If, as Russia claims, it is fully implementing its obligations under two international agreements – not financing terrorism and not discriminating against Crimean Tatars and ethnic Ukrainians in occupied Crimea, is it fighting Ukraine’s attempt to secure provisional measures which demand only such implementation? And why, when Russia’s own representative at the International Court of Justice was careful not to actually deny the supply of particularly lethal weapons to Donbas militants, is Russia engaging in what was dubbed “legal gymnastics” to claim that this is not financing terrorism?
In his address to the Court in the Hague on March 8, Harold Hongiu Koh, Sterling Professor of International Law, accused Russia of turning its legal obligations on their head. “In eastern Ukraine, Russia claims to forbid terrorism financing, then finances terror”.
Koh noted the extraordinary argumentation given by Samuel Worthsworth, a British lawyer representing Russia. As reported, Wordsworth’s statement was especially interesting because of what he avoided denying. He asserted:
“There is no evidence, plausible or otherwise, that Russia provided weaponry to any party with the intent or knowledge that such weaponry be used to shoot down civilian aircraft, as would of course be required under Article 2.1” [of the Terrorism Financing Convention].
Wordsworth did not directly deny that weapons, in this case the Buk missile which downed MH17, killing 298 civilians, had been supplied to the militants. He instead sought to convince the Court that this does not fall under the Convention because of what Koh calls “multiple intent requirements that he imposed on the Convention’s language”.
If Wordsworth is correct, and intent to kill civilians needs to be proven, then Ukraine would have difficulty. In the case of MH17, for example, the damning evidence against the militants and Russian government-controlled media, arose precisely because the militants boasted of downing a Ukrainian helicopter carrying soldiers.
Koh dismisses such attempts to straitjacket the Convention as a “remarkable display of legal gymnastics”. Wordsworth, as Russia’s counsel, he said, had tried to brush aside, while not denying, facts which “have been authoritatively found by the United Nations Secretary-General, the United Nations High Commissioner for Human Rights, OSCE monitors, the Dutch Safety Board, reputable human rights groups and respected investigative journalists.”
Koh and other members of the Ukrainian team have noted that Russia is trying very hard to portray what is happening in Ukraine only as an ‘armed conflict’. Olena Zerkal, the head of the team, pointed out that critics of Ukraine’s insistence in speaking of an anti-terrorism operation should note that it is Russia which is hoping to gain by denying the element of terrorism.
Wordsworth and other members of the Russian team appear to be asserting that you cannot have terrorism in a situation of undoubted armed conflict.
This, Koh asserts, is quite incorrect and Article 2.1 of the Convention” clearly includes as violations Russia’s provision of “Buk missile launchers to fighters who would shoot down the civilian aircraft MH17” and of “Grad missiles to fire upon civilian neighbourhoods.”
Koh mentions a number of such cases. They include: the shelling of a passenger bus near Volnovakha in the Donetsk oblast on Jan 14, 2015, in which 12 civilians died, and many were injured when shrapnel from a militant-launched Grad missile hit the bus and the death of at least 30 civilians when the militants shelled a residential area in Mariupol on Jan 24, 2015.
There is also the recent mass shelling of Ukrainian government-controlled Avdiivka with mass use of Grad missiles and other prohibited weapons and evidence that at least some of the shelling is from residential areas in militant-controlled Donetsk.
All of these cases, Hoh stresses, must “inevitably have the effect of intimidating and demoralizing the civilian population of those areas”. Thus, even in times of armed conflict, civilians living in areas far from the fighting zone, “can still be victims of terrorist attacks financed by external suppliers of war materiel.”
“The fact that the Donetsk People’s Republic (or DPR) may engage in armed conflict with Ukrainian forces in active war zones in no way exonerates Russia from liability under the Convention when it provides rockets to fighters who then launch them indiscriminately to kill civilians and those who are not taking part in active hostilities in residential neighbourhoods far from “hot battlefields”.
“Attacking civilians for political ends is terrorism, whether or not an armed conflict is ongoing.”
The Russian Federation, a party to the Convention, is actively supplying illegal armed groups which are targeting the Ukrainian people.
On both 7 and 9 March, Wordsworth and other members of the Russian team sought to turn the situation around, and claim that with respect to indiscriminate shelling or other offences, Ukraine was at least as much to blame. Wordsworth, on Thursday accused the Ukrainian team of ignoring what he claimed was evidence of multiple acts by the Ukrainian army. He also asserted that in each of the cases cited, including Avdiivka, there was evidence that the militants had a military, rather than a civilian target.
Koh was dismissive of attempts to claim parity, pointing out that the Ukrainian government has prosecuted members of volunteer battalions guilty of crimes against civilians.
With respect to Avdiivka, Koh stated as follows: “When Russia’s proxies have just been raining down rockets on Avdiivka from within residential areas, it is ironic to say the least, for Russia to focus on photographs of tanks defending a Ukrainian city from armed groups.”
Due to the ICJ procedure, Russia as respondent has the last opportunity to react. Wordsworth’s claim that Koh and other members of the Ukrainian team were distorting chronology and factual information about the events of Avdiivka will therefore only be answered when the case is examined by the Court on its merits.
Certainly, with respect to Avdiivka, Russia and the Russian-backed militants were alone in presenting Ukraine as offender.
Russia does not appear to have found a credible single position on how the militants should be in possession of some 700 tanks, vast numbers of Grad missiles and other weaponry, not to mention the Buk surface to air missile launcher used in the downing of MH17. While Wordsworth, who presumably has a reputation to think about in the UK, avoided denial on 7 March, and did not return to this point on March 9, Ilya Rogachev on March 7 claimed that the militants had ‘found’ weapons stored back in Soviet times inside Donbas mines, and that some of the militants’ vast supplies of weapons had been left by the Ukrainian army.
Russian President Vladimir Putin’s press secretary Dmitry Peskov stated on Thursday that Russia would comply with the Court’s judgement. The Russian team has, therefore, sought to convince the Court that it lacks jurisdiction, that Ukraine did not fulfil the necessary preliminary attempts at negotiating, etc. and that there is no financing of terrorism, and no discrimination in Crimea under Russian occupation.
The Court must decide, but the weight of evidence from international bodies, human rights groups, and others of Russia’s direct and very substantial involvement in a conflict in a country with which it is not formally at war is substantial. If Russia stopped such support and stopped sending mercenaries into Donbas, few doubt that the killings and destruction would swiftly end.
For the moment, Koh and all members of the Ukrainian team continue to stress the urgent need for the Court to impose provisional measures. Civilians are dying in Donbas, and the discriminatory treatment of Crimean Tatars and ethnic Ukrainians in Russian-occupied Crimea is having tragic and often irreversible consequences now.
The Court will now deliberate on the request for provisional measures, with its decision anticipated by the end of April.
* Article 2 of the Terrorism Financing Convention
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.
2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a State Party which is not a party to a treaty listed in the annex may declare that, in the application of this Convention to the State Party, the treaty shall be deemed not to be included in the annex referred to in paragraph 1, subparagraph (a). The declaration shall cease to have effect as soon as the treaty enters into force for the State Party, which shall notify the depositary of this fact;
(b) When a State Party ceases to be a party to a treaty listed in the annex, it may make a declaration as provided for in this article, with respect to that treaty.
3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs (a) or (b).
4. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of this article.
5. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this article;
(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this article;
(c) Contributes to the commission of one or more offences as set forth in paragraphs 1 or 4 of this article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this article; or
(ii) Be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this article.