Part II: CRSV in Myanmar, Geneva Conventions and the Global Response

This blog has been written by Saugat Subedi. He is an Undergraduate Final year Law Student at Tribhuvan University, Faculty of Law, Prithvi Narayan Campus, Nepal with a keen interest in International Humanitarian Law and Conflict Studies. He can be reached at saugatsubedi04@gmail.com.

Introduction

Any sexual violence of comparable severity committed against women, men, girls, boys or diverse genders that is either directly or indirectly connected to a conflict is referred to as Conflict-Related Sexual Violence (CRSV). This includes rape, forced prostitution, forced pregnancy, forced abortion, forced sterilisation, forced marriage, and sexual slavery. International Humanitarian Law (IHL), International Human Rights Law (IHrL) and International Criminal Law (ICL) jointly has been standing as a preventive and protective mechanism to combat the pre and post effects of CRSV with decisions made by the United Nations Security Council (UNSC), empowered by the UN Charter as complementary mechanism to oversee peace and security. With special regard to CRSV; IHL is found to be principally a regulating set of rules to prevent and address the violations that prosecute the potential perpetrators.

How does IHL protect CRSV in NIAC?

IHL in the context of NIAC is based on Common Article 3 of the Geneva Conventions (GCs)  with special regard to GC-IV (Relating to the protection of civilian persons in armed conflict), Customary IHL rules and Additional Protocol II. Only Article 27 of the Fourth Geneva Convention specifically mentions protecting women from rape and forced prostitution out of the 429 provisions that make up the four Conventions. On the other hand Additional Protocols maintain the idea that, despite the seriousness of these crimes, rape and other kinds of sexual assault are offenses against personal dignity rather than violent crimes.

The protection of civilians from CRSV in NIAC functions through universal principles and official international agreements of IHL. CIHL legitimises a ban on sexual violence which includes rape under Rule 93 and prohibits all kinds of slavery under Rule 94, Rule 134 mentions that “The specific protection, health and assistance needs of women affected by armed conflict must be respected”. According to Rule 156, “ Serious violations of international humanitarian law constitute war crimes”. Through Common Article 3 of the Geneva Conventions, parties agree to prohibit all attacks on life and person, including murder, along with mutilation and cruel treatment and torture and degrading humiliations of personal dignity ”violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” is prohibited. 

When any state ratifies the Additional Protocol II to the Geneva Conventions, it extends additional protection measures to NIAC. Article 4(2)(e) lays down a complete ban against "outrages upon personal dignity" that includes both forced prostitution and degrading treatment including sexual violence and various types of indecent assault. All parties involved in NIACs have legal requirements to defend women and children from sexual violence through these established provisions. This set of regulations acts as a safeguard for the CRSV in times of NIAC and makes perpetrators responsible for committing such atrocities. 

Voices from the International Community addressing CRSV in Myanmar 

Since the military coup of February 1, 2021, the international community remains dedicated to criticising the ongoing CRSV incidents in Myanmar. Multiple nations together with various organisations acknowledge the seriousness of these abuses, demanding accountability for the perpetrators. UN Special Representative Pramila Patten issued a statement on February 3, 2025, denouncing the practice of using sexual violence against civilians for both military warfare and political control in Myanmar. The situation of survivors requires immediate international action, while the world must reestablish its attention to this crisis according to her statement. 

The UN Committee on the Elimination of Discrimination against Women issued a formal statement on July 3, 2024 to address the worsening sexual and gender-based violence experiences of women and girls since the Myanmar military seized power. The Committee demanded that all governments uphold international human rights and humanitarian laws to safeguard defenseless groups. While addressing the UN Security Council, Naw Hser Hser, who serves on the Advisory Board of the Women's League of Burma, demonstrated that CRSV has become extensive in Myanmar. She demanded worldwide backing to resolve these violations while simultaneously demanding punishment for the culprits. The activist recommended that the worldwide community must adopt practical solutions to combat such atrocities. 

Contemporary Provisions of IHL in response to CRSV: A set of lacunae 

Due to the absence of an intersectional view on sexual violence, IHL's extensive range of legal safeguards for CRSV victims in NIACs is insufficient during conflicts. The legal protections in Common Article 3 and Additional Protocol II exclude considerations of how different factors such as: gender, ethnicity, poverty, disability, and sexual orientation increase the vulnerabilities of persons in conflict zones. IHL disappoints significantly as it  recognises the acts of sexual violence which   principally targets female victims. The current perspective overlooks the unique circumstances faced by gender diverse groups along with men and boys since they experience CRSV without equivalent rights to protection and access to justice. 

Notwithstanding their weaknesses, IHL lacks protection measures for vulnerable groups who become more exposed to discrimination both inside and outside conflict zones,  including persons with disabilities, displaced and stateless persons, along with indigenous groups and religious minorities. Such laws become ineffective because they lack integrated frameworks which could allow proper identification of total CRSV cases alongside their effective reporting systems. Although sexual violence stands as a recognised rime Against Humanity [Art.7(1)(g) of the Rome Statute] and a War Crime in IAC [Art. 8(2)(b)(xxii)] as well as NIAC [Art.8(2)(e)(vi)], it provides no solutions to address the discriminatory systems which increase particular groups' exposure to violent attacks. Current legal provisions lack specific definitions for intersectionality that disregard the unique requirements of different survivor groups. IHL requires reforms to achieve true CRSV prevention in armed conflicts from intersectional perspectives, which could guarantee gender-sensitive justice mechanisms, thus protecting all conflict-affected marginalised identities.

Conclusion 

The situation of CRSV in Myanmar extends beyond legal and political matters to cause a profound human disaster which demands immediate action beyond mere verbal statements. The international reaction has been extensive yet cannot properly tackle the foundational problems or multiple weaknesses of survivors with ethnic backgrounds. IHL's structured framework needs better inclusiveness because it does not recognise how different aspects of human identities impact sexual violence. International actors consisting of states and human rights organisations need to promote justice that focuses on a survivor-centered approach. 

In order to explicitly handle the intersectionality issues, better reporting mechanisms along with long-term help programs are required that could support both economic and psychosocial needs of the CRSV victims.  Rather than just criticisms, survivors need fundamental changes in international approaches. The fight for justice extends beyond mere legal protections so that it (i) restores dignity (ii) ensures inclusivity and (iii) demonstrates that no one remains unnoticed in the pursuit of accountability. When this approach achieves its aims, we will create a world where CRSV becomes unacceptable.

References

Additional Protocol II to the Geneva Conventions. (1977). Protocol additional to the Geneva Conventions of 12 August 1949, relating to the protection of victims of non-international armed conflicts (Protocol II). https://ihl-databases.icrc.org/en/ihl-treaties/apii-1977

Geneva Conventions. (1949). Geneva Convention relative to the protection of civilian persons in time of war (Fourth Geneva Convention). International Committee of the Red Cross. https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949

International Committee of the Red Cross. (n.d.). Customary IHL database. International Committee of the Red Cross. https://ihl-databases.icrc.org/customary-ihl/eng/docs/home

International Criminal Court. (1998). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

Office of the High Commissioner for Human Rights. (2024, July 3). UN Women’s rights committee urges action to end gender-based violence against women in Myanmar. United Nations. https://www.ohchr.org/en/statements/2024/07/un-womens-rights-committee-urges-action-end-gender-based-violence-against-women

Patten, P. (2025, February 3). UN Special Representative condemns the continued use of sexual violence against civilians as a tactic of war and political repression in Myanmar and calls for renewed attention and urgent action. United Nations. https://www.un.org/sexualviolenceinconflict/press-release/un-special-representative-patten-condemns-the-continued-use-of-sexual-violence-against-civilians-as-a-tactic-of-war-and-political-repression-in-myanmar-and-calls-for-renewed-attention-and-urgent-actio/ 

United Nations Security Council. (n.d.). Security Council open debate on conflict-related sexual violence: Statement by Naw Hser Hser. Women’s League of Burma. https://www.womenpeacesecurity.org/resource/statement-unsc-crsv-open-debate-naw/ 

United Nations. (1993). Declaration on the elimination of violence against women. United Nations General Assembly. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women 

United States Department of State. (2025, February 1). Four years from the military coup in Myanmar: Joint statement by Australia, Canada, the European Union, the Republic of Korea, New Zealand, Norway, Switzerland, the United Kingdom, and the United States. https://www.state.gov/four-years-from-the-military-coup-in-myanmar-joint-statement-by-australia-canada-the-european-union-the-republic-of-korea-new-zealand-norway-switzerland-the-united-kingdom-and-the-united-state/ 

Women's League of Burma. (2020). Statement to the United Nations Security Council on sexual violence in conflict. https://www.womenpeacesecurity.org/resource/statement-unsc-svc-open-debate-july-2020/ 

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Ukraine v. Russian Federation: Russia's Counter Arguments

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. 

Brown mallet on gray wooden surface

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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Ukraine v. Russian Federation in ICJ: Ukraine's arguments on Racial Discrimination

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. 

Brown mallet on gray wooden surface

This blog is the collection of provisions, conventions and significant points stated by the representatives of Ukraine in the matter pertaining to Racial Discrimination in their first round of oral arguments presented on 6th June.  

Russia's baseless defense

Professor Harold Hongju Koh commenced the arguments by first mentioning the origin of the International Convention on the Elimination of All Forms of Racial Discrimination ["CERD"]. He recapitulated that the treaty was adopted in the year 1965 and emerged from the toxic patterns of colonialism, the Holocaust, racist practices, etc. 

The Preamble of the convention obligates every state party to take necessary actions to suppress racial discrimination in all its forms and manifestations. Professor Koh, then, mentioned that the treaty's obligations are absolute in nature and it contains no exceptions and does not allow derogation in any manner. He also highlighted that Russia identified Crimean ethnic communities as obstacles to its invasion and regional domination and talked about Crimean Tatar and Ukrainian Opposition to Russia's Occupation of Crimea. Russia occupied the Crimean Parliament Building and raised its flag.

Russian authorities aimed at closing in Orthodox Church in Crimea and Professor Koh showed how Russia attempted to induce the Ukrainian and Crimean Tatar Communities to support the purported annexation by making them sign a document stating that everything was calm and quiet and no illegal actions were taken against Kyiv Patriarchate, the head of Crimean Orthodox Church. Russia also tried spreading fear and hatred in Russian ethnic communities against Crimean communities through a vigorous disinformation campaign. 

He then pointed out that Russia forcefully brought machinery and used it selectively to destroy the human rights of Crimean communities and also abused its position as occupying power to promote its own culture.

Instead of explaining how its conduct in Crimea can be reconciled with the CERD obligations, Russia's response throughout these proceedings has instead been deflection and evasion to evade accountability for its blatant violations of CERD, Russia has erected a paper castle of unsupported legal arguments, but on examination, these empty arguments collapse and the illegality of its actions cannot be denied.

By elaborating on the history of Ukrainian ethnic communities, Professor Koh stated that the existence of ethnic groups is firmly rooted in history and dates back centuries. 

Then Professor Koh talked about Russia's claim that the Ukranian defense of ethnicity is merely a litigation tactic to further its goal to challenge the status of Crimea. However, by negating this claim, he asserted that the Ukrainian claim is not related to political opinion, but that it relates to the point of how strongly the ethnic communities identify themselves as the relevant factor in assigning ethnicity. History shows that ethnic communities prefer to stay together under a political setup. 

Then, he illuminated Russia's reference to the case of Qatar v. UAE (2021) and pointed out that the case was related to national origin but not ethnic origin, hence irrelevant to the matter at hand. Professor Koh alleged that Russia, instead of answering straightforward questions is referring to irrelevant cases or their domestic cases and statutes. Russia's National Security Defense also does not withstand scrutiny. 

Concluding the arguments, Professor Koh stated that Russia's contentions are egregious and that Russia has engaged in systematic violations of CERD, mistreating ethnic communities, i.e., Crimean Tatar and Ukranian communities. 

Russia's approach to leave CERD without teeth

Miss Marney Cheek then talked about the legal obligations of Russia under CERD. She pointed to the definition of 'racial discrimination' under Article 1(1) of the CERD and stated that it covers the broad prohibition of all forms of racial discrimination. Russian actions singled out the Crimean and Ukrainian ethnic communities which met racial discrimination factors specified under Article 1(1). Russia's rejoinder claimed that where discrimination could be reasonably justified, it will not amount to 'racial discrimination' under the definition. To this, Miss Cheek replied that reasonable justification is not an appropriate standard. She further elaborated on it by stating, 

The conduct resulting in disparate impact would constitute racial discrimination unless the relevant measure is (i) necessary; (ii) it has a legitimate aim; and (iii) is proportional and that the expected benefit and furtherance of legitimate aim outweighs any adverse impact on human rights. This is an objective assessment that precludes Russia from invoking its self-judgment justification or hiding behind its national laws to racially discriminate.

Further, Russia claims that Ukrainian allegations are based on political aims. Miss Cheek argued that had Russia right in claiming this, every state would cite political reasons to escape from CERD obligations. She stated that distinction, exclusion, or preference does not fall out of the definition of racial discrimination simply because the perpetrator may also have political reasons for discriminating against these ethnic communities. Ukraine's claims are solely based on the discriminatory purpose and effect with regard to Crimean Tatars and Ukranian ethnic communities. 

Furthermore, she discussed Russia's violations under Articles 2, 5, 4, 6, and 7. Referring to Article 5, she argued that Russia has directly engaged in patterns of violation, including enforced disappearances, murders and abductions. Also, she explained how Russia violated Articles 4 and 7, by engaging in a misinformation campaign and overlooking the language of the ethnic communities in providing education, respectively. 

Then, Miss Cheek answered the allegation of the Russian Federation that the Ukrainian case is limited in scope and has not provided conclusive proof, by calling it a claim based on mischaracterization and misreading. She presented the CERD committee's statement that the intent factor is not required to prove to claim violations under the CERD and that Ukraine has to show just the discriminatory purpose and effect. She elaborated that Russia has asked for statistical data just to avoid their liability as statistical data may be used but is not essential to prove CERD violations. She referred to the Corfu Channel Case (1949) in which a similar observation was made by the Court. In the end, she stated that "Russia's approach would leave the CERD without teeth". 

Sham Justifications by the Russian Federation

Miss Clovis Trevino presented her arguments and stated that Russia has violated almost every obligation of the CERD. She discussed the conduct of arbitrary searches, detentions, silencing of media, and destruction of the cultural heritage and language and history of Ukranians. She started the discussion with the question— "whether Russia's conduct has the purpose or effect of defeating fundamental rights and fundamental freedoms of the Crimean Tatars and Ukrainian ethnic communities?  

She highlighted the incidents of the widespread pattern of suppression by citing examples of people who disappeared, were abducted and murdered. For example, she gave the example of Mr R.M. Amatov who was abducted and brutally murdered after 2 weeks of his disappearance. Similarly, various Ukranian activists or common people were abducted and killed. Russia failed to investigate these matters. She, then, illuminated that acts of physical violence against ethnic Ukrainians and Crimean Tatars exhibit a pattern. She also referred to the OHCHR reports to show that these were the communities which were disproportionately impacted. Furthermore, there were incidents of arbitrary searches of members of Mejlis. 

Russian measures have disproportionately impacted Crimean Tatars who have been deprived of their political leadership and their ability to enforce further rights through Centre Representation Institution. Unable to dispute facts on the line of Ukranian's claims, Russia hides behind familiar sham justifications—  National Security, Public Order.

Then she reiterated that CERD provides no room for justification. Also, this third tool of suppression, i.e., arbitrary searches and detention breach the civil rights and equal treatment principle. And again Russia defends these by sham labels. She also showed a video in which a café was raided by armed personnel and the raid was conducted against the activists and other people belonging to the Crimean Tatars. Miss Trevino referred to the OHCHR reports of growing public arrests and raids against Crimean Tatars. According to the report, "From 1st January 2017 to 30th June 2019, OHCJR recorded 186 searches, 140 of which concerned homes, private businesses or meeting places of Crimean Tatars". 

Furthermore, she stated that Russia has not contested measures taken in public events. Russia prohibited all culturally significant gatherings of the Crimean population and to defend this Russia relies on its anti-extremist legislation. She then talked about how Russia suppressed Russian cultural education by cutting off resources. In 2013-2014 the enrolment in the Ukrainian language education was 12,694 which declined drastically to 190 in 2022-2023. Russia imposed Pro-Russian Curricula to distort the cultural education of the Ukrainians. 

In the end, Miss Trevino reiterated that the assault on Crimean Tatars and Ukranian ethnic communities still continues by distorting the history, cultural and language education and instilling in them the emotions of fear and intimidation, robbing them off of the ability to pass off their culture.

Violations of Ordinance 2019

The last speaker of Ukraine's first round of oral arguments was Professor Jean-Marc Thouvenin. He talked about the violation of 3 provisional measures mentioned in the Ordinance dated 19th April 2019 by Russia. The 3 provisional measures imposed on Russia are:

1. To refrain from maintaining or imposing limitations on the ability of the Crimean Tatar or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis.
2. To ensure the availability of education in the Ukrainian language.
3. To refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. 

Professor Thouvenin explained how Russia violated the binding obligations under the Provisional Measures. Firstly, the oppression of Mejlis still continues to violate the first provisional measure. Secondly, there's been discrepancies in the provision of the Ukranian language in Russia. Russia cited the 'lack of interest' as a reason for the lower student enrolment in Ukranian language courses, however, the real reason was insufficient hours, low quality of teaching or unavailability of instructors for such shift in preferences by the students. Thirdly, he stated that Russia has also aggravated the situation and made matters worse by discriminating against ethnic communities. Russia is targeting these groups increasingly and the aggression has extended to other Ukranian territories. He then elaborated that Russia is asserting historical superiority and used the term 'colonialism' to describe its actions. 

Professor Thouvenin concluded the presentation by showing the picture of the abduction of children to the Members of the Court and stated it to be the "nightmarish portrait painted conscientiously by Russia". 

To watch the ICJ proceedings: Click here

To read Ukraine's Arguments against Russia on Terrorism Financing, Click here

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Ukraine v. Russian Federation in ICJ: Ukraine's arguments on Terrorism Financing

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. 

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.

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