Summary of Russia’s Surrebuttal at the Second Round of Oral Observations in the ICJ case of Ukraine against Russia

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.

Summary of the First Round of Oral Submissions in the ICJ case of Ukraine against Russia

By Georgios Plevris, Research Associate PILPG-NL

On 13 January 2017, Ukraine submitted its application to the International Court of Justice (ICJ) starting officially legal procedures against the Russian Federation (Russia), asking the Court for preliminary measures on grounds of urgency. Yesterday Ukraine opened the first round of oral observation before the Court, while today, Russia took its turn in arguing its case. Listening to both parties, it becomes clear that Ukraine and Russia have taken diametrically different approaches and strategies in their attempt to prove their point. Will the Court see this case in a wider context, as Ukraine attempted to demonstrate, or will it follow the procedural letter of its jurisprudence as Russia requested? Tomorrow, Wednesday, and on Thursday, the second round of oral observations will take place; but for now, let’s take a look at what each side argued and requested of the Court.

Ukraine argues on the “merits of legal order”

Deputy Minister of Foreign Affairs for Ukraine opened the floor yesterday for Ukraine’s oral pleadings. Mrs. Zerkal and her co-agents argued a passionate case of Russian violations: financing and supporting terrorism, in violations of Russia’s obligations under the International Convention for the Suppression of Financing Terrorism (TFC), and suppressing and discriminating against Crimean Tatar minorities in the annexed territory of Crimea, thus violating their obligations under the International Convention on the Elimination of all Racial Discrimination (CERD).

The representatives of Ukraine made clear from the very beginning that they are not in front of the Court to “seek relief over Russian aggression, nor a confirmation of Ukrainian sovereignty” that Russia has violated by annexing Crimea. According to Mr. Zerkal, the International Community is seized as a witness for both. What the issue seems according to the Ukrainian representatives is whether legal order can stand up to powerful countries, which violate their legal obligations under International Law and Treaties. Additionally, a plea was made to the Judges of the Court to not allow (power) politics to drift their attention from the real issue: law, international obligation and legal order.

With regard to the first allegation of Ukraine, that of Russian violations of the TFC, three points were brought up: first, Russia has been providing arms and financial support directly and indirectly, through banks and private individuals, to armed groups in Ukraine, that are subsequently used to commit terrorist acts. To this, the downing of MH17 was a prominent point of reference in the Ukrainian pleadings. The case of the Malaysian airline downing was mentioned more than a dozen times, while the Ukrainian agent took time to enumerate all nationalities of the victims. The Montreal Convention, the Convention for the suppression of unlawful acts against the safety of civil aviation, was brought up as another treaty whose definition of terrorist acts against civilian aircrafts fits the case of MH17. Furthermore, using the Joint Investigation Team’s report on MH17, Ukraine argued that the Buk missile M-1 type that was used to take down the civil airplane originated and soon returned to Russian territory. This will be important to side-note, as Russia did not entirely deny this fact. But we will come back to that later. Closing this line of reasoning, Ukraine alarmingly warned the Court that “lacking action, a similar incident to that of MH17 downing can and will be repeated in the near future.”

Secondly, Ukraine pointed out the particular financial and material support Russia is providing to militia groups that act as its proxies, and who repeatedly engage in indiscriminate shelling and violent acts, which Ukraine sees as terrorism. In particular Ukraine offered the Court maps and imagery of various incidents, including in Volnovakha, Kramatorsk, and Mariupol, and repeatedly referred to DPR as nothing but a terrorist organization. Thirdly, the last point, which rather pertains to the reason why Ukraine took recourse at the ICJ, is that Russia has been unwilling to negotiate and reason with Ukraine on these issues, and as such a dispute exists. Allegedly, Ukraine recalled numerous diplomatic notes and exchanges (more than 40) that were unanswered or ignored, and as such any attempt to resolve this issue as per the compromissory clause of the TFC convention has failed. To this end, ICJ has prima facie jurisdiction on the matter, as detailed in the TFC, for which Russia has agreed upon in its signing.

The second part of Ukraine’s legal claim pertains to Russian violations of the CERD, with regard to the suppression of the Crimean Tatar communities, the suppression of Ukraine language and cultural elements, rendering the population vulnerable and in need of protection. As mentioned in the application submitted to the Court, and in their oral observation, Ukraine accuses Russia of ethnic dominance in the unlawfully annexed territory of Crimea, “pursuing the cultural erasure of non-Russian communities through a systematic and ongoing campaign of discrimination”.

On the above grounds, and understanding that the merits of the case are not to be examined at this point, Ukraine asked the Court for provisional measures due to the urgency of the situation; the fundamental rights and lives of the Ukrainian population are in danger and under constant threat. That is what Ukraine claims. Recalling ICJ jurisprudence, it emphasized that the very aim of such measures are to preserve the respective rights of the parties to the dispute, rights which Ukraine claims are constantly and to this day violated and endangered.

The representatives of Ukraine argued vigorously on the very essence of International Law. Using elements of appeal to emotion, detailed events and maps of indiscriminate attacks, destroyed cars and buses covered in blood, they attempted to create as much an emotional and pragmatic as a legal basis for their case. Often, the arguments of the Ukrainian agents were based on logical conclusions, assumptions, and reasonable interpretations of facts. And so, despite claiming not to argue on the merit of the case, it became obvious that Ukraine was aiming for sketching a dreary picture of the international legal order that, after it stood unable to stop the annexation of Crimea, must now step up and oppose the brute force of powerful states like Russia and protect vulnerable civilians.

Russia argues on the “black letter of the law”

On the other side of the bench, Russia’s pleadings were deprived of much factual enumerations, alternating maps and imagery, and through a team of four representatives, Russia argued a main theme: ICJ’s prima facie jurisdiction has not been established in this case, the very requirements the Court’s jurisprudence has put forth for provisional measures are not met by Ukraine, and the very violations Ukraine came to enumerate are not but mere inferences derived of Ukraine’s very own argumentation. Russia argued that Ukraine is trying to artificially and unsubstantially merge two different legal situations (TFC and CERD violations) in one to serve its political purpose.

From the very beginning of its oral observations, Russia made clear to the Court that what Ukraine is attempting to do is to adjudicate matters beyond the Courts jurisdiction. The Court should not be misled by such an attempt, the Russian side emphasized, as they (Russia) comply with all their international obligations. There is no legal basis or reason to entertain these procedures, yet Russia took the extra mile to make this evident to the Court.

With regard to the alleged violations of the TFC by Russia, the agent of later stressed out the unmet procedural requirements of TFC, the jurisprudence of the Court in previous cases (Georgia v. Russia), and the misconceived interpretation of the Convention by Ukraine. Attention was first given to the definitions and object of the TFC. According to Russia, the Terrorist Financing Convention clearly states that knowingly and intentionally financing terrorism are paramount elements to be made evident for a State to violate its obligations under the Convention. The very fact that Ukraine is simply naming Russia as a party that finances terrorism, and alleges such action, does not suffice, according to the latter, for the threshold to be met. The events at Eastern Ukraine, Russia argues, are tragic as tragic was the downing of MH17 airplane, yet there is no conclusive evidence to link Russia to them. Russia’s agents carefully enumerated relevant articles in TFC and the Montreal Convention that require proof of knowledge or intent, and argued that Ukraine has failed to provide such proof.

What Russia claimed is that Ukraine is using the pretext of terrorism to cease the Court and pursue its political goals against Russia. Examples of Ukrainian indiscriminate attacks were also put forth by Russia’s representatives; “using Ukraine’s arguments [the Russian side argued] they themselves would be guilty of financing terrorism, and thus be in violation of TFC.” Russia didn’t shy away in addressing the labeling of DPR and other groups as terrorist organizations, and emphasized that “this can have dangerous consequences beyond this case.” In fact, Russian representatives pointed out that what Ukraine is conveniently coloring as terrorism, but only applied to the opposing side and not to their actions, is simply lawful combatant action under the laws of armed conflict. Russia pleaded that there is an armed conflict in Ukraine between local organized armed groups and Ukrainian army, and both parties have engaged in violations of IHL. Nonetheless, the situation of an armed conflict remains, and both groups, with emphasis to the DPR, have the right to defend themselves.

Russia made the latter point particularly relevant to the Ukrainian allegations about involvement in the MH17 downing, and to the indiscriminate attacks of their “proxies”. While rejecting the findings of the JIT, and stating that it remains fully cooperative in the ongoing investigation, the tragic event of the downing cannot be linked or attributed to Russia. However, Russia did not explicitly deny the possibility that the Buk missile came from its territory. What Russia did was to offer two alternative and potentially mutually supporting scenarios. On the one had, it argued that Ukrainian regiments were in possession of such type of missiles during the conflict, remnants of the era of Soviet Union, and thus they could have been used as well. Secondly, the conclusion that the JIT alleges with regard to the Buk missile originating from Russia is not sufficient to prove knowledge and intent for the latter to be guilty of financing terrorism under the TFC. What Russia argued was that discussions might have taken place for the provision of a Buk missile to the DPR, but only for the legitimate self-defense of the armed group in its armed combat with the Ukrainian army. As such, Russia cannot be accused of knowledge and intent for the commitment of a terrorist act, if the said Buk missile was the one used in the first place.

After the short break to the oral proceedings, Russia resumed its argumentation by showing a BBC news reporting video, obtained at the last minute as the agent underlined, that dates back in 2014, and depicts Ukrainian army forces and soldiers positioning themselves inside residential buildings, fully equipped with military weapons and gear. This is in clear violation of IHL norms, and explains, according to Russia, the cases of attacks and numerous civilian casualties. Russia in essence accused Ukraine that the indiscriminate attacks it proclaims as terrorist acts are merely armed conflict military operations, and a direct result of Ukrainian army conduct that allows civilians to be aimed by stationing themselves among them.

What is more, Russia took their argument a step further, by arguing that there is lack of plausibility to Ukrainian arguments, and lack of ICJ jurisdiction to examine the case, as Ukraine has not met the dispute resolution requirements agreed upon in the TFC. “There must be something more than face value to the claims Ukraine has brought”, argued the Russian representative, stating that there is no sufficient plausibility to the claims and violations Ukraine alleges. Recalling jurisprudence of the ICJ, put forth in judgments and opinions by Judge Abraham, Russia concluded that some consideration on the merits of the case must be given for the Court to be able to assess whether the rights in question exist beyond the party’s claim. What Ukraine presented is labeled as assertion and not sufficient proof by the Russian side. Taking article 18 of the TFC as an example, Russia argued that the right to cooperation Ukraine seeks under the convention must be linked back to the very existence of the offences. Yet the latter have not been sufficiently established. Knowledge and intent are paramount elements to the prescribed offences under both TFC and the Montreal Convention, and not sufficiently established by the Ukrainian side.

Moving to an overall assessment of the obligations under the TFC, Russia extended the argument to the very essence of the Convention, as possibly irrelevant to the case. According to the Russia side, TFC was never meant to deal with state responsibility. What the Convention focuses on is individual responsibility for individual actions on financing and sponsoring terrorism. That was the initial intent of the signatory parties, and to that end Russia submitted preambles and draft articles, as well as official record statements of other countries, such as France, during the process that specifically show intent to limit the scope of the Convention to individual responsibility and by no means (emphasis added) to state action and responsibility.

Finally, the Court is lacking jurisdiction due to the fact that the requirements of the TFC, carved out in article 24, have not been met by Ukraine. The said article requires parties to set up an Arbitral mechanism (ad hoc) in case of dispute and seek negotiation and settlement of the dispute there as a first step. Ukraine not only had failed to engage in bone fide negotiations, but also systematically avoided Russian attempts, and only attempted to keep the forms, so as to be able to bring the case in front of ICJ. Russia also accused Ukraine of not cooperating in the Arbitration Agreement Russia has submitted in numerous instances, in an attempt to further its political aim of bringing a suit under the auspices of ICJ.

It is important to mention some concluding comments by Russia in its first part addressing the TFC violations. Reference was repeatedly made to the Minsk (I and II) agreements, that was agreed between Russia, Ukraine and the DPR representatives and involved the UN Security Council. Russia reasoned two arguments in that context: first, the Minsk package of measures included provision of amnesty to the parties, for which the UNSC has consented in its overall endorsement of the process. Russia thus argued that if the acts Ukraine mentioned would be seen as terrorism, the UNSC would have never consented to the package and amnesties. But since it did, then the acts cannot be seen as terrorism. What the acts are can only be answered under IHL, and therefore, the Court lacks jurisdiction to examine them under the TFC pretext. Secondly, Russia underlined the significance of the Minsk agreement as part of a political process aiming at reaching a peaceful outcome, and reminded, if not discretely cautioned, the Court not to interfere in such a political process, as it lack mandate and it would endanger the overall process. It finally reminded the Court that it is bound to apply what the law is, what the parties agreed upon (TFC), and not what the law should or ought to have been.

After the long part of countering the TFC alleged violations, the final representative of the Russian team took the floor to address the CERD violations. The first observation made by the Russian agent was that Ukraine’s claim has nothing to do with actual discrimination and CERD violations, but is a grievance on the territorial status of Crimea. Ukraine has failed to put forth any evidence, or even an argument, that it is Russian law that discriminates against the Crimean Tatar and Ukrainian minority populations. What Ukraine has provided the Court were two affidavits taken by two “unreliable sources” according to the Russian side that constitute at best hearsay. On the contrary, Russia argued that there are many international reports that support the fact that between 1992 and 2014 Ukrainian government mistreated minorities in Crimea. Additionally, Russia slammed the Ukrainian use of OHCHR and OSCE reports as misleading and false, since the date used to accuse Russia were part of different sections of the reports, and not of the actual situation of minorities in Crimea.

Lastly, Russia addressed their current stance on Crimea, arguing that they have foster all minorities and cultures, have provided care and attention to the needs of the population, from education to law enforcement. The ban on the ‘Metules’ extremist group, for which Ukraine accused Russia, is not based on their ethnicity, as claimed the former, but rather on their extremist and violent action, and such measures against separatism and extremism are in accordance with relevant jurisprudence, such as in ECtHR case law in previous cases of Germany and Russia. In sum, Russia accused Ukraine that it failed to prove how their allegations constitute racial discrimination under the meaning of the CERD, and that it has attempted in various cases to mislead the Court with wrong statistics and reports.

What can we expect from the second round?

Russia’s argumentation although focused more on procedural issues of jurisdiction, treaty law application and prima facie scope of consideration, included nonetheless some important elements. In subtle yet obvious ways Russia urges the Court to look back on its precedence, take into account the fragile situation of the ceasefire, and above all, keep in mind that this is a political process, for which the UNSC has been seized, and as such there is, at least according to Russia, little room for judicial interference. Ukraine’s task in tomorrow’s second round of oral pleadings is to address with more confidence and less flair of victimization, how the provisional requirements for the case to be brought in front of the Court have been met, and above all how this is a case of violations of legal obligations under International Law, and not of political grievance.