The Right to Acts of Terror in Wartime: How Russia Tries to Stop Defeat at the International Court of Justice

The International Court of Justice in The Hague is preparing to announce its decision in the case "Ukraine v. Russia". Back in 2017, Kiev accused Moscow of violating conventions on the prohibition of terrorist financing and on the fight against racial (in this case, ethnic) discrimination. After a lengthy preparatory procedure and an almost two-week hearing, the judges proceeded to make a meritorious decision. Already in half a year, the decision can become a reality.
It is impossible to predict the Court's verdict in advance. In general, the UN international community is very conservative in "condemning" states, and Ukraine has been building its accusations, interpreting international law quite creatively. If he gets rejected in some elements, it will not be a tragedy. The main thing is to recognize Russia in principle as a violator of the conventions. Including - a country that violates the ban on the financing of terrorism.
And it is very likely that they are preparing for defeat in Moscow on key issues. Because already now it seems that Russia is preparing a special operation against this decision.
It started imperceptibly, with a statement from the spokeswoman of the Russian Ministry of Foreign Affairs. She announced that a date has been set for the Court to make a decision in the case: they say it will be January 29, 2024. But several EP sources say that is a lie. This calendar is not published, the date cannot be predicted in advance, because the judges have not yet made a decision.
Moreover, there is reason to expect that the UN Security Council will cope with the task more quickly. And that could become an excuse for Moscow to accuse The Hague.
At the moment we can only claim that Russia is fueling the information wave. She announced "death threats" from Ukraine to the members of her legal team, which the Court allegedly has to take into account (additionally this was repeated by the Ministry of Foreign Affairs of the Russian Federation). These accusations turned out to be complete lies, but when did that stop Russia?
In short, the Hague process is seriously disturbing the Russian Federation. That is why it is worth taking a closer look at what was heard at the hearings that ended in mid-June.
Especially since there are a lot of interesting, absurd and sometimes funny details.

Who agreed to defend Putinism?

Every client has a right to protection, every lawyer will tell you. Even the greatest criminal, even a cannibal, obviously guilty of genocide, must have a defender. That is why there is a basic principle: it is impossible to identify a lawyer and a client, so lawyers must take on the protection of the client, regardless of his image.
This also applies to the right to defend the aggressor state, Russia, which had to seek defenders abroad.
The fact is that the International Court of Justice is the highest, most authoritative judicial institution in the world, in which the state participating in the process necessarily includes recognized international experts and lawyers. This is necessary both for efficiency (the team should be thought of as judges of the UN IC), and according to the tradition of the Court (arguments of international law are usually more reliable than saying the same thing by a mere diplomat).
This did not cause problems in Kiev, the agent of Ukraine was helped by an international team of lawyers formed in 2016, or even earlier, with the participation of Harold Coe, a professor at the Yale University Law School and a French internationally known professor of world reputation Jean-Marc Thovenin.
It was more difficult for Moscow. It turns out that there is a red line, after which "equal protection" becomes a theory. In practice, the best lawyers do not want to have a record such as "was the defender of Russia at the International Court of Justice" in their previous work. The situation is complicated by the fact that the line of defense defined by the client, i.e. the Government of the Russian Federation, is absurd. And even those who do not choose clients are not ready in their speeches in The Hague to repeat Russian delusions about the Nazis in Ukraine and the like.
Therefore, all four international advisers of the Russian Federation, who were in this case until 2019, refused representation. Russia had to look for new ones.
Instead of professional but indiscriminate professors from France, the USA and Britain, who started the case in 2017 and continued until 2019, now the aggressor state was represented in The Hague by professors of international law from Iran and China (they almost missed being a representative of North Korea).
Also, the Russian Federation tried to attract at least someone from Europe. This role was played by Michael Swainston, a once famous British lawyer who has spent most of his time in Russia since 2014 and since then has regularly made the most stupid and absurd statements at international trials. For example, as part of the delegation of the Russian Federation, he said in Strasbourg that Ukraine is ruled by fascists and the West.

Jean-Charles Chikaya, an African lawyer with a French license, became the fourth international adviser to the Russian Federation.
This is a particularly funny story. Chikaya is not an authoritative lawyer at all. It's very easy to see for yourself - it's enough to look at his website, made as if it were from the nineties. And when he started speaking in The Hague, it seemed that the Russians needed anyone - at least of African origin. Because his main task was to convey the opinion: "I know what racial discrimination is, and Russia is not capable of such a thing."
"Russia – not to mention the Soviet Union – has played its full role in the fight against racist regimes. I'm from Africa, where everyone knows that. And Ukraine is trying to artificially equate the situation in Crimea with despicable criminal regimes," he argued to the judges.
However, Chikaya is not just a name. There are very interesting cases and clients in his biography. For example, he represented the interests of the dictator from Equatorial Guinea, Teodoro Obiang Nguema and his family. This is a person with a negative reputation who has ruled the country for 44 years (!) and is the standard of political corruption, even by African standards. At one time, EuroPravda even wrote about his son in the text "Cars, yachts, diamonds: how France prosecutes foreign leaders for illegal enrichment".
Chikaya was a lawyer for the Nguema family, the state of Equatorial Guinea and the family of another African dictator, the now imprisoned president of Ivory Coast, Laurent Gbagbo. So talking nonsense on behalf of Putin's Russia is a completely natural role for him.
Otherwise, we cannot talk about any success of the process with his participation. But sometimes it seems that Moscow is not sure of success in the "Ukraine vs. Russian Federation" case in The Hague. Although he does everything possible for that. Including - the forces of one of the key law firms of Russia, which, ironically, is called "MFA and Partners" (this is not a joke), and was founded by diplomats who graduated from "MGIMO".

"We have the right to be wrong"

We emphasize once again that predicting the decision of the UN Court is a thankless task. But the change in Russian tactics in the process can be said to be a fait accompli.
The Russian team started with the usual narratives, and the document with the "evidence" of the accusations against Ukraine contained things that we know and that almost no one in the world takes seriously. For example, one of the first parts of the Russian Federation's arguments about why it did not violate the Convention on the Financing of Terrorism is entitled "Coup d'état in Kyiv".

It is not clear how this could justify the actions of the Russian Federation from the point of view of international law, but Russia could not help pouring out on the judges what Russian propaganda usually spreads.
"Kiev has no moral right to make such accusations. This regime came to power as a result of a violent coup in 2014 on the shoulders of nationalists, direct descendants of Nazi collaborators from World War II. The current Ukrainian government does not shy away from glorifying and honoring Nazi war criminals as heroes of Ukraine ", claimed the Russian ambassador to the Netherlands, Alexander Shulgin, who was identified in the process as one of the agents of the Russian Federation.
Also, he and other speakers from the Russian Federation denied any Russian involvement in the war against Ukraine in the Donbass since 2014.
But if in the previous stages, in 2017 and 2019, Russia's position was limited to denial and propaganda, now something new and very important has appeared. The Russian Federation has devoted a significant portion of its time to proving that all war crimes in eastern Ukraine were random and not premeditated.
You ask, how could Russia draw these conclusions with certainty if it did not control the so-called DPR and LNR? The question is correct and certainly not devoid of meaning. But there was no answer to him.
But the fact is that the Russian Federation's control over the occupied territories of Ukraine is not being investigated within this process, and the UN IC will not be able to make legal conclusions on this issue. And politically - let's be honest, now no one doubts that Russia controlled the so-called "power" of Ukraine in Donetsk and Luhansk.
Therefore, Russia's goal was simple: to break this particular interstate case.
Use all procedural levers to prove that Russia cannot be prosecuted under the Terrorist Financing Convention.
The story of the plane MH17 that was shot down by the Russian anti-aircraft complex "Buk" has attracted more attention from both sides. This episode took away a good part of the Ukrainian speech and documents, in Kiev they thought that it was the easiest to prove Russia's guilt here, because there are also court decisions, the results of the interstate investigation and dozens of expert reports. And Russia focused on this, feeling that this was its weak point.
In the Russian Federation, they tried to prove that the plane was shot down by mistake and that it was not terrorism.
"Madam president of the court, respected judges, there is an international consensus that unsuccessful shooting - especially during an armed conflict - is not terrorism. One only has to look at the infamous list of cases when passenger planes were mistakenly shot down," Russian ambassador on special assignment Gennady Kuzmin, responsible for the issues of the International Court of Justice of Justice of the UN.
"No one is suggesting that targeting errors be considered terrorism!" he added.
The second line of defense of the Russian Federation is to prove that there was a war going on in Donbass, that is, an armed conflict (here, the representatives of the Russian Federation, of course, added that it was a war with the "LDNR", but in this context it is not important, and The UN court cannot investigate it in this process). And during the war, as the Russian Ministry of Foreign Affairs is convinced, it cannot be about terrorism, but only about collateral victims among civilians.
"No one is suggesting that military actions during an armed conflict be considered terrorism. There is a widespread consensus that the conventions on terrorism do not cover actions during an armed conflict," assured judges Kuzmin.
So, first, there is no terrorist intent when someone in an armed conflict makes a mistake.
"There is also no terrorist intent when the mistake was made in peacetime or during a conflict. And secondly, there is a general exception of military activities from terrorism," said the ambassador of the Russian Ministry of Foreign Affairs.
Ukraine categorically denied this approach. Terrorism is terrorism. Whether in peacetime or wartime. Deliberate shelling of civilians is intended to kill them and is not an instrument of war.
"Shooting at a civilian is intended to kill or wound that person. Shooting at a crowd of civilians, even if there are a few military personnel, is intended to kill or injure that crowd," explained Professor Jean-Marc Thuvenin of the Ukrainian team at the trial .
The key argument of Ukraine

The main dispute between the lawyers of Ukraine and Russia did not concern only the downed MH17. Shelling of the "Gradam" bus with people at the civilian checkpoint, shelling of residential areas in Mariupol, etc. - in all cases where Ukraine testified that the Russian military targeted civilian objects, Russia built a line of defense on the fact that these were false targets.
Like, the army is also human, they have the right to make mistakes (this is almost a literal quote).
And at the same time, they tried to prove that all these goals were not actually exclusively civilian.
For example, if in Volnovas there was a light armored car used by the Ukrainian police next to the checkpoint, then you can try to prove to the judges that it was a heavy armored vehicle (note: Ukrainian lawyers immediately denied this) and this makes the entire checkpoint a "legitimate military objective ", despite the fact that there were only civilian cars and buses in the convoy.
If there are a few trenches dug in a field next to shelled residential areas in Mariupol, then you can call them "military fortifications" (note: Ukrainian lawyers immediately denied this) and announce that the army aimed there, but simply missed, and then regretted it.
From a political point of view, what the representatives of Russia said is a mega-sensation and a "shot in the foot".
Namely, the Ministry of Foreign Affairs of the Russian Federation did not rule out that it could be Russian troops.
But from a legal point of view, not everything is so simple. And the "excuses" of the Russians on the verge of a foul may succeed, if the Court admits that the conscious intention to carry out terrorist attacks in the Donbass during the shelling of Mariupol, Avdiyevka, Kramatorsk, etc., has not been proven.
However, Ukraine has a more powerful trump card.
A significant part of the Ukrainian explanations related to the fact that Russia did not investigate suspicions of terrorist attacks, ignoring the requests and legal requirements of other states - from the Netherlands (which has repeatedly asked for help, to investigate the Russians involved in the downing of MH17, etc.) to Ukraine.
For example, as the Ukrainian representatives explained to the Court, confirming it with documents, Ukraine asked the Russian Federation for legal assistance in the investigation of the "Orthodox oligarch" Konstantin Malofeev, who actively participated in financing the occupation administrations and armies in Donetsk and Luhansk. The General Prosecutor's Office of the Russian Federation replied that they "cannot find him", and a few weeks later Malofeyev received journalists in his office in Moscow, where, as it turned out, he previously worked.
According to the Terrorism Convention, Russia is most likely to be "punished" for precisely that - for its unwillingness to investigate acts of terrorism, not for the fact that it is a terrorist state itself. Because it seems that the UN Court does not consider the latest political accusation to be one that it can confirm or deny.
It remains to be hoped that Ukrainian lawyers will succeed in attaching similar procedural but "iron and concrete" provisions to Russian violations of the Convention on the Prohibition of Discrimination. Because here Ukraine once again faced a familiar problem: the open lies of the Russian Federation.

"The number of students being educated in the Crimean Tatar language is actually increasing, not decreasing, as Ukraine says... There is no disproportionate persecution of Crimean Tatars or other groups in particular... As for the missing, most of them are Russians, not Crimean Tatars, as Ukraine claims," Maria Zabolotska, deputy representative of the Russian Federation at the UN, said before the Court.
And here it remains to be hoped that despite the lack of real Ukrainian statistics on these events in Crimea, a series of disappearances, persecutions, bans from working in the Mejlis, etc. cited by Kiev, become convincing for the judges.

What will be the result?

The Court's verdict in the first case "Ukraine v. Russia" will be known in about six months. Maybe even faster. Although Kiev's victory is not guaranteed, Moscow is frightened by this prospect and is trying to use all procedural possibilities and chances to stop the process. Sometimes - with the help of open lies.
For example, the representative of the Russian team, the British lawyer Swainston, before the end of the hearing, when Ukraine no longer had the right to counter-expose, tried to convince the court that Ukraine was violating the rules of court proceedings.
"In response to my last appearance before you in this court, I faced death threats on the Peacemaker website," he said in fear.
However, the court was in no hurry to take his word for it, and Ukraine will have the opportunity to respond in writing.
And the judges themselves, if they decide to go to the "Peacemaker" site, they will see that it is a lie from beginning to end. Because Swainston's page on "Peacemaker" is from 2019 and doesn't refer to recent performances at all. And most importantly, there are no threats - instead there are accusations of lies and manipulation. What the Brit and his Russian clients are really doing.
Ukraine formed a whole series of claims, which were stated by the head of the relevant department of the Ministry of Foreign Affairs, co-agent of Ukraine, Oksana Zolotaryova, closing the hearing. However, since such a case is considered for the first time in the world (the Convention on the Prohibition of the Financing of Terrorism has not been used at all), it is currently too early to predict which part of them will satisfy the International Court of Justice.
Among them is a request to "freeze or seize the assets of persons suspected of providing funds to terrorist groups in Ukraine and to confiscate assets", "to pay monetary compensation to Ukraine for the damage it has suffered as a result of Russia's violations of the Anti-Finance Convention" of terrorism, including the damage suffered by its citizens as a result of terrorist acts", "pay moral compensation to Ukraine", etc.

But the main thing will be that the International Court, in fact, recognizes Russia as a state - an international criminal. This may seem like a small step, but it will be the first precedent, which will later be critically necessary for the legal isolation of Russia, which will force it not to pay individual reparations, but to systematically compensate the losses that Ukraine and Ukrainians have suffered from Russian aggression - and, importantly, records should be kept not from 2022, but from 2014.