminatory manner the Tatar and Ukrainian communities in comparison with the fate reserved for other residents of Crimea. “

Simply put, Professor Forteau’s defense to the claim of Russian discrimination in Crimea is that Russia is actually violating human rights on an equal-opportunity basis. 

As if to underscore his own point, Professor Forteau curiously seeks to defend Russia’s performance by noting the four times that the CERD Committee has had to meet in emergency session with regard to Russia’s discriminatory practices.

Professor Forteau concludes from this sorry history that the role of the CERD Committee—which the Russian Federation has conspicuously ignored—suggests that this Court has no business granting provisional measures with regard to Russia’s discriminatory conduct in Crimea.

Of course, in Georgia v. Russia, this Court granted provisional measures against similar Russian arguments.


The Urgency of the Situation in Ukraine

President, Members of the Court,

In short, this Court faces a tragic and urgent situation. Russia’s brutal response to the Revolution of Dignity has brought about an interrelated campaign of human rights violations on its own soil. International law cannot tolerate support for the state sponsorship of indiscriminate targeting of civilians and cultural erasure by a nation that claims to forbid terrorism financing and racial discrimination.

As Ukraine’s recounting of the facts on the ground has demonstrated, the situation is urgent, in both eastern Ukraine and Crimea. As in the previous request brought here against Russia by Georgia, this Court should indicate provisional measures, because

  • the circumstances are “unstable and could rapidly change;”
  • there is a manifestly “vulnerable” population in need of your protection–the innocent civilians of Ukraine; because there is “ongoing tension” without any “overall settlement to [an ongoing] conflict;”
  •  attacks and similar “incidents have occurred on various occasions . . . leading to fatalities, injuries and the displacement of local inhabitants.”

As in the recent case of Equatorial Guinea v. France, provisional measures are necessary because not only have past violations of international law occurred, it is “not inconceivable” that they will recur if provisional measures are not soon indicated.

Professor Zimmermann claims that there is no urgency because MH17 has already been destroyed and the attacks on civilians that Ukraine refers took place months ago.

But in so saying, he conspicuously ignores the facts that unless Russia is ordered to police its borders, more dangerous weapons could arrive again in eastern Ukraine tomorrow, and that the horrible attack on civilians in Avdiivka is only weeks old.

In closing, let me reiterate that Ukraine has not sought to bring all of Russia’s many violations of international law before this Court. Ukraine has not come here seeking either relief for Russia’s acts of territorial aggression in violation of the UN Charter, or to seek confirmation of Ukraine’s sovereignty over Crimea.

Your task today is not to determine the merits of the claims Ukraine has brought, to determine whether these treaties have been violated, or even whether you have jurisdiction. Your only task is to decide whether Ukraine should be afforded temporary measures of protection while this case proceeds.

Perhaps the most illuminating aspect of yesterday’s opening Russian presentations was what it revealed about Russia’s broader attitudes toward the Court and rules of international law. The legal acrobatics you have heard from Russia’s clever counsel all mask an apparent conviction that the international rules that apply to other nations simply do not apply to Russia.

All Ukraine asks is for this Court to invoke its legal authority to protect innocent Ukrainian civilians threatened by indiscriminate terrorist attacks and cultural erasure. Without provisional measures from this Court, the Russian Federation will continue to play by its own rules and do the opposite of what these two Conventions requires, and innocent Ukrainian civilians will pay the price.

President, Members of the Court: Ukraine asks you to order Russia to stop the flow of weapons and assistance across its borders to groups that launch terrorist attacks against civilians and to cease its campaign of cultural erasure.

Let me repeat: if Russia is not committing these illegal acts, it would suffer absolutely no inconvenience by refraining from doing them while this case proceeds.  If Russia will not refrain, it must be because its behavior is neither innocent nor legal.

Your Excellencies, I have explained why the correct legal reading of these two treaties, and a basic grasp of the relevant facts establishes the urgency for the indication of provisional measures here. From Ukraine’s perspective, this Court’s award of provisional measures will be a matter of life and death for many innocent people. With that, Mr. President, I ask you to invite Mr. David Zionts to the podium, to explain why this Court has prima facie.

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