Separate opinion of Judge ad hoc Pocar

SEPARATE OPINION OF JUDGE AD HOC POCAR
1. I have voted with the majority in favour of the indication of all provisional measures
concerning the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), as well as of the provisional measure asking both Parties to refrain from
any action which might aggravate or extend the dispute. I must however put on record that I would
have seen it necessary and appropriate to indicate provisional measures also with regard to the
International Convention for the Suppression of the Financing of Terrorism (ICSFT). In particular,
I cannot share the view that the required threshold of plausibility is not met for the indication of at
least some of the provisional measures requested by Ukraine with respect to this Convention (1).
I also have concerns regarding the implications of the present Order for the good administration of
justice (2). Finally, I wish to further clarify why the shooting-down of flight MH17 was not
examined in detail by the Court (3).
1. Plausibility of the rights asserted by Ukraine
2. The Court states, in its decision, that
“the obligations under Article 18 [of the Convention] and the corresponding rights are
premised on the acts identified in Article 2, namely the provision or collection of
funds with the intention that they should be used or in the knowledge that they are to
be used in order to carry out acts set out in paragraphs 1 (a) and 1 (b) of this Article”
(paragraph 74).
While acknowledging that, in the present case, the acts to which Ukraine refers — namely, the
bombing of peaceful marchers in Kharkiv, the bombardment of Mariupol, the attacks on
Volnovakha and Kramatorsk, and the shooting-down of Malaysia Airlines Flight MH17 — have
given rise to the death and injury of a large number of civilians, the Court answers negatively the
question
“whether there are sufficient reasons for considering that the other elements set out in
Article 2, paragraph 1, such as the elements of intention or knowledge noted above
(see paragraph 74), and the element of purpose specified in Article 2, paragraph 1 (b),
are present”, and concludes that “[a]t this stage of the proceedings, Ukraine has not
put before the Court evidence which affords a sufficient basis to find it plausible that
these elements are present” (paragraph 75).
3. The Court’s conclusion that the rights claimed by Ukraine under the ICSFT are not
plausible is the consequence of a brief reasoning which I have difficulties to share in light of the
elements present in the record of this case. In my view, it is plausible that the indiscriminate
attacks alleged by Ukraine are intended to spread terror, and that the persons providing funds to
those who conducted these attacks had knowledge that such funds were to be used for that purpose.
The record shows that there are numerous occurrences of attacks on civilians, reported by reliable
international organizations, and that these attacks have no discernible significance in military
advantage terms. As the existence of “knowledge” and “purpose” may usually be determined only
through circumstantial evidence, the frequency of the attacks on civilians and the wide availability
of official reports thereon make it at least plausible that the providers of funds were aware that
these might likely be used for such attacks and not only for attacks against military targets.
Additionally, as to the purpose of the attacks, the intent to spread terror has been regarded by
international criminal jurisprudence as the only reasonable inference to be drawn from
indiscriminate attacks when repeated and bearing no military advantage (see Prosecutor v. Galić,
ICTY Case No. IT-98-29-T, Trial Judgment, 5 December 2003, para. 593), or carried out at sites
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known to be frequented by civilians during their daily activities (see Prosecutor v. Dragomir
Milošević, ICTY Case No. IT-98-29/1-T, Trial Judgment, 12 December 2007, para. 881). If such a
conclusion has been affirmed in determining the “primary purpose” of an attack under Article 51,
paragraph 2, and Article 13, paragraph 2, of Additional Protocols I and II of 8 June 1977
respectively, it is at least plausible that such inference may be drawn when the mere “purpose” of
the attack has to be determined under Article 2, paragraph 1 (b), of the ICSFT.
4. I must conclude that, in light of the information in the record of this case, the threshold of
the plausibility test required for the indication of provisional measures is positively met in this case.
I would therefore have favoured the indication of a provisional measure requesting the Russian
Federation to provide Ukraine with the full co-operation required by Article 18 of the ICSFT,
including by exercising appropriate control over its borders, in order to prevent any offences within
the meaning of that convention from being committed.
2. Risks for the good administration of justice
5. Regarding the plausibility test itself, I do not question that some level of verification that
the rights claimed by the applicant are not patently non-existent must be encouraged, in order to
avoid an abuse of the provisional measures’ procedure and to give due regard to the rights of the
respondent. The Court has fully embraced this notion when it explicitly added the plausibility test
to its examination of requests for the indication of provisional measures.
6. However, the Court has never clearly defined the standard to be reached for rights to be
deemed plausible, as was already noted by Judge Abraham, in his separate opinion in the Pulp
Mills case (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order
of 13 July 2006, I.C.J. Reports 2006, separate opinion of Judge Abraham, p. 140, para. 10). In that
respect, Judge Sepúlveda-Amor expressed his concerns in the Certain Activities case, when he
asked the following question:
“Are States which request the indication of provisional measures expected to
show prima facie the validity of their claims on the merits, or is fumus non mali juris
sufficient, i.e., is it enough to ascertain that the claimed rights are not patently
non-existent according to the information available to the Court? Does it suffice to
demonstrate the possibility or reasonableness of the existence of a right, or is
probability the relevant standard?” (Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of
8 March 2011, I.C.J. Reports 2011, separate opinion of Judge Sepúlveda-Amor, p. 37
para. 12.)
7. I concur with his view that these are not “academic subtleties”; rather this lack of clarity,
as he foresaw, has practical implications in how the parties plead in requests for the indication of
provisional measures and
“might ultimately encourage States seeking interim protection to over-address the
substance of the dispute at an early stage and, as a result, overburden proceedings
under Article 41 of the Statute with matters that should actually be dealt with by the
Court when adjudicating on the merits” (ibid., p. 38 para. 15).
8. The present case will only reinforce such risk of encouraging parties to excessively argue
the merits. The Court has indeed concluded that “Ukraine has not put before the Court evidence
which affords a sufficient basis to find it plausible that these elements are present” (paragraph 75).
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Such statement begs the question as to the level of evidence required. More generally, it blurs the
distinction between the provisional measures phase and the merits, which can have serious
consequences in terms of good administration of justice. In particular, in a situation where the
evidence to prove intent and purpose will be circumstantial, how can parties know the extent of the
case that they have to bring forward when requesting the indication of provisional measures?
Would it not be wiser and safer for them to present the totality of their arguments and evidence at
such an early stage? One can wonder how the Court expects parties, in the future, to reconcile such
jurisprudence and Practice Direction XI, which reads:
“In the oral pleadings on requests for the indication of provisional measures
parties should limit themselves to what is relevant to the criteria for the indication of
provisional measures as stipulated in the Statute, Rules and jurisprudence of the Court.
They should not enter into the merits of the case beyond what is strictly necessary for
that purpose.”
9. In turn, for the Court, avalanche of materials and evidence which arguably should be
reserved for the merits, could overburden it and put a strain on its ability to indicate, promptly,
measures of an urgent nature. Delays are to be avoided in the indication of provisional measures,
but so too are procedures not giving the Court sufficient time to process large quantities of
evidence.
3. Question of the flight MH17
10. A significant part of Ukraine’s case under the ICSFT relates to the shooting-down of
Malaysia Airlines Flight MH17. This question was however not addressed in detail in the current
stage of proceedings. While I agree with the reasons behind such restraint, I consider that the
Order could have benefited from further clarification.
11. There is no doubt that the Parties’ arguments regarding this dramatic event did not need
to be fully developed at the stage of provisional measures. Indeed, following the closure of the
airspace over eastern Ukraine in July 2014, there is no urgency with respect to civilian aircrafts.
For that simple reason, the Court was not asked to include the shooting-down of flight MH17 in its
analysis.
12. In the preliminary section of the Order, the Court introduces the context of the present
case, with the fighting in eastern Ukraine and the destruction of the flight MH17. The Court very
succinctly declares that “the case before the Court is limited in scope. In respect of the eastern part
of its territory, Ukraine has brought proceedings only under the ICSFT” (paragraph 16). This
statement of fact is undeniable as cases brought before the Court under a compromissory clause are
limited in scope to the subject-matter of the relevant convention.
13. However, in my view, what this statement cannot mean is that, without any in-depth
analysis of the ICSFT and without careful examination of the evidence, the Court has reached a
conclusion regarding the applicability of the Convention. The case under the ICSFT refers to both
the shooting-down of flight MH17 and indiscriminate shelling on the ground, which may fall under
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Article 2, paragraph 1, letters (a) and (b) respectively. To avoid any misunderstanding, the Court
could have made clear that it needs not, at this stage of the proceedings and for the reason of lack
of urgency outlined above, examine the applicability of letter (a), and hence of the Montreal
Convention, to the shooting-down of flight MH17.
(Signed) Fausto POCAR.
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