By Georgios Plevris, Research Associate PILPG-NL
Only a few hours ago Russia offered the International Court of Justice its response to the Ukrainian second round of argumentation, what is often called in legal language rebuttal and surrebuttal. In the final address before the ICJ on the matter of preliminary measures, Russia reiterated is arguments, and overall claimed that Ukraine is distorting facts, reports, and even the words of the Russian team to achieve its goal. There was a clear gap between the two legal teams even with regard to how they fundamentally perceive International Treaty Law and how it is to be interpreted. In a vigorous argumentation, Russia re-examined one by one Ukraine’s claims, only to reach their earlier conclusion: the Court has not prima facie jurisdiction, the necessary preconditions for preliminary measures have not been met, and as such the Court must dismiss the case.
A major stumbling block between the legal reasoning of the two teams can be found in their different perception of Treaty Law interpretation. As in the first rounds, Russia rejected Ukraine’s holistic approach to the Conventions at hand, which is based more on inferences and not legal reason. Turning to the facts of the case, Russia kicked off its argumentation with regard to the Terrorism Financing Convention (TFC). The Russian representative restated that TFC does not include state responsibility, that there has to be a narrow reading of its provisions to meet the intentions of the Drafters, and not to serve overall political goals. Three points were made to this effect: first, Ukraine wrongly perceives the drafting process of a Treaty; according to Ukraine, states would have made it clear if they wanted to excluded state financing of terrorism under the TFC Convention. Since they did not, Ukraine believes it should be inferred that there was intent to include it. With this reasoning Russia categorically disagrees, arguing that states at the drafting point would have explicitly included such a provision if that were their intent. That is after all, according to Russia, the practice under international law; parties are to be bound only on the basis of intentions and obligations they have explicitly stated.
Secondly, Russia rejected the attempts of the Ukrainian agent to bring to the discussion the interpretation of intent under the Rome Statute. The latter, Russia claimed, makes no reference to financing terrorism and as such it is irrelevant to the case. According to previous decisions by International Courts, like the International Tribunal for the former Yugoslavia (ICTY), wrongful intent or recklessness do not suffice to prove specific intent to spread terror. The Galic and Gotovina cases were called upon to show the proper plausibility test to be implemented in such cases. In the Gotovina case for example, the ICTY refrained from charging the accused with ‘spread of terror’ because there was not sufficient evidence providing for reasonable grounds for a specific intent to commit such crime, within the jurisdiction of the Court. Finally, Russia ended this point by citing the Milosevic case, stating: “Fear among civilians, which is natural during armed hostilities, should be distinguished from the crime of terror.”
Thirdly, and in summarizing its reasoning on the alleged violations of the TFC, Russia reaffirmed its conclusion that the Court has no prima facie jurisdiction because Ukraine has not met the preconditions set out in the ICJ’s statute and case law, and violates in essence the compromissory clause of the TFC by seeking recourse to the ICJ. Ukraine failed to negotiate in good faith, and failed to attempt setting up an arbitral mechanism, as per its obligations under the TFC Convention. By failing to meet the ‘prior negotiation of the dispute’ condition, Ukraine’s arguments would lack plausibility. At least that is what Russia claims.
Finally, turning to the questions of violations under CERD, Russia followed a similar approach of denying the jurisdiction of the Court, the plausibility of Ukraine’s claim, and even contesting the preliminary measures sought. In its pleadings, Russia emphasized the inability of Ukraine to point out concrete and specific rights violated under the CERD Convention. On the contrary, what Ukraine has allegedly done is to accuse Russia of a political campaign of culture erasure and lack of respect for Human Rights, allegations grounded only on Ukrainian belief. CERD is not an international instrument like the ECHR; not an instrument to strengthen or promote the rights of minorities. There are other Conventions and forums for that, but CERD is not one of them according to Russia. As such, unless Ukraine is able to prove specific violations relevant to racial discrimination, there is no plausibility to their claims under the Convention. Additionally, Russia brought to the attention of the Court Ukraine’s “tricks” regarding the attempts to negotiate the dispute. In their interstate negotiations, Ukraine allegedly only raised violations of article 2 and 5 of the Convention, and failed to seek recourse to the CERD Committee, the competent body to deal with such disputes. However, in its application to the Court, Ukraine included other violations of CERD, pertaining to articles 3, 4, and 6. Therefore, Russia argues, Ukraine has failed to properly raise a dispute on these latter articles with Russia, failed to negotiate on that matter, and conclusively, the jurisdiction and plausibility of the Court and Ukraine’s claims are not properly grounded.
In conclusion, in its final address to the Court, for this stage at least, Russia attempted to sketch the weakness of Ukraine’s allegations, and paint a picture of a plaintiff that construes its legal argumentation only with the intent to achieve a specific conclusion. It would be an arguable point however, whether or not that is the practice of every party in front of a court, and in this case, Russia’s effort as well. Besides carefully attempting a deconstruction of the opponent’s legal claims, Russia gracefully reminded the Court of its role in the international arena. Ukraine had accused Russia of using “political sensitivity” to silence the Court, a clear reference to Russia’s use of the UN Security Council and the Minsk Agreements. Nonetheless, Russia repeated its conviction today that the Minsk Agreements and process is the only legitimate and effective solution to the dispute, urged Ukraine to honor the Agreements if it is indeed the protection of its citizens it seeks, and turning to the Court Russia stated: “The Court’s power under Article 41 of its Statute does not mean a general competence of the Court to preserve peace, but only to preserve the rights of parties under a compromissory clause.” The Court is now called upon to take all claims into consideration, and render a decision on the issue of preliminary measures “as soon as possible”, or in the Court’s standards, within a few months.