ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (UKRAINE V. RUSSIAN FEDERATION: 32 STATES INTERVENING)
HEARING ON PRELIMINARY OBJECTIONS
Oral Pleadings of Ukraine
19 September 2023
1. Madam President, distinguished Members of the Court, I am honored to stand before you, in this Great Hall of Justice, to represent my country.
2. Five hundred and seventy three days ago, Russia launched a brutal, full-scale military assault on Ukraine. This is a war of annihilation: Russia denies the very existence of the Ukrainian people and wants to wipe us off the map. It is a war of imperialism: Russia tries to overthrow our democratically elected government. It is a war of conquest: Russia has attempted to claim Ukrainian territory for itself. And it is a war of atrocity, terror, and war crimes: mass graves in Bucha, torture chambers in Kherson and Izyum, tens of thousands of civilians abducted and held captive, cities and towns such as Mariupol and Volnovakha completely destroyed, villages flooded, children stolen and deported, deliberate attacks on civilian infrastructure, and many more unspeakable horrors. Yesterday, you did not hear any of this. Listening to Russia, you would never know what it is doing to my country. But it is the reality.
3. Why does Russia do all of this? In the twenty-first century, what could possibly justify such barbaric action? Russia has given an answer: a cynical misuse of the Convention on the Prevention and Punishment of the Crime of Genocide. For almost a decade, Russia has been laying the groundwork. Since 2014, Russia has falsely accused Ukraine of committing genocide in violation of the Genocide Convention. On 24 February 2022, the president of the Russian Federation used that absurd allegation as a sword: He said Russia was acting — it had to act — to stop this genocide.
4. Russia is waging war against my country in the name of this terrible lie: that Ukraine is committing genocide against its own people. This lie is Russia’s pretext for aggression and conquest. Russia has presented no credible evidence. It cannot. In reality, Russia has turned the Genocide Convention on its head. The international community adopted the Genocide Convention to protect. Russia invokes the Genocide Convention to destroy.
5. Over the past five hundred and seventy-three days, Russia has shown the world what Ukraine already understood. Russia does not respect international law. For Russia, international law is not a constraint. For Russia, international law does not exist to ensure respect for sovereignty and human rights. For Russia, international law is a tool to be abused.
6. Unlike Russia, Ukraine respects international law. Ukraine believes in settling disputes peacefully. That is why, at our moment of greatest peril, Ukraine turned to this Court. Your Court has broad jurisdiction over disputes relating to the Genocide Convention. The relationship between this dispute and the Genocide Convention is straightforward. Russia accused Ukraine of committing genocide. It launched a full-scale invasion for the stated purpose of stopping genocide. In other words, Russia abused and violated the Genocide Convention, by using allegations of genocide as a pretext for a full-scale invasion. But Russia is not above the law. It must be held accountable.
7. Yesterday, Russia told you that this dispute has nothing to do with the Genocide Convention. According to the Agent of the Russian Federation, a few Russian officials just “used the word genocide.” It was “rhetorical.” This is another one of Russia’s brazen lies. There is nothing “rhetorical” about Russia’s allegations. For years, Russian state organs declared that high-ranking officials committed the crime of genocide under the Genocide Convention. Senior Russian diplomats declared that Ukraine, the state itself, committed genocide under the Genocide Convention.
8. There was also nothing “rhetorical” about Russia’s violent actions on the basis of preventing and punishing genocide. I would prefer not to quote the President of the Russian Federation. But for three hours yesterday, Russia’s Agent and its counsel were afraid to tell the Court what he said. So I will repeat what the Russian president announced on 24 February 2022: “The purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kyiv regime.” Inside Russia, the express purpose of the full-scale invasion is openly stated, at the highest levels. But in this Court, it is inconvenient for Russia. So Russia hides from the truth.
9. You were also subjected yesterday to Russia’s story of a “coup d’état,” and a “Kyiv regime” filled with “neo-Nazis” who threatened the people in Donbas. These are more lies, but they confirm an important point: there is a dispute. The Agent of the Russian Federation even had the audacity to stand in this Hall and say that Ukraine was planning a “final solution.” We all know what those chilling words mean. How can Russia’s Agent utter those words, and then deny there is a dispute about genocide? This case must proceed to the merits. Then Russia can try to defend its false claim. If Russia believes its actions are not an abuse of the Genocide Convention, that President Putin did not mean what he said about genocide, let Russia explain why on the merits. For nine years we have endured lies about genocide from the highest levels of the Russian government. For a year and a half we have suffered terrible attacks because of those lies. Today Ukraine is simply asking for its day in court so that the Court can resolve this dispute.
10. Madam President, Members of the Court, Russia’s disrespect for international law is far-reaching. It includes this Court.
11. 18 months ago, this Court issued a clear order: Russia must immediately suspend its military operations in Ukraine.
12. But Russia had no interest in complying. Russia immediately announced that it would ignore the binding provisional measures order of the World Court. Russia did not stop its military operations in Ukraine as you ordered. To this day, Russia rains down missiles on our cities and our people, still in the name of preventing a purported genocide. The consequences of Russia’s defiance have been devastating.
13. An example of this devastation is Russia’s deliberate attacks on critical civilian infrastructure. These attacks left entire regions and millions of people without heat or electricity, including in freezing temperatures. The United Nations has documented the grave harm to civilians. This past June, Russia’s destruction of the Kakhovka Hydroelectric Power Plant dam in Kherson region caused grave and far-reaching consequences for thousands of people in southern Ukraine, including a lack of access to clean water.
14. Objective international observers have documented this devastation. The World Bank has calculated that the damage Russia has inflicted on Ukraine will require $411 billion to repair. The U.N. Human Rights Council’s “Independent International Commission of Inquiry on Ukraine” has found that Russian forces committed a “wide range” of violations of international law, “many” war crimes, and acts that “may amount to crimes against humanity.” One example: Russia’s military operations in the area of the Zaporizhzhia Nuclear Power Plant, which risk a serious nuclear incident, gravely endangering civilians.
15. Another horrifying example is the forcible deportation of Ukrainian children. I quote what the Minister for Foreign Affairs of Ukraine, Dmytro Kuleba, said in July: “To date, we have identified 19,474 illegally transferred kids, including 4,390 who are orphans or lack parental care.” For these shocking actions, the International Criminal Court issued arrest warrants. It found reasonable grounds to believe that the head of state of Russia, who sits on the U.N. Security Council, is personally responsible for these war crimes. This is how far Russia is willing to go: On the pretext of preventing genocide, it commits the war crime of forcibly transferring children from their homeland.
16. It is not just Ukraine that suffers from such terrible acts. By blockading Ukrainian ports and threatening international shipping, Russia has destroyed or held hostage million tons of grain, worsening global food shortages in Africa and beyond.
17. Russia’s defiance is also an attack on this Court’s authority. Every missile that Russia fires at our cities, it fires in defiance of this Court. Just last week, Russia attacked a market in Kostiantynivka, killing 17 people, including a child. Every one of these victims was killed because of Russia’s defiance of this Court. Every child that Russia has deported, it deported in defiance of this Court. And every brave Ukrainian defender that Russia maims or kills, it has maimed or killed in defiance of this Court.
18. Your provisional measures order is another inconvenient topic for Russia. Yesterday, it said almost nothing about it. The only time Russia mentioned your order, Russia said you were wrong. Russia can have its opinion, but Russia’s opinion does not change its international obligations. Your order is binding. Russia openly defies it.
19. This Court now has the opportunity to reject such defiance. You have the power to ensure that international obligations are meaningful. You can decide that States that tirelessly abuse and misuse a human rights treaty will be held to account. You have the power to declare that Russia’s actions are unlawful, that its continued abuses must stop, that your orders must be followed, and that Russia must make reparation.
20. One year ago, President Volodymyr Zelenskyy said to the U.N. Security Council that, in Ukraine, “not only our independence is being defended, not only the right to life for our people, but also international law as such.” In this Court as well, international law, as such, is at stake. Ukraine urges the Court to reject Russia’s abuse of international law. Ukraine asks you to ensure that the Genocide Convention remains a force for protecting human rights, not a means for denying millions of people their human rights.
21. Yesterday, you heard Russia twist the facts and distort the law. Today, Ukraine will explain why this Court can, and must, hear Ukraine’s case on the merits.
22. Professor Harold Hongju Koh will first address the interpretation of Article IX of the Genocide Convention, and the broad jurisdiction it confers on this Court. He will explain why Russia cannot escape this Court’s jurisdiction by mischaracterizing Ukraine’s claims.
23. Ms. Marney Cheek will then show that there is a dispute between the parties relating to the Genocide Convention.
24. Professor Jean-Marc Thouvenin will demonstrate that this dispute falls squarely within this Court’s jurisdiction ratione materiae.
25. Mr. David Zionts will address why Ukraine’s claims are admissible.
26. Finally, Mr. Jonathan Gimblett will address this Court’s jurisdiction to address the Russian Federation’s ongoing and flagrant violations of this Court’s Order indicating provisional measures.
27. Madam President, Members of the Court, on the ashes of World War II and the Holocaust, the world produced a landmark human rights treaty in the Genocide Convention. It reflects the highest ideals of humanity. A few months from now, the world will mark this Convention’s 75th anniversary. This can be an opportunity for the international community to re-commit itself to the Convention’s civilizing aims and humanitarian purpose.
28. But if Russia’s abuse goes unanswered, this anniversary will be a dark one. Can it truly be the case that a State can abuse the Genocide Convention to justify a war of conquest? Can a State use false allegations of genocide as a pretext to destroy cities, bomb civilians, and deport children from their homes? And when the Genocide Convention is so cynically abused, is this Court powerless? The answer to these questions must be no. It must be no for the sake of the Ukrainian people, who remain under brutal attack. And it must be no for the sake of the world, to prevent international law from being twisted into a tool for human rights abuses and destruction.
29. Ukraine is grateful for the Court’s attention this morning. Madam President, I now ask you to call Professor Koh to the podium.