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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On 8th June Russia presented the counter-arguments against the Terrorism Financing and Racial Discrimination contentions of Ukraine. This blog gives a broader view of these arguments.
Mr Alexander V. Shulgin presented the opening statements by stating that Russia has the utmost respect for the International Court of Justice. Also, the case should be decided impartially without any political considerations. He stated, "Truth must be expressed for justice to be done" and that Ukraine has set itself as a protector of Crimea and is seeking the ICJ's decision to declare Donbas a terrorist. On the other hand, Ukraine established a blockade of Crimea. The members of the Mejlis set up bombs to destroy energy lines in Crimea and thus depriving the entire population of Crimea of electricity. Ukraine is looking for flaws in the education system of Russia, ignoring the fact that the Russian language is used by the majority of the population in Crimea.
As Ukraine's agent has focussed so much on this aspect, I will say that it was Ukraine which rejected the Minsk Agreement and began the violation against Donbas. It is Ukraine which refused any negotiated solution and announced its desire "to win on the battlefield". It is the Ukraine senior officials who quote to people "Kill all Russians, kill them everywhere.
Ukraine killed journalists and political activists not only in Ukraine but also in Russia. He then said that we demonstrated that the Ukraine application must be dismissed as it has no legal relevance and no factual evidence.
RUSSIA'S ARGUMENTS ON TERRORISM FINANCING
Russia's agent started his arguments by declaring that Russia respects international law, and raised the question "Does Ukraine respect the Court?"
He then stated that Ukraine targeted the civilian population and started shellings and other attacks by Ukrainians against civilians in Odesa, DPR, and LPR. He stated that Ukraine ignores a vast amount of evidence and showed an Expert Report stating that BM-30 is not just the only weapon available, it is also the ideal weapon for neutralisation of an airfield and its associated infrastructure. He further replied to Professor Koh's statement of "rain of intimidation and terror" by stating that it was Ukraine's anti-terrorist Operation (ATO) that created a climate of insecurity and fear.
Furthermore, in reply to Professor Koh's question that who destroyed MH-17, he answered via a report by Netherland security services claiming the Ukrainian Buks in the Donbas zone of conflict on the day of the MH17 incident and in the direct vicinity of the crash site. Also, Ukraine ignores that BUK-TELAR does have the capacity to distinguish military from civilian aircraft and the fact that it was fired in civilian air traffic skies. Ukraine's own shells were present in the skies and they use their own civilians as shields.
He further stated that the terrorism financing allegation of Ukraine is absurd. Also, the allegation that Russia does not cooperate has no sound basis as Russia engaged in consultation with Ukraine for years and executed requests of Ukranians. Also, Ukraine asks to declare DPR and LPR as terrorist organisations without any objective evidence.
Ukraine itself has on multiple occasions rejected Russia's requests for legal assistance including those regarding terrorism. On the grounds of sovereignty, in some cases, ...., Ukraine stated that it did not trust Russia's qualifications of these organisations as terrorists and thus, would not execute the request.
Lack of specific intent and faults in Ukraine's case of MH17
Mr Michael Swainston talked about the lack of specific intent.
Terrorism offences required specific intent such as to injure civilians for political purposes. By contrast, Ukraine relies on mistakes, a mistake of targeting in relation to MH-17 and Ukraine relies on alleged shelling and bombing in a course of an armed conflict. But an injury in armed conflict to civilians is inevitable. It does not point to terrorism. Sadly, it happens even where scrupulous efforts are made to follow international humanitarian law which regulates conflict.
He explained that there's a difference between combatants and terrorists and crime and lawful conduct. The key word under Article 2(1) of the International Convention for the Suppression of the Financing of Terrorism ["ICSFT"] for a funder is 'wilfully' which means intentional knowledge. The funder and funded terrorists must know their intent, but Ukraine mainly focused on political purposes, therefore, they committed an error in their arguments.
Furthermore, Mr Swainston stated that Montreal Convention specifically deals with civil aircraft. The use of the term 'civil aviation' in the preamble bolsters this argument. He further says that according to Ukraine intent is not defined, but it is defined clearly. Ukraine does not rely on an intention that funds "should be used", alleging instead knowledge that the funds "are to be used".
He then stated that Russia rejects the whole case of Ukraine as Russia did not supply a BUK and Russia did not supply any crew with any BUK. He calls evidence provided by Ukraine "unsourced digital nonsense".
He highlighted the JIT 2023 report saying that it is implausible that a civilian aircraft was deliberately shot down and that it is plausible that MH 17 was shot down by mistake. Ukraine relies on OHCHR Report which does not specifically say that DPR targets civilians. Ukraine has failed to show intention or knowledge.
He also presented his arguments exhaustively on the MH-17 incident and reiterated that Russia rejects this allegation by stating "It did not happen". He stated that International Tribunals reject any digital evidence without human corroboration or data. He referred to the decisions of International Tribunals in Prosecutor v. Naser Oric and Prosecutor v. Tolimir to bolster his contentions. He stated that justice requires to look carefully into Ukraine's allegations.
After these, he pointed out the following problems in the contentions of Ukraine regarding the MH-17 incident:
- The last physical evidence collected from the site of the crash of MH17 occurred in April-May 2015 and the Draft DSB Report was produced in July 2015. The DSB Draft Report said that swabs were taken to test explosive traces on pieces of the alleged missile and pieces of MH17. It said that 500 swabs were taken. The DSB Report said that 126 swabs were taken. It also said that traces of "similar" explosives were found on the missile and the aeroplane parts. In fact, the Final Report says elsewhere that RDX was found on the missile parts, but not the aeroplane parts.
- There has been no explanation for why the DSB was confused about its swab tests, and why it said that the explosive traces from the missile parts and the aeroplane parts were similar. They were not.
- The Snizhne video on Youtube in its first version was encoded and therefore uploaded on 16 \July 2014. It existed before MH17 was destroyed.
- Other problems in the Snizhne video include the variances in the size of BUK in some frames, differences between different versions, distinct quality of the versions, uneven and artificial blurring, different contrast at the same depth of field, inconsistent shadows, etc.
- The intercepts relied upon by Ukraine and the Netherlands were all provided by Ukraine's security service, the SBU. Four intercepts were provided in a single digital file as a compendium - not original files. One intercept - the Bezler intercept - was clearly fake.
- The intercept related to a conversation much before the destruction of MH17. It concerned the shooting down of a Sukhoi bomber. The SBU changed it to delete all reference to the Sukhoi, and to present it as relating to MH17.
- If Ukraine was right that a Russian BUL TELAR launched a BUK missile at MH17 from Snizhne, it would have been spotted by the radar at Ust-Donetsk. It would have been seen in profile on three sweeps of the radar, but it was not.
He argued that Ukraine never gave any explanation for the veracity of the physical evidence. He stated that the 'darkest corners of the internet' are where Ukraine found its digital evidence. He said, "The original digital files are still in the dark corners and we have never seen them".
Furthermore, he stated that "the Atlantic Council is funded by NATO, the US Government through its Department of Defense and Department of State and British Government. He further showed the statement from JIT 2023 Report, which said "The investigation showed that several (military) radar systems in the Russian Federation covered the airspace where MH17 was flying. Investigative activities also showed that from May 2014 onwards current Russian radar information was being shared with the 'people's army' in eastern Ukraine."
Then he talked about 'specific intent' and stated that intent is not an objective concept. It is specific, direct and subjective.
Ukraine's partial reading of the word 'funds'
The next speaker discussed the term 'funds' under the ICSFT. He said that Ukraine relies on the definition of 'funds' but proposes only the partial reading by reading only the first line of the provision and ignoring the rest. This term should be read as a whole and with specific categories such as drafts, documents, instruments, etc. He emphasised that these categories are not insignificant in law. The title of the convention also shows its object and purpose. He further elaborated his contention by saying that the word financing' or 'financier; appears 14 times in the ICSFT and the words 'weapon' appeared nowhere. Likewise, the word 'ammunition' appears nowhere. However, Ukraine is asking to read them in Article 1 of the ICSFT. He then reiterated that the word 'fund' should not be understood in an abstract manner. It is part of the whole.
The Interplay of ICSFT and the International Humanitarian Law
The next speaker clarifies Russia's position with regard to the interplay between ICSFT and International Humanitarian Law. He stated that firstly they do not deal with financing, they deal with financing of terrorism. Secondly, the relationship between ICSFT and International Humanitarian Law is not a game of guessing and Ukraine's counsel did not mention Article 21 even once in their arguments.
Article 21 states "Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes of the Charter of the United Nations, international humanitarian law and other relevant conventions."
He further stated that ICSFT cannot criminalise something lawful and discussed that ICSFT should be read in conformity with Article 51(2) of the Additional Protocol I of the Geneva Convention, 1949 and Article 13 of the ICRC Draft Committee 1987.
He stated that Article 2(1)(b) of the ICSFT is not to be read in isolation, but rather should be read in conjunction with Article 21. He further argued against Ukraine's case on cooperation. He stated that Ukraine's reference to the Corfu Channel case was not relevant in this case as this case had nothing to do with genocide. He, then, clarified that Russia uses a "Sufficient Ground" Standard to freeze assets. The Interagency Commission for Combating Terrorism Financing received sufficient grounds to suspect the involvement of Mr U in terrorist activities, and a decision was made to freeze money and other property of Mr.. After that, based on the available information, Rosfinmonitoring decided to prohibit the entry of Mr U to Russia for a period of 30 years.
He stated that there was no response from Ukraine's side to Russia's requests for the provision of factual data on criminal cases or legal aid. He mentioned that Ukraine refused to extradite a terrorist organisation member to Russia because the organisation was not titled as a 'terrorist organisation' by Ukraine. Ukraine also distorted the statistics of MLA requests that Russia received and executed from 2014 to 2020. He pointed out the fact that Ukraine did not back up the requests of Russia.
Bombings, and shelling in Ukraine
The next speaker presented counter-arguments on the allegation of bombing, shelling and killing incidents in Ukraine. The speaker made the following points:
- There is no proof of evidence for intent.
- Civilian casualties were killed largely due to Ukraine's own conduct.
- Ukraine's case is based on unreliable evidence.
- Evidence shows that Republics tried to minimise collateral damage.
He stated that attacks in Volnokhava, Mariupol, Kramatorsk, and Avdeyev had legitimate military targets, therefore, the Court cannot criminalise Russia for the same. He referred to the statement of Genera Brown which said: "Unlike the 2015 shellings of Volnavakha, Mariupol, and Kramatorsk where the military positions were evidently separate from civilian residential areas, in Avdiivka the delineation between UAF and civilian activity is more blurred". The Human Rights Watch report documented multiple uses of the same heavy MLRS systems with cluster munitions against the civilian population of DPR and LPR.
He also highlighted the ways in which the Republics took measures to avoid the loss or injury of civilians. Firstly, if it were the DPR who attacked the roadblock and the intent was to harm the civilians, why would they want to limit civilian traffic. Secondly, in Mariupol, the ranging shots and local observers are used to divert fire away from the residential area. Thirdly, there is absolutely nothing in the intercepts that shows that the attacker ever intended to hit civilians or was indifferent to that. He also pointed out the fact that the intercepts related to the Mariupol shelling proffered by Ukraine show that the speakers were genuinely shocked by unexpected hits on civilian-populated areas.
He stated that Ukraine has linked unrelated incidents to each other. He highlighted that in eastern Ukraine, along with a line of contact, from the beginning of the conflict in February 2014, until mid-August 2019, the ICRC documented over 1500 incidents in which heavy explosive weapons were used in populated areas, leaving approximately 4000 civilian objects damaged and destroyed. He argued that not today it has been reliably established who was behind the shellings. After that, he illuminated the defects in Ukraine's evidence. For example, no photos or videos or evidence from witnesses was given by Ukraine on its allegation that three assault rifles were retrieved from Kovtun's hideout, and that these rifles has specific markings tracing them to Crimea, meaning they were taken by Russia after its invasion in 2014.
Regarding the FATF violations, Russia's agent talked about the FTAF Recommendation to Russia which said, "Russia's competent authorities... should continue to provide constructive co-operation to all partners sending valid requests".
RUSSIA'S ARGUMENTS ON RACIAL DISCRIMINATION
Russia presented its arguments on racial discrimination by replying to the Mejlis, education and cultural heritage arguments. Russian agent first talked about the claim of Ukraine that "Ukraine seeks an end to the Russian Federation's alleged "systematic campaign of racial discrimination" in violation of CERD. The speaker, by referring to the ICJ's claim pointed that "the Court has long recognised that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive" said that Ukraine's allegations against Russia are exceptionally grave, therefore, these must be proved by evidence. After that, he referred to the observation made in Bosnia and Herzegovina v. Serbia and Montenegro (2007) and quoted that "in respect of the Applicant's claim that the Respondent breached its undertakings to prevent genocide and to punish extradite persons charged with genocide, the Court requires proof a high level of certainty appropriate to the seriousness of the allegation".
Furthermore, the speaker argued that Ukraine's reference to the reports of NGOs cannot be relied upon. Also, it was highlighted that the definition of 'indirect discrimination' is not compatible with the definition of racial discrimination.
The speaker then referred to the case of Qatar v. UAE and illuminated an extract of the judgment which stated, "...while the measures based on current Qatari nationality may have collateral or secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari citizens residing in the UAE, this does not constitute racial discrimination within the meaning of the Convention". He also quoted the Advisory Opinion of Minority Schools in Albania: "Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations". The responding to allegations that Russian laws are applied abusively on Crimean and Tatar communities, he said that these are mere suspicions and conjectures and that the real aim of Ukraine in this case is to discuss the status of Crimea which does not come under the jurisdiction of this Court.
Nextly, the counterarguments with respect to Mejlis were presented. The speaker discussed that Mejlis does not represent the Crimean Tatar community. He highlighted the statements of the Council of Crimean Tatars under the auspices of the Head of the Republic of Crimea: "The Council categorically disagrees with the thesis that some refugees from Crimea, calling themselves 'leaders' and 'chairpersons' of various kinds of foreign nongovernmental formations of a private nature, pose as representatives of the Crimean Tatar people. Those individuals do not live in Crimea and do not represent the interests of Crimean Tatars".
Then the speaker stated that there were riots organised by Mejlis in 1992 which aimed at aggravating the political situation, inciting ethnic hatred, expressed in the organisation of mass riots, appeals for a violent overthrow of the legitimate government bodies and local government are to be considered anti-constitutional. Also, there were water, trade and transport blockades in Crimea. Thereafter, the speaker discussed that the Crimean Tatar Organisation appeals to ban the Mejlis.
In the counter-arguments by Crimea on education, the speaker said that education in the Ukrainian language is fully available and Ukraine has not given any convincing arguments in this respect. Ukraine's claims have vague and imprecise allegations. Furthermore, the speaker discussed that Crimean Tatar has never been a language of instruction until 2014. Also, it was stated that Ukraine was negligent towards Ukranian language schools in Crimea and the School received no government support in the Ukranian period. The speaker argued that in 2004-2005, the School no longer received any funding from charitable foundations, and we did repairs and purchased furniture and textbooks at the expense of our students' parents. Showing the statistics, the speaker referred to a 2021 census, according to which out of 145,852 Ukrainians residing in the Republic of Crimea 99.3% speak Russian and 99.7% of them use it in their daily lives.
With regard to Ukraine's arguments on the destruction of cultural heritage by Russia, the speaker said that Ukraine continues to repeat empty slogans without any justifications and Ukraine has been unable to prove any fact. He stated that there's no differential treatment in the public events and that they were denied celebrations as the organisers had not complied with the rules of the local authorities.
To read Ukraine's arguments on Terrorism Financing, Click here.
To read Ukraine's arguments on Racial Discrimination, Click here.
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