The hearing of the case is over. What will happen next?
First of all, I want to note that these four days of hearings are the catharsis of the case. Since 2017, there have been hearings on the issue of temporary measures, then on jurisdiction, and now on the merits. After that, the court must set a date and on that day announce the final decision, that is, answer whether Russia has violated both conventions.
This is the first of all cases of Ukraine against Russia in all international judicial institutions, which was heard on the merits. Traditionally, it takes about six months from the hearing on the merits to the announcement of the decision. We think that the same terms can be this time as well.
Did the Russians voice new arguments, was there anything unexpected for you?
There was nothing unexpected. We were ready for anything. Various nonsense was heard from Russia about the coup dʼétat in Kyiv, the Nazis, and the like.
At the beginning of the speech, the Russians said that in 2014 someone, it is not known who, was preparing an assassination attempt on Viktor Yanukovych. Can such things be voiced in court without any real evidence?
No. Everything you say in court must be supported by facts and legal norms. Our case concerns two conventions, one of them on the fight against the financing of terrorism. By the way, this is the first case under this international convention that the UN International Court of Justice considers on its merits. Obviously, the opposing side wanted to use this episode to show that Ukraine is also involved in terrorism. This is nonsense, all this will be properly evaluated by the court.
Convention on Combating Terrorism
In this part of the case, Ukraine proves that Russia not only did not prevent its citizens from financing pro-Russian militants in the east of Ukraine, but even encouraged them. It supported the unrecognized "republics" in the Donetsk and Luhansk regions, and also supplied the militants with weapons. They used it in terrorist attacks against the civilian population. One of the examples is the MH17 passenger plane shot down by a Russian BUK missile.
The Russian side insists that the District Court of The Hague, which considered the case with Boeing, did not qualify the downing of the plane as terrorism. In addition, the court recognized that the Russians aimed at a military plane, and hit a passenger plane by accident. So, according to the Russians, this cannot be called a terrorist attack.
The representative of Ukraine, professor Jank-Marc Tuvenen, noted in court that Russia handed over to the militants only the BUK missile complex, and not the entire system, which is able to distinguish military aircraft from civilian ones. So, for Russia, this issue was not fundamental.
During the hearings, a lot of attention was paid to the Malaysian Boeing shot down by the Russians. Are the words of the Russians that the District Court in The Hague did not call the downing a terrorist attack and that the Russians were actually aiming at a military plane, i.e. at a legitimate target, are these arguments suitable for the court?
In the MH17 episode, conspiracy theories are everywhere for the Russians, and the decision of the District Court in The Hague is wrong for them. I hope the court will take this into account. If, in fact, a terrorist act is really a crime of special intent. That is, a terrorist attack is committed in order to intimidate the civilian population or force the authorities to do something. The District Court of The Hague made a decision within the criminal code of the Netherlands, the investigators and the court did not have a special need to classify the downing of the Boeing as a war crime or as an act of terrorism. They could incriminate several articles, but chose the path that was most effective.
We are talking about the convention, about the fight against the financing of terrorism. About the fact that the Russian Federation financed and directly supplied weapons to organizations that committed terrorist acts. This is the argument that Russia has violated the relevant convention. In addition, we said that Russia also violated the Montreal Convention.
Terrorist acts of militants, which Ukraine mentioned in court
On January 13, 2015, shelling of the Bugas checkpoint. 12 people died and another 18 were injured in the Zlatoustivka-Donetsk bus that came under fire.
On January 24, 2015, shelling of the "Skhidny" neighborhood in Mariupol. 29 people died, 92 were injured. Among the dead and wounded were families, children, and teenagers.
On February 10, 2015, shelling of Kramatorsk. The airfield and densely populated civilian quarters were under attack. Six civilians were killed, 49 were wounded, including five children.
On November 9, 2014, there was a terrorist attack in the Kharkiv pub "Stina". The attackers planted a mine under the bar counter. It was blown up on a Sunday evening when many people were there. 11 visitors were injured. The explosive was brought from Russia.
On February 22, 2015, a terrorist attack occurred during the Unity March in Kharkiv. An anti-tank mine, which was also imported from Russia, exploded in the central square. Four people died, nine were injured.
During the hearing, the Russian delegation cited documents from the International Committee of the Red Cross, which they believe confirm that the downing of MH17 was not terrorism, but possibly a war crime or crime against humanity. Therefore, according to international humanitarian law, which applies during armed conflicts, pro-Russian militants should not be held responsible for the downed civilian plane, because they did it unintentionally.
Several more episodes of mass killings of civilians (listed in the subsection) were explained by the Russians in the same way — the militants aimed at the military and simply missed. Two terrorist attacks in Kharkiv, far from the front line in 2014 and 2015, were not explained by the Russians in any way.
Another argument of the Russians: during armed conflicts, international humanitarian law applies, and it is impossible to talk about terrorism. That is, if the militants allegedly targeted the military, but killed civilians, they should not be held responsible at all. Can this be an argument in court?
They did say that this is an armed conflict in which there may be collateral casualties on the part of the civilian population, in which mistakes are made. They say it is a tragedy, but not an act of terrorism.
I note that we have never said that international humanitarian law does not apply in this case. And the same District Court of The Hague ruled that an international armed conflict has been ongoing on the territory of Ukraine since at least May 2014, that is, the Russian Federation controlled certain groups [of militants]. But representatives of these pro-Russian illegal formations cannot be considered legal combatants. They are illegal participants in an armed conflict, and therefore they do not have any privileges and immunities of combatants. We also say that during an armed conflict there are events that can be classified as terrorist acts.
The Russians denied that the attacks on the checkpoint in Bugas and residential areas in Mariupol and Kramatorsk were acts of terrorism. But they did not react in any way to the position of the Ukrainian side regarding the terrorist attacks in Kharkiv. How important is it to us?
We have built our legal argumentation absolutely logically. We said that there were episodes not far from the contact line — these are Bugas, Mariupol, Kramatorsk, Avdiivka. But we also had episodes far from the front line, in particular in Kharkiv — in the “Stina” pub and at the Unity March. It is important for us to show that such terrorist attacks took place not only near the front line, but also in cities far from the combat zone.
Convention on the Prohibition of Racial Discrimination
Jean-Charles Tchikaya, an African lawyer with a French license, appeared in the group of Russian representatives at the hearing. He proved that Russia is fighting racism. The Russian delegation also assured the court that Russia does not persecute either Crimean Tatars or Ukrainians in Crimea, and on the peninsula you can freely communicate in Crimean Tatar and Ukrainian languages. Those who are persecuted are mostly Russians, and it is usually a matter of national security.
The Ukrainian side stated that the arguments voiced by Russia are "Potemkin villages". The lawyers cited numerous examples of persecution, torture and murder of Ukrainians and Crimean Tatars, and also reminded that the Mejlis in Crimea is an organization banned by Russia.
Russian representatives said that they were actually saving the Crimean Tatars, building mosques for them, developing their language, etc. My colleague, who was present at the hearing, said that the journalists laughed when they heard the arguments of the Russians.
I hope that this reaction was not only among journalists, but also among other people in the hall, and that all this will be given an independent legal assessment. That is why Oksana Zolotaryova called all these “Potemkin villages” in her speech. Probably, the Russians tried to influence people from other regions and other cultures, who theoretically could not know what is really happening in Crimea. But the court has many reports of international organizations about violations of human rights in Crimea, in particular Crimean Tatars and ethnic Ukrainians, it has information about hundreds of political prisoners, about the denial of Mejlis leaders to Crimea, about the ban on Mejlis, about the arrest of Nariman Dzhelyalov, the murder of Reshat Ametov, the closing of churches of the OCU. I canʼt imagine these "Potemkin villages" affecting the real picture.
During the hearing of this case in 2017, the court in an order on temporary measures decided to lift the ban on the Mejlis. Russia ignored it. Can it affect the final decision of the court?
According to the order of the UN International Court of Justice, Russia had to cancel the ban on the Mejlis and provide education in the Ukrainian language in Crimea. Russia not only did not fulfill it, but worsened the situation. In particular, it continued to arrest the leaders of the Crimean Tatars and did not provide education in the Ukrainian language. But I donʼt want to say how it can affect the courtʼs decision — it will decide on its own.
Which of the two conventions do we have a better chance at?
It will be one decision because there is one case that applies to both conventions. The court will decide whether there are violations, and if so, what exactly. We hope that the court will establish Russiaʼs violation of both conventions in its decision.
Can this decision, which the court will make in about six months, help Ukraine in its further fight with Russia in the courts?
It is important, because it will be the first decision in matters of Ukraine against Russia on the merits. It can initiate the establishment of violations of international law by Russia in other courts and in other cases.
In addition, if the decision is appropriate, then the court should schedule a hearing on the amount of reparations and compensations.
And how does it happen?
Traditionally, the court defines that there has been a violation of international law by a party to the dispute, and therefore hearings on the amount of compensation must be held. Each side can present its vision. First in writing, and then before the court. But this is another stage. Now it is important to focus on the substantive decision.
Am I correct in understanding that in matters of reparations, one party that is at fault will try to reduce their amount…
Or it will say that it should not pay anything at all.
Translated from Ukrainian by Anton Semyzhenko.