”This will open the way to reparations for us.” Ukraineʼs Agent at the UN International Court of Justice Anton Korynevych — about preliminary hearings of the case of Ukraine against Russia regarding the “genocide in Donbas”

Oksana Kovalenko
Dmytro Rayevskyi
”This will open the way to reparations for us.” Ukraineʼs Agent at the UN International Court of Justice Anton Korynevych — about preliminary hearings of the case of Ukraine against Russia regarding the “genocide in Donbas”

Anton Korynevych at the opening of the first round of speeches, September 19, 2023.

ICJ / «Бабель»

On September 27, 2023, two-week hearings at the International Court of Justice of the United Nations regarding the lawsuit against Russia, which Ukraine filed on February 26, 2022, ended in The Hague. In the lawsuit, Ukraine insists that Russia is manipulating the Convention on the Prevention of Genocide to justify its aggression. The hearing was a preliminary step — the court must decide whether it can hear the lawsuit at all. We have already written about the first round of hearings. The second one was opened by the Russians on September 25. They spent the whole day trying to repel the arguments of Ukraine and 32 countries, which are asking the court to interpret the provisions of the Convention. The Russian delegation again devoted a large part of its speech to political statements: it denied the crimes of its army in Bucha, proved that the deportation of children was not a crime, but a forced evacuation, and distorted the speeches of members of the Ukrainian team. On Wednesday, the last day of the hearings, the Ukrainian delegation responded to Russian arguments. After that, the court went to make a decision. Itʼs unknown when it will make it. Babel correspondent, lawyer Oksana Kovalenko, who has been listening to the arguments of all parties these two weeks in The Hague, spoke with the agent of Ukraine at the UN International Court of Justice, ambassador-at-large Anton Korynevych. He told her about the prospects of the Ukrainian lawsuit. Korynevych was also present at the meeting of the group that is discussing what the special tribunal for the crimes of Russians will look like. Babel asked about this as well.

Why are these hearings actually important?

This is a jurisdictional stage hearing. Based on its results, as well as after evaluating and analyzing the written documents, the court will decide whether it has jurisdiction to hear the case on its merits.

The essence of this case is that the Russian Federation twisted the concept of "genocide" and used it as a basis for a full-scale invasion of Ukraine. This is a serious violation of the Genocide Convention. This is a distortion of one of the key concepts of modern international law — the crime of genocide as a crime among crimes. And this can be a dangerous precedent, when one state without any evidence or proofs can accuse another of genocide and start a war against it because of that. This case is important not only for Ukraine, but also for the world, for international law.

If the court sides with Ukraine, what will this give us?

We need decisions of international judicial bodies that will record Russiaʼs violation of international law. This will open the way for us to the issue of reparations, compensation in connection with these violations. That is, these are all the cogs of a large mechanism.

How did the idea to file such a lawsuit come about? It is called creative because itʼs not like the approaches that have come before.

Creativity is a good thing. We said that since 2014, the Russian Federation was laying the foundations for accusing Ukraine of genocide. When we saw that on February 21 and 24, 2022, the president of the Russian Federation, high-ranking officials, top diplomats used this false pretext of the mythical genocide that Ukraine allegedly committed against its people in Donbas for 8 years, we couldnʼt simply ignore it. And it was a legal response to the full-scale invasion of the Russian Federation.

Did this idea mature earlier or did it arise on February 24?

We discussed it earlier, but on February 24 it became clear that it was time to act, and already on February 26 we submitted a corresponding statement to the International Court of Justice.

Members of the Ukrainian delegation, the second day of hearings, September 19, 2023.

ICJ / «Бабель»

Why is it important that 32 countries joined the lawsuit and made their statements?

I will tell you about the difference in terms right away. They did not join the lawsuit, because the case did not turn into a "Ukraine plus 32 states against Russia" case. This is still a case of "Ukraine vs. Russia." These 32 states are not parties to the dispute. They joined on the basis of the rule that when the issue in a certain case in court concerns an international treaty that is multilateral, other member states of this treaty can join the case on issues of correct interpretation and application of the Convention. They contributed their thoughts on the interpretation. This is important for them, they are interested in the fact that the Convention is correctly interpreted, correctly applied and is not a basis for such actions in the future.

Russia calls the actions of these countries collective pressure on the court, which was needed because "Ukraine isnʼt sure of its position." Why do they turn to such manipulations?

Iʼm not very interested in their statements. Itʼs our job to do everything in our power so that the court will consider the case on its merits. And I think we did this. Each state uses the time allocated to it as it sees fit. They (the Russians) spent it on statements that cannot be an argument.

The Russians have an argument that some of the countries that spoke at the hearings have changed their position before the UN International Court of Justice. After all, they said the opposite about the bombing of Yugoslavia. Is this a serious argument?

You heard the position of the Ukrainian side on the final day of the hearings — this is not a change of position, because it is about a completely different situation. In 1999, there were people [in Yugoslavia] who were accused of war crimes and crimes against humanity. Then [by the decision of the UN Security Council] the International Tribunal for Yugoslavia was already established, which investigated these crimes. Citizens of Ukraine are not accused of anything, there are no arrest warrants for committing war crimes, crimes against humanity, let alone genocide. These are completely different situations.

The Russian delegation denies the crimes in Bucha, because no one provided them with lists of victims. Why do they make such statements? Could it affect the court?

This is certainly a low position of the other party. But I do not want to delve into the analysis of their arguments. Our legal advisors on Wednesday, September 20, broke down this argument. They cited data regarding Bucha, including international observers and other witnesses, that in the temporarily occupied territories in the north of Ukraine, in particular in Bucha, the occupying forces committed serious violations of human rights, war crimes, and crimes against humanity. I hope that the legal reaction of the court to these manipulations of the Russian Federation will be appropriate.

Presiding Judge Joan E. Donoghue on opening day, September 18, 2023.

ICJ / «Бабель»

Does the court somehow check these facts?

Traditionally, the International Court of Justice pays attention to various documents and analyzes of international independent observers, in particular the UN system. Therefore, for two rounds, we paid special attention to the fact that all these things are recorded in documents, reports, and analyzes of international independent objective observers. First of all, those who work within the framework of the UN system. These are both the Human Rights Monitoring Mission and the UN Inquiry Commission.

The Russian delegation insists that Ukraine should have sent a note to Russia first, and then turn to the court. It is important?

We have to judge things from a legal point of view. We open the Genocide Convention, in particular Article 9, which deals with dispute resolution under this Convention. It says that all disputes are resolved by the UN International Court of Justice. There are no preliminary requirements, as, for example, in similar articles in other international treaties, where it is stated that one must first try to conduct negotiations and make arbitration, and if this does not succeed within a certain period, one can go to the International Court of the United Nations. There is no such thing in the Genocide Convention. This is a very broad article that essentially gives the UN International Court of Justice exclusive jurisdiction to decide disputes under this Convention. Therefore, Ukraine did not have to take any preliminary steps.

The second thing. By using claims of genocide, Russians should have understood that such claims could have legal consequences. Especially when they say that genocide became the basis for a full-scale invasion.

And thirdly, we all understand the situation and circumstances of February 26 — the occupiers were near Kyiv. Therefore, I hope and believe that the court will not take into account these statements.

The Russian delegation claims that it is not complying with the courtʼs order and does not stop military operations in Ukraine, since the case is at a preliminary stage, and therefore, it may not reach a substantive hearing. Is it really possible not to implement the decision at this stage?

No, itʼs a little bit wrong. The Russians are obliged to comply with the order on temporary measures of March 16, 2022. Period. These are legal obligations. It is impossible that "I want — I do it, I want it — I donʼt do it", or, as Dmitry Peskov points out, that Russia had to give its consent. According to the statute of the International Court of Justice of the United Nations, orders on temporary measures are binding on the parties to the dispute. Russia is obliged to do this.

Members of the delegation of the Russian Federation, the second day of hearings, September 19, 2023.

ICJ / «Бабель»

But the Russian argument was slightly wrong. It consisted in the fact that the question of non-compliance with the order on temporary measures should be raised not at the jurisdictional stage, at which the hearing was now held, but already during the hearing on the merits. But we made it clear that we are putting this issue before the court, it should be aware that the Russian Federation brazenly disobeys this order. And the International Court of Justice can really make a decision on this at the next stage — hearings on the merits of the case. We say, okay, it can be decided at the merits stage, but we are already bringing this issue to the attention of the international court. Because failure to comply with the order is flagrant. And the court should be aware of this.

The Russians investigated the background and statements of lawyers working in the Ukrainian team. They quoted the words of Mr. Ko when he worked in the American government. He said then that the bombing of Yugoslavia was legitimate. Were you ready for this? And are you studying the background of the Russian delegation?

We are ready for any claims of Russia. We understand that they can turn everything upside down and use any statement to whitewash themselves. When a member of our team, a legal advisor professor, spoke about the legality of the use of force, it was a different situation. The International Criminal Tribunal for the former Yugoslavia was then established to investigate crimes committed in those territories. We will not evaluate the concept of humanitarian intervention with you now, but it was said that there were certain facts. Now Russiaʼs claim that Ukraine committed genocide is not based on anything at all. There is nothing!

We record everything that Russia says. And we respond to those things that we consider necessary. For example, on Monday, September 25, their agent stated that the so-called evacuation of children from the temporarily occupied territories was carried out to protect them from the consequences of hostilities. We said on Wednesday that this is not a so-called evacuation. This is a kidnapping! This is the forcible removal, deportation of Ukrainian children. And this is a war crime. And this is not only the position of Ukraine. This is the position, in particular, of the International Criminal Court, which issued two arrest warrants for this crime.

A poster depicting Putin appearing before judges of the International Court of Justice in The Hague on May 12, 2023 in downtown Kyiv, Ukraine.

Getty Images / «Babel'»

The Russians say that they actually attacked Ukraine not because of genocide, but by referring to the UN charter, namely the article on self-defense. Is this a valid argument?

We explained why this statement by Russia is a fiction. Our legal adviser said that the Russian Federation did not comply with the procedural conditions that exist in the UN regarding the realization of this right to self-defense. There are certain rules regarding letters to be sent to the Security Council. The Russian Federation turned everything upside down again. In its letter dated February 24, it did not provide any arguments [regarding threats and the need for self-defense] and sent it to the secretary general.

The Russians use the International Court of Justice as a platform for propagandistic claims. Why do they do it?

Perhaps it is intended for the domestic user, or perhaps for some loud foreign media headlines. But it is clear that they lack legal arguments. They had six hours to argue. So many, because they had to respond to the arguments of Ukraine and 32 states that joined. But they finished the first three-hour performance half an hour earlier, the second — 50 minutes earlier. They just donʼt seem to have enough legal arguments.

On September 22, a meeting of the Core Group, which includes 38 states, was held in The Hague, and they are discussing what the tribunal should look like. What happened there? When is the next meeting?

The next meeting will be this fall. Representatives of governments come to such meetings, and we discuss issues in a friendly atmosphere, behind closed doors. This time it was a good productive discussion. The group has developed a lot of different procedural, procedural, analytical materials that will definitely be needed to create a tribunal, regardless of which way we go. And, of course, they discussed how to create a tribunal. We see the desire of our partners to continue, discussions will continue.

When can we wait for a court decision on jurisdiction?

When the court decides that it is ready. Itʼs not a matter of weeks, but itʼs not a matter of years either. We are ready to come to The Hague immediately and hear the decision as soon as the International Court of Justice informs us about it.

Court members, second day of hearings, September 19, 2023.

ICJ / «Бабель»

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Oksana Kovalenko
Dmytro Rayevskyi
Russian-Ukrainian war

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