The author of this blog is Ritika Sharma. She is the Founder of the blog, HUMAN.DROITS, and is also an LL.M. Graduate from the Geneva Academy of International Humanitarian Law and Human Rights. She can be reached at ritika4523@gmail.com.
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| Brown mallet on gray wooden surface |
The oral arguments have commenced before the International Court of Justice ["ICJ"] headed by the ICJ President Joan E. Donoghue. The first round of oral arguments will take place on the 6th and 8th of June and the second round is scheduled for the 12th and 14th of June.
This blog is the collection of provisions, conventions and significant points stated by the representatives of Ukraine in the matter pertaining to terrorism financing offences in their first round of oral arguments of about 3 hours.
The World Watched
Mr Anton Korynevych gave the opening statements and highlighted that Ukraine was right to sound the alarm warning about Russia's mounting violations of international law. He stated that "Russia has the audacity to cloak its actions in international law under absurd pretext that it was acting to prevent genocide".
He also talked about the illegal occupation of Crimea in 2014 which led to the destruction of Ukrainian language and culture and the destruction of several historical institutions.
The world watched as Russia launched a full-scale invasion of Ukraine...
The world watched as Russia used these pretexts (preventing genocide) to terrorize the Ukrainian people, targeting civilians, including children,
The world watched as Russia targeted Ukranians' very identity aiming to wipe us from the map, including those of us sitting in front of you...
He stated that "the civilians are facing a rain of intimidation and terror". Furthermore, he also called attention to the destruction of the Ukrainian dam by Russia, an incident that occurred on 6th June 2023 and caused harsh ecological damages.
Lastly, he reiterated that Russia has violated the International Convention for the Suppression of the Financing of Terrorism ["ICSFT"] and the Convention on Elimination of Racial Discrimination ["CERD"].
Russia did nothing
Professor Harold Hongju Koh presented that Russia has committed contempt for human rights and international law by not taking any action for the suppression of the financing of terrorism in the Donbas region of Ukraine. He highlighted the report of OHCHR to show the presence of well-organised armed groups in Ukraine and non-cooperation by Russia in fulfilling its obligations under the Convention.
Had Russia chosen this cooperation lawful path, so much painful suffering could have been avoided. Instead, Russia violated its commitments by choosing an illegal path. It did nothing!
As private fundraising networks to the DPR and LPR flourished on Russian territory, Russia did nothing!
When asked to control its borders, Russia did nothing!
Professor Koh stated that Russia gave funds where it was not to give funds. He explained how 'suppression' and 'prevention' are two fundamental components of ICSFT and referred to the following provisions of ICSFT to substantiate the claims against Russian Federation:
- Article 18
- Article 8
- Article 9
- Article 10
- Article 12
Furthermore, he asserted that Russia twisted the texts of the convention to escape obligation and impose burdens on Ukraine. Giving two examples, he further stressed this point. For example, Russia shrinks its obligations by interpreting the term 'all practicable measures' under Article 18 and also under Article 9 which obligates the states to conduct investigations, Russia reads the word 'alleged' as 'conclusively proven'.
Referring to the case the Islamic Republic of Iran v. United States of America, Professor Koh accentuated that Russia's "Unclean Hands" defense should be rejected as according to the opinion in this case, the "unclean hands" principle is not part of international customary law.
Furthermore, an exhaustive discussion on how Russia narrowly interprets the term 'funds' was put forth by Professor. Article 1 of ICSFT defines the term 'funds' and stipulates some examples which, according to Russia, gives the exclusive list. Professor Koh, by referring to the Draft Article 1 illuminated that the term 'financing' can be defined as "reception/ transfer of funds, assets or other property", thereby establishing that the terms 'funds' and 'property' have the same connotation and the term cannot have an "outrageous reading" as done by Russia.
Next arguments were presented by Professor Jean-Marc Thouvenin. He referred to articles 2(1)(a) and 2(1)(b) of the ICSFT and discussed the terms "with intent to" and "act intended to". He, with the help of reports and findings, explained how the acts of abduction, detention, ill-treatment, torture and killing occurred which created an atmosphere of intimidation and consequent fear in Ukraine.
The uncontested evidence
The next speaker was Mr David M. Zionts who highlighted how the Russian Federation violated the Montreal Convention and Bombings Convention along with Article 2(1)(b) of the ICSFT. He talked about the killing of 298 civilians in Malaysian Flight MH 17 which amounted to an offence under Article 2 of the ICSFT. He exhaustively discussed how Russia committed an offence under Article 1(1)(b) of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971 (Montreal Convention) and stated the purpose of the Convention which is "to deter unlawful acts against the safety of civil aviation. He showed how the perpetrators fired at civilian traffic skies with a weapon that could not distinguish civilian from military aircraft. The BUK TELAR was provided knowingly which established the requirement of knowledge. He stated they knew that this would commit an offence under the Montreal Convention, making the officials guilty of terrorism financing under Article 2(1) of the ICSFT.
They knew the implications of providing BUK TELAR. They knew that skies were open to civilian traffic, and they knew that DPR would have no practical ability to distinguish military from civilian targets. In short, they knew that striking civilian aircraft was, in words of Russia's own experts, inevitable!
Furthermore, he provided evidence of Russia's role in delivering the mines that bombed Kharkiv, the peaceful and second-largest city in Ukraine. The bombings in Kyiv, Odesa and Kharkiv took several civilian lives. This was an offence under the International Convention for the Suppression of Terrorist Bombings and also under Article 2 of the ICSFT. He stated that Russia cannot contest the offences under the Bombings and Terrorism Financing Convention.
Russia's hypothetic theories and non-cooperation
Miss Marney Cheek took the arguments further and discussed the shelling attacks in the year 2015 in Volnovakha, Mariupol, Kramatrosk, Avdiivka, etc. She highlighted Russia's utter disregard and failure to cooperate.
She reflected on the point that under Article 2 of the ICSFT, terrorism financing offences are complete when a state "provides or collects funds" regardless of the fact that the funds were actually used to carry out an offence.
Talking about the Buhas checkpoint and how Russia's theories differed from General Brown's conclusions on the incidents, she stated that "none of BM-21 Rockets actually hit the checkpoint security, but they did hit the civilian bus full of pensioners". This could conclude that the intention was to cause civilian injuries. The shelling attacks killed several civilians and destroyed residential areas, hospitals, stores, etc of the above-mentioned regions and Russia's speculative theories stated that these incidents resulted due to human errors or malfunction or faulty rockets.
Russia has offered no explanation of how 4 separate BM-21 launchers used in the attack simultaneously malfunctioned in a way to produce a coherent impact pattern throughout the neighbourhood.
In the end, she elaborated on the fact that despite Ukraine's consistent requests for cooperation, Russia ignored or failed to cooperate and violated Articles 8, 9 10, 12 and 18 of the ICSFT.
To watch the ICJ proceedings: Click here
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