A summary of the hearings on the Ukraine application at ICJ against Russia

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On 13 January 2017, Ukraine submitted its application to the International Court of Justice (ICJ) starting officially legal procedures against the Russian Federation (Russia). ICJ is United Nations’ highest court.

The complete application can be read here.

Before an actual ICJ court case can start, hearings  are held where Ukraine and Russia can explain their position. Then the court will take some months to decide if it has jurisdiction to start a court case.

One of the requirements for the ICJ to accept a request like from Ukriane is that all other ways to settle are tried or there are no other ways to settle.

The public hearings took place starting March 6 and lasted till March 9.

The legal claims by Ukraine against Russia are on two Russian violations:

• financing and supporting terrorism, in violations of Russia’s obligations under the International Convention for the Suppression of Financing Terrorism (TFC)
• 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 shot down of MH17 is seen by Ukraine as a violation of the International Convention for the Suppression of Financing Terrorism (TFC).

John Helmer, a pro Kremlin journalist,  writes:

According to the Ukrainian claim, the destruction of MH17 was an act of terrorism. “When the Russian Federation delivered this deadly surface-to-air missile system to the DPR, it knew precisely the type of organization it was aiding… The Russian government knew or should have known that their proxies would use these powerful antiaircraft weapons in a manner consistent with their previous pattern of disregard for civilian life.”

 

 

Ukraine mentioned the downing of MH17 several times during their plead at March 6. It mentioned the JIT report. However no new evidence was presented by Ukraine on the MH17 case.

A summary of the defense by the Russian Federation to the claims by Ukraine (the complete transcript of Russia is here) was:

• “much evidence was left untouched by the investigators as, for example, recorded by two Dutch journalists who recently visited the accident site”.
  The Russian defense refers to this article titled “Dutch journalists criticize MH17 probe results after finding ‘many pieces’ still at crash site”, published  by RT  at 9 Jan. 2017 available here.This is a very remarkable statement by Russia! The statements refers to Michel Spekkers and Stefan Beck . First of all, only Michel Spekkers visited the crash site. Stefan Beck never went there and stayed in Donetsk.
  Secondly, both are not professional journalists. While Michel Spekkers wrote  articles as a freelancer, Stefan Beck is a teacher and does not publish his work on newspapers or other any other commercial driven media.The most important issue however is that Spekkers never published photo proof showing there are many pieces of evidence still at the crash site. Spekkers was quoted by RT saying ” a lot of pieces still lying around,” with some stored in “sheds” by locals, according to Beck.” RT continues  “That materials have never been collected and the Dutch public prosecuting service claims that the area is too dangerous to go to.”

  Despite many attempt by me to have Spekkers publish his photos so it can be verified there are indeed “a lot of pieces” , Spekkers refused so far to publish his photos.

  A journalist working for RTL visited the same shed as Michel Spekkers did. RTL concluded the shed was empty.

• Ukraine did not use all the available ways (like diplomacy) to settle the disagreement without having to go to the ICJ.Quoting Public International Law & Policy Group (PILPG).
  

  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.

• Russia rejects the evidence presented by the Joint Investigation Team which states the Russia supplied a BUK TELAR surface to air system to the separatists in Ukraine.
• Russia states that suppose Russia supplied the BUK TELAR, and the ICJ accepts the JIT evidence, then still it cannot be proven that Russia supplied the BUK with the intention to shot down a civilian airliner. This intention is required for Article 2.1Article 2.1 of the TFC reads:

  1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

  (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

  (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

• Russia states that the JIT report indicates that a BUK TELAR was supplied to protect the separatists against Ukraine military aircraft for the intention of  self defense. So this means the BUK was not used to kill civilians.
• Ukraine has several BUK systems in the area. According to Rogachev, Director of the Department of New Challenges and Threats at the Russian Foreign Ministry,
  

  “it should be noted that during the summer of 2014 the Ukrainian Army’s anti-aircraft missile regiment No. 156, equipped with ‘BUK-M1’ missile systems, was stationed in the zone of conflict. The regiment’s headquarters and its first division were located in Avdiivka near Donestk, its second division in Mariupol and its third in Lugansk. In total the regiment was armed with 17 BUK-M1 SAMs, identical to the one identified by the JIT.”

Earlier the response of Russia to the accusations by Ukraine that Russia supplied weapons to the separatists:

“The main source of weapons found by the rebels (according to the terminology of representative of the Russian Federation ) is the Soviet-era reserves that were on the territory of Ukraine, most of which were left in the mines of the Donbas and appeared in the hands of the rebels. The major part was also left by Ukrainian army,” Rogachev said.

This is really nonsense. Many weaponsystems which are only in use by Russian armed forces were spotted in Eastern Ukraine.

Will the application lead to a court case?

While I am not a lawyer, I really doubt the application will lead to a court case. In 2011 George went the same road as Ukraine and filed an application at ICJ against Russia. However ICJ rejected the application as Georgia did not take all needed steps to settle the issue before going to ICJ.

Russia will recognize the decision of the UN International Court of Justice in the Hague, whatever it may be, as it is a party to the proceedings. This was stated by the press secretary of the Russian president Dmitry Peskov, reports Interfax. (according 112.international)

ICJ will now take some months time to decide if it has jurisdiction to start a court case against Russia.

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