Embassy of Ukraine in the Kingdom of the Netherlands

Kyiv 05:02

ICJ Preliminary Objections Hearing: Introductory Statement by the Agent for Ukraine Ms.Olena Zerkal

04 June, 11:41

Mr. President, Members of the Court. It is a great honor to appear before you on behalf of Ukraine.

Ukraine is a firm believer in this Court and the peaceful resolution of disputes.  We came to this Court in 2017 in good faith to protect our rights and humanity. And this is the first case Ukraine has brought to the World Court. It means a lot for Ukraine, since we believe in international justice.

Mr. President, Members of the Court, while Ukraine asks for your justice, Russia fights hard to avoid your justice.

Russia presented yesterday its attitude toward international law. It is an attitude of disrespect towards the law and the people of Ukraine. It is an attitude of delaying, to avoid answering for its illegal conduct. It is an attitude of distortion of international law and the facts, to legitimize its behavior. And when all else fails, Russia simply denies what the whole world knows.

We saw this attitude in this Court yesterday and two years ago at the hearing on provisional measures. We have seen this in every international forum for the last five years as well. Russia’s violations of international law are many, but it seeks to avoid accountability for all of them. The result | is a feeling of entitlement to disrespect the law, without cónsequénce. Russia continues to misrepresent our case as politically motivated and artificial. Remarkably it describes the events in Ukraine as a coup d’etat and civil war, and claims that the only dispute between our countries is about aggression and the application of international humanitarian law.

Our response to this typical Russian narrative is simple – we have no hidden agenda and we engage in no distortion. The real nature of the case before you is about the interpretation and application of two international treaties: the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Full stop.

Mr. President, Members of the Court, let me present again the real nature of the case before you.

Russia’s policy towards Ukraine has resulted in violations of the International Convention on the Suppression of the Financing of Terrorism. What did Russia do? Did Russia prevent the financing of terrorism in Ukraine? It did not. Did it investigate? It did not. Did it assist us in finding the perpetrators? It did not. As a result, MH17 was shot down. Bombs went off at parades and nightclubs. Rockets fell on residential districts. Hundreds were killed and injured. Thousands have been intimidated. Compliance by Russia with the ICSFT would have prevented this horrible damage.

In addition, following its unlawful occupation of Crimea, Russia launched a wide-ranging campaign of cultural erasure directed against the Crimean Tatar and Ukrainian communities. Russia has engaged in the collective punishment of whole ethnic groups in illegally occupied Crimea. People continue to be unlawfully detained and disappeared; the Mejilis is banned; culturally important gatherings are suppressed; education in the Crimean Tatar and Ukrainian languages is restricted; and media from these disfavored communities are intimidated. This constitute a massive violation of the International Convention on the Elimination of all Forms of Racial Discrimination.

The sad irony is that Russia seeks to benefit from the very scale and complexity of its violations, in order to escape the scrutiny of any of them. Every time Russia is brought before an international tribunal, it tries to argue that the dispute is about something else. Aggression. The law of war. Russia hides behind these other sources of law, but with no intention to comply with them.

Mr. President, Members of the Court, it is common knowledge that Ukraine suffers from Russia’s continuous aggression and its unlawful occupation of part of our territory. But that is not the claim that we have brought to this Court.

This dispute is about ICSFT and the CERD. Russia denies that we even have a dispute at all. It did this for two years in our negotiations. It did this at the provisional measures hearing. And it continues to do so today.

Consider the circumstances while Ukraine was trying to negotiate. Even as Russia refused to acknowledge the dispute, it did nothing to prevent Russian officials and other Russian persons from funding terrorism in Ukraine. For example, just two days after I returned from the first negotiating session, Grad rocket launch systems were delivered to Ukraine and used to terrorize the city of Mariupol.

Russia deliberately led those negotiations to a dead end, in the same fashion as it has done with the Minsk process. For the record - Ukraine and Russian Federation are parties to the Minsk arrangements, not so called “LPR” or “DPR” as was wrongly said yesterday by Russia.

Russia's strategy of denial goes far beyond its conduct in negotiations with Ukraine. Yesterday, with regard to MH17, Russia’s Agent mentioned the Joint Investigation Team’s May 2018 Report. He said something incredible and I quote “As stated by the JIT in 2018, there are still no answers to why the aircraft was shot down and who was responsible”. End of quote. What he did not say was that the JIT determined that the BUK used to shoot down MH17 was supplied by the members of the 53rd Anti Aircraft Missile Brigade from Kursk, Russia. 

Russia also misleads the Court about its compliance with the Court's provisional measures Order. Standing before you, I must express Ukraine's dismay at Russia's lack of respect for a binding order of this Court. The situation was urgent two years ago and it is even more urgent today. The Mejlis remains banned. Ukrainian-language education has all but disappeared in Crimea. And Crimean Tatar children are taught from new textbooks that seek to justify the mass deportation of their people by Stalin in 1944.

Moreover, Russia continues to this day to aggravate the situation and to multiply its unlawful actions. Just five days ago, Russian occupying authorities arrested two Crimean Tatar children’s rights activists Лутфіє Зудієва and Муміне Салієва, continuing its campaign of racial discrimination.

Russia does not want this Court to hear Ukraine’s case on the merits. Instead it tries to create an alternative reality and to manipulate the facts. Let me be clear: the version of the facts you heard yesterday is nonsense. Russia demands to debate the facts prematurely this week, because it knows that on the merits, with full and proper consideration of all evidences, Russia’s behavior cannot be defended.

But the only issue before you this week is jurisdiction.
Mr. President, Ukraine’s advocates will make it clear that our case is properly before you.

Professor Jean-Marc Thouvenin will address Russia’s incorrect approach to preliminary objections on ICSFT. And will also explain how the treaty requires Russia to prevent the financing of terrorism by any person.

Ms. Marney Cheek will demonstrate how Russia incorrectly interprets the offense of financing terrorism. And she will respond to Russia’s inappropriate factual arguments about the acts of terrorism alleged in Ukraine’s Memorial.

Mr. David Zajonts will then explain how Ukraine met every requirement under Article 24 before bringing its claims under the ICSFT.

Professor Harold Hongju Koh will next address the CERD dispute. He will correct Russia’s effort to persuade you that the dispute is about something besides Russia’s many violations of the CERD in Crimea.

Finally, Mr. Jonathan Gimblett will show how Ukraine has properly brought this case to the Court under Article 22.

Mr. President, Members of the Court, Ukraine will demonstrate that this Court has jurisdiction to hear Ukraine’s claims under both treaties.

Ukraine is grateful for the Court's attention this morning.
Mr. President, I ask that you call Professor Thouvenin to the podium.

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