Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation)
Hearing on the Merits

6 June 2023

1. Madam President, distinguished Members of the Court, it is my honor to stand before you on behalf of my country. 

2. On 6 March 2017, during the very first oral hearing in this case, the Agent of Ukraine stated the following: “Ukraine has come before this Court to defend the basic human rights of its people, faced with the Russian Federation’s violations of human rights and international law. Thousands of innocent Ukrainian civilians have already suffered deadly attacks, and millions remain under imminent threat. Their peaceful, simple day-to-day routines have been ruined, and their fundamental rights have been blatantly violated by the Russian Federation.”

3. If we turn to the situation of today, what can demonstrate better that Ukraine was right to sound the alarm, warning the World of Russia’s mounting violations of international law.  Russia’s abusive behavior, and the measured reaction of the World, ultimately led to the largest war in Europe since World War II.

The Russian Federation has contempt for international law.  Over the last sixteen months, the World has woken up to this dark reality.  The World watched as Russia launched a full-scale invasion of Ukraine.  Russia even had the audacity to cloak its actions in international law, on the absurd pretext that it was acting to prevent genocide.  The World watched as Russia used this pretext to terrorize the Ukrainian people, targeting civilians, including children.  The World watched as Russia targeted Ukraine’s very identity, aiming to wipe us from the map, including those of us sitting in front of you.  Trying to “Russify” the people it occupied.  I speak of Russia’s war of aggression, and its utter disregard for human life, that is continuing right now.

4. But Russia’s contempt for international law did not start in 2022.  Beginning in 2014, Russia illegally occupied Crimea, and then engaged in a campaign of cultural erasure, taking aim at ethnic Ukrainians and Crimean Tatars.  In Donbas, in Kharkiv and elsewhere far from the contact line, we endured a Russian-fueled campaign of intimidation and terror.  The lesson this case teaches is simple: the past is prologue.  If the World does not stand up to serious violations of international law, the violators are emboldened.  If there is no accountability, the violations become more brazen.

5. Recall what happened when Russia occupied Crimea.  Russia purged the Ukrainian language from Crimea’s schools and Ukrainian culture from Crimea’s streets. Russia punished the Crimean Tatar people, closed their historic institutions, including the Mejlis, banned their gatherings, and subjected them to disappearances, torture, and arbitrary detention.  Look at what happens now.  Russia is no longer limiting itself to discrimination in Crimea.  Now it seeks to erase Ukrainian identity everywhere.  It even puts our people through filtration camps, deporting our children, and hiding their own identities from them.  Russia simply denies the existence of Ukrainians as a distinct identity. 

6. Recall what happened as Russian money and weapons poured in.  Flight MH17.  Volnovakha.  Mariupol.  Kramatorsk.  Kharkiv.  Civilians faced a reign of intimidation and terror.  Now Russia brings terror to all the citizens of Ukraine on a national scale.  In every city I just mentioned, Russia has committed larger atrocities.  Mariupol, recently the most vibrant city in the Azov region, turned into ruins.  Volnovakha, a quiet town, smashed to nothing.  Large portions of Kharkiv, called the students’ capital of Ukraine, leveled.  New cities have been added to the list: horrifying massacres in Bucha, torture chambers in Kherson, mass graves in Izyum, and so much more. 

7. Bombs and BM-21s are no longer quietly smuggled across the border.  Now Russia openly rains down thousands of missiles and bombs on Ukrainians.  Earlier today Russia blew up a major dam located in Nova Kakhovka causing significant civilian evacuations, harsh ecological damages, and threatening safety of the Zaporizhzhia Nuclear Power Plant. Under the leadership of President Zelenskyy and with the courage of the Armed Forces of Ukraine, Russia cannot defeat us on the battlefield.  So it targets civilian infrastructure to try to freeze us into submission.  Today, Russia’s actions are the actions of a terrorist state, an aggressor. But such actions did not appear out of the blue. They are the tragic but logical outcome of the situation we brought to this Court’s attention back in 2017.

8. Russia shall face accountability for the crimes of the present.  But today, we focus on the recent past.  We will not let new atrocities cloud the memories of past victims.  As Russia assaults the idea of a Ukrainian people, we will not forget Russia’s attack on the Ukrainians and Crimean Tatars in Crimea.  As the death toll mounts, and Russian missiles fall on our cities, we will not forget the civilians who perished in the deadly winter of 2015, sacrificed for the political agenda of Russia’s proxies.  

9. Ukraine brings claims under two treaties, but this is one case.  It is about the choice the Ukrainian people made in our Revolution of Dignity of 2014, to chart our path to a European future; the Orange Revolution of 2004, to have free and fair elections; and, ultimately, the Revolution on Granite of 1990, to live independently from the orders of Moscow.  This case, and the treaty violations that flow from it, arise from Russia’s refusal to accept our free choices.

10. Russia’s tactics are flexible.  Where it could occupy Ukrainian territory, it imposed discrimination.  Where it could not, Russian officials fueled terror.  As a result, Russia violated two different treaties — the Convention on the Elimination of All Forms of Racial Discrimination, or “CERD,” and the International Convention for the Suppression of the Financing of Terrorism, or “ICSFT”.  But Russia’s violations are variations on the same theme.

11. This morning, Ukraine will present its claims under the ICSFT.  Professor Harold Hongju Koh will introduce Ukraine’s claims, Russia’s treaty obligations, and how Russia twists them.  He will then address the Convention’s special definition of “funds” to mean “assets of every kind,” and show how weapons naturally fall within the treaty’s scope.

12. Professor Jean-Marc Thouvenin will then address the terrorism financing offense in Article 2 of the Convention, and how Russia again distorts the Convention’s text.  As Professor Thouvenin will show, by the summer of 2014, it was common knowledge, as reflected in U.N. reports, that the so-called DPR and LPR were engaged in a pattern of terrorist acts.

13. Next, Mr. David Zionts will address the financing of terrorist acts covered by Article 2(1)(a).  He will cover the Russian supply of weapons that led to the shoot-down of Flight MH17, an offense under the Montreal Convention, and a campaign of bombings targeting peaceful Ukrainian cities, offenses under the Bombings Convention.    

14. Fourth, Ms. Marney Cheek will address the supply of Russian multiple rocket launch systems, and the resulting series of attacks on civilian areas in Donbas.  After the lunch break, Ms. Cheek will conclude by summarizing Russia’s blatant violations of its ICSFT obligations.

15. Then Ukraine will turn to its claims under the CERD.

16. Professor Koh will introduce Ukraine’s claims, providing historical and legal context to Russia’s systematic campaign of racial discrimination against ethnic Ukrainians and Crimean Tatars.  He will then explain why Russia cannot escape its peremptory obligation not to discriminate by citing its own propaganda, anti-extremism or national security laws.

17. Next, Ms. Cheek will address the law applicable to Ukraine’s claims, including the definition of racial discrimination under the CERD and the substantive provisions that Russia has violated.

18. Ms. Clovis Trevino will then demonstrate that Russia has engaged in a multitude of CERD violations that, when viewed together, amount to a systematic campaign of racial discrimination in Crimea. 

19. Finally, Professor Thouvenin will conclude by addressing Russia’s ongoing — and flagrant — violations of this Court’s Provisional Measures Order of 19 April 2017.  

20. Madam President, Members of the Court, I will end this introduction where I began — with Russia’s contempt for international law.  Recently, the spokesperson of the Russian Ministry of Foreign Affairs presented a list of conditions for Russia to end its illegal war.  I will highlight one of them: that Ukraine abandon all “lawsuits against Russia in international courts”. That is a shocking statement — if Ukraine continues to pursue the peaceful settlement of disputes, Russia promises to keep using force.  The Court should not tolerate such an attack on its jurisdiction. 

21. Still, in its cynical way, Russia is paying tribute to international law.  Russia knows that this Court matters, and it fears a decision from this Court on the merits.  Russia is right to be worried.  International law does matter.  As we will show today, international law requires Russia to be held accountable for serious violations of the ICSFT and CERD.  We ask you today to begin restoring respect for international law.

22. Let me conclude with another quote of the Agent of Ukraine when this case began, six years ago: “Today, I stand before the World Court to request protection of the basic human rights of Ukrainian people. We seek justice and accountability under international law. People of Ukraine are facing an ongoing campaign of terror and cultural erasure. The situation is truly dire.”

23. Back then, the World took half-measures, which led to half-peace, which led to a total war.  Today, by looking at the facts and the law fairly and impartially, this honorable institution can deliver a historic decision.  It can help guide the international community to justice, sustainable peace, and the prevention of future gross violations of international law.  The lack of accountability for Russia must finally end.

24. Madam President, on behalf of Ukraine, I thank you for your attention to this important case, and for the hard work of the Court’s staff.  I now ask you to give the floor to Professor Koh.