INTERNATIONAL COURT OF JUSTICE
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)
REJOINDER
SUBMITTED BY THE RUSSIAN FEDERATION
10MARCH 2023
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TABLE OF CONTENTS
GENERAL INTRODUCTION ............................................................................................. 10
PART 1 APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM...................................... 13
I. INTRODUCTION............................................................................................................... 15
A. The Coup d’état in Kiev.................................................................................................. 15
B. The Armed Conflict in Donbass ..................................................................................... 22
C. The Minsk Agreements and the Hypocrisy of Ukraine’s Case ...................................... 23
D. There Is Unsurprisingly Still No Evidence of Funding of Terrorism............................. 24
E. Structure of This Part ...................................................................................................... 27
II. UKRAINE’S CLAIMS UNDER THE ICSFT ARE PRECLUDED BY VIRTUE OF THE CLEAN
HANDS DOCTRINE .......................................................................................................... 28
A. Ukraine Never Sought a Peaceful Settlement in Donbass, Having Instead Used Military
Aviation and Heavy Weapons Against Civilians ........................................................... 30
B. Ukraine Continued to Trade Openly with Donetsk and Lugansk................................... 39
III. THE REQUIREMENTS FOR THE ESTABLISHMENT OF TERRORISM FINANCING UNDER
ARTICLE 2 OF THE ICSFT ............................................................................................. 44
A. The “Intention” or “Knowledge” Necessary for the Offence of Terrorism Financing under
the Chapeau to Article 2(1) of the ICSFT....................................................................... 46
B. The Requirements for Acts of Terrorism within the Meaning of Article 2(1)(a) of the
ICSFT.............................................................................................................................. 58
C. The Requirements for Acts of Terrorism within the Meaning of Article 2(1)(b) of the
ICSFT.............................................................................................................................. 65
D. The Rules of IHL are Relevant to the Interpretation and Application of the ICSFT ..... 73
IV. UKRAINE’S INTERPRETATION OF “FUNDS” UNDER THE ICSFT IS MISCONCEIVED... 82
A. The Terms of the Convention ......................................................................................... 82
B. The Object and Purpose of the Convention .................................................................... 87
C. Other Relevant Rules of International Law.................................................................... 89
D. The Drafting History of Article 1(1) of the Convention................................................. 94
E. Domestic Implementation of the ICSFT......................................................................... 95
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V. UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM FINANCING WITH
RESPECT TO FLIGHT MH17........................................................................................... 98
A. Introduction..................................................................................................................... 98
B. Ukraine Failed to Establish That the Montreal Convention Applies to the Shoot-down of
Flight MH17 ................................................................................................................. 103
VI. UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM FINANCING WITH
REGARD TO THE SHELLING INCIDENTS ...................................................................... 133
A. Introduction................................................................................................................... 133
B. The Shelling Of the Roadblock Near Volnovakha ....................................................... 136
C. Mariupol........................................................................................................................ 152
D. Kramatorsk.................................................................................................................... 160
E. Avdeyevka .................................................................................................................... 165
VII. UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM IN RESPECT OF
THE ALLEGED KILLINGS AND BOMBINGS WITHIN ITS TERRITORY .......................... 173
A. The Role of the SBU and Other Law Enforcement Agencies ...................................... 174
B. “Kharkov Partisans” ..................................................................................................... 176
C. Stena Pub Bombing ...................................................................................................... 178
D. Alleged Bombing of PrivatBank................................................................................... 185
E. The Rally Bombing....................................................................................................... 188
F. “Attempted Assassination” of Anton Gerashchenko in Kiev ....................................... 190
G. “Attempted Assassination” of Gordiyenko in Odessa .................................................. 192
H. Death of Vladimir Rybak.............................................................................................. 193
I. Death of Valeriy Salo and Alleged Killings of Pro-Ukraine Farmers .......................... 197
VIII. THE RUSSIAN FEDERATION DID NOT BREACH ITS SPECIFIC OBLIGATIONS UNDER THE
ICSFT........................................................................................................................... 200
A. Article 8: The Russian Federation Did Not Violate Its Obligation to Take Appropriate
Measures to Identify, Detect and Freeze or Seize Funds Used for Terrorism Financing
...................................................................................................................................... 201
B. Article 9: The Russian Federation Did Not Violate Its Obligation to Investigate the Facts
Related to Terrorism-Financing.................................................................................... 211
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C. Article 10: The Russian Federation Did Not Violate Its Obligation to Prosecute or
Extradite Terrorism-Financing Offenders .................................................................... 219
D. The Russian Federation Did Not Violate Its Obligation under Article 12 of the ICSFT to
Assist with the Criminal Prosecution of the Terrorism Financing ............................... 220
E. Article 18: The Russian Federation Has Not Violated Its Obligations to Cooperate in the
Prevention of Terrorism Financing............................................................................... 229
SUBMISSIONS ON PART 1........................................................................................................ 237
PART 2 APPLICATION OF THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION................. 238
I. INTRODUCTION............................................................................................................. 240
A. Russia’s Ongoing Support of Crimean Tatars and Ethnic Ukrainians in Crimea ........ 241
B. Ukraine’s Case is Artificial and Based on Flawed Evidence ....................................... 247
C. Structure of This Part .................................................................................................... 248
II. UKRAINE’S CLAIMS UNDER THE CERD ARE PRECLUDED BY VIRTUE OF THE CLEAN
HANDS DOCTRINE ........................................................................................................ 250
A. Ukraine Failed to Protect Ethnic Minorities Living on Its Territory ............................ 252
B. Measures Taken by Ukraine With Respect to Russian Language and Culture ............ 264
C. Ukraine’s Current Regime Was Installed by Extreme-Right Radicals Deeply Rooted in
Nazi and Fascist Ideology............................................................................................. 271
III. UKRAINE’S CLAIMS ARE MANIFESTLY OUTSIDE THE SCOPE AND SUBJECT-MATTER OF
THE DISPUTE AS DEFINED BY THE CERD AND THE COURT ....................................... 302
A. The Dispute is Limited to an Alleged “Systematic Racial Discrimination Campaign” and
Does Not Cover Isolated and Unconnected Instances of Alleged Racial Discrimination
...................................................................................................................................... 303
B. Ukraine Has Not Met the Criteria or Burden of Proof for Establishing the Existence of a
“Systematic Racial Discrimination Campaign”............................................................ 306
C. Ukraine’s Recasting of the Case as Concerning “Indirect Discrimination” is Inadmissible
and Without Merit......................................................................................................... 320
D. Ukraine Fails to Provide Crucial Statistical Data ......................................................... 333
E. Political Views Have No Bearing on the Definition of “Ethnic Origin” Under the CERD
...................................................................................................................................... 334
F. Measures Taken on Justifiable Grounds Do Not Constitute Racial Discrimination .... 337
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G. Ukraine’s Allegations under International Humanitarian Law are Outside the Court’s
Jurisdiction.................................................................................................................... 341
H. Ukraine’s Misconceived Interpretation of “Ethnic Origin” (“Ethnicity”) Reveals That its
Real Goal is Challenging the Status of Crimea ............................................................ 342
IV. THE BAN ON THE MEJLIS DOES NOT CONSTITUTE RACIAL DISCRIMINATION ......... 351
A. The Mejlis Has Never Been A Representative Institution of Crimean Tatars.............. 351
B. The Ban of the Mejlis Does Not Constitute a Violation of the CERD......................... 357
C. The Ban of the Mejlis Was Lawful and Legitimate...................................................... 364
V. THERE IS NO RACIAL DISCRIMINATION WITH RESPECT TO EDUCATION................. 372
A. Article 5(e)(v) of the CERD Does Not Include a Right to Education in Minority
Languages ..................................................................................................................... 372
B. Crimean Tatars and Ukrainians Have Access to Education in Their Own Languages in
Crimea........................................................................................................................... 378
VI. NO ENFORCED DISAPPEARANCES, MURDERS, ABDUCTIONS AND TORTURE DIRECTED
AT THE CRIMEAN TATARS AND UKRAINIANS ON RACIAL GROUNDS ......................... 396
A. The Alleged Instances Relied on by Ukraine Do Not Amount to a Pattern or Campaign
of Racial Discrimination Against Crimean Tatars and Ukrainians .............................. 397
B. None of the Alleged Acts Can Be Attributed to the Russian Federation ..................... 400
VII. NO RACIAL DISCRIMINATION IN REGARD TO LAW ENFORCEMENT MEASURES....... 403
A. The Lawful and Legitimate Basis of Law Enforcement Measures Undertaken by the
Russian Federation in Crimea....................................................................................... 404
B. Ukraine’s Allegation of “Pretextual Enforcement Measures” Undertaken as Part of a
Systematic Campaign or Policy of Racial Discrimination Is Not Supported by Any
Evidence........................................................................................................................ 406
VIII. THERE IS NO VIOLATION OF THE CERDWITH RESPECT TO CITIZENSHIP.............. 410
A. Ukraine Has Failed to Discharge Its Burden of Proving a Systematic Campaign of
Discrimination in Matters of Citizens........................................................................... 411
B. Nationality and Citizenship Under the CERD.............................................................. 412
C. Distinctions and Restrictions or Preferences Based on Citizens and Non-citizens Are Not
Within the Scope of the CERD..................................................................................... 413
D. Ukraine’s Claims About the Russian Federation’s Grant of Citizenship and the Relevant
Legal Framework Are Not Envisaged by the CERD, and That Regime Is Not
Discriminatory Against Any Particular Nationality or Group Enumerated in Article 1(1)
...................................................................................................................................... 414
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E. The Alleged “Downstream” Effects of the Relevant Legal Framework Do Not Fall Within
the Scope of the CERD................................................................................................. 416
F. The Grant of Citizenship Is Consistent With Longstanding International Practice and
Does Not Constitute a Violation of International Human Rights Law......................... 418
G. Ukraine’s Claims Regarding International Humanitarian Law Are Beyond the Scope of
the CERD and Outside the Court’s Jurisdiction ........................................................... 424
IX. THE RUSSIAN FEDERATION DID NOT BREACH CERD WITH RESPECT TO PUBLIC
EVENTS ......................................................................................................................... 426
A. Ukraine’s Allegations of Discrimination Campaign With Respect to Public Gatherings
Are Based on the Erroneous and Misleading Representation of Law and Fact ........... 427
B. No Racial Discrimination in Crimea Against Crimean Tatars and Ukrainians With
Respect to Public Gatherings, as Ukraine Did Not Show That Crimean Tatars or
Ukrainians Were Treated Differently Than Others ...................................................... 431
X. THE RUSSIAN FEDERATION DID NOT BREACH THE CERD WITH REGARD TO CRIMEAN
TATAR AND ETHNIC UKRAINIAN MEDIA IN CRIMEA.................................................. 436
A. Ukraine’s Claims Concerning Treatment of Media Corporations and Any Collateral
Effects Thereof Are Beyond the Court’s Jurisdiction Because Corporations Are Not
Protected Under the CERD........................................................................................... 437
B. Ukraine’s Claims Are in Essence Claims of Discrimination Based on Political Opinion,
With No Connection to Ethnic Origin, and Thus Beyond the Court’s Jurisdiction Because
Such Distinction Does Not Constitute Racial Discrimination Under the CERD ......... 438
C. Ukraine’s New Claims Regarding “Indirect Discrimination” Are Inadmissible for Going
Beyond the Scope of the Case Determined by the Court ............................................. 440
D. Ukraine Failed to Prove Any Systematic Campaign of Racial Discrimination Against
Crimean Tatar and Ukrainian Media ............................................................................ 441
XI. THERE IS NO RACIAL DISCRIMINATION WITH RESPECT TO PRESERVATION OF
CULTURAL HERITAGE.................................................................................................. 450
A. The Russian Federation Preserves the Cultural Heritage of Crimean Tatar Communities
...................................................................................................................................... 450
B. The Russian Federation Preserves the Cultural Heritage of Ukrainian Communities . 462
XII. THE RUSSIAN FEDERATION HAS NOT VIOLATED THE COURT’S ORDER ON
PROVISIONAL MEASURES ............................................................................................ 467
A. The Russian Federation Has Acted in Accordance With Any Obligations It May Have
Under The CERD.......................................................................................................... 468
B. The Russian Federation Has Not Aggravated or Extended the Dispute Before the Court
or Made It More Difficult to Resolve ........................................................................... 472
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SUBMISSIONS ON PART 2........................................................................................................ 474
APPENDIX 1 UKRAINE’S COAL TRADE WITH THE DPR AND LPR....................................... 475
APPENDIX 2 GENERAL ASSESSMENT OF THE WORK OF THE JIT AND THE HAGUE DISTRICT
COURT AS COMMUNICATED TO THE UN SECURITY COUNCIL ................................... 480
A. Ukraine’s Failure to Provide Original Data Files ......................................................... 482
B. The Russian Federation’s Uncontradicted Proof That The Limited Digital Material That
Did Emerge Was False ................................................................................................. 483
C. Ukraine’s Interference with Physical Wreckage And Reliance on Pieces Without
Provenance.................................................................................................................... 484
D. Reliance on Fake “Bow-Ties” ...................................................................................... 488
E. The DSB’s Unreliable Triangulation Exercise ............................................................. 494
F. Inconsistent Explosive Traces ...................................................................................... 495
G. No Radar Traces ........................................................................................................... 496
H. Fake Launch Pictures.................................................................................................... 496
E. Fake Launch Site .......................................................................................................... 498
F. The Results of Aerospace Defense Concern Almaz-Antey’s Technical Investigation Were
Unjustifiably Rejected .................................................................................................. 502
G. The Bias of the Dutch Police Against the Russian Federation During the Investigation
...................................................................................................................................... 504
H. Substantive Deficiencies of Dutch Criminal Proceedings and The ECtHR Proceedings
...................................................................................................................................... 507
APPENDIX 3 THE RUSSIAN FEDERATION IS NOT ACCOUNTABLE FOR THE ACTS OF
DISAPPEARANCE,MURDER, ABDUCTION AND TORTURE ALLEGED BY UKRAINE ..... 515
A. The Reshat Ametov Case.............................................................................................. 515
B. The Ervin Ibragimov Case............................................................................................ 516
C. The Shchekun, Kovalsky and Vdovchenko Cases........................................................ 516
D. The Kostenko and Paralamov Cases............................................................................. 518
APPENDIX 4 NO DISCRIMINATION IN REJECTION TO GRANT PERMISSIONS TO ORGANISE
PUBLIC EVENTS IN CRIMEA......................................................................................... 520
A. The Case of Mr Ibraim Ibragimov................................................................................ 520
B. The Case of Mr Marlen Mustafayev............................................................................. 521
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C. The Case of Mr Girai Kulametov, Mr Kemal Saityaev, Mr Enver Krosh and Mr Ebazer
Islyamov........................................................................................................................ 521
D. Home Searches and Arrests of Crimean Tatars Affiliated With Terrorist Organizations in
October 2016 and October 2017................................................................................... 522
E. Alleged Disproportionate Law Enforcement Actions Against Persons Participating in
Protests.......................................................................................................................... 522
F. The measures at the Café “Bagdad”, Pionerskoe, on 1 April 2016 .............................. 522
G. Operation “Barrier-2015” ............................................................................................. 523
APPENDIX 5 NO DISCRIMINATION IN REJECTION TO GRANT PERMISSIONS TO ORGANISE
PUBLIC EVENTS IN CRIMEA......................................................................................... 525
A. The 2014 Sürgun Commemoration............................................................................... 525
B. The Crimean Tatar Flag Day on 26 June 2015............................................................. 528
C. The Sürgün Commemoration in 2015 .......................................................................... 529
D. Human Rights Day 2015............................................................................................... 530
E. The Sürgün Commemoration 2016............................................................................... 532
F. Bakhchisaray Fines ....................................................................................................... 532
G. Alleged Discrimination Against Ukrainian Community .............................................. 533
APPENDIX 6 INDIVIDUAL INSTANCES OF MEDIA OUTLETS TO PASS REGISTRATION
PROCEDURE SHOWS NO DISCRIMINATION BASED ON ETHNIC ORIGIN..................... 535
A. Avdet Newspaper.......................................................................................................... 535
B. Chernomorskaya TV..................................................................................................... 536
C. ATR TV Channel .......................................................................................................... 538
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GENERAL INTRODUCTION
1. The present Rejoinder is submitted in accordance with Article 45(2) of the Rules of Court
and the Court’s Orders of 8 October 2021, 8 April 2022, 15 December 2022, and 3
February 2023.
2. As explained in the Russian Federation’s Counter-Memorial, Ukraine’s claims under the
International Convention for the Suppression of the Financing of Terrorism (the
“ICSFT”) and the International Convention on the Elimination of All Forms of Racial
Discrimination (the “CERD”) are without merit and should be dismissed in their entirety.
Pursuant to Article 49(3) of the Rules of Court, this Rejoinder does not repeat the
arguments set out in the Counter-Memorial (which are maintained in full), but is instead
limited to responding to Ukraine’s Reply, focusing on “the issues that still divide” the
Parties.
3. Before going into the substance of Ukraine’s claims as they have been recast in the Reply,
some introductory observations are in order:
(a) The Russian Federation’s approach in the present case is straightforward. It consists
of: (i) interpreting the scope and content of the obligations arising under the ICSFT
and the CERD in accordance with the rules enshrined in the Vienna Convention on
the Law of Treaties (the “VCLT”); (ii) pointing to the evidentiary standards
applicable in order to establish a breach of those obligations; and (iii) demonstrating
that Ukraine’s allegations do not fall within the scope of the relevant treaties and
do not meet the necessary evidentiary threshold. Interestingly, Ukraine refers to the
Russian Federation’s approach as “legalistic” and suggests that it seeks to avoid
responsibility.1 If by “legalistic” Ukraine means that the Russian Federation’s
position is in accordance with the existing law, then it would appear that no real
disagreement exists between the Parties, and that Ukraine attempts to put forward
a case that cannot be sustained in law. Furthermore, the question is not one of the
Russian Federation trying to “avoid” international responsibility, as Ukraine
improperly tries to characterise the Russian Federation’s position. Like in any other
1 See Reply, ¶¶11-13.
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case before the Court, what must be determined is simply whether a State is
responsible for a violation of international law or not.
(b) Instead of properly engaging with the Russian Federation’s legal arguments,
Ukraine seeks to rely on the political context and portrays this case as concerning
“a brazen and comprehensive assault on human rights and international law in the
territory of Ukraine” and a “fundamental disregard for the human rights of the
people of Ukraine”.2 Thus, Ukraine’s Reply is replete with irrelevant accusations
of “unlawful aggression against Ukraine”, “unlawful occupation of Ukrainian
territory” and violations of international humanitarian law, which, as the Court
already established, do not form part of the subject-matter of the present Case.3
(c) The Reply reveals Ukraine’s true purpose in pursuing these proceedings. Indeed,
Ukraine is not genuinely concerned with the question whether the Russian
Federation complied with its obligations under the ICSFT and the CERD (which it
always did), or with the question what the Court may decide on important issues
relating to terrorist financing and racial discrimination. Ukraine’s claims have
instead been artificially constructed as part of Ukraine’s broader “lawfare”
campaign against the Russian Federation, which concerns issues that are manifestly
not governed by these treaties. It is as self-evident that Ukraine’s real goal is
challenging the legal status of Crimea, branding the people in the Donbass region
who oppose the oppression of the Kiev regime as “terrorists”, and even having the
Court characterise the Russian Federation as a “terrorist State”.
(d) The absurdity of Ukraine’s claims is further highlighted by the fact that Ukraine
itself has been, and continues to be, engaged in the same kind of actions that it
alleges to be in violation of the ICSFT and the CERD. Since 2014, the Ukrainian
Armed Forces (the “UAF”) have carried out constant shelling and bombing against
residential areas and civilian infrastructure – including schools and hospitals –
thereby killing and wounding thousands of civilians, including children, women
2 Reply, ¶14.
3 See 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), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017 (“Order of 19 April 2017”), pp.
113, 172, ¶¶16, 76; Preliminary Objections, Judgment of 8 November 2019, I.C.J. Reports 2019 (“Judgment of 8
November 2019”), pp. 577, 585, ¶¶29, 59.
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and the elderly. Ukraine has blocked vital supplies of food, water, and medicine to
the people of Donbass and Crimea, causing an immeasurable humanitarian crisis.
It has persecuted Russians in Donbass and now in the entirety of Ukraine.
Alarmingly, the Ukrainian Government supports and promotes Neo-Nazi ideology
inherited from World War II collaborators and criminals, which is contrary to the
very spirit of the CERD.
(e) At each stage of the proceedings Ukraine has attempted to recast its claims.
Whether the Russian Federation financed “terrorist activities” in Donbass or
whether there was an alleged “campaign of racial discrimination” in Crimea appears
no longer to be the focus of Ukraine’s case. Instead, in its Reply Ukraine
concentrated on alleged incidents of non-cooperation under the ICSFT and on
individual allegations of discrimination under the CERD, which Ukraine apparently
considers to be easier to prove.
(f) No matter what the strategy of Ukraine is, its case under each of the treaties in
question is manifestly without merit. At the provisional measures stage, the Court
found most of Ukraine’s claims to be implausible. Since then, Ukraine has failed
to provide any legal argument or evidence that would lead to a different conclusion.
(g) As the Russian Federation noted in its Counter-Memorial, Ukraine’s Application to
the International Court of Justice of 16 January 2017 formally concerns alleged
violations of both the ICSFT and the CERD. However, it actually concerns two
entirely separate cases which have in common only the use of the Court’s forum in
an attempt to stigmatise the Russian Federation.
4. This Rejoinder is divided into two parts: Part One shows that Ukraine has not established
any violation of the ICSFT by the Russian Federation; and Part Two demonstrates that
Ukraine has not established any violation of the CERD by the Russian Federation.
5. The Russian Federation reserves the right to ask the Court for authorisation to make
further arguments and to submit further evidence, including in response to any material
that Ukraine reserved the right to submit under Article 56(2) of the Rules of the Court.4
4 Reply, ¶9.
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PART 1
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM
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I. INTRODUCTION
6. Ukraine’s arguments on the ICSFT have significantly changed since the Memorial.
Initially, Ukraine’s primary argument was that the Russian Federation financed terrorist
activities in Ukraine. The Court, however, then found in its Judgment of 8 November
2019 that the “financing by a State of acts of terrorism is not addressed by the ICSFT”
and “lies outside the scope of the Convention”.5 In light of the limited scope of the ICSFT
as set out by the Court, Ukraine was forced to recast its legal arguments and now
concentrates on allegations of non-cooperation by the Russian Federation in combating
of alleged terrorist-funding activities.
7. Before addressing Ukraine’s Reply, some preliminary observations regarding the context
of the present case are warranted.
A. THE COUP D’ÉTAT IN KIEV
8. In its Reply, Ukraine continues to mispresent the events of 2014 that led to serious
developments in the years that followed. It does this in order to place responsibility on
the Russian Federation for its own illegal and unreasonable decisions and actions. At the
same time, Ukraine seeks artificially to tie the ICSFT with these events, which the
Convention has in reality nothing to do with.
9. As the Russian Federation explained in the Counter-Memorial, the armed conflict in
Donbass arose out of an unconstitutional upheaval in Kiev, where radical armed groups
deeply rooted in Nazi ideology with the aid and political support of the US and several
EU States overthrew the legitimate government and imposed a new nationalist, openly
anti-Russian regime.
10. What Ukraine now calls a peaceful “Revolution of Dignity” was known in 2014 as the
“Maidan”. It was a series of protests that took place in Kiev at the end of 2013 and
gathered broad support from a number of Western countries. One of the pretexts for this
long face-off between the Ukrainian Government and its opposition was the decision by
the former President Yanukovich to suspend preparations to sign an association
agreement with the European Union. The real problem was, however, created by the
5 Judgment of 8 November 2019, p. 585, ¶59.
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opposition in Ukraine, which sought to confront the Ukrainian people with a stark but
fictitious choice: Ukraine moves ahead either with Europe or with the Russian Federation.
As the Russian Federation previously explained to the Court, this false choice largely split
the country.6
11. The initial wave of violence started in early 2014 in the West of Ukraine and was
instigated by radical extremist movements with Neo-Nazi backgrounds. Many of these
groups were actively nurtured with open funding from Western countries, primarily the
United States. Thus, according to Victoria Nuland, US’ Assistant Secretary of State, the
United States spent $5 billion in Ukraine on “promotion of democracy” and “related
projects” between 1991 and 2013. 7 Substantial sums were funnelled through the
USAID,8 Freedom House and the NED, all of which are funded by the US Government.9
12. Thus, in January 2014, radicals blocked regional State administrations in the West of
Ukraine, regional Departments of the Ministry of Interior and the Security Service of
Ukraine (the “SBU”), police stations and other public buildings. On 23 January 2014,
they stormed into the Lvov State Regional Administration and forced its head to write a
letter of resignation.10 By 24 January 2014, the State Administrations had been taken in
at least 6 more regional centres.11 On 19 February 2014, further administrative buildings
were forcefully seized, including military postings.12 In particular, the activists in Lvov
6 See 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), Verbatim Record, 7 March 2017, ¶7 (Kolodkin).
7 YouTube, Victoria Nuland's Admits Washington Has Spent $5 Billion to “Subvert Ukraine” (9 February 2014),
available at: https://www.youtube.com/watch?v=U2fYcHLouXY (Annex 297).
8 U.S. Agency for International Development, Ukraine, available at: https://www.usaid.gov/ukraine (Annex 178).
9 See National Endowment for Democracy, Ukraine, available at:
https://web.archive.org/web/20140831044648/http://www ned.org/where-we-work/eurasia/ukraine (Annex 179).
10 Unian.ua, In Lvov activists continue to block the RSA building, “Berkut” bases and internal troops (24 January
2014), available at: https://www.unian.ua/politics/875962-u-lvovi-aktivisti-prodovjuyut-blokuvati-budivlyu-odabazi-
berkutu-i-vnutrishnih-viysk.html (Annex 298); DailyLviv.com, Lvov Regional State Administration and
“Berkut” and Internal Troops bases are being blocked (24 January 2014), available at:
https://dailylviv.com/news/polityka/u-lvovi-blokuyut-prymishchennya-oda-i-bazy-berkutu-ta-vv-video-3969
(Annex 299).
11 Ternopol, Khmelnitskiy, Rovno, Chernovtsy, Zhitomir, and Ivano-Frankovsk. Two more were blocked in Lutsk
and Uzhhorod. See TSN, Map of seizures of regional state administrations in Ukraine: eight regions are under
the control of demonstrators (24 January 2014), available at: https://tsn.ua/politika/karta-zahoplen-oda-vukrayini-
visim-regioniv-opinilisya-pid-kontrolem-demonstrantiv-331198 html (Annex 300).
12 BBC.com, Regions of Ukraine: West rises up, East calls to “stop extremists” (19 February 2014), available at:
https://www.bbc.com/ukrainian/politics/2014/02/140219_regions_conflict_reaction_or.
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took control of the city prosecutor's office, the building of the Ministry of Internal Affairs,
the headquarters of the SBU and the military unit No. 4114 of the Internal Troops of
Ukraine. As a result of negotiations between the radicals and the leadership of the
military unit, an agreement was reached that the security forces would leave the military
unit unarmed.13 The Defence Ministry’s military arsenal was looted.14 Armed groups of
extremists, many of whom had criminal records and/or combat experience continued
arriving in Kiev.
13. The Maidan leaders (A. Yatsenyuk, A. Turchinov, V. Klichko, O. Tyagnibok, D. Yarosh
etc.) organised the siege of the Cabinet of Ministers of Ukraine and an attempted storm
of the Office of the President of Ukraine. The leading forces of these actions were the
Right Sector (whose leader was D. Yarosh) and the “All-Ukraine Union” (VO) Svoboda
(whose leader was O. Tyagnibok), which find their origins in Ukraine’s Nazi
collaborators, notorious as accomplices in the heinous crimes of the Second World War.
14. The Right Sector and the VO Svoboda formed the core of the so-called “Samooborona
Maidanu” (“Maidan Self-Defence”). Organised violence against the police became
widespread: thousands of radicals used Molotov cocktails and policemen were burned
and injured. The tragic culmination came on 18-22 February 2014, when more than 100
people were killed, including at least 13 police officers due to sniper fire. These tragic
events were demonstrated in Ukraine on Fire, a documentary film released in 2016 by
the US Academy Award winning film director and Vietnam War veteran Oliver Stone.15
13 TSN, In Lvov protesters seize main law enforcement buildings and weapons arsenal (19 February 2014),
available at: https://tsn.ua/ukrayina/u-lvovi-protestuvalniki-zahopili-golovni-budivli-silovikiv-ta-arsenal-zbroyi-
335205.html (Annex 398).
14 Unian.ua, Military warehouses with weapons burn in Lvov (19 February 2014), available at:
https://www.unian.ua/politics/886677-u-lvovi-goryat-viyskovi-skladi-zi-zbroeyu.html (Annex 188).
15 I. Lopatonok, O. Stone, Ukraine on Fire, Documentary (2016), available at:
https://watchdocumentaries.com/ukraine-on-fire/; See also The World, Who Were the Maidan Snipers? (14 March
2014), available at: https://theworld.org/stories/2014-03-14/who-were-maidan-snipers (Annex 180); BBC News
Ukraine, The Maidan Shooting: a Participant’s Account (13 February 2015), available at:
https://www.bbc.com/ukrainian/ukraine_in_russian/2015/02/150213_ru_s_maidan_shooting (Annex 181).
Page 18 out of 541
15. The Ukrainian authorities never properly investigated or prosecuted the Maidan
shootings.16 Moreover, the protesters involved in violent acts were later amnestied.17
16. The Court had an opportunity to review the technologies of the power change with an
outside interference.18 In particular the Court studied a copy of a CIA “Psychological
Operations” manual explaining, inter alia, how to foment civil unrest to bring down a
target government. In the section on “Control of mass concentrations and meetings”, the
following guidance is given (inter alia):
“If possible, professional criminals will be hired to carry out specific selective
'jobs'. Specific tasks will be assigned to others, in order to create a 'martyr' for
the cause, taking the demonstrators to a confrontation with the authorities, in
order to bring about uprisings or shootings, which will cause the death of one
or more persons, who would become the martyrs, a situation that should be
made use of immediately against the régime, in order to create greater
conflicts”.19
16 The UN Human Rights Monitoring Mission in Ukraine concluded in its Briefing note dated 19 February 2019
that “Five years after the end of the Maidan protests accountability for the killings and violent deaths of 84
protestors, a man who did not participate in the protests, and 13 law enforcement officers is yet to be achieved.
The investigation into the killing of 17 protestors and 13 law enforcement officers has still to identify individual
perpetrators. Only one person has been found guilty of unintentional killing of a protestor. Two others were found
guilty of hooliganism in relation to an incident that resulted in the killing of another protestor… HRMMU notes
that investigations into the killing of the law enforcement officers during Maidan protests have been particularly
ineffective… The trials in the Maidan-related proceedings are protracted… Government of Ukraine is doing too
little to ensure the prompt, independent and impartial investigation and prosecution of the killings perpetrated
during Maidan protests”. See UN Human Rights Monitoring Mission in Ukraine, Briefing note Accountability for
Killings and Violent Deaths during the Maidan Protests, 20 February 2019, ¶¶4, 13-14, 16, available at:
https://ukraine.un.org/en/108759-briefing-note-accountability-killings-and-violent-deaths-during-maidanprotests.
The International Advisory Panel established by the Secretary General of the Council of Europe to oversee
investigations of the crimes committed during Maidan also concluded that new Ukrainian government failed to
promptly conduct the Maidan investigations: “The Panel considers that substantial progress has not been made in
the investigations into the violent incidents during the Maidan demonstrations… As has been widely
acknowledged, there has been a clear lack of public confidence in Ukraine in any such investigation. On the
contrary, there has been a widespread perception of impunity on the part of the law enforcement agencies and of
an unwillingness or inability on the part of the investigatory authorities to bring to justice those responsible for the
deaths and injuries”. See Report of the International Advisory Panel on its review of the Maidan Investigations,
31 March 2015, ¶535, 536, available at: https://rm.coe.int/CoERMPublicCommonSearchServices
/DisplayDCTMContent?documentId=09000016802f038b.
17 Law of Ukraine No. 743-VII “On Preventing the Prosecution and Punishment of Persons in Connection with
the Events that Occurred during Peaceful Assemblies and on Invalidating Certain Laws of Ukraine”, 21 February
2014, available at: https://zakon.rada.gov.ua/go/743-18 (Annex 468).
18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment. I.C.J. Reports 1986 , p. 66, ¶118: “The Court will ... concentrate its attention on the other manual, that
on ‘Psychological Operations’. That this latter manual was prepared by the CIA appears to be clearly established:
a report published in January 1985 by the Intelligence Committee contains a specific statement to that effect...”.
19 Ibid.
Page 19 out of 541
17. On 21 February 2014, former President Yanukovich and the opposition leaders signed an
agreement to settle the crisis. This agreement provided, inter alia, for the vacation of
illegally seized governmental buildings, a political transition and new elections.
Representatives of Poland, Germany and France co-signed the agreement as guarantors
of its implementation. However, the protesters escalated the hostilities further. On the
night of 22 February 2014, they stormed the government premises, and former President
Yanukovich was forced to abandon Kiev in fear for his life.20
18. The Right Sector’s extremists also intimidated members of parliament to install a new
government. This intimidation of members of parliament was referred to by the Estonian
Foreign Minister, Mr Paet, in a telephone conversation with Baroness Ashton:
“Paet: So that, well, basically, it is that the trust level is absolutely low. On
the other hand, all the security problems, this integrity problems, Crimea, all
this stuff. Regions Party was absolutely upset. They say that, well, they
accept, they accept this that now there will be new government. And there
will be external elections. But there is enormous pressure against members of
parliament – that there are uninvited visitors during the night … to party
members.
Well, journalists … some journalists who were with me, they saw during the
day that one member of parliament was just beaten in front of the parliament
building by these guys with the guns on the streets”.21
19. As a result, on 22 February 2014, one of the Maidan leaders Alexander Turchinov was
“elected” as speaker of the Verkhovnaya Rada. The following day he was designated as
acting President of Ukraine, who later unleashed the use of military force against
Donbass. On 25 February 2014, he assumed command of the UAF. Another leader of
the Maidan Arseniy Yatsenyuk was appointed as Prime Minister on 27 February 2014.
20. As the further events showed, the United States decided who will be in the new Ukraine’s
government. It appears from a leaked telephone conversation between Victoria Nuland,
US’ Assistant Secretary of State, and Geoffrey Pyatt, the United States’ ambassador in
Kiev, on about 7 February 2014. In the call, Ms Nuland and Mr Pyatt discussed the
20 YouTube, Gian Micalessin, Finally the Truth about the Beginning of the Civil War in Ukraine? (16 November
2017), available at: https://www.youtube.com/watch?v=gwoV03ijSoI.
21 See the transcript of a recorded conversation between Mr Paet, Foreign Minister of Estonia, and Catherine
Ashton (19 June 2014), available at: https://nuclearrisk.wordpress.com/2014/06/19/transcript-of-estonian-fmbombshell-
revelation (Annex 402); YouTube, Breaking: Estonian Foreign Minister Urmas Paet and Catherine
Ashton discuss Ukraine over the phone (5 March 2014), available at:
ahttps://www.youtube.com/watch?v=ZEgJ0oo3OA8.
Page 20 out of 541
installation of Arseniy Yatsenyuk as prime minister and were keen that US Vice President
Joe Biden should be on hand to endorse the new government. She also planned to arrange
Yatsenyuk’s visit to the UN headquarters in order to give the future Maidan government
a sense of legitimacy:22
“... that would be great, I think, to help glue this thing and to have the UN
help glue it…”.
21. On the day of Arseniy Yatseniuk’s appointment, Vice President Biden informed him that
his interim government had the full support of the United States. US Secretary of State
John Kerry then visited Kiev on 4 March 2014 and met with Arseniy Yatsenyuk and his
far-right supporters, including Oleg Tyagnibok of VO Svoboda. On 13 March 2014,
Arseniy Yatsenyuk visited the United Nations and met the UN Secretary General in New
York. The new order was, as Ms Nuland had put it, “glued”. The coup was complete.
22. As noted above, the new government never properly investigated the shootings in Kiev.
Details of their failure to investigate appear from a report, dated 31 March 2015, of the
International Advisory Panel established by the Secretary General of the Council of
Europe.23 The report concluded, inter alia, that “the investigations into the Maidan cases
lacked practical independence in circumstances where the investigating body belonged to
the same authority as those under investigation”, and that they overall lacked
22 In early February 2014, a telephone conversation between the US’ Assistant Secretary of State Victoria Nuland
and the US’ Ambassador to Ukraine Geoffrey Pyatt appeared on YouTube. Mr Pyatt said: “I think we’re in play.
The Klitschko piece is obviously the complicated electron here. Especially the announcement of him as deputy
prime minister and you've seen some of my notes on the troubles in the marriage right now so we’re trying to get
a read really fast on where he is on this stuff. But I think your argument to him, which you’ll need to make, I think
that’s the next phone call you want to set up, is exactly the one you made to Yats. And I’m glad you sort of put
him on the spot on where he fits in this scenario. And I’m very glad that he said what he said in response.” Ms
Nuland responded, “I don't think Klitsch should go into the government. I don’t think it’s necessary, I don’t think
it’s a good idea.” Mr Pyatt reacted: “Yeah. I guess... in terms of him not going into the government, just let him
stay out and do his political homework and stuff…”. See BBC News, Ukraine crisis: Transcript of Leaked Nuland-
Pyatt Call (7 February 2014), available at: https://www.bbc.com/news/world-europe-26079957 (Annex 185).
U.S. Secretary of State John Kerry visited Kiev on 4 March 2014 to discuss the future organization of power in
Ukraine with the Maidan opposition leaders. See Gettyimages, UKRAINE-UNREST-POLITICS-US-KERRY (04
March 2014), available at: https://www.gettyimages.ae/detail/news-photo/secretary-of-state-john-kerryoleksandr-
turchynov-news-photo/476633249.
23 International Advisory Panel, Report of the International Advisory Panel on its review of the Maidan
Investigations (31 March 2015), available at:
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016802f03
8b.
Page 21 out of 541
effectiveness.24 At the same time, the leaders of the Maidan coup ignored extensive
internal and international criticism.25
23. Moreover, the new government and its successors also suppressed independent
investigation by obstructing and intimidating journalists. There have been abductions
and detentions of journalists (who were sometimes reportedly tortured) by UAF or the
SBU, with numerous examples of SBU involvement.26 Criminal cases have been opened
against journalists whose views were considered to be “pro-Russian”.27 Restrictions on
the work of journalists were also put in place, including sanctions,28 travel bans29 and
cancellation of media accreditation (licenses).30
24. Thus, instead of trying to establish a coalition government to de-escalate tensions, the
Maidan leaders fostered division within the country and installed a government which
24 Ibid., ¶524. See also Ibid., ¶¶525-528: In relation to the effectiveness of the investigations after 22 February
2014, the Panel concluded that:
- Staffing levels were “wholly inadequate”;
- There were “strong grounds” for considering the Ministry of the Interior’s attitude to the investigation to be
“uncooperative and, in certain respects, obstructive”;
- There had been a “reticence” on the part of Ukrainian investigators to investigate thoroughly the “possible
responsibility of the SSU [State Security Service] at an operational level”.
- There were “grounds to believe that Ukraine’s security service, the SBU (or SSU) “failed adequately to cooperate”
with investigators.
25 See, for example: Reuters, Special Report: Flaws found in Ukraine's probe of Maidan massacre (10 October
2014), available at: https://www.reuters.com/article/us-ukraine-killings-probe-special-report/special-reportflaws-
found-in-ukraines-probe-of-maidan-massacre-idUSKCN0HZ0UH20141010 (Annex 186); 2000.ua,
Mysterious Maidan snipers (14 October 2015), available at:
https://web.archive.org/web/20220125010212/https:/www.2000.ua/specproekty_ru/rassledovanie/tainstvennyesnajpery-
majdana.htm (Annex 301); Gazeta ru, Unheroic justice (11 January 2016), available at:
https://www.gazeta.ru/politics/2016/01/11_a_8014691.shtml (Annex 302); RIA Novosti Ukraine, Never-ending
investigation. Four years later, killers of the “Heavenly Hundred” still at large (22 February 2018); available at:
https://rian.com.ua/analytics/20180222/1032575774/beskonechnoe-sledstvie-nebesnoi-sotni.html (Annex 303);
RIA Novosti Ukraine, Investigation in all Maidan cases stalled (21 February 2018), available at:
https://rian.com.ua/analytics/20180221/1032544002/Ukraine-Maydan-dela-rasslelovanie html (Annex 304);
RusNext ru, No one came to commemorate. The Heavenly Hundred and their “exploits” on Maidan devalued (20
February 2018), available at: http://rusnext ru/recent_opinions/1519134530 (Annex 305).
26 Sputnik International, Incidents With Russian Reporters in Ukraine in 2014-2017 (31 August 2017), available
at: https://sputniknews.com/europe/201708311056947334-russian-reporters-ukraine/ (Annex 187).
27 KPHG, Ukraine follows Russia in dubious “State treason” arrests (16 February 2015) available at:
http://khpg.org/en/index.php?id=1423918032 (Annex 189).
28 TASS, How Ukraine imposed sanctions on Russian individuals and entities (20 March 2019), available at:
https://tass ru/info/6240919 (Annex 306).
29 Human Rights Watch, Ukraine Foreign Journalists Barred or Expelled (1 September 2017), available at:
https://www.hrw.org/news/2017/09/01/ukraine-foreign-journalists-barred-or-expelled (Annex 190).
30 RIA Novosti, Cases of harassment of journalists in Ukraine in 2014-2017 (19 June 2017), available at:
https://ria.ru/20170619/1496819255 html (Annex 307).
Page 23 out of 541
28. Ukrainian State officials started verbally referring to the DPR and LPR as “terrorist
entities”, it should be noted that no official decision on such recognition was issued either
in Ukraine or at the international level.
C. THE MINSK AGREEMENTS AND THE HYPOCRISY OF UKRAINE’S CASE
29. In October 2014 and April 2015, Ukraine signed two sets of agreements with the DPR
and LPR (the “Minsk Agreements”). They provided for a comprehensive process of
reintegration of the DPR and LPR into Ukraine. As part of this reintegration process,
Ukraine undertook to pardon all “persons connected to the events that took place in
certain areas of the Donetsk and Lugansk regions of Ukraine” 35 and “prohibit their
prosecution and punishment”.36
30. The Minsk Agreements were endorsed by the Organization for Security and Co-operation
in Europe (“OSCE”) and the countries of the so-called “Normandy format”, which
included Germany, France, Ukraine and the Russian Federation. Furthermore, The
Russian Federation also initiated the adoption of the Resolution of the UN Security
Council resolution 2202 (2015), which endorsed the Minsk Agreements. 37 The
settlement process under the Agreements was expected to be finalised by the end of
2015.38
31. However, Ukrainian authorities soon admitted that they had no intention to fulfil the
Minsk Agreements.39 In particular, former President Poroshenko declared that the Minsk
35 Package of Measures for the Implementation of the Minsk Agreements (“Minsk-2”), 12 February 2015, ¶5,
available at: https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf.
36 Protocol on the outcome of consultations of the Trilateral Contact Group on joint steps aimed at the
implementation of the Peace Plan of the President of Ukraine, P. Poroshenko, and the initiatives of the President
of the Russian Federation, V. Putin (“Minsk-1”), 5 September 2014, ¶6, available at:
https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_140905_MinskCeasfire_en.pdf.
37 Euronews, UN Adopts Russian-drafted Resolution on Ukraine Crisis (17 February 2015), available at:
https://www.euronews.com/2015/02/17/un-adopts-russian-drafted-resolution-on-ukraine-crisis (Annex 167).
38 Minsk-2, ¶9: “Reinstatement of full control of the state border by the government of Ukraine throughout the
conflict area, starting on day 1 after the local elections and ending after the comprehensive political settlement
(local elections in certain areas of the Donetsk and Lugansk regions on the basis of the Law of Ukraine and
constitutional reform) to be finalized by the end of 2015, provided that paragraph 11 has been implemented in
consultation with and upon agreement by representatives of certain areas of the Donetsk and Lugansk regions in
the framework of the Trilateral Contact Group.”
39 On 20 October 2016, Ukraine’s Defense Minister Stepan Poltorak stated that “any agreements with the aggressor
are not even worth the paper on which they are signed.” See Telegraf, Poltorak on Disengagement: Agreements
with Aggressor are Worth Nothing (20 October 2016), available at: https://telegraf.com.ua
Page 24 out of 541
Agreements gave Ukraine time for military build-up and also described them as an
instrument which the anti-Russian sanctions depended on.40 Former German Chancellor
Angela Merkel and former French President François Hollande (who were among the
mediators and guarantors of the Minsk Agreements), admitted that the purpose of the
Minsk Agreements was to give Ukraine opportunity for military build-up, or “an attempt
to give time to Ukraine, [which] it also used … to become stronger as can be seen
today”.41
32. As will be further explained in Chapter II below42, the Minsk Agreements by themselves
disprove Ukraine’s allegation that the DPR and LPR ought to be considered “notorious”
terrorist organisations, as opposed to self-proclaimed governments. The conclusion of
the Minsk Agreements and their endorsement by the UN Security Council confirm that
the DPR and LPR were universally perceived as actual self-governing entities
representing their people, rather than “terrorists”. In fact, the Minsk Agreements, by
providing for pardoning what were essentially combatants, as well as Ukraine as a party
thereto, clearly treated the DPR and LPR as entities participating in an armed conflict and
not as terrorist organisations. Such a treatment debunks any alleged “notoriety” of the
DPR and LPR as “terrorist organizations”.
D. THERE IS UNSURPRISINGLY STILL NO EVIDENCE OF FUNDING OF TERRORISM
33. In its Order of 19 April 2017, the Court rejected Ukraine’s request for the indication of
provisional measures with respect to Ukraine’s claims under the ICSFT noting that:
“… the acts to which Ukraine refers … have given rise to the death and injury
of a large number of civilians. However, in order to determine whether the
rights for which Ukraine seeks protection are at least plausible, it is necessary
to ascertain whether there are sufficient reasons for considering that the other
/ukraina/politika/2917869-poltorak-o-razvedenii-dogovorennosti-s-agressorom-nichego-ne-stoyat html (Annex
168). On 10 July 2020, Ukraine’s Deputy Prime Minister Alexei Reznikov said that the Minsk agreements are not
“carved in stone” and contain “a lot of things that no longer work”. See Ukrinform, Reznikov: Only Normandy
Four Leaders Can Change Minsk Agreements (11 July 2020), available at: https://www.ukrinform net/rubricpolytics/
3061245-reznikov-only-normandy-four-leaders-can-change-minsk-agreements html (Annex 169).
40 Ukrinform, Poroshenko Says Minsk Agreements Partially Fulfilled Their Goal (13 December 2019), available
at: https://www.ukrinform net/rubric-polytics/2837640-poroshenko-says-minsk-agreements-partially-fulfilledtheir-
goal html (Annex 170); Russia Today, Minsk Deal Was Used to Buy Time – Ukraine's Poroshenko
(17 June 2022), available at: https://www.rt.com/russia/557307-poroshenko-comments-minsk-agreement/ (Annex
171).
41 TASS, Attempt to “give Ukraine time”: Merkel on Minsk agreements (7 December 2022), available at:
https://tass.com/world/1547141 (Annex 341).
42 See Chapter II below.
Page 25 out of 541
elements set out in Article 2, paragraph 1, such as the elements of intention
or knowledge noted above … and the element of purpose specified in Article
2, paragraph 1 (b), are present. At 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”.43
34. Although more than five years have passed since the Court made this finding, the latter
continues to be true at the present stage of the proceedings.
35. There is simply, and unsurprisingly, no evidence of any terrorism financing. In light of
this, Ukraine asks the Court to apply an extremely low standard of proof which has no
basis in international law. Ukraine characterises the Russian Federation’s position in this
regard as “legalistic”.44 This is tantamount to admitting that the Russian Federation’s
position is correct under the existing law and that, to accommodate Ukraine’s claims,
such law should somehow be disregarded. This is obviously untenable.
36. Ukraine acknowledges that a stricter standard of proof was applied in Bosnia Genocide,
but attempts to distinguish it from the present case by claiming that in Bosnia Genocide
“the Court was asked to conclude that a State bore responsibility for committing the crime
of genocide”, and argues that, “[t]he evidentiary standard in this case should not be similar
to that of a prosecutor’s burden to establish criminal responsibility for committing
genocide”.45 But the Court in that case specifically held that it was not dealing with the
criminal responsibility of States under international law:
“The Court observes that the obligations in question in this case, arising from
the terms of the Convention, and the responsibilities of States that would arise
from breach of such obligations, are obligations and responsibilities under
international law. They are not of a criminal nature”.46
37. Ukraine also argues that the heightened standard is ill-suited to this case because third
parties’ mental state is involved, which is “inherently more difficult to prove”. 47
However, third parties’ mental state was also involved in Bosnia Genocide, where the
Court still applied the same standard of proof.
43 Order of 19 April 2017, p.131, ¶75.
44 Reply, ¶56.
45 Ibid., ¶57.
46 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 115, ¶170.
47 Reply, ¶58.
Page 26 out of 541
38. Ukraine also argues that, outside the genocide context, the Court has applied a lower
standard such as a “sufficient evidence”, or “convincing evidence” in Armed Activities on
the Territory of the Congo, or a “sufficiency” standard in Oil Platforms, and asks the
Court to apply that standard in this case.48 But those cases cannot be compared to cases
of allegations of genocide, or terrorism or terrorism financing, and the standard of proof
applied in those cases, even if described accurately by Ukraine, would not do justice to
the matters in this case where grave allegations of terrorism and terrorism financing have
been made.
39. The standard of proof must be appropriate or correspond to the gravity of the charges
against a respondent. As the Court indicated in Bosnia Genocide:
“The Court has long recognized that claims against a State involving charges
of exceptional gravity must be proved by evidence that is fully conclusive …
The Court requires that it be fully convinced that allegations made in the
proceedings, that the crime of genocide or the other acts enumerated in Article
III have been committed, have been clearly established. The same standard
applies to the proof of attribution for such acts.
In respect of the Applicant’s claim that the Respondent has breached its
undertakings to prevent genocide and to punish and extradite persons charged
with genocide, the Court requires proof at a high level of certainty appropriate
to the seriousness of the allegation”.49
40. In this case, the gravity of Ukraine’s allegations requires the same “standard of proof” as
referred to above. If inferences are resorted to, any inference must be “the only reasonable
inference that can be drawn”.50
41. The grave nature of terrorism financing is beyond any doubt. Several times it is so
described in the ICSFT. In the preamble, it is stated that “the financing of terrorism is a
matter of grave concern to the international community as a whole”. Under Article 4(b),
each State party undertakes to “make those offences punishable by appropriate penalties
which take into account the grave nature of the offences”. Under Article 10, in a case
where Article 7 applies, if a suspect is not extradited, a State party undertakes to submit
the case for prosecution and the competent authorities “shall take their decision in the
48 Ibid., ¶59.
49 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, pp. 129-130, ¶¶209, 210.
50 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, p.128, ¶440. See also Ibid., p. 67, ¶, 148.
Page 27 out of 541
same manner as in the case of any other offence of a grave nature under the law of that
State”. Therefore, there is no doubt that the standard of proof set out by the Court in
Bosnia Genocide is applicable to the present case.
E. STRUCTURE OF THIS PART
42. This Part of the Rejoinder is structured as follows:
(a) Chapter II shows that doctrine of clean hands precludes Ukraine’s claims under
the ICSFT.
(b) Chapter III reaffirms the Russian Federation’s position regarding the requirements
for the establishment of the offence of terrorism financing under the ICSFT and
other related treaties.
(c) Chapters IV replies to Ukraine’s arguments regarding the definition of “funds”
under the ICSFT.
(d) Chapter V demonstrates that Ukraine has failed to establish the offence of
terrorism financing with respect to Flight MH17.
(e) Chapter VI responds to Ukraine’s allegations regarding the shelling at
Volnovakha, Mariupol, Kramatorsk and Avdeyevka.
(f) Chapter VII deals with the alleged killings and bombings.
(g) Finally, in Chapter VIII, the Russian Federation explains that Ukraine has failed
to establish that the Russian Federation breached its obligations under Articles 8-
10, 12 and 18 of the ICSFT.
Page 28 out of 541
II. UKRAINE’S CLAIMS UNDER THE ICSFT ARE PRECLUDED BY VIRTUE OF
THE CLEAN HANDS DOCTRINE
43. The doctrine of clean hands provides the Court with the power to deny a party’s request
for relief where the same party has itself engaged in serious misconduct or wrongdoing
that has a close connection to the relief sought. Equity and good faith constitute the
foundation of the doctrine of clean hands. “He who comes into equity must come with
clean hands”, stated an arbitral tribunal.51 In the same vein, Judge Fitzmaurice noted:
“He who comes to equity for relief must come with clean hands. Thus a State
which is guilty of illegal conduct may be deprived of the necessary locus
standi in judicio for complaining of corresponding illegalities on the part of
other States (…)”.52
44. A trace of the application of this principle in the case law of the Court can be found in the
case of Diversion of Water from the Meuse, where the Permanent Court concluded that:
“The Court cannot refrain from comparing the case of the Belgian lock with
that of the Netherlands lock at Bosscheveld. Neither of these locks constitutes
a feeder, yet both of them discharge their lock-water into the canal, and thus
take part in feeding it with water otherwise than through the treaty feeder,
though without producing an excessive current in the Zuid-Willemsvaart. In
these circumstances, the Court finds it difficult to admit that the Netherlands
are now warranted in complaining of the construction and operation of a lock
of which they themselves set an example in the past. Accordingly, as has been
explained above, in the absence of evidence as to the effects which the use of
the Neerhaeren Lock produces on the current in the Zuid-Willemsvaart, or on
the Meuse itself, the Court does not consider that the normal use of this lock
is inconsistent with the Treaty. The Court is also of opinion that there is no
ground for treating this lock less favourably than the Netherlands lock at
Bosscheveld. It is thus unable to accord to the Netherlands Government the
benefit of its submission”.53
45. Judge Hudson appended to the Court's decision a separate opinion in which he stated that:
“It would seem to be an important principle of equity that where two parties
have assumed an identical or a reciprocal obligation, one party which is
engaged in a continuing non-performance of that obligation should not be
permitted to take advantage of a similar non-performance of that obligation
by the other party. The principle finds expression in the so-called maxims of
51 Friedrich & Co. Case), French-Venezuelan Mixed Claims Commission, Opinion of the Umpire of 31 July 1905,
10 R.I.A.A., pp. 50, 54.
52 G. Fitzmaurice, THE GENERAL PRINCIPLES OF INTERNATIONAL LAW CONSIDERED FROM THE STANDPOINT OF
THE RULE OF LAW, RECUEIL DES COURS DE L’ACADÉMIE DE DROIT INTERNATIONAL DE LA HAYE (1957-II, t. 92,
Leyden, Sijthoff, 1958), p. 119.
53 Diversion of Water from the Meuse (Netherlands v. Belgium), Judgment of 28 June 1937, p. 25.
Page 29 out of 541
equity which exercised great influence in the creative period of the
development of the Anglo-American law. Some of these maxims are,
"Equality is equity"; "He who seeks equity must do equity". It is in line with
such maxims that "a court of equity refuses relief to a plaintiff whose conduct
in regard to the subject-matter of the litigation has been improper”.54
46. Judge Schwebel, relying on the opinion of Judge Hudson, noted in his dissenting opinion
in the case of Military and Paramilitary Activities in and against Nicaragua, that the
doctrine of clean hands applied to the case of Nicaragua:
“Nicaragua has not come to Court with clean hands. On the contrary, as the
aggressor, indirectly responsible - but ultimately responsible - for large
numbers of deaths and widespread destruction in El Salvador apparently
much exceeding that which Nicaragua has sustained, Nicaragua's hands are
odiously unclean. Nicaragua has compounded its sins by misrepresenting
them to the Court. Thus both on the grounds of its unlawful armed
intervention in El Salvador, and its deliberately seeking to mislead the Court
about the facts of that intervention through false testimony of its Ministers,
Nicaragua's claims against the United States should fail”.55
47. States appearing before the Court have repeatedly relied on the clean hands doctrine in a
range of different contexts. While the Court has not upheld a defence on this basis, it also
has never rejected the doctrine as a matter of principle. In Certain Iranian Assets, the
Court noted that “the United States has not argued that Iran, through its alleged conduct,
has violated the Treaty of Amity, upon which its Application is based”, and then declared
that:
“[w]ithout having to take a position on the ‘clean hands’ doctrine, the Court
considers that, even if it were shown that the Applicant’s conduct was not
beyond reproach, this would not be sufficient per se to uphold the objection
to admissibility raised by the Respondent on the basis of the ‘clean hands’
doctrine”.56
48. The Court then added:
“Such a conclusion is however without prejudice to the question whether the
allegations made by the United States, concerning notably Iran’s alleged
sponsoring and support of international terrorism and its presumed actions in
54 Ibid., Individual Opinion of Judge Hudson, p. 77.
55 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, Dissenting opinion of Judge Schwebel, p. 392, ¶268.
56 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 2019, p. 44, ¶122; See also Avena and Other Mexican Nationals (Mexico v. United States
of America), Judgment, I.C.J. Reports 2004, p, 38, ¶47; Maritime Delimitation in the Indian Ocean (Somalia v.
Kenya), Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 52, ¶142.
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respect of nuclear non-proliferation and arms trafficking, could, eventually,
provide a defence on the merits”.57
49. In the Jadhav case, Judge Iwasawa supported the Court’s finding that rejected Pakistan's
objection based on the clean hands doctrine, and explained that “[Pakistan's] allegations
do not relate to the Vienna Convention on Consular Relations (the “VCCR”) upon which
India’s Application is based”.58
50. The same clean hands approach is applicable regarding the unfounded Ukraine’s
allegations of “violations” by the Russian Federation of the ICSFT, that, in fact, have
never taken place.
51. As has been shown above, what Ukraine conveniently omits is that it concluded the Minsk
Agreements with the DPR and LPR. Furthermore, Ukraine also omits to say that
companies under its jurisdiction have conducted trade in Donbass. This shows that
Ukraine itself has never genuinely recognised the DPR and LPR as terrorist organisations,
nevertheless it seeks to deliberately mislead the Court about the nature of the DPR and
LPR and to build its allegations of terrorism financing around this misrepresentation.
52. Moreover, Ukraine seeks to represent certain episodes of the armed conflict in Donbass
as terrorist acts, such as certain allegations of indiscriminate shelling of residential areas.
However, Ukraine itself was using aviation and heavy weapons against civilians and
residential areas and does not consider that such situations constitute acts of terrorism.
A. UKRAINE NEVER SOUGHT A PEACEFUL SETTLEMENT IN DONBASS, HAVING INSTEAD
USED MILITARY AVIATION AND HEAVY WEAPONS AGAINST CIVILIANS
i. Complete Disregard for the Minsk Agreements by Ukraine
53. One of the most significant attempts to end the conflict in Donbass, for which there were
high hopes, was the Minsk Agreements that the representatives of Kiev and the DPR and
LPR signed, as explained above.
57 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 2019, p.44, ¶123.
58 Jadhav Case (India v. Pakistan), Judgment, I.C.J. Reports 2019, , Declaration of Judge Iwasawa, p.521,¶3.
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54. In its preliminary objections in another case before the Court, the Russian Federation has
already elaborated on Kiev’s absolute unwillingness to comply with the Minsk
Agreements. 59 According to the Minsk Agreements, Kiev should have sought a
consensus with the DPR and LPR on the modalities for local elections and on the specifics
of the status of certain areas of the Donetsk and Lugansk regions.60 Kiev, however, never
started that dialogue. The Head of the DPR, Alexander Zakharchenko, who was one of
the signatories to the Minsk Agreements, was assassinated through a targeted killing on
31 August 2018.61 On 7 February 2022, Ukraine’s Foreign Minister stated that there will
be “no negotiations with the militants”.62 During all this time, the Russian Federation, as
a mediator, constantly called for a peaceful dialogue between Ukraine and the DPR and
LPR.63
55. Importantly, Kiev’s use of force against Donbass and lack of willingness to engage in
dialogue went against the will of Ukrainian people. In July 2018, the Ukrainian
newspaper “Government Courier” (Uryadovy kuryer) published the results of a nationwide
survey on the future of Donbass. Only 17% of Ukrainian people spoke in favour of
using military force for gaining control over the south-eastern region. In contrast, 70%
respondents considered it possible to reach a political compromise with the DPR and
LPR.64
59
60 Minsk-2, ¶4.
61 The Guardian, Rebel Leader Alexander Zakharchenko Killed in Explosion in Ukraine (31 August 2018),
available at: https://www.theguardian.com/world/2018/aug/31/rebel-leader-alexander-zakharchenko-killed-inexplosion-
in-ukraine (Annex 191); Deutsche Welle, Alexander Zakharchenko: The Latest Ukrainian Rebel Leader
to Face an Abrupt Death (2 September 2018), available at: https://www.dw.com/en/alexander-zakharchenko-thelatest-
ukrainian-rebel-leader-to-face-an-abrupt-death/a-45323653 (Annex 192).
62 European Pravda, No Pressure over Concessions: Kuleba on Negotiations with Germany’s Foreign Minister (7
February 2022), available at: https://www.eurointegration.com.ua/rus/news/2022/02/7/7133666/ (Annex 193).
63 For example, on 18 February 2022, President of the Russian Federation Vladimir Putin emphasized during his
joint press-conference with President of Belarus Alexander Lukashenko that “Kiev is not complying with the
Minsk Agreements and, in particular, is strongly opposed to a direct dialogue with Donetsk and Lugansk. Kiev is
essentially sabotaging the agreements on amending the Constitution, on the special status of Donbass... All Kiev
needs to do is sit down at the negotiating table with representatives of Donbass and agree on political, military,
economic and humanitarian measures to end the conflict.” See The Kremlin, News conference following Russian-
Belarusian talks (18 February 2022), available at: http://en kremlin.ru/events/president/news/67809 (Annex 404).
64 Uryadovy Kuryer, On the Future of Donbass in Terms of Numbers (21 July 2018), available at:
https://ukurier.gov.ua/uk/articles/pro-majbutnye-donbasu-movoyu-cifr/ (Annex 194).
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56. Paragraph 4 of the Minsk Agreements prescribed that Kiev must promptly, and no later
than 30 days after their signature, adopt a resolution through its Parliament specifying the
areas in Donbass enjoying a special regime and adopt a law on special status of these
areas.65 On 16 September 2014, the Ukrainian Parliament formally passed a law “On the
Special Procedure for Local Self-Government in Certain Areas of Donetsk and Lugansk
Regions”. Its validity was, however, limited to one year with a possible prolongation,
and its effect was circumscribed by Article 10, which contained a number of conditions
that were not consistent with the Minsk Agreements.66
57. Article 10 provided, among other things, that the special regime of self-government
would be available only for the local authorities elected at extraordinary local elections.
This was inconsistent with the first part of paragraph 4 of the Minsk Agreements, which
prescribed that the modalities of local elections in Donbass should be negotiated in
dialogue between Kiev, Donetsk and Lugansk. However, representatives of Kiev
systematically refrained from such dialogue in the Minsk Contact Group formed under
the Agreements. Moreover, in 2020 Kiev decided to exclude Donbass from the political
framework of Ukraine by prohibiting local elections in the DPR and LPR, as well as in
18 districts controlled by Kiev.67 Thus, this law never became operational as envisaged
by the Agreements.
58. Moreover, on 18 January 2018, a law “On the Peculiarities of the State Policy on Ensuring
Ukraine’s State Sovereignty over Temporarily Occupied Territories in Donetsk and
Lugansk Regions”, also known as “the law on Reintegration of Donbass”, was adopted,
which formally confirmed that the ATO was a military operation, and in effect excluded
any possibility of political settlement within the framework of the Minsk Agreements.68
65 Minsk-2, ¶4.
66 Law of Ukraine No. 1680-VII “On the Special Procedure for Local Self-Government in Certain Areas of
Donetsk and Lugansk Regions”, 16 September 2014, Article 10, available at: https://zakon.rada.gov.ua/
laws/show/1680-18#n5 (Annex 469).
67 Interfax-Ukraine, Rada Appoints Next Elections to Local Self-Govt Bodies for Oct 25 (15 July 2020), available
at: https://en.interfax.com.ua/news/general/674837 html (Annex 195); Freedomhouse.org, Nations in Transit:
Ukraine (2021), available at: https://freedomhouse.org/country/ukraine/nations-transit/2021. See also Resolution
of the Verkhovnaya Rada of Ukraine No. 795-IX “On Calling Regular Local Elections in 2020”, 15 July 2020,
available at: https://zakon rada.gov.ua/laws/show/795-IX#Text (Annex 471).
68 Law of Ukraine No. 2268-VIII “On the Peculiarities of the State Policy on Ensuring Ukraine’s State Sovereignty
Over Temporarily Occupied Territories in Donetsk and Lugansk Regions”, 18 January 2018, available at:
https://zakon rada.gov.ua/laws/show/2268-19#Text (Annex 470).
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As will be shown below,69 a number of laws further constraining the use of the Russian
language were adopted and became effective, which contradicted paragraph 11 of the
Minsk Agreements.70
59. The most blatant part of the non-implementation of the Minsk Agreements was the
constant violation of its first paragraph – the immediate and comprehensive ceasefire. As
of 21 July 2020, the SMM recorded more than 1.5 million ceasefire violations.71
60. Thus, despite repeated statements by high-ranking Ukrainian officials that the Minsk
Agreements have no alternative, Kiev in fact used the document as a respite to strengthen
its military capabilities and prepare for the final suppression of the Donbass people by
military means.
i. Using heavy weapons in residential areas
61. The UAF have constantly shelled residential areas of Donbass, leaving dozens of dead
and wounded each time. Below are just some of the most egregious facts of Kiev’s use
of indiscriminate weapons against civilians:
(a) On 2 June 2014, eight people were killed and 28 were seriously wounded as two
Su-27s belonging to the UAF 831st Tactical Aviation Brigade bombed Lugansk.72
On 14 July 2014, the UAF shelled Mirny and Gaevoy districts of Lugansk, leaving
at least 8 killed and 52 wounded.73
69 See below, Part 2, Chapter II (B).
70 Counter-Memorial (CERD), ¶¶41, 43-51.
71 OSCE Thematic Report “Impact of the Conflict on Educational Facilities and Children’s Access to Education
in Eastern Ukraine”, July 2020, p. 8, available at: https://www.osce.org/files/f/documents/4/1/457690.pdf.
72 See Vz.ru, Ukraine's top seven war crimes against Donbas residents (8 May 2022), available at:
https://vz.ru/society/2022/5/8/1157166.html (Annex 42).
73 See Lostarmour, Shelling of the Mirny and Gaevogo Quarters by Grad MLRS Units on 14 July 2014 (29
November 2021), available at: https://lostarmour.info/articles/obstrel-kvartalov-mirnyy-i-gaevogo-gorodaluganska-
s-primeneniem-rszo-grad-14-iyulya-2014-goda# (Annex 43); See also LiveJournal, Lest We Forget –
How Lugansk Was Shelled in July 2014 (15 July 2018), available at: https://kotsapog.
livejournal.com/9104932 html (Annex 44), MigNews, Mirny and Gaevogo Quarters Attacked by Grad
MLRS in Lugansk. PHOTOS. VIDEOS (15 July 2014), available at:
https://mignews.com.ua/sobitiya/inukraine/3242109.html (Annex 45); Photo of remains of the rocket part of 122
Grad MLRS projectile in the pavement at Andrey Linev Street, opposite the western end of the house at 79A,
available at: https://lostarmour.info/articles/obstrel-kvartalov-mirnyy-i-gaevogo-goroda-luganska-sprimeneniem-
rszo-grad-14-iyulya-2014-goda# (Annex 478).
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(b) On 15 July 2014, the UAF bombed Snezhnoye, DPR, with, at least, 11 civilians
killed.74
(c) On July 27 2014, during a massive shelling of a civilian residential area in
Gorlovka, DPR, the UAF killed 22 people, including 27-year-old Kristina Zhuk
(known in the Russian Federation as “Gorlovka Madonna”) and her ten-month-old
daughter Kira.75
(d) On 13 August 2014, UAF shelled the city beach of Zugres, DPR with 300mm
Smerch MLRS cluster projectiles, leaving 13 killed, including 3 children, and more
than 30 wounded.76
(e) On 28 August 2014, the UAF shelled Donetsk with 16 civilians killed.77 On 22
January 2015, the UAF shelled the Donetskgormash bus stop in Donetsk. The
OSCE SMM reported on 13 wounded and 8 dead.78
74 According to preliminary information, a Su-25 of the UAF fired at least six non-guided rocket projectiles. See
VESTI.ru, Airstrike at Snezhnoye: Militiamen Report Dead Civilians (15 July 2014), available at:
https://www.vesti ru/article/1842254 (Annex 46).
75 See Vz ru, Ukraine's top seven war crimes against Donbas residents (8 May 2022), available at:
https://vz.ru/society/2022/5/8/1157166.html (Annex 42).
76 See RT, “Still No Answer”: Eighth Anniversary of Tragic Shelling of Children Beach in Zugres (13 August
2022), available at: https://russian rt.com/ussr/article/1036237-zugres-plyaj-ukraina-obstrel-vsu-vosem-let
(Annex 47).
77 See TASS, Ukrainian Shelling Killed at Least 11 in Donetsk (28 August 2014), available at:
https://tass ru/mezhdunarodnaya-panorama/1404809 (Annex 48).
See also OSCE SMM, Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information
received as of 18:00 (Kyiv time), 27 August 2014, available at: https://www.osce.org/ukraine-smm/123030.
The OSCE SMM noted that: “The SMM observed continued shelling in Donetsk city and the increasing impact
on the civilian population and infrastructure. In the residential area of Kalininski district, around five kilometres
east of the city centre, the SMM observed that the House of Culture was in flames. Several fire brigade vehicles
were working to bring the fire under control. Nearby, the SMM saw several five-floor apartment blocks with
shattered window panes. The damage appeared to be consistent with shelling. In the same area the SMM observed
a burning vehicle. Inside the car, the SMM saw the remains of three persons. In Kievskii district, around five
kilometres north of the city centre, the SMM observed significant damage concentrated on residential buildings
and shops located along the Kievski Boulevard”.
78 Spot report by the OSCE Special Monitoring Mission to Ukraine (SMM), 22 January 2015, "Shelling Incident
on Kuprina Street in Donetsk City, available at: https://www.osce.org/ukraine-smm/135786 : “The SMM observed
a trolleybus which had been hit by shrapnel and a burnt-out car 20m away, also hit by shrapnel. All windows in
the trolleybus were shattered and tyres punctured. The SMM observed seven dead bodies, three females, three
males and one of indeterminate gender. Three of the bodies were in the bus, three in close proximity to the bus –
the furthest approximately 25m away – and one in the burnt-out car. At 16:00 hrs the SMM contacted a
representative of Donetsk City Morgue, who said that eight bodies – related to the incident on Kuprina Street –
had been received by the morgue.”
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(f) On 1 October 2014, the UAF shelled Donetsk with 11 killed and more than 40
wounded. The targets were a public transport stop and school No. 57.79
(g) On 14 November 2014, 20 civilians including 2 children were killed as a result of
artillery shelling of residential areas of Donetsk and Gorlovka by the UAF.80
62. Ukraine had not abandoned this tactic in later years but continued it to this day as has
been shown in the Preliminary Objections in another case before this Court.81
ii. Using civilians as human shields
63. Since 2014, the UAF have never been shy of setting up their positions in close vicinity,
literally in the backyards, of such socially important facilities as schools, kindergartens,
hospitals, libraries, cultural centres, even when those objects remained operational with
plenty of students or patients inside, so that in case of return fire they would be able to
accuse the Russian Federation of “attacking civilians” and “destruction of civilian
infrastructure”. In its Preliminary Objections in the other case before the Court, the
Russian Federation drew attention to this fact.82
64. The UAF troops and heavy equipment, deployed in residential areas close to the contact
line in violation of the Minsk Package of Measures, were spotted multiple times by the
OSCE Special Monitoring Mission in Ukraine (hereinafter – “OSCE SMM”) monitors.
79 OSCE SMM, Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received
as of 18:00 (Kyiv time), 1 October 2014, available at: https://www.osce.org/ukraine-smm/124979. The OSCE
SMM noted that: “SMM was alerted by representatives of the “DPR” “Ministry of Emergency Situations” about
an incident close to a school in Kievs’kyi district (5 km north of the city centre), where shelling had allegedly
caused civilian casualties. When at the scene, the SMM saw a large crater, one metre in diameter, some 50 metres
from the school, which it assessed to have been the impact of a shell of an unspecified nature. The SMM was
guided inside the building by “DPR” representatives, who showed the SMM two bodies on the floor”.
80 OSCE SMM, Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received
as of 18:00 (Kyiv time), 16 November 2014, available at: https://www.osce.org/ukraine-smm/126802. The OSCE
SMM noted that: “On 15 and 16 November the SMM visited the headquarters of the JCCC in Debaltseve (55 km
north-east of Donetsk), where Ukrainian and the Russian Federation (RF) officers worked together with members
of the so-called “Donetsk People’s Republic” (“DPR”) and “Lugansk People’s Republic” (“LPR”). The shelling
of Horlivka (43km north-east of Donetsk) on 15 November, which allegedly resulted in several civilian casualties
including children, was acknowledged by all participants of the JCCC”.
81
82
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For example, in the Daily Report of 31 March 2018 of OSCE SMM reported on digging
trenches outside of civilian house occupied by UAF military personnel:
“An SMM mini-UAV spotted on 29 March recently dug trenches about 40m
from a residential house on the south-eastern edge of Travneve (governmentcontrolled,
51km north-east of Donetsk)”.83
65. The picture of the above-mentioned house was later demonstrated by the OSCE SMM
deputy head, Mr Alexander Hug, while delivering the briefing for the Diplomatic Corps
at the SMM headquarters in Kiev on 30 March 2018.84
66. On 4 December 2018, an SMM mini-UAV spotted a surface-to-air missile system (9K33
Osa) near Klinovoe (68 km north-east of Donetsk) along with a group of UAF soldiers
outside of an occupied civilian house.85
67. In Disengagement Areas, UAF used civilian houses as a cover for trenches and armoured
vehicles, in order to be able to maintain their position, illegally taken in so called “grey
zone”. Thus, in OSCE SMM Daily Report of 23 April 2018 it was emphasised that:
“The SMM observed armoured combat vehicles and an anti-aircraft gun in
the security zone. In government-controlled areas, the SMM saw on 20 April
four infantry fighting vehicles (IFV) (BMP-2) and an armoured
reconnaissance vehicle (BRDM-2) near Zolote-1/Soniachnyi, two IFVs
(BMP-2) near Zolote, five IFVs (BMP-2) near Zolote-3/Stahanovets, an
armoured reconnaissance vehicle (BRM-1K) near Zolote 2 (60km west of
Luhansk)… On 21 April, the SMM saw… three armoured reconnaissance
vehicles (BRDM-2) and two IFVs (BMP-1) on flatbed trucks near Zolote…
On 22 April, the SMM saw two IFVs (BMP-2) near Zolote…”86
68. The picture of one of the above mentioned IFV’s captured by OSCE SMM mini-UAV
was demonstrated during the OSCE SMM Deputy Head Mr Alexander Hug’s briefing for
the Diplomatic Corps in Kiev, on 14 May 2018.87
83 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 30 March 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/376672.
84 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the Diplomatic corps, Photo, 30 March
2018 (Annex 353).
85 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 5 December 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/405533.
86 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 22 April 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/378643.
87 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the Diplomatic corps, Photo, 14 May
2018 (Annex 353).
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69. In SMM Daily Report of 24 May 2018 it was noticed that:
“Beyond withdrawal lines but outside designated storage sites, in
government-controlled areas, on 22 May an SMM mini-UAV spotted three
surface-to-air missile systems (9K35) about 50m south-east of a school
building in Tarasivka (43km north-west of Donetsk) ... In violation of
withdrawal lines in government-controlled areas, on 21 May an SMM mini-
UAV spotted two surface-to-air missile systems (9K35 Strela-10) in a
residential area of Teple (31km north of Luhansk) within 200m of a civilian
house, on 22 May an SMM mini-UAV spotted a surface-to-air missile system
(9K35) about 2km north-east of Teple, an SMM long-range UAV spotted two
surface-to-air missile systems (9K33 Osa)”.88
70. The pictures of the above mentioned UAF equipment along with students staying outside
of the school buildings were later demonstrated by the SMM deputy head Mr Alexander
Hug while delivering the briefing for the Diplomatic Corps at the SMM headquarters in
Kiev on 1 June 2018.89
71. Thus, Ukraine used the barbaric practice of using civilians as a human shield as has been
shown in Preliminary Objections in another case before this Court.90
72. In the Memorial, Ukraine’s position on terrorism was built on the (false) premise that the
DPR and LPR intentionally targeted civil and other protected objects with heavy weapons
in order to force Ukraine to peace talks and elicit significant concessions from it. In the
Reply, and in view of the overwhelming evidence to the contrary that the Russian
Federation submitted with the Counter-Memorial, Ukraine has essentially abandoned
such allegations of terrorist intent and instead alleges that the DPR and LPR targeted
Ukrainian military objects indiscriminately, while intentionally disregarding collateral
loss of civilians or damage to the objects protected by the International humanitarian law
(“IHL”).91
73. Although this argument was apparently devised so as to overcome the unachievable
evidentiary hurdle of proving terrorist intent, it is nothing more than cynical for Ukraine
88 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 23 May 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/382423/.
89 Photo of the UAF Surface to Air missiles 52 meters from public school in Tarasovka, Donetsk region, 22 May
2018 (Annex 358).
90
91 See, for example, Reply, ¶249.
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to embrace this new theory because whatever collateral damage the armed conflict in
Ukraine caused, it was predominantly due to Ukraine’s own persistent policy to use the
civil objects, its own civilians, and even civil aviation, as a human shield.
74. IHL makes it a war crime to force non-combatants to serve as human shields. From the
very beginning of the military conflict in Donbass, the UAF did exactly what the IHL
prohibits:
(a) First, Ukraine conducted military air raids in the airspace over the conflict zone but
at the same time did not halt intensive civilian air traffic over this territory. Ukraine
did not re-consider closing airspace for civil aircraft even after the DPR and LPR
claimed that they had “heavy-anti-aircraft systems” to shoot down Ukrainian
military aircraft,92 and even after their militia indeed shot down an Ilyushin Il-76
transport aircraft of the 25th Transport Aviation Brigade of the Ukrainian Air
Force.93 In this way, Ukraine used the presence of civil aviation in the area to shield
its fighter jets and complicate any efforts by the militia groups to intercept and shoot
them down.
(b) Second, Ukraine marshalled and used civilian-marked vehicles to transport its
military personnel within the conflict zone.94 While there is no evidence that the
civil bus affected by the shelling in Volnovakha was ever a target, even if it were,
an attack on it would have been the product of the provocative transportation
practices by Ukraine rather than indiscriminate fire by the militia groups.
(c) Ukraine located its heavy artillery and other military equipment in densely
populated areas. For example, the UAF stationed T-64BV tanks, two
armoured personnel carriers “Saxon” and Gaz-66 military truck in the civil
residential district of Avdeyevka.95
92 Informnapalm, Anti-Terrorist Operation: Summary for June 29, 2014 (30 June 2014), available at:
https://informnapalm.org/en/anti-terrorist-operation-summary-for-june-29-2014/.
93 Statement by the Delegation of Ukraine at the 758-th FSC Plenary Meeting (18 June 2014 at 10.00, Hofburg),
FSC.DEL/116/14, 19 June 2014, available at: https://www.osce.org/files/f/documents/0/0/120104.pdf.
94 VPK News, Even school buses have been mobilised in Ukraine (14 April 2021), available at:
https://vpk name/news/500051_na_ukraine_mobilizovali_dazhe_shkolnye_avtobusy.html (Annex 479), The
Times of Israel, Ukraine: Pro-Russian militants seize bus carrying int’l observers (25 April 2021), available at:
https://www.timesofisrael.com/ukraine-pro-russian-militants-seize-bus-carrying-intl-observers/.
95 Counter-Memorial (ICSFT), Annex 2, Expert Report of Major General Valery Alexeevich Samolenkov (“First
Samolenkov Report”), p. 90.
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75. T-64BV tanks, two armoured personnel carriers “Saxon”,
Gaz-66 military truck from the Bellingcat96 article
76. Ukraine’s unlawful practices of using civilians as human shields have undoubtedly made
it difficult for the militia groups to target military objects without at the same time
affecting civil objects.
B. UKRAINE CONTINUED TO TRADE OPENLY WITH DONETSK AND LUGANSK
77. Ukraine's hypocritical approach to interpreting the ICSFT in the context of this case can
be illustrated by its own practice of applying the relevant article of its own Criminal Code
and continuing trade with the DPR and LPR.
78. It should be noted that Article 258-5 on “financing of terrorism” was incorporated into
the Criminal Code of Ukraine by Law No. 2258-VI of 18 May 2010. However, as the
practice of its application shows, it has not been used for the real fight against the
financing of terrorism, but solely as a repressive tool against the people of Donbass, as
well as the opponents of the current Kiev authorities.
96 Bellingcat, Ukrainian Tanks in Avdiivka Residential Area (3 February 2017), available at:
https://www.bellingcat.com/news/uk-and-europe/2017/02/03/ukrainian-tanks-avdiivkaresidential-area/ (Counter-
Memorial (ICSFT), Annex 258).
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79. The Unified Register of Court Decisions of Ukraine contains only 14 verdicts in criminal
cases of “financing of terrorism”.
80. In a number of cases, charges of “financing of terrorism” were brought against residents
of Donbass whose only “crime” was to make life easier for civilians in the region, such
as entrepreneurs who provided money transfer services to Kiev-controlled territory.
These services were in especial demand among ordinary people, who were deprived of
the opportunity to transfer money to their relatives due to the shutdown of Ukrainian
banks in the DPR and LPR. The clients’ money was physically transported by a “broker”
across the Contact Line, deposited into the “broker’s” personal account in a Ukrainian
bank, and then transferred to the recipient’s account on behalf of the “broker”.
81. On 28 December 2015, the Darnitsky District Court in Kiev convicted two residents of
the Lugansk region for such a “crime”. The text of the judgment explicitly stated, in a
cursory manner, that the accused committed the acts they were charged with, “realizing
that there was a shortage of cash in the financial market of Lugansk region”.97
82. The dire situation with the banking services was created by Kiev’s decision to discontinue
any such services for the people of the DPR and LPR. The Government of Ukraine should
have restored such services in accordance with the Minsk Agreements, but never did so.
83. People have also been prosecuted for ordinary business activities that had nothing to do
with the conflict in Donbass. On 29 March 2018, for example, the Zarechny District
Court of Sumy convicted the CEO of Snack Export LLC for the supply of snacks and
beer to the LPR.98
84. Against this background, as pointed out in the Counter-Memorial, 99Ukraine and its
enterprises have been trading coal, steel and other goods with the DPR and LPR. This
trade has been going on for years and was advocated for by Ukrainian top-level
97 The sentence of the Darnitsky District Court in Kiev of 28 December 2015, available at:
http://web.archive.org/web/20161124011138/https://reyestr.court.gov.ua/Review/54799070 (Annex 426).
98 Unn.com.ua, Financing of terrorism by Rybalka's companies: pre-trial investigation continues, examinations
appointed (17 October 2018), available at: https://www.unn.com.ua/uk/news/1758010-finansuvannya-terorizmukompaniyami-
ribalki-dosudove-rozsliduvannya-trivaye-priznacheni-ekspertizi (Annex 296).
99 Counter-Memorial (ICSFT), ¶18.
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politicians.100 With the tacit approval of the Ukrainian government, Ukrainian coal
mining companies continued to operate freely in Donbass.
85. According to the Ministry of Energy and Coal Industry of Ukraine, the country’s coal
industry produced about 65 million tons of coal in 2014 and about 40 million tons in 2015
as well as in 2016. At the same time, according to Ernst &Young, a significant part of
this coal came from the so called “temporarily occupied territories”: at least 15.7 million
tons in 2014, 5.4 million tons in 2015 and 11.4 million tons in 2016. At the beginning of
2016, 85 out of 150 Ukrainian coal mines were located in the DPR/LPR, including all
those producing “A” grade coal (anthracite).101
86. Ukrainian authorities were hesitant to publish in the public domain statistics on coal
production in Donbass. At the same time, amid the annual decline in coal production in
Ukraine, the Donbass coal deposits became increasingly important to the country's
economy.
87. In 2016 Ukrainian TV channel “1+1” covered a visit of Igor Nasalik, Minister of energy
and coal of Ukraine industry, to the DPR. Mr Nasalik was shown having a meeting in
Donetsk with the minister of taxes and fees of the DPR and discussing the conditions of
coal supply from the DPR to Ukraine. In particular, Mr Nasalik asked his counterpart
whether there were any problems with supplying coal from the DPR-controlled territory
to Ukraine, and was told that “today there are no obstacles to supplying coal to Ukrainian
territory”.102 Statements by Ukraine’s Deputy Prime Minister Kistion and Minister for
“Temporarily Occupied Territories and Internally Displaced Persons” Chernysh said that
in March 2017, Ukraine's yearly demand for Donbass coal amounted to up to 9 million
tons.103
100 See Unian, Ukraine cannot do without coal from the occupied territories - head of the SBU (26 January 2017),
available at: https://www.unian.ua/politics/1744361-ukrajina-ne-moje-obiytisya-bez-vugillya-z-okupovanihteritoriy-
glava-sbu.html (Annex 70).
101 See Open Data portal, National Report of Ukraine in the Framework of the Extractive Industries Transparency
Initiative (2016), available at:
https://web.archive.org/web/20180831064958/https://data.gov.ua/dataset/da1849bf-140f-4161-a71f-
2f6a904fffb5.
102 YouTube, Nasalik in the DPR (19 July 2016), available at:
https://www.youtube.com/watch?v=3gMHY0szxB0.
103 See Zaxid.net, Deputy Prime Minister says how much coal Ukraine buys from the occupied territories (16
December 2016), available at:
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88. It is also possible to estimate the scale of coal supplies from Donbass from the
commentary by the press service of Ukrainian Railways of 15 February 2017, according
to which Ukrainian thermal power plants did not receive more than 240 thousand tons of
anthracite after 20 days of railroad blocking by “ATO veterans”.104
89. The energy sector of the DPR and LPR up to 2017 was mainly controlled by the Donbass
Fuel and Energy Company (“DTEK”) Holding and Krasnodonugol PJSC, belonging to
Ukrainian oligarch Rinat Akhmetov, the Zasyadko Mine, as well as by numerous state
enterprises subordinate to the Ministry of Energy and Coal Industry of Ukraine. DTEK
operated 12 coal mines in the DPR and LPR (out of its total of 30). It is clearly seen from
the DTEK auditor's reports for 2014-2017 published on the Holding’s website.105
90. As it is shown in Appendix 1 to this Rejoinder, the coal trade with the DPR and LPR was
conducted actively without any interference from law enforcement authorities. The only
investigation concerning the supply of coal from the DPR and LPR to the territories
controlled by Kiev was initiated in September 2016 in order to put pressure on political
opposition. After Petr Poroshenko ceased to be President of Ukraine, he also became a
suspect in this case. On 20 December 2021, i.e., two and a half years after he had left
office as the President, the Pechersky District Court in Kiev decided on a measure of
restraint in the form of personal obligation for the former president.106 According to this
investigation, president Poroshenko exerted administrative pressure on the Ministry of
Energy and Coal Industry, the NBU and Centrenergo PJSC to pay money directly to the
leaders of the LPR and DPR and to conclude direct contracts for the sale of coal with
them. In total, during 2015, Ukraine transferred at least UAH 205.391 million for the
https://zaxid.net/vitsepremyer_povidomiv_skilki_vugillya_kupuye_ukrayina_z_okupovanih_teritoriy_n1412782
(Annex 71); See also Cenzor.net, Chernysh Is Against Ban On Goods Transportation Through Contact Line (26
December 2019), available at:
https://censor net.ua/news/421058/chernysh_protiv_zapreta_na_provoz_tovarov_cherez_liniyu_soprikosnoveniy
a_na_donbasse_neobhodimo_imet (Annex 72).
104 Ukrainian railway, Due to the blocking of train traffic in the Donbass, Ukraine did not receive almost 240
thousand tons of thermal coal, and the industry suffered UAH 53.5 million in losses (15 February 2017), available
at: https://web.archive.org/web/20220328103230/https:/www.uz.gov.ua/press_center/up_to_date_topic/445344/
(Annex 73).
105 See DTEK Energy B.V. Abbreviated IFRS Consolidated Financial Statements, 31 December 2015, pp. 5-6,
17, available at: http://web.archive.org/web/20201030073416/https://dtek.com/content/files/fy2015/dtek-energy-
2015-ifrs-fs.pdf (Annex 485); FY 2016 Results Corporate Presentation DTEK Energy B.V., April 2017, pp. 17-
18, available at: http://web.archive.org/web/20170712221415/http://www.dtek.com/content/files/ir-presentationfy-
2016.pdf (Annex 477).
106 Hromadske, “Coal case”: Poroshenko was appointed a personal obligation (19 January 2022), available at:
https://hromadske.ua/posts/vugilna-sprava-poroshenka-vidpustili-pid-osobiste-zobovyazannya (Annex 75).
Page 43 out of 541
supply of coal from the LPR and DPR, in addition to the funds paid in cash. According
to the signed agreements, more than 3 billion. 168 million UAH were to be transferred.107
91. It is important to note that so far there has seemed to be no progress in the investigation
of this criminal case. Until now Petr Poroshenko is free and not restricted in his
movements in Ukraine and abroad, he can freely contact any persons and dispose of his
assets. Thus, it is obvious that this “coal” investigation was initiated and is being
conducted solely to put pressure on political opponents of Vladimir Zelensky, not to
investigate the mythical “financing of terrorism”.
92. The above confirms that Ukraine's authorities, while verbally labelling the DPR and LPR
as “terrorists” and branding any trade operations with the republics as “terrorist
financing”, at the same time conducted trade activities with Donetsk and Lugansk
themselves. Ukraine's top leadership, including President Poroshenko and members of
the government, actively facilitated these trade activities.
107 Slovo i dilo, Coal case of Poroshenko-Medvedchuk: details of procurement announced by SBI (17 January
2022), available at: https://www.slovoidilo.ua/2022/01/17/novyna/polityka/vuhilna-sprava-poroshenkamedvedchuka-
dbr-ozvuchyly-vytraty-derzhbyudzhetu (Annex 74).
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III. THE REQUIREMENTS FOR THE ESTABLISHMENT OF TERRORISM
FINANCING UNDER ARTICLE 2 OF THE ICSFT
93. Article 2 of the ICSFT, in its relevant part, provides:
“1. Any person commits an offence within the meaning of this Convention if
that person by any means, directly or indirectly, unlawfully and wilfully,
provides or collects funds with the intention that they should be used or in the
knowledge that they are to be used, in full or in part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in
one of the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian,
or to any other person not taking an active part in the hostilities in a situation
of armed conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act …”.
94. As explained in the Counter-Memorial, this provision is central to the present case.108 In
its Judgment of 8 November 2019, the Court determined that:
“The ICSFT imposes obligations on States parties with respect to offences
committed by a person when ‘that person by any means, directly or indirectly,
unlawfully and wilfully, provides or collects funds with the intention that they
should be used or in the knowledge that they are to be used, in full or in part,
in order to carry out’ acts of terrorism as described in Article 2, paragraph 1
(a) and (b)”.109
95. In other words, and as Ukraine agrees,110 the substantive provisions of the ICSFT apply
only in respect of the offence of terrorism financing as defined in Article 2. For Ukraine
to establish that the Russian Federation has violated any of its obligations under the
Convention (quod non),111 it must accordingly demonstrate that the relevant requirements
found in the chapeau of Article 2(1), as well as in sub-paragraphs (a) or (b) thereof, are
met. The ICSFT, in short, is not a general treaty of cooperation on criminal matters, not
least a comprehensive convention on combating terrorism, but a convention criminalizing
108 Counter-Memorial (ICSFT), ¶¶104-106.
109 Judgment of 8 November 2019, p. 585, ¶59. Order of 19 April 2017, p. 131, ¶74 (“… the obligations under
Article 18 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”).
110 Written Statement of Observations and Submissions, ¶200 (“… the entire architecture of the treaty hinges on
the Article 2 offence”).
111 See below, Part 1, Chapter VIII.
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one specific offence – terrorism financing – and establishing a cooperation mechanism to
prevent and punish it.
96. This chapter responds to Ukraine’s Reply insofar as it concerns the interpretation of
Article 2 of the ICSFT. Section A addresses the mental elements of “intention” or
“knowledge” necessary for the establishment of terrorism financing under the chapeau of
Article 2(1) of the ICSFT. Section B deals with the requirements for acts of terrorism
under Article 2(1)(a) of the ICSFT, read together with Article 1(1)(b) of the Convention
for the Suppression of Unlawful Acts against the Safety of Civil Aviation (the “Montreal
Convention”) and Article 2(1) of the International Convention for the Suppression of
Terrorist Bombing (the “ICSTB”). Section C addresses the requirements for acts of
terrorism within the meaning of Article 2(1)(b) of the ICSFT. Finally, Section D
addresses the rules of IHL that are relevant to the interpretation and application of the
ICSFT.
97. As a preliminary remark, the manner in which Ukraine’s case under the ICSFT has
evolved needs to be highlighted. When Ukraine initiated these proceedings, its main
objective was to accuse the Russian Federation not of a failure to cooperate to prevent
and punish terrorism financing, but of engaging in terrorism financing itself. In the
Memorial, for example, it was claimed that the Russian Federation “transferred vast
quantities of dangerous weapons and other funds to groups on Ukrainian soil known to
engage in terrorist acts”,112 and Ukraine even went as far as to suggest that the Russian
Federation “insist[ed] on its own prerogative to finance terrorism”.113 These accusations
are baseless and firmly rejected by the Russian Federation. Furthermore, it must be
recalled that, in its Judgment of 8 November 2019, the Court decided in no unclear terms
that “[t]he financing by a State of acts of terrorism is not addressed by the ICSFT. It lies
outside the scope of the Convention”.114 The scope of Ukraine’s initial case was thereby
significantly reduced.
98. Ukraine has had no choice but to focus in its Reply on some of the actual obligations
arising under the ICSFT (Articles 8-16). At this stage of the proceedings, some of the
112 Memorial, ¶22.
113 Ibid., ¶305.
114 Judgment of 8 November 2019, p. 585, ¶59.
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main issues that divide the Parties are the definition and scope of the mental elements of
“intention” and “knowledge”, and the threshold of evidence that must be met for
establishing the commission of the relevant offences under Article 2 and triggering the
obligations of cooperation and legal assistance under the Convention. The various
elements of Article 2, properly interpreted in accordance with Articles 31 to 33 of the
VCLT, provide an answer to this, as the Russian Federation showed in its Counter-
Memorial and will do so again in the sections below. Yet in the end, regardless of whether
the Russian Federation’s or Ukraine’s interpretation of the ICSFT, the Montreal
Convention and the ICSTB is upheld, the main difficulty faced by Ukraine is that it cannot
conclusively prove, on the facts, that terrorism financing or any other terrorist offence
related to such alleged financing took place. Chapters V-VII below address these facts
in greater detail.
A. THE “INTENTION” OR “KNOWLEDGE” NECESSARY FOR THE OFFENCE OF TERRORISM
FINANCING UNDER THE CHAPEAU TO ARTICLE 2(1) OF THE ICSFT
99. Article 2(1) of the ICSFT stipulates that a person commits the offence of financing of
terrorism if that person “by any means, directly or indirectly, unlawfully and wilfully,
provides or collects funds with the intention that they should be used or in the knowledge
that they are to be used” to carry out the acts of terrorism that Articles 2(1)(a) and 2(1)(b)
refer to.115 As explained in the Counter-Memorial, the mental elements of “intention”
and “knowledge” in the chapeau play a particularly important role in the structure and
application of the Convention.116 They are, as it is clear from the plain text of the
provision, distinct and alternative. 117 “Intention” refers to specific intent or dolus
specialis, that is, the intention to “obtain[] a certain result prohibited by the texts, namely
the pursued goal”, to the exclusion of indirect intent and recklessness: the intent is that
the funds “should be used” to carry out the acts of terrorism referred to.118 By contrast,
“knowledge” refers to actual awareness of the fact that funds “are to be used” to carry
out a terrorism offence. Contrary to what Ukraine sought to argue in its Memorial, this
requirement under Article 2(1) must not be confused with awareness of a “possibility”,
115 Emphasis added.
116 Counter-Memorial (ICSFT), ¶¶107-110.
117 Ibid., ¶¶111-112.
118 Ibid., ¶¶115-116. See also Reply, ¶111 (“Ukraine does not advocate a recklessness standard, which would be
much broader than the principle reflected in Article 2 [of the ICSFT] …”).
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“probability” or “risk” that funds may be used to commit acts of terrorism – terms which
are nowhere to be seen in the text.119 The Russian Federation’s interpretation of the
chapeau of Article 2(1) is consistent not only with the ordinary meaning of its terms, but
also its context within the Convention, 120 object and purpose, 121 the travaux
préparatoires, 122 and States’ practice in the domestic implementation of the
Convention.123
100. Ukraine did not engage with most of these arguments in the Reply. Conscious of the
impossibility to prove the “intent” requirement under Article 2(1) in light of the facts of
the case, Ukraine focuses on the interpretation of the mental element of “knowledge”
alone,124 and continues to advance, contrary to the ordinary sense of the provision, that
“knowledge” that funds “are to be used” to commit a terrorism offence is not necessary
for terrorism financing to be established. Citing a single commentator, Ukraine rather
proposes as a “common-sense principle” that “the financing of a group which has
notoriously committed terrorist acts would meet the requirements” of Article 2(1).125 It
suggests that this is “the only way to give the Convention practical effect” because
“terrorist perpetrators generally engage in terrorist acts alongside other activities”.126
101. Contrary to what Ukraine asserts, the Russian Federation has not agreed with this
interpretation of Article 2(1) of the ICSFT,127 which essentially seeks to read out of the
provision the mental elements of “intent” and “knowledge”. The correct interpretation of
the “knowledge” requirement, as noted above, is that actual knowledge that funds are to
be used to commit an act of terrorism must be established: the funder must know, with
certainty, that those funds will be used to commit the relevant terrorism offences as
defined in the ICSFT and other anti-terrorism treaties. There is thus no “notoriety test”
119 Counter-Memorial (ICSFT), ¶¶117-118.
120 Ibid., ¶¶119-123.
121 Ibid., ¶¶124-126.
122 Ibid., ¶¶127-136.
123 Ibid., ¶¶137-144.
124 Relpy, ¶99 ff.
125 Ibid., ¶100.
126 Ibid.
127 Ibid., ¶¶101, 112.
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in the Convention which might set the threshold lower than the actual requirements
stipulated in Article 2(1).
102. Naturally, there may be some cases, such as the designation of Al-Qaeda as a terrorist
organisation by the UN Security Council under Chapter VII of the UN Charter,128 where
there exists a clear international consensus regarding the terrorist activities of a given
group, as determined by a competent international organ. There is no question here about
a certain terrorist group being “notorious” by virtue of some unspecified and vague
criteria – rather, the highest international body charged with dealing with terrorismrelated
issues – the UN Security Council – after a proper assessment, listed the group as
such. In the case of the UN Security Council, States are obliged to accept and carry out
its decisions, including determinations of the terrorist nature of an organisation, by virtue
of the UN Charter.
103. The DPR and LPR, which were at the relevant time territorial administration units, clearly
do not fall within the category of groups like Al-Qaeda, as they have never been listed as
a “terrorist organization” by any competent international body, not least the UN Security
Council. In this regard, it should also be noted that Ukraine itself has never even tried to
put this issue before any such body, which confirms that it does not entertain any serious
hope to show, with any degree of conclusiveness, that the DPR or LPR may be viewed as
terrorist organisations. Ukraine’s behaviour in this regard must be seen in its proper
context, that is, the existence of an armed conflict between itself and the DPR and LPR,
during which the parties involved can be reasonably presumed to have acted on the basis
of military necessity, as opposed to an intention to commit terrorism offences in the
absence of conclusive evidence to that effect.129
104. The threshold that Ukraine puts forward to meet its “notoriety test” (nowhere to be found
in the text of the Convention) is remarkably low and vague, suggesting that States would
be obligated to act upon inconsistent assertions of one single State, even if the latter only
occasionally refers to a certain group as a “terrorist organization” for mere political
purposes. In particular, Ukraine maintains that it suffices for it to rely on a few statements
by itself (and itself alone) labelling the DPR and LPR as “terrorist organizations”, even
128 Counter-Memorial (ICSFT), ¶125.
129 See below, Part 1, Chapters V-VI.
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if at the same time Ukraine concluded the Minsk Agreements with these entities, which
were later endorsed by resolution 2202 (2015) of the UN Security Council 130 and
conducted trade activities that took place between Ukraine and the DPR and LPR over
the years.131 If this were to be what is required by Article 2(1) of the ICSFT, it would
mean that any State’s labelling of any entity, however improbable or politically charged,
to be a “terrorist organisation” would somehow trigger all States’ obligations under the
Convention, as well as the possible criminal responsibility of individuals for terrorism
financing. Such a vague and subjective approach cannot stand any scrutiny.
105. Ultimately, Ukraine appears not to insist on its suggested “notoriety test”,132 as it is well
aware that the DPR and LPR are not and have never been considered (not even by Ukraine
in a consistent manner) terrorist organisations at the international level. Instead, it falls
back to the basic position under the ICSFT: what is crucial is not “labels or designations
of groups” as terrorists by international organizations, a group of States, or even a single
State, but rather the acts that an alleged offender objectively carries out: “the Convention
was designed to address acts, not legal or political labels”.133
106. In this regard, Ukraine’s statement that “the point of the careful drafting of Article 2(1)
was to exclude political judgments and characterisations, and to instead focus on acts”134
deserves special consideration. Ukraine labelled the DPR and LPR as “terrorist entities”
long before the occurrence of any of the events it brings up as alleged “terrorist acts” in
the present case. Importantly, in April 2014, Ukraine’s war against the people of Donbass
had already been labelled by Kiev as an “anti-terrorist operation” against anyone who
took up arms. Ukraine’s characterisation of the DPR and LPR as terrorist organisations
was therefore pure and simply political. According to Ukraine’s own logic, these
“political labels” could not have been considered sufficient grounds for triggering the
130 Reply, ¶¶214, 230, 241, 294. The Minsk Agreements included a roadmap for the resolution of the conflict
which is irreconcilable with Ukraine’s labeling of the DPR and LPR as “terrorist organizations”. The Agreements
included provisions relating to, inter alia, ceasefire obligations, the launch of a dialogue between the Ukrainian
government and the DPR and LPR with a view to agreeing on modalities for local elections, ensuring the pardon
and amnesty of persons involved in the armed conflict, release and exchange of hostages, and facilitating
humanitarian assistance. See UN Security Council resolution No. 2202, 2015, ¶¶1-7.
131 See below, Appendix 1.
132 Memorial, ¶281.
133 Reply, ¶115. See also ¶101.
134 Ibid., ¶116.
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application of the ICSFT – yet at the same time Ukraine demands that the Russian
Federation should have taken them at face value and treated the DPR and LPR as terrorist
organisations.
107. The Reply further recognises that recklessness is not covered by the ICSFT:
“Ukraine does not advocate a recklessness standard, which would be much
broader than the principle reflected in Article 2: actual knowledge that the
funder is providing assets to a group that is known to commits terrorist acts
establishes the mental element of the offense”.135
108. Ukraine also repeats that “[i]t is a well-established principle of international law that mens
rea can be inferred from objective factual circumstances, and there is no indication that
the drafters of the ICSFT intended to deviate from this principle in Article 2(1)”.136
However, Ukraine’s assertion that the inferral of mens rea from objective factual
circumstances constitutes a “well-established principle of international law” (without
specifying its source) is wholly unsubstantiated. As already noted in the Counter-
Memorial, when inference from context is allowed in treaties criminalizing certain
offences, they do so expressly.137 In support of its far-reaching claim, Ukraine refers only
to the International Criminal Court’s “Elements of Crimes”; however, ICC documents are
neither universal nor legally binding for those not Parties to the Rome Statute – and
neither Ukraine nor the Russian Federation are such Parties. Furthermore, these
“elements” concern war crimes, and not terrorism financing.
109. There is, on the contrary, much stronger evidence against Ukraine’s claim. In its Counter-
Memorial, the Russian Federation has already referred to the International Monetary
Fund’s Legal Department’s Handbook for Legislative Drafting on suppressing terrorism
financing when showing how forms of mens rea other than direct intent are not covered
by the ICSFT. The Handbook stipulates that the ICSFT does not state that the requisite
135 Ibid., ¶111. Ukraine also repeats that “[i]t is a well-established principle of international law that mens rea can
be inferred from objective factual circumstances, and there is no indication that the drafters of the ICSFT intended
to deviate from this principle in Article 2(1)” (ibid.). As noted in the Counter-Memorial, however, when inference
from context is allowed in treaties criminalizing certain offences, they do so expressly. See Counter-Memorial
(ICSFT), ¶¶121-122. The Russian Federation notes that Ukraine’s assertion that the inferral of mens rea from
objective factual circumstances constitutes a “well-established principle” (without specifying its source) is wholly
unsubstantiated, with the exception of references to a few conventions, while ignoring many others.
136 Ibid.
137 Counter-Memorial (ICSFT), ¶¶121-122.
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“intention” or “knowledge” as to the use of the funds may be inferred from objective
circumstances:
“One of the criteria for compliance with these standards is stated as follows
in the Methodology: “The offences of ML and FT should apply at least to
those individuals and legal entities that knowingly engage in ML or FT
activity. Laws should provide that the intentional element of the offences of
ML and FT may be inferred from objective factual circumstances.”
The first sentence of the quoted section of the Methodology is consistent with
the Convention, as knowledge is required (as an alternative to intent) in the
definition of the offense itself in the Convention. With respect to the second
sentence of the criterion, the idea that knowledge or intent should be inferred
from objective factual circumstances was already present in the FATF 40
Recommendations on Money Laundering. Its origin can be found in the 1988
Vienna Convention, which states that: “Knowledge, intent or purpose
required as an element of an offence set forth in paragraph 1 of this article
may be inferred from objective factual circumstances.” There is no similar
provision in the [Terrorism Financing] Convention. It is a matter for each
jurisdiction to determine whether its general criminal law provides an
equivalent standard applicable to terrorism financing offenses.” 138
[Emphasis added]
110. Later, however, Ukraine states:
“Requiring the funder to possess particularized knowledge that the specific
funds being provided would be directed toward a specific terrorist act would
undermine the treaty’s effectiveness. It would rarely be possible to prove that
a funder of a group that engages in terrorist acts knew with certainty how the
funds being provided would be deployed. Groups committing terrorist acts
could easily shield their funders from liability by simply declining to tell
funders how specific assets might be directed. Further, if it becomes unduly
difficult to prove an Article 2 offense, the object and purpose of the
Convention — to promote cooperation in the suppression of terrorism
financing — would be thwarted. States who had committed to cooperate in
the prevention and suppression of terrorism financing offenses would rarely
have to cooperate in practice, since only allegations that a specific asset was
to be used to commit a specific act of terror could trigger the treaty’s
obligations.”139 [Emphasis added]
111. And Ukraine then makes yet another turn to say that:
138 International Monetary Fund, Legal Department, SUPPRESSING THE FINANCING OF TERRORISM: A HANDBOOK
FOR LEGISLATIVE DRAFTING (2003), p. 53, available at:
https://www.imf.org/external/pubs/nft/2003/SFTH/pdf/SFTH.pdf.
139 Reply, ¶105.
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“Article 2(1) must be read so that ‘it is sufficient to prove that the recipient or
recipients . . . of the ‘funds’ are terrorists,’ and ‘that that person was aware
of this …’”140. [Emphasis added]
112. Ukraine thereby creates a confusion regarding the requirement of “knowledge” under
Article 2(1) of the ICSFT: it says, on the one hand, that one must assess the “acts that
[alleged terrorists] objectively carry out” for purposes of establishing this mental element.
At the same time, Ukraine suggests that it suffices to somehow show that the recipients
of funds are “terrorists” or a “group that is known to commit terrorist acts”, to then
reiterate that it is not necessary to prove the existence of knowledge that funds are to be
used for a specific terrorist act (as expressly required by the Convention), but rather for
unspecified acts which may or may not constitute terrorism offences under Article 2(1)(b)
of the ICSFT and other conventions pursuant to Article 2(1)(a).
113. Thus, while on the one hand Ukraine recognises that it is terrorist acts and their financing
that “the Convention was designed to address”, it then tries to read into Article 2 of the
Convention the notion of financing of “a group that is known to commit terrorist acts”
which is nowhere to be found in the text. Furthermore, although Ukraine admits that the
Convention was not designed to address “political labels”, it also argues that the
obligations under the Convention can be triggered not only through actual (certain)
knowledge that funds will be used for the commission of a terrorist act that falls under
the Convention (such knowledge possibly being public through an official designation by
the Security Council and its Sanctions Committees), but also by a label (of an entity
allegedly being a “terrorist organization” or a person allegedly being a “terrorist”) by a
single State for political reasons and even if that State is not consistent in such a labelling.
114. Ukraine attempts to prove this point by repeating what it previously stated in its Memorial
and selectively quoting Article 2 of the ICSFT. In particular, it relies on the terms “in
full or in part” used in Article 2(1), as well as Article 2(3), which states that “it shall not
be necessary that the funds were actually used to carry out an offence referred to in
paragraph 1, subparagraphs (a) or (b)”.141 Based on these provisions, Ukraine suggests
that “[r]equiring the funder to possess particularised knowledge that the specific funds
would be directed toward a specific terrorist act would undermine the treaty’s
140 Ibid., ¶107.
141 Ibid., ¶¶102-104.
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effectiveness”.142 Neither of these elements of Article 2, however, nullifies the mental
element set out in the chapeau of Article 2(1): the funder must still have the knowledge
that the funds being provided “are to be used … in order to carry out” the relevant offence;
Article 2(1) does not stipulate that such funds “could” or “might” be used to commit such
offences, or for some other purpose.143 Whether “in full or in part”, the mental element
remains, i.e. the funder must know that at least “part” of the funds will effectively be used
for the commission of one of those offences. As for Article 2(3), Ukraine does not deny
that it is not related to the mental element Article 2(1).144
115. Ukraine’s reference to the preamble of the ICSFT, which notes in part that the financing
of terrorism may be indirect “through organizations which also have or claim to have
charitable, social or cultural goals or which are also engaged in unlawful activities such
as illicit arms trafficking, drug dealing and racketeering, including the exploitation of
persons for purposes of funding terrorist activities” is also of no assistance.145 Ukraine
suggests, based on this wording, that “it cannot be a defense under Article 2(1) for the
funder to claim some uncertainty as to whether the specific money or weapons provided
would be directly earmarked for terrorist acts”.146 Yet Ukraine again misses the point:
the question is not whether an alleged funder may invoke a “defense” based on
“uncertainty”, but the degree of knowledge the latter must have for the terrorism financing
offence under the Convention to be established and the Convention’s cooperation
obligations to be triggered. The object and purpose of the Convention is not the
criminalisation of, and establishment of a cooperation regime with respect to, just any
type of financing (which in itself is not unlawful), but the financing of terrorist activities.
The text of Article 2(1) of the Convention, which requires actual knowledge that funds
“are to be used” to commit a specific terrorist act as set out in various anti-terrorism
conventions and in Article 2(1)(b) of the ICSFT, is perfectly compatible with this object
and purpose.
142 Ibid., ¶105.
143 See Counter-Memorial (ICSFT), ¶118.
144 Ibid., ¶123; Written Statement of Observations and Submissions, ¶202.
145 Reply, ¶¶106-107.
146 Ibid., ¶106.
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116. It must be added that if actual knowledge that funds are to be used to commit terrorist
acts was not required, the result would be that the ICSFT would criminalise the transfer
of funds in an overly broad manner, making individuals criminally responsible for
engaging in financial transactions with different types of entities and organisations that
do not actually carry out, or plan to carry out, terrorist offences. Ukraine’s view is that
those individuals should have somehow known or assumed that the recipient of funds
planned to carry out such offences simply because someone, somewhere in the world (e.g.
in Ukraine’s parliament), labelled that recipient as a terrorist or terrorist group, even if
that labelling was made for political purposes. This position is clearly untenable, and all
the more so in cases like the present one since it could lead to the disruption of
humanitarian activities necessary in the context of an armed conflict.
117. Ukraine’s appeal to the UNODC Legislative Guide to the Universal Legal Regime
Against Terrorism is likewise misplaced.147 First of all, it should be noted that the
Legislative Guide was produced by the UNODC, not by the States Parties to the
Convention or the UN Security Council or its specialised bodies, such as the Counter-
Terrorism Committee (the “CTC”) or Counter-Terrorism Executive Directorate (the
“CTED”), bodies that are specifically tasked with addressing counter-terrorism activities.
Thus, its value for the interpretation of the ICSFT is limited. Moreover, the section of
the Guide which Ukraine quotes (“Elements of knowledge and intent”) describes a
hypothetical situation of a national criminal law provision that goes beyond the
requirements of the ICSFT:
“The Financing Convention applies only to unlawful and willful provision or
collection of funds ‘with the intention that they should be used or in the
knowledge that they are to be used, in full or in part, to carry out’ specified
violent acts. Some national laws have extended criminal liability to a person
who ‘has reasonable cause to suspect’ that his or her participation, support or
funds may be used for the purpose of supporting terrorist groups or actions.
The question may arise whether proof of reasonable cause or suspicion is a
standard of negligence or at most recklessness and not of intentional or
knowing wrongdoing. Accordingly, a request for international assistance
involving reasonable grounds to suspect terrorist activity may be attacked as
not satisfying dual criminality under the Financing Convention. The opposing
argument is that proof that an offender had reasonable cause to suspect the
intended illegal use of funds allows an inference that the accused made a
conscious decision to remain willfully blind to the illegality and therefore
147 Ibid., ¶108.
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acted intentionally, or at least knowingly. Which view will prevail depends
upon local jurisdiction and statutory language”.148 [Emphasis added]
118. Thus, according to the plain text of the Guide, the ICSFT itself does not actually “extend”
criminal liability to include “reasonable cause to suspect”. Indeed, the Guide
unswervingly maintains the wording of Article 2(1), whether directly quoting or restating
it. Furthermore, another UNODC document on the same topic – the more detailed Guide
for the Legislative Incorporation and Implementation of the Universal Anti-Terrorism
Instruments – does not engage in hypothetical situations and states clearly:
“According to the Convention’s definition, the mens rea or element of
intention behind the financing of terrorism has two aspects: the act must be
committed willfully and the offender must intend to use the funds to finance
acts of terrorism or know that they will be used for that purpose. Intention
and knowledge are thus two sides of the coin. In the absence of other
information concerning these two aspects of the subjective element, it is
advisable for each State to refer to its general criminal law”.149[Emphasis
added]
119. As regards the travaux of the ICSFT, Ukraine relies on the personal recollections of one
participant of the negotiations of the Convention, which it disingenuously presents as a
“consensus” reached in 1999 without any reference to primary sources, in an attempt to
bolster its interpretation of the mental element of “knowledge”150 under Article 2(1). This
does not however respond to what the Russian Federation clearly established in the
Counter-Memorial: the drafting history of the ICSFT reveals that several proposals aimed
at creating a standard of likelihood, recklessness or dolus eventualis, the threshold of
which would be much lower than actual knowledge for purposes of establishing criminal
responsibility, were consistently rejected by States.151 The travaux thus confirm that
“knowledge” means actual knowledge that funds “are to be used, in full or in part, in
order to carry out” terrorist acts, following the ordinary meaning of the terms of Article
2(1).
148 UNODC, Legislative Guide to the Universal Legal Regime Against Terrorism2008, p. 30 , available at:
https://www.unodc.org/documents/terrorism/Publications/Legislative_Guide_Universal_Legal_Regime/English.
pdf.
149 UNODC, Guide for the Legislative Incorporation and Implementation of the Universal Anti-Terrorism
Instruments, 2006, p. 19, ¶52 (emphasis added), available at:
https://www.unodc.org/documents/terrorism/Publications/Guide_Legislative_Incorporation_Implementation/Eng
lish.pdf.
150 Reply, ¶¶110-111.
151 Counter-Memorial (ICSFT), ¶¶127-136.
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120. Even if Ukraine’s “notoriety test” were correct (quod non), the question that remains, as
Ukraine itself notes, is determining how such “notoriety” would need to be established.152
Ukraine suggests that “the proper inquiry is whether there is public knowledge that the
individual or group carries out acts that meet the requirements of subparagraphs (a) and
(b) of Article 2(1)”.153 No authority is provided in support of this purported “inquiry”,
other than a few domestic court cases which the Russian Federation has already addressed
in its Counter-Memorial.154 As it was explained, those cases are either irrelevant because
the court in question was not applying the ICSFT itself, but national legislation going
beyond the latter, or concerned examples of terrorist organisations that have been
recognised as such by competent international bodies or multiple States, and which had
committed innumerable terrorist acts before the terrorism financing offence was found to
be established.
121. With regard to the new case introduced by Ukraine in its Reply – Schansman v. Sberbank
of Russia PJSC – the US District Court simply “assumed as true” the plaintiff’s claims
that the DPR was a “terrorist organization” and did not possess “armed forces”.155 The
District Court followed a procedure under US law that allows such an assumption without
further inquiry.156 This decision, which runs contrary to the 2022 judgment of The Hague
District Court in the MH17 case, 157 was apparently made solely for the purpose of
avoiding the lawful exemption established by the US Congress for “injury or loss by
reason of an act of war” (including “armed conflict between military forces of any
character”).158
152 Reply, ¶112.
153 Ibid., ¶¶113, 121.
154 Ibid., ¶113; Counter-Memorial (ICSFT), ¶144.
155 Reply, Annex 67, p. 12, ¶25.
156 Ibid., pp. 6-7, ¶¶1-2, 5. This decision was indeed an order against Sberbank under Rule 12(b)(6) (motion to
dismiss the complaint for failure to state a claim that is plausible on its face). This Rule requires the claimant to
state sufficient facts in the complaint which could allow the federal court to make a reasonable inference that the
defendant is liable. When federal courts consider these motions, they must, solely for the purpose of this motion,
accept all factual allegations by the claimant as true and make every reasonable inference in favour of the claimant.
Accordingly, the court did not, nor was it necessary for it to, establish the nature of the DPR and LPR’s activities.
157 See below, Chapter V.
158 See United States Code, Title 18, § 2336(a), available at : https://www.govinfo.gov/content/pkg/USCODE-
2021-title18/pdf/USCODE-2021-title18-partI-chap113B-sec2336.pdf
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122. Ukraine also does not explain how its proposed threshold of “public knowledge” should
be precisely understood or applied. According to its ordinary meaning, “public
knowledge” means “something that people know because it has been reported in the
news”159 or “knowledge that is available to everyone”.160 Yet Ukraine cannot seriously
maintain that such a subjective and vague concept (in how much detail must something
be reported in the news, with what frequency, and which news outlets are to be relied
upon? When exactly does a piece of information become available to the “public”; which
“public”? What is one to do when one reads conflicting media reports? How is one to
treat media reports that make accusations of a criminal nature without a fully conclusive
criminal procedure?) can suffice to establish the criminal responsibility of an individual,
or to trigger a State’s cooperation obligations under the ICSFT.
123. As will be shown in more detail in Chapters V-VII below, the facts before the Court do
not show that even the low and vague threshold put forward by Ukraine is met. None of
the incidents relied on by Ukraine in the present case, or any other acts allegedly
attributable to the DPR or LPR, have been qualified as acts of terrorism by competent
international bodies or States; nor do any of those acts, on their own merit, constitute
terrorist acts according to the applicable treaties. The downing of flight MH17, notably,
has not been characterised as an act of terrorism, neither by the UN Security Council, the
ICAO Council or even by the States of nationality of the victims (Malaysia, the
Netherlands, Australia); furthermore, no terrorist intent was discovered by The Hague
District Court in its 2022 judgment. Neither have similar acts committed in the past by
various States, including Ukraine itself, been considered terrorism. 161 It is thus
implausible to maintain, even applying Ukraine’s “notoriety test”, that the persons that
allegedly funded the DPR or LPR could have had the knowledge that the funds they
provided were to be used, or even likely to be used, to commit terrorist acts; similarly, it
cannot be credibly argued, on the basis of the thin evidence relied upon by Ukraine when
it requested legal assistance, that the Russian Federation was somehow obliged to
attribute or suspect the existence of such knowledge to the persons involved.
159 Merriam-Webster, Dictionary, available at : https://www merriamwebster.
com/dictionary/public%20knowledge.
160 Vocabulary.com, available at : https://www.vocabulary.com/dictionary/public%20knowledge.
161 See, for example, Gazeta.ru, “Do Not Make Tragedy of This”. How Ukraine Shot Down Russian Aircraft
(4 October 2021), available at: https://www.gazeta.ru/science/2021/10/03_a_14047363.shtml (Annex 343).
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124. Ultimately, the main evidence that Ukraine appears to adduce in order to argue that the
DPR and LPR are terrorist organisations (besides its own inconsistent assertions) is the
2014 OHCHR report on the human rights situation in Ukraine, which states that they have
“inflicted on the populations a reign of intimidation and terror to maintain their position
of control”.162 As explained in the Counter-Memorial, however, the report is far from
constituting conclusive evidence that these entities were terrorist organisations. 163
Furthermore, the expression “reign of intimidation and terror” was used only once, in
passing, in the report, and its authors were not dealing with questions of terrorism, but
with allegations of specific human rights violations.164 It should also be noted that that
such expressions are commonly used by the OHCHR,165 without there being an intention
(not least a mandate) to create legal consequences in respect of States’ obligations under
anti-terrorism treaties.
B. THE REQUIREMENTS FOR ACTS OF TERRORISM WITHIN THE MEANING OF ARTICLE
2(1)(A) OF THE ICSFT
125. In Chapter IV of the Counter-Memorial, the Russian Federation set out the correct
interpretation of the two treaties relied upon by Ukraine for purposes of the application
of Article 2(1)(a) of the ICSFT, that is, the Montreal Convention and the ICSTB. It was
shown, in particular, that:
162 OHCHR, Report on the human rights situation in Ukraine, 15 July 2014, ¶26, available at:
https://www.ohchr.org/sites/default/files/Documents/Countries/UA/Ukraine_Report_15July2014.pdf.
163 Counter-Memorial (ICSFT), ¶¶14-15.
164 As explained in the Counter-Memorial, later reports of the OHCHR on the situation in Ukraine do not employ
this expression. See Counter-Memorial (ICSFT), ¶15.
165 See, for example, OHCHR, Press briefing note on Burundi, Thailand, Guinea and Ethiopia, 10 July 2015,
available at: https://www.ohchr.org/en/press-briefing-notes/2015/07/press-briefing-note-burundi-thailand-guineaand-
ethiopia; OHCHR, Press Releases No. HR/SC/99/4, Subcommission on Promotion and Protection of Human
Rights Hears Allegations of Violations Across the Globe, 4 August 1999, available at:
https://www.ohchr.org/en/press-releases/2009/10/subcommission-promotion-and-protection-human-rights-hearsallegations-
0; OHCHR, Press Releases No. HR/99/120, 14 December 1999, available at:
https://www.ohchr.org/en/press-releases/2009/10/default-title-1752.
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(a) The offence under Article 1(1)(b) of the Montreal Convention166 requires a specific
intent to destroy a civilian aircraft; it does not encompass the destruction of such an
aircraft in error, or when there is an indirect intent or recklessness167;
(b) The offence under Article 2(1) of the ICSTB 168 contains a dual intention
requirement: (1) the intentional delivery, placing, discharging or detonating an
explosive or other lethal device in, into or against a place of public use, a State or
government facility, a public transportation system or an infrastructure facility; and
(2) the intent to cause death, serious bodily harm or extensive destruction.169
126. In its Reply, Ukraine complains that the Russian Federation “puts forward interpretations
that make it more difficult to prove terrorism financing offenses”.170 This assertion is
misplaced: the Russian Federation does not put forward interpretations that make it
“difficult” or “easy” to prove terrorism financing offences, but simply the correct
interpretation of the ICSFT, the Montreal Convention and the ICSTB, in accordance with
what the States parties to those treaties agreed to. Ukraine also does not explain why, in
any event, terrorism offences should in its view be able to be proved “easily” or “casually”
– such approach is not consistent with the gravity of the crimes in question, as well as
with general principles of criminal law, such as the principle of legality. In fact, it is not
difficult to see that Ukraine’s approach could lead to the violation of the human rights of
the accused.171
166 The provision reads: “1. Any person commits an offence if he unlawfully and intentionally: …. (b) destroy an
aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to
endanger its safety in flight …”.
167 Counter-Memorial (ICSFT), ¶¶149-164.
168 The provision reads: “Any person commits an offence within the meaning of this Convention if that person
unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into
or against a place of public use, a State or government facility, a public transportation system or an infrastructure
facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive
destruction of such a place, facility or system, where such destruction results in or is likely to result in major
economic loss”.
169 Counter-Memorial (ICSFT), ¶¶165-168.
170 Reply, ¶123.
171 See, for example, UNSC Counter-Terrorism Committee, Global survey of the implementation of Security
Council resolution 1373 (2001) and other relevant resolutions by Member States, November 2021, ¶¶777, 779,
available at: https://www.un.org/securitycouncil/ctc/sites/www.un.org.securitycouncil.ctc/files/ctc_1373_gis.pdf
(“The Security Council continues to affirm that Member States must ensure that any measures taken to combat
terrorism comply with all their obligations under international law, in particular international human rights law,
international refugee law, and international humanitarian law … One core issue that remains a major matter of
concern, almost 20 years after the adoption of Security Council resolution 1373 (2001), is the question of the legal
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i. Article 1(1)(b) of the Montreal Convention
127. With respect to Article 1(1)(b) of the Montreal Convention, Ukraine argues that “the
status of the destroyed aircraft dictates whether the Convention applies, but is not an
element of a violation that is subject to an intent requirement”.172 Further, according to
Ukraine, “[i]f a person acts unlawfully and intends to destroy an aircraft, and a civilian
aircraft is destroyed, an offense is committed under the Montreal Convention”; “any
claims of intent to unlawfully destroy a different kind of aircraft”, in Ukraine’s view, “are
irrelevant”. 173 Thus, Ukraine agrees that, under Article 1(1)(b) of the Montreal
Convention, a specific intent is required, but maintains that such intent relates to the
destruction of any aircraft, as opposed to only civilian aircraft. No convincing
explanation is given to sustain such an interpretation.
128. While Article 1(1)(b) of the Montreal Convention does not expressly define what type of
aircraft is covered by the offence,174 Article 4(1) clarifies which type of aircraft the
Convention is intended to cover: “This Convention shall not apply to aircraft used in
military, customs or police services”.
129. Ukraine admits in the Reply that, pursuant to this provision, “the Convention does apply
to aircraft used in civilian service”.175 Yet it fails to make the relevant link between
Articles 1(1)(b) and 4(1) and draw the logical conclusion that there must be a specific
intent to destroy a civilian aircraft, as opposed to a military aircraft, for the offence to be
established. Instead, Ukraine limits itself to rehearsing the Memorial and stating that the
civilian status of an aircraft is a “jurisdictional element” set out in Article 4, and not a
definition of terrorist acts. The national laws of a number of States continue to criminalize terrorist acts in vague
or overbroad terms that could lead to abuse. Paragraph 2 (e) of resolution 1373 (2001) requires States to criminalize
participation in the financing, planning, preparation or perpetration of terrorist acts or in supporting such acts but
does not provide a definition of such offences. The Executive Directorate remains concerned about national
definitions of terrorism that exceed the scope of Council resolution 1566 (2004), the international counterterrorism
instruments, and the model definition put forward by the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, thereby creating the potential
for non-violent conduct that is not terrorist in nature to be qualified as ‘terrorist’ …”).
172 Reply, ¶126.
173 Ibid.
174 Ibid., ¶127.
175 Ibid., ¶128, noting also that “[t]he status of the aircraft is not addressed in Article 1(1), but instead is addressed
separately in Article 4 of the Convention, which enumerates the circumstances in which the Convention shall or
shall not apply”; and that “if an incident occurs involving a military aircraft, the Convention ‘shall not apply’ to
that incident; whereas, if an incident occurs involving a civilian aircraft, the Convention does apply”.
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“legal ingredient” to determine the intent of an alleged perpetrator.176 Ukraine provides
no support for this proposition, other than the 1999 Tadić judgment, which did not
concern the Montreal Convention and the questions put before the Court in the present
case, but the interpretation of Article 5 of the ICTY Statute and the “armed conflict
requirement” thereunder, exclusively in the context of crimes against humanity.177
130. The ICTY’s reference to a “jurisdictional element” when discussing the term “committed
in armed conflict” in Article 5 of the ICTY Statute must be understood taking into account
the special nature of the Statute – i.e. an instrument that did not concern the
criminalisation of a certain conduct, but rather the establishment of an international
criminal tribunal in charge of prosecuting crimes committed specifically during the armed
conflict in the former Yugoslavia since 1991. Thus, the fact that the ICTY considered
the term “committed in armed conflict” to constitute an element concerning its own
limited jurisdiction, as opposed to the mens rea required for crimes against humanity, is
irrelevant for purposes of interpreting Article 1(1)(b) of the Montreal Convention.178
131. Furthermore, even if Ukraine’s reading of the Tadić judgment was correct (quod non),
this would still not help its position. Contrary to what Ukraine suggests, the Tribunal did
not consider the “armed conflict” requirement to be entirely divorced from the mental
state of the perpetrator. In fact, the Appeals Chamber was of the view that “it may be
inferred from the words ‘directed against any civilian population’ in Article 5 of the
Statute that the acts of the accused must comprise part of a pattern of widespread or
systematic crimes directed against a civilian population and that the accused must have
known that his acts fit into such a pattern”, and that what is required is proof of “the intent
to commit the crime and the knowledge of the context into which the crime fits.”179
Knowledge of the existence of an armed conflict, therefore, was not deemed irrelevant.
176 Ibid., ¶128; Memorial, ¶222.
177 Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment of 15 July 1999, ¶249 (“The Appeals
Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the
Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution
is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive
element of the mens rea of crimes against humanity” (i.e., not a legal ingredient of the subjective element of the
crime)”).
178 The same “jurisdictional element” relating to the existence of an armed conflict does not appear, for example,
in the Rome Statute (Article 7), which is not limited to crimes against humanity committed during an armed
conflict, as the ICTY Statute was.
179 Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment of 15 July 1999, ¶¶248, 249, 250.
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132. Ukraine’s reliance on the fact that the term “civilian aircraft” is not expressly used in
Article 1(1)(b)180 is equally unconvincing – it constitutes a vain attempt to distort that
provision by interpreting it in an isolated manner and out of its context. Indeed, if
Ukraine’s interpretation were to be followed to its logical conclusion, then the entirety of
Article 1(1)(b) – not only the element of intent – ought to be viewed as encompassing
also military aircraft, which would go against the very object and purpose of the
Convention (the suppression of unlawful acts against civil aviation).
133. As regards the Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons (the “IPP Convention”), Ukraine ultimately agrees with
the Russian Federation’s position,181 but maintains that the key distinction is that Article
2(1)(a) of the IPP Convention specifically refers to the victim’s status (“an internationally
protected person”) as part of the mental element of the offence (i.e. the offender must be
aware of the status of the person), while, in contrast, Article 1(1)(b) of the Montreal
Convention does not expressly refer to “civilian aircraft”.182 This argument, again, fails
to give a proper interpretation and effect to Articles 1 and 4 of the Montreal Convention
read in their proper context, as explained above – even if Article 1(1)(b) of the Montreal
Convention does not contain the words “civilian aircraft”, the term “aircraft in service”
must be interpreted in accordance with Article 4, which applies to the whole of the
Montreal Convention, as well as the title of the Convention which speaks of “suppression
of unlawful acts against the safety of civil aviation” (Emphasis added), and therefore
necessarily qualifies the mental element for the commission of the relevant offence.
134. As Ukraine rightly notes, the preamble of the Montreal Convention specifically refers to
the “occurrence” of “unlawful acts against the safety of civil aviation” as a “matter of
grave concern”, and that the Convention’s purpose is to “deter[] such acts”.183 This object
and purpose evidently support the Russian Federation’s interpretation of Article 1(1)(b)
of the Convention, but Ukraine suggests that the latter would somehow “create a loophole
in the treaty’s prohibitions”. 184 In reality, there is no question that the Montreal
180 Reply, ¶130.
181 Ibid., ¶131; Counter-Memorial (ICSFT), ¶157.
182 Reply, ¶131.
183 Ibid., ¶132.
184 Ibid.
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Convention’s scope is limited (covering civil aircraft, to the exclusion of aircraft used for
military, police or customs services), and therefore does not address the situations that
Ukraine would like it to for purposes of the present case. This does not constitute a
“loophole in the treaty’s prohibitions”, but simply a reflection of what States actually
agreed upon when the Convention was concluded.
135. Ukraine further claims that “[w]ith respect to the Montreal Convention, the Russian
Federation proposes an implausible rule under which no offense is committed when a
person acts unlawfully, fires an indiscriminate weapon incapable of distinguishing
military from civilian aircraft, and consequently destroys a civilian aircraft and murders
hundreds of people on board”.185 Ukraine’s logic is however wrong on all counts.186
Firstly, it is not “implausible” that treaties governing civil aviation do not cover acts
performed in the context of an armed conflict.
136. That the Montreal Convention should not cover an erroneous downing of a civilian
aircraft believed to be in military service in the context of an armed conflict is also
confirmed by a working paper of the ICAO Legal Commission, which reflects the
predominant position in the ICAO that the Convention is not applicable to military
activities by virtue of an implied “military exclusion clause”:
“The Group recognized the value of the Conventions in the international
cooperation for the prevention and suppression of unlawful acts against the
safety of civil aviation. At the same time, it acknowledged that the
Conventions were adopted decades ago and they do not reflect the provisions
commonly found in the relevant conventions concluded recently in the UN
system. Several such provisions are mentioned below. Comparable UN
counter-terrorism conventions concluded after 1997 contain a military
exclusion clause, which expressly specifies that the conventions do not
govern the activities of armed forces during an armed conflict, and the
activities undertaken by military forces of a State in the exercise of their
official duties. In ICAO, it has been widely understood that the aviation
security instruments which criminalize certain acts are not applicable to the
military activities mentioned above. The same clause of military exclusion
can be included in any instrument amending the Conventions, in order to
185 Ibid., ¶147.
186 Ukraine’s indignation is misplaced, considering that it was Ukraine’s competent authorities, which, after
Ukraine’s military shot down a Russian civilian airliner in 2001, killing 77 civilians, did not qualify the incident
as an offense and never prosecuted any of the persons responsible for the shoot-down. See Gazeta ru, “Do Not
Make Tragedy of This”. How Ukraine Shot Down Russian Aircraft (4 October 2021), available at:
https://www.gazeta.ru/science/2021/10/03_a_14047363.shtml (Annex 343).
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achieve uniformity and clarity and to prevent any interpretative confusion.
Such a clause would be considered as declaratory in nature”.187
137. As a result of this outlook, a military exclusion clause was included in the 2010 Beijing
Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation
(Article 5(1)), as well as in the 2010 Beijing Protocol to the 1970 Convention for the
Suppression of Unlawful Seizure of Aircraft (Article 3bis(2)).188 As between its States
Parties, the Beijing Convention replaces the Montreal Convention and the 1988 Protocol
thereto. Both new instruments, which amend or replace the older conventions, exclude
from their scope all activities of armed forces during an armed conflict which are
governed by international humanitarian law (i.e., irrespectively of whether these activities
conform to or violate it).
138. Ukraine is also wrong to suggest that “[e]ven if intention as to civilian status were
required, firing into heavily-trafficked civilian airspace with a weapon that is incapable
of distinguishing military and civilian targets constitutes intentionally destroying civilian
aircraft”,189 and that a guided missile surface-to-air system like Buk may be considered
an “inherently indiscriminate weapon”. As explained in the Counter-Memorial and in the
preceding paragraphs, this position is untenable because the plain text of Article 1(1)(b)
of the Montreal Convention requires a specific intent to shoot down a civilian aircraft,
which is excluded when such an event unfolds in error. Chapter V below explains in
more detail how the Hague District Court’s judgment of 17 November 2022, relating to
the shoot-down of the MH17, confirms that Ukraine’s interpretation of the Montreal
Convention is inaccurate and in any event not supported by the facts. Ukraine’s claims
regarding “indiscriminate weapons” are thus baseless.
139. Finally, although Ukraine states that “it is unnecessary for the Court to opine more
generally on the meaning of ‘intentionally’ as used in the Montreal Convention”, it
suggests that “[p]ractice under both international and domestic criminal law shows that
187 ICAO Legal Commission, Working Paper No. A36-WP/12 LE/4 on Acts or offences of concern to the
international aviation community and not covered by existing air law instruments, 14 August 2007, available at:
https://www.icao.int/Meetings/AMC/MA/Assembly%2036th%20Session/wp012_en.pdf.
188 They read, respectively: “This Convention shall not apply to aircraft used in military, customs or police
services”; and “The activities of armed forces during an armed conflict, as those terms are understood under
international humanitarian law, which are governed by that law are not governed by this Convention, and the
activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are
governed by other rules of international law, are not governed by this Convention”
189 Reply, ¶134. See also ¶¶135-147.
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the ordinary meaning of ‘intent’ encompasses various degrees: dolus directus, dolus
indirectus, and dolus eventualis”.190 As explained in the Counter-Memorial, this attempt
to read into the Montreal Convention additional forms of criminal liability must be
dismissed – when a form of intent other than direct intent is envisaged, this has been
expressly set out in the text of the Convention.191
ii. Article 2(1) of the ICSTB
140. As regards Article 2(1) of the ICSTB, Ukraine limits itself to briefly claiming that the
Parties agree on its interpretation, and that the Russian Federation does not dispute that
the bombing attacks in Kharkov, Kiev and Odessa “constitute offenses under the ICSTB,
or that they are covered acts under ICSFT Article 2(1)(a)”. 192 This is not the case.
Ukraine in fact agrees that Article 2(1) of the ICSTB contains a dual intent requirement,
as noted above (excluding lesser forms of intent or recklessness), but the Parties do not
agree on the applicability of this provision in the light of the specific facts of the case.
Furthermore, for an act to fall under ICSTB the intent must be “to cause death or serious
bodily injury; or… extensive destruction of [a place of public use, a State or government
facility, a public transportation system or an infrastructure facility], where such
destruction results in or is likely to result in major economic loss”; this also does not fit
specific facts of the case. These facts are further addressed in Chapter VII below.
141. Finally, the ICSTB is also subject to the military exception clause as will be shown
below.193
C. THE REQUIREMENTS FOR ACTS OF TERRORISM WITHIN THE MEANING OF ARTICLE
2(1)(B) OF THE ICSFT
142. According to Article 2(1)(b) of the ICSFT, the offence of terrorism financing is also
established when funds are provided or collected with knowledge that those funds are to
be used in order to carry out:
190 Ibid., ¶¶140-141.
191 Counter-Memorial (ICSFT), ¶155. National laws may of course go beyond the offences set out in a particular
treaty. In those cases, however, the definitions in the treaty and the national law no longer coincide and a State
may not rely on its more expansive domestic law to, for example, request legal assistance.
192 Reply, ¶148.
193 See below, ¶16.
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“Any other act intended to cause death or serious bodily injury to a civilian,
or to any other person not taking an active part in the hostilities in a situation
of armed conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act”.
143. As explained in the Counter-Memorial, this provision contains two distinct mental
elements: (1) the “intention” to cause death or serious bodily injury to a civilian, or to any
other person not taking part in the hostilities in a situation or conflict; and (2) the
“purpose”, by the nature or the context of the act, to intimidate a population, or to compel
a government or an international organisation to do or to abstain from doing something.194
In its Order of 19 April 2017, the Court found that Ukraine had not “put before the Court
evidence which affords a sufficient basis to find it plausible that these two elements are
present”.195 As regards Ukraine’s misguided interpretation of Article 2(1)(b), the Russian
Federation also showed that:
(a) The terrorism offence under Article 2(1)(b) can only be committed if death or
serious bodily injury is caused to a “civilian” or “any other person not taking active
part in the hostilities”. If a person targets armed forces, or groups or other persons
taking active part in hostilities, the offence under Article 2(1)(b) may not be
established and States’ obligations under the ICSFT would accordingly not be
triggered;196
(b) The mental element of “intention” covers only direct intent to cause death or serious
bodily injury, to the exclusion of lesser forms of intent such as dolus indirectus or
dolus eventualis;197
(c) The required “purpose” under Article 2(1)(b) qualifies terrorism as a special intent
crime: in addition to the direct intent to cause death or serious bodily injury to
civilians and others not taking part in hostilities, the perpetrator must have also
acted with the primary purpose (dolus specialis) of spreading terror (and more
particularly, intimidating a population or compelling a government or international
organisation to do or to abstain from doing a certain act). In the context of an armed
194 Counter-Memorial (ICSFT), ¶170.
195 Order of 19 April 2017, p. 131, ¶75.
196 Counter-Memorial (ICSFT), ¶174.
197 Ibid., ¶¶174-231.
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conflict, in which certain acts may fulfil the objective element of Article 2(1)(b)
(i.e. causing death or bodily harm to a civilian), special care is required when
determining whether the purpose of those was the spreading of terror.198
144. In its Reply, Ukraine once more accuses the Russian Federation of making it “exceedingly
difficult to prove” that an offence under Article 2(1)(b) of the ICSFT has been
committed,199 without explaining why a treaty criminalizing a certain serious conduct
should adopt an approach that allows the establishment of offences in an unverified and
superficial manner. In the end, the crucial question is not whether establishing an offence
should be “difficult” or “easy”, but what the correct interpretation of Article 2(1)(b) of
the ICSFT is.
145. As regards the term “act intended to cause death or serious bodily injury to a civilian”,
Ukraine misrepresents the Russian Federation’s position200 when it claims that “Russia
acknowledges that, if an attack would qualify under IHL as ‘making civilians or a civilian
population the object of an attack,’ that would ‘inherent[ly]’ mean that it is an ‘act
intended to cause’ civilian harm under Article 2(1)(b)”201. First of all, the Counter-
Memorial clearly stated that “apart from the general requirement of intent, the
perpetrator must have also acted with the primary purpose of spreading terror”.202
Secondly, while the Counter-Memorial noted that the element of making civilians or a
civilian population the object of an attack is common to Articles 2(1)(b) of the ICSFT and
Article 85(3)(a) of Additional Protocol I, it also explained that these provisions
“necessarily require[] a deliberate decision and the will of the perpetrator to select,
determine and orient the attack against such civilians or against a civilian population”.203
Indeed, the Counter-Memorial explained that:
“If Article 2(1)(b) of the ICSFT were to be interpreted so as to also cover
indirect intent or recklessness, thereby outlawing expected civilian casualties
per se regardless of their proportionality, the military advantage to be gained
in the situation of an armed conflict would not be taken into account for
purposes of the ICSFT. This would create a situation in which an attack could
198 Ibid., ¶¶232-297.
199 Reply, ¶150.
200 Counter-Memorial (ICSFT), ¶198 ff.
201 Reply, ¶154.
202 See, inter alia, Counter-Memorial (ICSFT), ¶233.
203 Ibid., ¶205.
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be lawful under international humanitarian law provided the expected civilian
casualties are not excessive when compared with the military advantage
anticipated. At the same time, the very same act would be considered an act
of terrorism in Ukraine’s reading of the ICSFT even if the civilian casualties
were not excessive, but where at least some civilian casualties were
expected”.204
146. Ukraine does not appear to deny that its interpretation of Article 2(1)(b) of the ICSFT
would lead to this unreasonable result, thereby creating collision with international
humanitarian law as will be shown below.205
147. In an attempt to bolster its position, Ukraine goes so far as making an appeal to the Court’s
Nuclear Weapons Advisory Opinion.206 Nonetheless, there is no basis to draw a parallel
between that Advisory Opinion and the present case. At the very outset, it must be noted
that, in its Opinion, the Court stressed the unique character of nuclear weapons as capable
of damage “vastly more powerful than the damage caused by other weapons”, rendering
these weapons “potentially catastrophic”, with the capacity to “cause untold human
suffering”, “damage to generations to come”, and even “to destroy all civilization and the
entire ecosystem of the world”.207 This immense threat cannot, as a matter of course, be
compared to isolated uses of conventional weapons.
148. Apart from the Advisory Opinion’s overall inapplicability to the present case,208 it also
contains findings contrary to Ukraine’s position. For example, precisely in the context of
“methods and means of warfare which would preclude any distinction between civilian
and military targets”, the Court held that “it does not have sufficient elements to enable
it to conclude with certainty that the use of nuclear weapons would necessarily be at
variance with the principles and rules of law applicable in armed conflict in any
circumstances”.209 Considering that the Court did not come to the conclusion that even
weapons of such destructive magnitude may necessarily be considered per se prohibited
204 Ibid., ¶201. See also ¶¶202-213.
205 See below, Chapter III, Section D.
206 Reply, ¶154.
207 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 243-244,
¶¶35-36.
208 The Opinion may not be perceived as reflective of an opinio juris with regard to emergence of a special rule of
customary international law concerning such weapons. In fact, the Opinion was famously controversial, boasting
no less than 14 statements from the Judges, including six Dissenting Opinions, as well as written and oral
statements from a great number of States expressing widely divergent views on the subject.
209 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 262-263, ¶95.
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due to indiscriminate effect against a civilian population, it is difficult to imagine how
incomparably lesser weapons, such as multiple launch rocket systems (“MLRS”) or
surface-to-air missile systems, may be so prohibited. Indeed, none of the special treaties
prohibiting certain types of conventional weapons cover these.210 As pointed out in the
Counter-Memorial, this is confirmed by international judicial practice.211 Chapters V-VI
below further demonstrate that the nature of the weapons used in the incidents that
Ukraine relies on has no bearing in the question of determining “intent” for purposes of
establishing terrorism offences.
149. Ukraine seeks to further depart from Article 2(1)(b) of the ICSFT by suggesting that “acts
intended to cause” would not “impose a ‘mental state’ requirement at all”, but simply
“describe the nature of a third party’s act which may not be funded, which can only be
determined objectively”.212 Ukraine further adds that “‘[a]cts’ do not have mental or
subjective desires; they have natural consequences and destinations which can be
objectively assessed”.213 In so doing, Ukraine seeks to erase the words “intended to”
(which clearly denotes a mental element – an act does not occur in a vacuum; it is
obviously intended to have a certain result by someone) from Article 2(1)(b) of the ICSFT,
or to change its ordinary meaning to “aimed at” or “directed at”214 without taking into
account the mental element of the alleged perpetrator – an approach to treaty
interpretation that is erroneous and must be dismissed.215
150. Ukraine’s reference to the context of Article 2(1)(b), and in particular the chapeau of
Article 2(1), is of no assistance in this regard. 216 Indeed, Ukraine’s sole argument,
without citing any authority, is that it “would be unusual and unrealistic to define a
210 Nor are these weapons considered “indiscriminate” by the ICRC. See ICRC, Customary IHL, Rule 71, available
at: https://ihl-databases.icrc.org/en/customary-ihl/v1/rule71#refFn_8ACA2B68_00031.
211 Counter-Memorial (ICSFT), ¶¶225-226.
212 Reply, ¶155.
213 Ibid.
214 Ibid., ¶157.
215 As further discussed at ¶153 below, Ukraine also argues that the “purpose” requirement under Article 2(1)(b)
of the ICSFT can be established by making inferences from the “nature” or “context” of the act. To the extent that
this position is correct, however, it is clear that such inference is only possible for establishing purpose, but not
intent, given the manner in which the provision is drafted (the terms “nature or context” clearly relate only to
“purpose”).
216 Reply, ¶157.
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criminal offense that requires proof of the actual mental state of a third party”.217 There
is however nothing “unusual” or “unrealistic” about offences that require establishing the
mental state of a third person, such as crimes committed by aiding and abetting.218 Article
2(1)(a) of the ICSFT itself, by requiring intention that funds be used or knowledge that
funds are to be used to commit terrorism offences laid down in other treaties, which in
turn further require determining the intent of the perpetrator, further attests to this.219
151. As shown in the Counter-Memorial, that direct intent is necessary for the offence under
Article 2(1)(b) of the ICSFT to be established is further demonstrated by the jurisprudence
of the Court and the ICTY regarding genocide. 220 Ukraine suggests that this
jurisprudence is irrelevant since the wording of Article II of the Genocide Convention
(“with the intent to”) is different from the that of Article 2(1)(b) of the ICSFT (“any other
act intended to cause”). 221 The differences between these provisions, however, are
immaterial and do not warrant divergent interpretations.222 Furthermore, while Ukraine
states that it “has never suggested that the fact of civilian casualties, by itself, proves that
an act was intended to cause those casualties”, 223 it also suggests that the Court’s
judgment in the Croatia Genocide case supports its interpretation of Article 2(1)(b)
because “if indiscriminate shelling had been established, that finding would have
supported the conclusion that the killing of civilians was intentional”.224 This reading of
the 2015 judgment is however incorrect, as the Court made it perfectly clear that an
offence under Article II of the Genocide Convention could have been established only if
217 Ibid.
218 See, for example, Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Appeals Chamber Judgment
of 16 December 2013, ¶157 (“The Appeals Chamber recalls that the requisite mens rea for aiding and abetting is
knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the
principal perpetrator. The aider and abettor need not share the mens rea of the principal perpetrator but must be
aware of the essential elements of the crime ultimately committed by the principal, including his state of mind.
Specific intent crimes such as genocide require that the aider and abettor must know of the principal perpetrator’s
specific intent”) (emphasis added).
219 See Section II above.
220 Counter-Memorial (ICSFT), ¶¶224-228.
221 Reply, ¶158.
222 Furthermore, to the extent that Ukraine wishes to adhere to the precise text of Article 2(1)(b) of the ICSFT, it
should apply the same approach to other provisions of the latter, as opposed to seeking to read into them mental
elements that do not appear in the text, as noted in Sections I and II above.
223 Reply, ¶160.
224 Ibid.
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there had been “indiscriminate shelling … deliberately intended to cause civilian
casualties”.225 The relevant part of the judgment in full reads:
“The Court concludes from the foregoing that it is unable to find that there
was any indiscriminate shelling of the Krajina towns deliberately intended to
cause civilian casualties. It would only be in exceptional circumstances that
it would depart from the findings reached by the ICTY on an issue of this
kind. Serbia has indeed drawn the Court’s attention to the controversy aroused
by the Appeals Chamber’s Judgment. However, no evidence, whether prior
or subsequent to that Judgment, has been put before the Court which would
incontrovertibly show that the Croatian authorities deliberately intended to
shell the civilian areas of towns inhabited by Serbs. In particular, no such
intent is apparent from the Brioni Transcript, which will be subjected to a
more detailed analysis below in relation to the existence of the dolus specialis.
Nor can such intent be regarded as incontrovertibly established on the basis
of the statements by persons having testified before the ICTY Trial Chamber
in the Gotovina case, and cited as witnesses by Serbia in the present case …
‘Killing’ within the meaning of Article II (a) of the Convention always
presupposes the existence of an intentional element (which is altogether
distinct from the ‘specific intent’ necessary to establish genocide), namely the
intent to cause death … It follows that, if one takes the view that the attacks
were exclusively directed at military targets, and that the civilian casualties
were not caused deliberately, one cannot consider those attacks, inasmuch as
they caused civilian deaths, as falling within the scope of Article II (a) of the
Genocide Convention”.226 [Emphasis added]
152. As regards the Abdelaziz judgment by the Italian Supreme Court of Cassation, the
Counter-Memorial showed that it does not support Ukraine’s attempt to include the
concept of dolus eventualis into Article 2(1)(b) of the ICSFT. The judgment rather
indicates that, according to the Italian court, what is required for a terrorism offence to be
established is “certainty” of serious harm inflicted to civilians, and “intent to engage in
the action and achieve the particular results that constitute terrorist purposes”.227 Ukraine
insists in this regard that the judgment can be read as indicating that “intent could be
225 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, p. 137, ¶472.
226 Ibid., pp. 137-138, ¶¶472, 474. Ukraine further argues, in the alternative, that even if the term “act intended to
cause” were to be considered a mental element requirement (as it is), the word “intended” would in any event need
to be interpreted as including “several degrees of intent, including dolus directus, dolus indirectus, and dolus
eventualis”. See Reply, ¶162. Ukraine adds that the Russian Federation’s interpretation of the ICSFT in accordance
with IHL is “irrelevant” because “Russia does not and could not defend any of the attacks at issue as consistent
with IHL” and “the ICSFT and IHL are distinct bodies of law with different objectives”. Ibid., ¶163. These issues
have already been addressed in the previous section; the relationship between IHL and the ICSFT is further
addressed in Chapter III(D) below.
227 Counter-Memorial (ICSFT), ¶¶221-223.
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inferred from the perpetrator’s actions where a particular outcome was certain”.228 Since
the judgment contains statements that appear to go in different directions, it is of limited
value; and in any case the position of one national court cannot be determinative on the
correct interpretation of the ICSFT.
153. With respect to the “purpose” requirement under Article 2(1)(b) of the ICSFT, Ukraine
does not seem to contest that this provision makes the offence thereunder a special intent
crime;229 it could indeed not be otherwise lest the Convention criminalise the funding of
common crimes, which it does not. Ukraine however disagrees on how that special intent
must be proved and maintains that the provision “refers to the act itself …, not to the
subjective mental state of the perpetrator, and such purpose must be inferred as an
objective matter based on the ‘nature or context’ of that act”.230 As shown in the Counter-
Memorial, however, Ukraine’s interpretation is misguided because: (1) specific intent
crimes require an additional mental element of dolus specialis, as confirmed by this Court
and international criminal tribunals; (2) the specific intent to create terror must be the
purpose of the act (not merely one possible among many others); and (3) the travaux of
the ICSFT confirm this reading of Article 2(1)(b).231
154. Ultimately, if Ukraine’s interpretation was correct (quod non), what would remain crucial
in the present case is whether the purpose to intimidate a civil population or to compel a
government may be conclusively inferred from the “nature” or “context” of an act when
an armed conflict is taking place and the parties can be reasonably believed to have been
driven by military considerations in their actions, as opposed to having a purpose to
intimidate a population or compelling a government. As explained in the Counter-
Memorial232 and again in later chapters of this Rejoinder, the armed conflict that existed
between Ukraine and the DPR and LPR at the time the incidents relied upon by Ukraine
occurred makes an inference of the relevant purpose under Article 2(1)(b) of the ICSFT
implausible, thereby depriving Ukraine’s requests for cooperation and legal assistance of
any basis under the Convention.
228 Reply, ¶159.
229 Counter-Memorial (ICSFT), ¶¶236-263; Reply, ¶167.
230 Reply, ¶166.
231 Counter-Memorial (ICSFT), ¶¶236-268.
232 Ibid., ¶¶269-289.
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155. In conclusion, contrary to what Ukraine suggests, the Russian Federation does not attempt
“to raise the bar with regard to what constitutes a terrorist act under Article 2(1)(b) by
layering multiple additional proofs of specific intent, particular purpose, and states of
mind onto the plain language of the Convention”.233 The mental elements of “intention”
and “purpose” are clearly set out in Article 2(1)(b) of the ICSFT, and the Russian
Federation’s position results from their proper interpretation in accordance with Articles
31 and 32 of the VCLT. Ukraine’s attempt to trim down the requirements for establishing
the terrorism offence under Article 2(1)(b) must accordingly be dismissed.
D. THE RULES OF IHL ARE RELEVANT TO THE INTERPRETATION AND APPLICATION OF
THE ICSFT
156. That the existence of an armed conflict in the Donbass triggers the application of IHL is
indisputable. This, in turn, has significant implications for the interpretation and
application of the ICSFT in the present case, contrary to what Ukraine appears to argue
in its Reply.234 Indeed, Ukraine entirely misses the point in asserting that:
“the ICSFT and IHL are distinct bodies of law with different objectives. The
question under Article 2 of the ICSFT is whether certain acts described by
that article may be unlawfully funded. Whether or not the perpetrator of the
underlying act might separately be responsible for violating IHL is
irrelevant”.235
157. The ICSFT itself recognises in no uncertain terms that IHL is not irrelevant. Article 21 of
the Convention expressly lays down that:
“Nothing in this Convention shall affect other rights, obligations and
responsibilities of States and individuals under international law, in particular
the purposes of the Charter of the United Nations, international humanitarian
law and other relevant conventions” [emphasis added].
158. The travaux préparatoires of the Convention show that the first draft of what later became
Article 21 suggested, as proposed by France, that “[n]othing in this Convention shall
affect other rights, obligations and responsibilities of States and individuals under
233 Reply, ¶189.
234 Ibid., p. 64, fn 175, and p.77, ¶163.
235 Ibid., ¶163.
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international law, in particular the purposes and principles of the Charter of the United
Nations and international humanitarian law”.236
159. In a working document prepared by France, which served as the basis for discussion at
the Ad Hoc Committee of the General Assembly in 1999, the point first appeared as
paragraph 8 in the preamble, which read: “Considering that any act governed by
international humanitarian law is not governed by this Convention”. 237 Lebanon
proposed that this paragraph be turned into a new operative article of the Convention, so
as to “expressly exclude the application of humanitarian law from the operation of the
convention”.238 During the discussion of the Working Group in the autumn of 1999,
several similar proposals were made.239 It was proposed that “the draft convention make
reference to the hierarchy of norms of international law, whereby in the context of armed
conflict the application of humanitarian law would take precedence over that of the draft
convention”.240 It was after taking into account all these proposals and considerations
that the final text of Article 21 emerged.241
160. Thus, the fact that IHL affects the application of the ICSFT law is beyond any doubt. In
the same vein, the UN Security Council has repeatedly reaffirmed that “Member States
must ensure that any measures taken to counter terrorism comply with all their obligations
under international law, in particular … international humanitarian law”.242
236 Permanent Representative of France to the United Nations, Letter addressed to the Secretary-General, 3
November 1998, Annex, Article 21(1), A/C.6/53/9, p.11, available at:
https://digitallibrary.un.org/record/263342?ln=en
237 Ad Hoc Committee established by General Assembly resolution 51/210, Report of 17 December 1996, A/54/37,
Annex II, p.14, available at: https://digitallibrary.un.org/record/1492194?ln=en.
238 Ibid., p. 59, ¶31; See also Ad Hoc Committee established by General Assembly resolution 51/210, Proposal
submitted by Lebanon, A/AC.252/1999/WP.33, 15-26 March 1999, available at:
https://digitallibrary.un.org/record/1493683?ln=en.
239 Working Group to Elaborate an International Convention for the Suppression of Acts of Nuclear Terrorism,
Report No. A/C.6/54/L.2 on measures to eliminate international terrorism, 26 October 1999, , p. 21, ¶4, available
at: https://digitallibrary.un.org/record/317435?ln=en. See also p. 54, 56, ¶20.
240 Ibid., p. 61, ¶85.
241 Ibid., Annex I, p. 14, Article 21; See also p. 62, ¶¶110-112.
242 See for example UN Security Council resolution No. 2178, 2014, preamble, available at:
https://www.undocs.org/Home/Mobile?FinalSymbol=S%2FRES%2F2178%2520(2014)&Language=E&Device
Type=Desktop&LangRequested=False.
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161. It follows from the foregoing that in a situation of an armed conflict, the ICSFT clearly
does not affect rights, obligations and responsibilities under IHL. The ICSFT does not –
and indeed cannot – criminalise conduct that is lawful under IHL.
162. In addition to Article 21 of the ICSFT, other provisions of the Convention and of the other
treaties relied upon by Ukraine also confirm that relevance of IHL for purposes of
interpreting and applying these counter-terrorism instruments.
163. The ICSTB expressly excludes the activities of armed forces during an armed conflict
from the scope of the Convention. The exclusion clause in Article 19(2) reads as follows:
“The activities of armed forces during an armed conflict, as those terms are
understood under international humanitarian law, which are governed by that
law, are not governed by this Convention, and the activities undertaken by
military forces of a State in the exercise of their official duties, inasmuch as
they are governed by other rules of international law, are not governed by this
Convention.”
164. In this regard, it has been noted in the literature that:
“Early definitions of ‘armed forces’ were restricted to the forces of a state,
therefore excluding freedom fighters fighting against the state. In its recent
study of customary IHL, however, the International Committee of the Red
Cross (‘ICRC’) has treated the expanded definition of ‘armed forces’ in
Article 43 API, which includes ‘organized armed forces, groups and units
which are under a command responsible to [a party to the conflict] for the
conduct of its subordinates’, as having reached customary status. The
definition is not dependent on state organ or agent status and applies to nonstate
armed groups (including peoples exercising their right of selfdetermination)
as long as they are organized and operate on the basis of
command responsibility.”243
165. Professor Trapp adds that “the Terrorist Bombing Convention attempts to respect the
balance achieved by IHL in determining that some bombings will be unlawful, while
others will be lawful (if regrettable) acts of war”.244
166. The reading according to which IHL is relevant in this context is further confirmed by
Article 2(1)(b) of the ICSFT, discussed above,245 which refers to:
“Any other act intended to cause death or serious bodily injury to a civilian,
or to any other person not taking an active part in the hostilities in a situation
243 K. Trapp, STATE RESPONSIBILITY FOR INTERNATIONAL TERRORISM (OUP, 2011), pp. 116-117.
244 Ibid., p. 119.
245 See above, Part 1, Chapter III(C).
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of armed conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act”. [emphasis added]
167. During the treaty negotiations, concern was expressed that a broad definition of the
protected persons “would involve difficulties with the application of humanitarian law
and could lead to the situation where certain acts would be classified as terrorism when
they would be acceptable under humanitarian law”.246 This fully supports the conclusion
made in the Counter-Memorial that “….in line with the position taken by the Court in its
advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the
interpretation of the ICSFT, including the interpretation of the mental elements of a
terrorist act under Article 2(1)(b) of the ICSFT, must take place in light, and against the
background, of simultaneously applicable and closely related relevant standards of
international law”.247
168. Article 51(2) of Additional Protocol I of 1977, dealing with international armed conflict,
must also be taken into account. It provides that:
“The civilian population as such, as well as individual civilians, shall not be
the object of attack. Acts or threats of violence the primary purpose of which
is to spread terror among the civilian population are prohibited.” [emphasis
added]
169. The same language is found in Article 13(2) of Additional Protocol II of 1977, dealing
with non-international armed conflict. The importance is this special form of intent was
emphasised during the diplomatic conference leading to the adoption of the Additional
Protocols of 1977. The ICRC Commentary of 1987 on the Additional Protocols states:
“Any attack is likely to intimidate the civilian population. The attacks or
threats concerned here are therefore those, the primary purpose of which is to
spread terror, as one delegate stated during the debates at the Conference.”248
170. This rule is considered to reflect customary international law according to the ICRC
Study.249
246 K. Trapp, STATE RESPONSIBILITY FOR INTERNATIONAL TERRORISM (OUP, 2011), pp. 62-63, 102.
247 Counter-Memorial (ICSFT), ¶197.
248 ICRC, Commentary of 1987 on Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, ¶4786, available at:
https://ihl-databases.icrc.org/en/ihl-treaties/apii-1977/article-13/commentary/1987?activeTab=1949GCs-APsand-
commentaries.
249 ICRC, Customary IHL, Rule 2, available at: https://ihl-databases.icrc.org/en/customary-ihl/v1/rule2.
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171. Thus, the definition in Article 2(1)(b) of the ICSFT should be read in conformity with the
criteria for the war crime of terror under IHL. This is confirmed by authoritative legal
doctrine. Professor Kretzmer, for example, has noted that:
“As long as the violence is directed against civilians and its purpose is to
intimidate a population, the offence defined in this provision would also
constitute the crime of terror under LOAC.”250
172. In the same vein, Daniel O’Donnell, the former Deputy Head of the UN Secretary-
General’s Investigative Team to the Democratic Republic of the Congo and former Chief
Investigator of the Historical Clarification Commission of Guatemala, considers that this
element of the Convention “represents a milestone in the development of international
law on terrorism, because it is the first treaty provision to refer to the purpose of terrorism
as recognized by international humanitarian law, namely, to terrorize the population”.251
[Emphasis added]
173. Ukraine’s appeals to the practice of the ICTY in this regard are of no avail: as the Russian
Federation has already pointed out in its Counter-Memorial, the ICTY has held that “[the
prohibition of spreading terror] is to be understood as excluding dolus eventualis or
recklessness from the intentional state specific to terror”.252
174. It is particularly relevant that Ukraine does not object to its own position expressed in the
negotiations leading to the adoption of the Additional Protocol I and its Article 51(2),
recalled in the Counter-Memorial, according to which: “…. spreading terror is limited to
those attacks that are specifically directed against the civilian population as such. At the
same time, Ukraine did not see this prohibition of spreading terror as also encompassing
attacks directed against military targets when these are expected to cause excessive
collateral damage among a given civilian population”.253
175. The Russian Federation has conclusively shown that in the context of an armed conflict,
only acts which have “spreading terror” as their “primary purpose” may fall under Article
250 D. Kretzmer, Terrorism and the international law of occupation in B. Saul (ed.), RESEARCH HANDBOOK ON
INTERNATIONAL LAW AND TERRORISM (2nd ed., Edward Elgar Publishing, 2020), p. 217.
251 D. O’Donnell, International Treaties against terrorism and the use of terrorism during armed conflict and by
armed forces in International Review of the Red Cross (Vol 88, No. 864, 2006), p. 862, available at:
https://www.corteidh.or.cr/tablas/a21937.pdf.
252 Counter-Memorial (ICSFT), ¶65.
253 Ibid., ¶203.
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2(1)(b) of the ICSFT. That this firmly excludes incidental or collateral damage to
civilians is further confirmed by legal doctrine:
“by prohibiting only those acts “the primary purpose of which is to spread
terror among the civilian population”, Additional Protocol I does not forbid
the incidental causation of terror among civilians… Therefore, an act of
violence committed against a legitimate military target which incidentally
causes terror among the civilian population is not prohibited under the law of
armed conflict. The legislative history of the provision clearly bears this out.
At the Diplomatic conference, during the first session, several delegations
proposed amendments to what would become article 51(2) that would
effectively prohibit any acts capable of spreading terror among the civilian
population. However, by the second session, a consensus had emerged that
the provision should only be directed towards the intentional spreading of
terror. This is confirmed most clearly in the comments issued by the French
delegation (“In traditional wars attacks could not fail to spread terror among
the civilian population. What should be prohibited in paragraph 1 is the
intention to do so.”) as well as those made by Iran (“Although objections had
been raised to the phrase methods ‘intended to spread terror’ in paragraph 1,
methods of war undoubtedly did spread terror among the civilian population,
and those used exclusively or mainly for that purpose should be prohibited.”)
As such, the only change which occurred was that “intended to” was changed
to “the primary purpose of which”… Additional Protocol II further extends
the scope of the prohibition so that it applies to internal armed conflicts.”
[emphasis added]254
176. The ICRC Commentary also supports this view:
“In the second sentence the Conference wished to indicate that the prohibition
covers acts intended to spread terror; there is no doubt that acts of violence
related to a state of war almost always give rise to some degree of terror
among the population and sometimes also among the armed forces. It also
happens that attacks on armed forces are purposely conducted brutally in
order to intimidate the enemy soldiers and persuade them to surrender. This
is not the sort of terror envisaged here. This provision is intended to prohibit
acts of violence the primary purpose of which is to spread terror among the
civilian population without offering substantial military advantage.” 255
[Emphasis added]
254 S. Jodoin, Terrorism as a war crime in International Criminal Law Review (Vol. 7, 2007), pp. 91-92, available
at:
https://deliverypdf.ssrn.com/delivery.php?ID=00101312412207907009509602711909211001906205303403900
707400902307800011709608109609405704801906301402704712102806810311310701801204402200006402
812702010412402907010708904307908409110503109708202411801807600707501912407000700008800003
0025076073093094102&EXT=pdf&INDEX=TRUE.
255 ICRC, Commentary of 1987 on Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ¶1940, available at:
https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51/commentary/1987?activeTab=1949GCs-APsand-
commentaries.
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177. The broad interpretation of the “purpose” requirement contained in Article 2(1)(b) of the
ICSFT, as suggested by Ukraine, could create a disincentive for non-State actors engaged
in armed conflict to abide by their obligations under international humanitarian law.256
This position is confirmed by the UNODC:
“While there is no combatant immunity for violence committed in noninternational
conflict, even if it complies with IHL, article 6(5) of Additional
Protocol II encourages (but does not require) States to grant amnesties for
hostile acts (that were consistent with IHL):
‘At the end of hostilities, the authorities in power shall endeavour to grant the
broadest possible amnesty to persons who have participated in the armed
conflict, or those deprived of their liberty for reasons related to the armed
conflict, whether they are interned or detained.’
At a policy level, little difficulty arises where national terrorism offences
simply duplicate or reinforce existing war crimes under IHL or are otherwise
limited to protecting civilians (such as by criminalizing the financing of
attacks on civilians). However, it is more problematic where offences also
criminalize acts that are not prohibited by IHL, such as attacks on military
objectives by non-State armed forces. Such laws may effectively criminalize
war-fighting by non-State armed groups as terrorism, particularly since many
national laws apply to any persons or groups meeting the national definitions
of terrorism (and are not limited to organizations listed by the Security
Council)”.257 [emphasis added]
178. The UNODC has also recalled how the ICRC’s note of caution against conflating IHL
and counter-terrorism law, arguing that:
“ • IHL does not prohibit attacks on military objectives by non-State armed
groups. Designating such acts as “terrorist” under national criminal law thus
undermines IHL, which reflects a carefully negotiated balance between
military necessity and humanitarian protection;
• Designating acts that are not unlawful under IHL as “terrorist” may
discourage compliance with IHL by non-State armed groups in a noninternational
conflict;
• Classifying acts that are lawful under IHL as “terrorist” is likely to impede
the implementation of article 6(5) of Additional Protocol II to the Geneva
Conventions (concerning amnesties) and, in addition, may impede
humanitarian or peace negotiations and complicate the eligibility of persons
associated with armed groups for DDR processes”.258
256 Counter-Memorial (ICSFT), ¶288.
257 UNODC, Counter-Terrorism in the International Law Context., 2021, p. 107, available at:
https://www.unodc.org/pdf/terrorism/CTLTC_CT_in_the_Intl_Law_Context_1_Advance_copy.pdf.
258 Ibid.
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179. The ICRC’s 2019 Report on international humanitarian law and the challenges of
contemporary armed conflicts has further explained that:
:“[T]here is a tendency among some States to consider any act of violence by
a non-State armed group in an armed conflict as an act of terrorism, and
therefore necessarily unlawful, even when the act in question is not in fact
prohibited under IHL. This approach is likely to diminish any incentive to
comply with IHL. […]
Thus, if a non-State armed group that has been designated as “terrorist” is
sufficiently organized for the purposes of IHL, and is involved in sufficiently
intense armed confrontations with the State or other armed groups, the
situation will amount to a non-international armed conflict, and will be
governed by IHL. In contrast, situations of violence involving individuals or
groups designated as “terrorist” but remaining below the threshold of armed
conflict are not governed by IHL. In such situations, human rights law will
govern counterterrorism operations. […]
In addition to IHL and human rights law, international and regional
instruments addressing terrorism may apply, such as the International
Convention for the Suppression of Terrorist Bombings (1997), the
International Convention for the Suppression of the Financing of Terrorism
(1999), the Council of Europe Convention on the Prevention of Terrorism
(2005), or the Shanghai Convention on Combating Terrorism (2001). In the
ICRC’s view, instruments aimed at combating terrorism should never define
those acts as “terrorist” that are governed by IHL and not prohibited by it
when committed during armed conflict, such as attacks against military
objectives or military personnel.”259 [emphasis added]
180. Ukraine attempts to downplay this important factor:
“Nor does it make any sense for Russia to warn that if the plain terms of
Article 2(1)(b) are followed, there will be a “disincentive for non-state actors
engaged in an armed conflict to abide by their obligations under international
humanitarian law.” Such non-state actors may face both domestic and
international criminal liability for their actions in violation of IHL,
irrespective of the ICSFT. Article 2 of the ICSFT, by contrast, defines an
offense targeting the funders of certain acts. Thus, the only relevant incentive
is for would-be funders to ensure that they do not supply funds to non-state
armed groups that commit acts intended to harm civilians in the course of
seeking to compel a government to change its policies or take other action”.260
259 ICRC, Report on International humanitarian law and the challenges of contemporary armed conflicts,
Recommitting to protection in armed conflict on the 70th anniversary of the Geneva Conventions, 2019, p. 58-89,
available at: https://shop.icrc.org/international-humanitarian-law-and-the-challenges-of-contemporary-armedconflicts-
recommitting-to-protection-in-armed-conflict-on-the-70th-anniversary-of-the-geneva-conventions-pdfen.
html.
260 Reply, ¶184.
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181. However, Ukraine's objection doesn't make sense: if certain acts that are legal under IHL
would be criminalised by ICSFT it would not only violate article 21 of the ICSFT, but
also disincentivise non-State actors from complying with IHL. As a result, since the acts
being financed should not be considered "terrorism" in the first place, it will
undermine the object and purpose of the Convention - effectively rewriting it to become
a “Convention on Suppression of General Financing of Non-State Groups”.
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IV. UKRAINE’S INTERPRETATION OF “FUNDS” UNDER THE ICSFT IS
MISCONCEIVED
182. Article 1, paragraph 1, of the ICSFT defines “funds” as:
“… assets of every kind, whether tangible or intangible, movable or
immovable, however acquired, and legal documents or instruments in any
form, including electronic or digital, evidencing title to, or interest in, such
assets, including, but not limited to, bank credits, travellers cheques, bank
cheques, money orders, shares, securities, bonds, drafts, letters of credit”.
183. As explained in the Counter-Memorial, the term “assets” in this provision is not meant to
be all-encompassing (such as to include by implication, as Ukraine suggests, arms or
military weapons), but is rather limited to specific categories of financial assets that have
an inherent monetary value, constitute forms of payments, and can be freely and legally
purchased, exchanged and sold 261 . This is consistent with the terms Convention
interpreted in good faith, in accordance with their ordinary meaning and in their context,
and taking into account the object and purpose of the Convention262. This interpretation
further results from reading the ICSFT together with other relevant rules of international
law263, and is confirmed by the drafting history of the treaty264.
184. The present chapter responds to Ukraine’s misconceived position on the term “funds”
under the ICSFT, taking into account the provisions of Article 1(1) in their context
(Section A), the object and purpose of the treaty (Section B), other rules of international
law (Section C), the travaux préparatoires (Section D), and the domestic implementation
of the ICSFT (Section E).
A. THE TERMS OF THE CONVENTION
185. In its Reply, Ukraine continues to advance that the term “funds” under the ICSFT covers
“assets of every kind”, which would in its view encompass “all forms of property”,
including “weapons”265. Ukraine thus seeks to reinvent the meaning of Article 1(1),
261 Counter-Memorial (ICSFT), ¶30.
262 Counter-Memorial (ICSFT), ¶¶29-76.
263 Counter-Memorial (ICSFT), ¶¶82-100.
264 Counter-Memorial (ICSFT), ¶¶77-81.
265 Reply, p. 31. Ukraine did not address the meaning of the term “funds” in any detail in its Memorial, limiting
itself to simply asserting that the term is “defined broadly by Article 1 to constitute ‘assets of every kind’”
(Memorial, ¶35; see also ¶273).
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making it all-embracing (going as far as to suggest that it includes “virtually anything
under the sun”266), which would in turn considerably expand States’ obligations under the
substantive provisions of the Convention267. For the reasons briefly recalled above, and
as explained in detail in the Counter-Memorial, Ukraine’s position is unfounded and must
be rejected. Some additional observations are nonetheless warranted in light of the few
new propositions advanced by Ukraine in its Reply.
186. It is clear that Ukraine’s entire case on the interpretation of Article 1(1) of the ICSFT
consists, in essence, of taking the words “assets of every kind” in that provision268 out of
context, while ignoring other relevant elements in the treaty. The term “assets”, when
interpreted in a different context, may convey the meaning of “the property of a person”
in a broad sense, as indicated by Ukraine269. But Ukraine fails to take into account, for
instance, the very term “funds” used in Article 1(1), the ordinary meaning of which is an
“amount of money that has been saved or has been made available for a particular
purpose”270, and together with which the term “assets” must be read. Furthermore, while
Ukraine refers to the French and Spanish versions of the ICSFT in support of its
interpretation of “assets”, it does not take into account the equally authoritative versions
in Arabic and Russian (“ آموال ” and “активы”, respectively), which convey a more limited
meaning of assets of a financial or monetary nature.
187. The term “assets of every kind” must also be interpreted in accordance with the other
provisions of Article 1(1) which, as explained in the Counter-Memorial, refer to the
specific categories of assets that are covered by the ICSFT271. This is not merely a “list
266 Reply, ¶75; Memorial, ¶237. As an author has noted, “[u]nder such a definition, the title of the Convention
would be more precisely titled ‘‘material assistance’’ than ‘‘the financing of terrorism”. See H. Tofangsaz,
“Criminalization of terrorist financing: from theory to practice”, in New Criminal Law Review, Vol. 21(1), pp. 85-
86.
267 As noted by the International Law Commission, “while there exists some support in international case law that,
absent indications in the treaty to the contrary, the agreed subsequent practice of the parties theoretically may lead
to modifications of a treaty, the actual occurrence of that effect is not to be presumed, and the possibility of
amending or modifying a treaty by subsequent practice has not been recognized”. See Draft conclusions on
subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries, in
Yearbook of the International Law Commission 2018, Vol. II, Part Two, p. 63, ¶(38).
268 Reply, ¶¶70-75.
269 Reply, ¶70.
270 See Oxford Dictionary. Available at https://www.oxfordlearnersdictionaries.com/definition/english/fund_1.
271 Counter-Memorial (ICSFT), ¶30.
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of illustrative examples”, as Ukraine suggests272; rather, the provisions reflect the types
of assets that the drafters of the ICSFT had in mind when they concluded the treaty, as
will be further shown below273.
188. The title of the Convention (“International Convention for the Suppression of the
Financing of Terrorism”) is also an important indicator of the types of assets or funds that
the ICSFT is meant to cover274. This title makes it crystal clear that the Convention is
aimed at preventing the provision of financial support to terrorists only, and not all types
of support in an unlimited manner (such as providing arms or weapons). Indeed, the
ordinary meaning of the term “financing” used in the title of the Convention, as well as
in its preamble275, is to provide “money needed to do a particular thing”276. As the Russian
Federation previously noted, the Preamble recalls the need to adopt “regulatory measures
to prevent and counteract movements of funds suspected to be intended for terrorist
purposes without impeding in any way the freedom of legitimate capital movements”;277
the Preamble also mentions “illicit arms trafficking” as something organisations that
finance terrorism can also engage in, but never qualifies weapons supply as a form of
financing.278
189. Ukraine says nothing in the Reply to rebut this, other than merely asserting that the title
and preamble of the Convention are irrelevant and add “nothing to the interpretation of
‘assets of every kind’”279. But this is not the case. In accordance with Article 31(1) of the
VCLT, the term “assets of every kind” term must be interpreted in its context so as to
arrive at its correct meaning280. In the present case, it is self-evident that the terms
“financing”, “funds” and “assets”, all employed in the Convention, inform each other and
must be read together.
272 Reply, ¶74.
273 See below, Part 1, Chapter IV, Section D.
274 Counter-Memorial (ICSFT), ¶¶32-46.
275 Counter-Memorial (ICSFT), ¶¶47-56.
276 Cambridge Dictionary. Available at : https://dictionary.cambridge.org/dictionary/english/financing
277 Counter-Memorial (ICSFT), ¶¶50-51.
278 Counter-Memorial (ICSFT), ¶48.
279 Reply, ¶76.
280 See also Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.C.J. Reports 1996, p. 803, ¶47.
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190. This interpretation is confirmed by other anti-terrorism conventions, which expressly
regulate the transfer of weapons when States’ intention is to do so281, and of which the
drafters of the ICSFT were well aware when they negotiated and concluded the latter.
Ukraine did not address these treaties in its Reply, and their relevance for purposes of
interpreting the ICSFT is thus uncontested.
191. The Counter-Memorial also explained that the term “funds” must be equally interpreted
together with other, more specific provisions of the ICSFT282. The Reply admits that
“[m]onetary and banking issues were indisputably an important part of the Convention”,
but then asserts, without any explanation, that this “does not imply that the scope of the
Convention is limited to financial assets”283. Ukraine has however not been able to rebut
that:
(a) Article 8, by obliging States to adopt appropriate measures for purposes of the
identification, detection and freezing or seizure of funds, as well as the forfeiture
thereof in order to compensate the victims of the crimes set out in the Convention,
necessarily presupposes that the term “funds” only covers forms of financial
support284;
(b) Article 12(2), by stipulating that a State may not refuse a request for legal assistance
on the ground of bank secrecy, also presupposes the financial nature of the “funds”
covered by the Convention. Furthermore, if the Convention had been intended to
address the transfer of arms or military weapons, it would have necessarily provided
for an exception to the obligation to cooperate on grounds of military secrecy or
national security – but it does not285;
(c) Article 13, which provides that the offences set out in Article 2 of the ICSFT may
not be regarded as “fiscal offences” for purposes of extradition or mutual legal
assistance, further attests to the fact that the offences under Article 2, and
281 Counter-Memorial (ICSFT), ¶¶38-46.
282 Counter-Memorial (ICSFT), ¶¶57-72.
283 Reply, ¶78.
284 Counter-Memorial (ICSFT), ¶¶57-59.
285 Counter-Memorial (ICSFT), ¶¶60-63.
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correspondingly the term “funds” or “assets” under Article 1, are exclusively
related to financial or monetary transfers286;
(d) Article 18 contains several provisions regarding financial transactions and
institutions (“money-transferring agencies”), including “physical cross-border
transportation of cash and bearer negotiable instruments”. This is clear additional
evidence of the fact that the Convention only concerns funds or assets of a financial
or monetary nature, as opposed to weapons287.
192. Ukraine also relies on the Court’s 2019 judgment on preliminary objections288, where the
Court noted that the definition of “funds” under Article 1(1) “covers many kinds of
financial instruments and includes also other assets”289. As the Court indicated, however,
the question of the meaning of “funds” was not raised as a preliminary objection at the
time, and consequently “this issue relating to the scope of the ICSFT need[ed] not be
addressed at [that] stage of the proceedings”290. On the contrary, the Court clearly stated
that “the interpretation of the definition of ‘funds’ could be relevant, as appropriate, at the
stage of the examination of the merits”291. Thus, the Court did not decide on this matter
in its judgment, and it remains to be examined in limine.
193. In short, when the Convention is read in its entirety, there is no doubt that it was intended
to cover funds or assets of a financial nature only – it was not designed (and indeed it is
not equipped) to encompass the transfer of items such as arms or weapons. Ukraine’s
attempt to isolate one term of the Convention (“assets of every kind”) for purposes of the
present case, taking it out of context while ignoring the internal logic of the treaty and the
specific obligations that it imposes on States, must accordingly be rejected.
286 Counter-Memorial (ICSFT), ¶¶64-65.
287 Counter-Memorial (ICSFT), ¶¶66-72.
288 Reply, ¶¶67-68.
289 Application of the International Convention for the Suppression of Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian
Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 586, ¶62.
290 Ibid.
291 Ibid.
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B. THE OBJECT AND PURPOSE OF THE CONVENTION
194. In the Counter-Memorial, the Russian Federation showed that the object and purpose of
the ICSFT is to suppress a specific form of support of terrorist activities, that is, their
financing. The rationale behind this object and purpose lies in the fact that assets of a
financial or monetary value, such as cash, shares, money orders, cheques, titles, or even
certain immovable property (such as buildings) are neutral in character: they can be
readily liquidated and transformed into specific means for purposes of committing
terrorist acts. These funds can normally be easily and legally exchanged and traded, not
subject to domestic or international supervision, thereby creating a risk of encouraging
and supporting terrorist acts across the world292. This is the important, but limited, scope
of the ICSFT.
195. Ukraine replies to this by suggesting that “it would make no sense to define a terrorism
financing offense for any person that provides money for use in terrorist acts, but not for
any person that provides arms, explosives, equipment, and other goods for use in terrorist
acts”293, adding that Russia’s interpretation “would leave a large loophole that would
thwart the Convention’s objective of denying terrorists the resources needed to commit
acts of terrorism”294. Ukraine, however, mischaracterises the relevant issue: the question
is not whether the ICSFT contains “loopholes” – the various existing treaties on antiterrorism
address different matters on which States have agreed progressively over time,
and none of them aims at being comprehensive or exhaustive. The ICSFT, equally, does
not address all terrorism-related matters, but only those relating to the financing of
terrorism. The task of the Court is to determine the scope of the Convention in accordance
with Articles 31 and 32 of the VCLT, not to expand that scope in light of what one party
sees as a gap in the Convention for purposes of a particular case.
196. Ukraine concedes that it “has never argued that the ICSFT governs ‘the provision of
weapons to non-state groups’ as such”, but it then makes a complete turn and rehearses
its only argument on the matter: “[w]ithin the Convention’s scope is the provision of
assets of every kind, including weapons …”295. In the end, the distinction that Ukraine
292 Counter-Memorial (ICSFT), ¶¶73-76.
293 Reply, ¶80.
294 Ibid.
295 Reply, ¶81.
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seemingly seeks to draw between the provision of weapons to “non-state groups as such”
and to alleged perpetrators of terrorist acts under Articles 2(1)(a) and 2(1)(b) of the ICSFT
is artificial: such perpetrators virtually always operate as part of a broader organisation,
and providing them weapons would in essence amount to providing weapons to the nonstate
group to which they belong. Thus, on Ukraine’s own reading, the ICSFT is not aimed
at dealing with the support of terrorists through arms or weapons.
197. The Reply also states that “Russia does not explain what it considers sensitive about
denying weapons to groups that commit acts intended to cause death or serious bodily
injury to civilians”296. As explained in the Counter-Memorial, the point is that the crossborder
transfer of weapons, as well as the cooperation that would be required among
States to prevent such transfers, is quite different in nature from the financing of terrorism
in the ordinary meaning of the term, that is, through funds and assets of a financial or
monetary character. Specific provisions to deal with cross-boundary transfers of weapons,
and especially those of exclusive military use, would undoubtedly need a more tailored
regulation in the ICSFT had the latter been intended to have such a scope. But the ICSFT
is silent on this matter, nor was it discussed at all when the Convention was negotiated297.
As regards Ukraine’s assertion that “Russia cannot seriously claim a sovereign right to
allow its territory to be used as a safe haven for the unlawful delivery of weapons to illegal
armed groups in other States”298, it is wide off the mark: the Russian Federation has
obviously never claimed to have such a right. The question in the present case is simply
whether the term “funds” under Article 1(1) includes weapons – in light of the limited
object and purpose of the Convention, weapons cannot be read into the treaty by
implication.
198. In the end, Ukraine’s position regarding the object and purpose of the ICSFT is a mere
repetition of its arguments concerning the interpretation of the term “assets of every kind”
under Article 1(1) in an isolated manner. The object and purpose of the Convention,
however, is reflected more clearly in the preamble of the Convention which, as explained
296 Reply, ¶81.
297 Counter-Memorial (ICSFT), ¶38.
298 Reply, ¶81.
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in the Counter-Memorial, confirms that the Convention is concerned with the suppression
of terrorism financing through financial or monetary assets only299.
199. This is precisely the understanding of the term “funds” that is shared by international
bodies engaged in the practical application of the ICSFT. For example, the UNODC
Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols points it
out quite clearly:
“The 1999 Financing of Terrorism Convention is only one aspect of a larger
international effort to prevent, detect and suppress the financing and support
of terrorism. Under Security Council resolution 1373 (2001), Member States
are required to take measures not only against the financing of terrorism, but
also against other forms of support, such as recruitment and the supply of
weapons. The 1999 Financing of Terrorism Convention only prohibits the
provision or collection of “funds”, meaning assets or evidence of title to
assets. However, when legislation to implement the Convention is enacted,
the resolution’s requirement to suppress recruitment and the supply of
weapons should also be considered”300.
200. The UNODC thus elucidates the issue: while the Convention itself does not cover the
supply of weapons, the UN Security Council resolution 1373 (20021) does, and when
States adopt legislation implementing the Convention, they should also consider
implementing the resolution. This explains why national laws aimed at combating
terrorism financing might go beyond the requirements of the Convention and cover
weapon supply. This duality between providing weapons and financing terrorism is
examined in more detail below.
C. OTHER RELEVANT RULES OF INTERNATIONAL LAW
201. As shown in the Counter-Memorial, other rules of international law applicable between
the parties to the ICSFT are, in accordance with Article 31(3)(c) of the VCLT, equally
relevant in the interpretation of the treaty in a systematic manner301. In this regard, too,
the Reply puts forward untenable arguments.
202. First, with respect to the Arms Trade Treaty (‘ATT’), Ukraine limits itself to advancing
that the possibility of some “overlap” between the latter and the ICSFT is
299 Counter-Memorial (ICSFT), ¶¶47-56.
300 UNODC, Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols (United Nations,
2003), p. 21, ¶49 (available at: https://www.unodc.org/pdf/crime/terrorism/explanatory_english2.pdf).
301 Counter-Memorial (ICSFT), ¶¶82-100.
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“unremarkable”, and that the ATT “serves a different function”: “[w]hereas the ICSFT
addresses the unlawful provision of assets (including weapons) intending or knowing they
are to be used for terrorist acts, the [ATT] focuses more broadly on potential diversion
for ‘unauthorized end use and end users’, even if a transfer is not in itself unlawful
terrorism financing”302. Ukraine’s distinction between unlawful provision of weapons for
purposes of the ICSFT and “broader transfers” that are not in themselves unlawful
terrorism financing for purposes of the ATT is however not accurate.
203. As noted in the Counter-Memorial, the ATT was aimed, in part, at addressing a lack of
“international standards on the … transfer of conventional arms”, which lacuna can
constitute a “contributory factor … to terrorism”303. The preamble of the ATT itself notes
that the States parties had in mind “the need to prevent and eradicate the illicit trade in
conventional arms and to prevent their diversion to the illicit market, or for unauthorized
end use and end users, including in the commission of terrorist acts”304. Article 1 of the
ATT further states, as one of the objects of the treaty, to “[p]revent and eradicate the illicit
trade in conventional arms and prevent their diversion”. Article 7, paragraph 1b)(iii),
similarly obliges States to assess the potential that the conventional arms or items to be
exported could be used to “commit or facilitate an act constituting an offence under
international conventions or protocols relating to terrorism to which the exporting State
is a Party”.
204. All these elements, also set out in more detail in the Counter-Memorial yet unrebutted by
Ukraine, are clear evidence that States do not consider that the term “funds” under Article
1(1) of the ICSFT covers the transfer of arms or weapons, or that this issue is otherwise
governed by the ICSFT. The lack of any reference to the ICSFT in the text or negotiating
history of the ATT, a treaty that expressly regulates the unlawful transfer and diversion
of arms or weapons that may be used for purposes of committing terrorist acts as defined
by international treaties, cannot but confirm that the ICSFT does not govern this matter,
and that Ukraine’s implausible interpretation of Article 1(1) distorts the true scope and
object and purpose of the ICSFT.
302 Reply, ¶84.
303 United Nations General Assembly, 61st Session, “Towards an arms trade treaty: establishing common
international standards for the import, export and transfer of conventional arms”, Resolution 61/89, 6 December
2006 (referred to at Counter-Memorial (ICSFT), ¶84).
304 Emphasis added.
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205. As regards UN Security Council resolutions, the Russian Federation showed in the
Counter-Memorial that the practice of the Council makes a clear distinction between the
financing of terrorism activities (covered by the ICSFT), on the one hand, and other forms
of support in kind (such as the provision of weapons), on the other.305 The Council only
has used the terms “funds” and “funding” to refer to financial assets and activities, and
referred to the ICSFT in this context, but not in the context of material support, such as
the supply of weapons. In particular, the “core” Security Council resolution 1373 clearly
distinguishes between “financing of terrorist acts”, which includes provision of “funds
and other financial assets or economic resources” to terrorists (OP1 of the Resolution),
from “supply of weapons to terrorists” (OP2 of the Resolution). Security Council
resolution 2370, adopted in 2017 and aimed specifically at eliminating the supply of
weapons to terrorists, does not mention the ICSFT, and distinguishes “financing” from
“obtaining” weapons;306 as for resolution 2482, adopted in 2019, it only mentions ICSFT
in the context of “illicit finance including terrorist financing”, but not with regard to
trafficking of military materials and equipment.
206. Ukraine’s only reaction to this fact is an attempt to blur the clear language used by the
Security Council in its various resolutions, suggesting that “both the Security Council and
the States Parties to the ICSFT addressed the same important issue in an equally
comprehensive manner, but simply using different language” 307 . This argument is
disingenuous, as the matter is not of result – the Russian Federation does not claim that
Security Council resolutions have lacunae and fail to cover certain aspects of support for
terrorists. The matter lies precisely in the distinction clearly made by the Security Council
between different forms of support, regulated by different international instruments, as
noted also by the UNODC308. Since Ukraine has failed to fully engage with the practice
of the Council and the precise language employed in such resolutions, there is no need to
further address this matter – Russia’s position remains uncontested309. However, to make
305 Counter-Memorial (ICSFT), ¶¶93-100.
306 SC Resolution 2370, PP11.
307 Reply, ¶83.
308 See above, ¶117-118.
309 The same holds true for ¶92 of Counter-Memorial (ICSFT), concerning the relevance of the Protocol against
the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunitions
Supplementing the United Nations Convention against Transnational Organized Crime, which Ukraine has not
rebutted.
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the matter even clearer, reference can be made to UN documents prepared to facilitate the
implementation of these resolutions.
207. For example, the “Technical guide to the implementation of Security Council resolution
1373 (2001) and other relevant resolutions”, adopted by the UN Security Council
Committee on Counter-Terrorism in 2019, contains the following guidance regarding the
term “funds”:
“A definition of funds should be included in the law or in the criminal code
and should comply with the definition contained in the International
Convention for the Suppression of the Financing of Terrorism. The definition
of ‘funds’ must be broad and must include assets that may potentially be used
to obtain goods and services, as well as trade resources. In October 2016, the
Financial Action Task Force revised the interpretive note to recommendation
5. The revisions included replacing the term ‘funds’ with the expression
‘funds or other assets’ in order to explicitly cover the provision of ‘economic
resources’ (namely, oil, oil products, modular refineries and related material,
and other natural resources) in accordance with resolutions 2161 (2014), 2199
(2015) and 2253 (2015). This requirement is reaffirmed in resolutions 2368
(2017) and 2462 (2019)”310.
208. This definition does not include weapons, nor does it mention Security Council resolution
2370 (specifically devoted to preventing terrorists from acquiring weapons). There is also
some ambiguity with regard to the scope of “funds” as including even “economic
resources” (as the FATF had to adopt the term “funds and other assets” to encompass
them). Evidently, the default understanding of “funds” by UN Member States and the
Counter-Terrorism Committee was to include financial assets only, and was specifically
extended to “economic resources”, but never to weapons or heavy armaments.
209. To facilitate the implementation of Security Council resolution 2370, a set of technical
guidelines, entitled “Preventing Terrorists from Acquiring Weapons”, was developed as
part of a joint project implemented by the United Nations Counter-Terrorism Committee
Executive Directorate (CTED), together with the United Nations Institute for
Disarmament Research (UNIDIR) and the United Nations Counter-Terrorism Centre
(UNCCT) of the United Nations Office of Counter-Terrorism (UNOCT).311 In response
310 “Technical guide to the implementation of Security Council resolution 1373 (2001) and other relevant
resolutions”, ¶40.
311 https://www.un.org/securitycouncil/ctc/sites/www.un.org.securitycouncil.ctc/files/files/documents/2022/Mar/t
echnical_guidelines_to_facilitate_the_implementation_of_security_council_resolution_2370_2017_and_related_
international_standards_and_good_practices_on_preventing_terrorists_from_acquiring_weapons.pdf.
Page 93 out of 541
to the resolution’s call to Member States to “consider becoming a party to the related
international and regional instruments, with a view to eliminating the supply of weapons
to terrorists”, the guide lists a number of international instruments covering control over
small arms and light weapons, including the ATT and other instruments.312 The ICSFT,
however, is not mentioned among them.
210. If Ukraine were right in its interpretation of the Security Council resolutions as
considering weapons supply to be an element of terrorism financing, then the ICSFT
should have played a prominent role in the guide. Yet not only is the ICSFT absent from
the guide: there is also no mention of terrorism financing in general, nor of weapons as
“funds” or their supply as “funding”. Thus, it is clear that the competent anti-terrorism
bodies of the United Nations do not view arms supply as a form of “terrorism financing”.
While certainly prohibited by Security Council resolutions and various international
instruments, this activity is nevertheless not governed by the ICSFT.
211. Finally, it should be noted that Security Council resolutions, the guidance on their
implementation and relevant FATF recommendations may extend beyond obligations
enshrined in the ICSFT. For example, as noted in the “Technical guide to the
implementation of Security Council resolution 1373 (2001) and other relevant
resolutions”:
“Recommendation 5 of the Financial Action Task Force and its interpretive
note go beyond the obligations contained in the International Convention for
the Suppression of the Financing of Terrorism in requiring States to also
criminalize the financing of terrorist organizations and individual terrorists
on a broader basis without requiring a link to a specific terrorist act or acts”313.
212. Specifically with regard to “funds”, the FATF Guidance on criminalizing terrorism
financing makes the following clarification:
“Following the revision of R.5 and the FATF Glossary in October 2016, the
TF offence applies to providing or collecting funds or other assets, which
explicitly includes economic resources, including oil and other natural
312 Ibid., pp. 38, 55, 73 etc. Besides the Arms Trade Treaty, the guide also refers to the 1991 Convention on the
Marking of Plastic Explosives for the Purpose of Detection (MEX Convention), Convention on the Simplification
and Harmonization of Customs Procedures (Kyoto Convention), Convention on the International Civil Aviation
(Chicago Convention), 2010 Convention on Suppression of Unlawful Acts against Civil Aviation (Beijing
Convention), 2020 amendments to the 1983 International Convention on the Harmonized Commodity Description
and Coding System, Convention against Transnational Organised Crime, as well as various human rights treaties.
313 “Technical guide to the implementation of Security Council resolution 1373 (2001) and other relevant
resolutions”, ¶39.
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resources, dividends and income accruing from assets, as well as any other
assets which are not funds but which potentially may be used to obtain funds,
goods or services.” (emphasis ours).”314
213. Once again, neither the FATF Guidance on criminalizing terrorism financing, nor the
more general FATF Recommendations (“International standards on combating money
laundering and the financing of terrorism & proliferation”) ever mention the supply of
weapons to terrorists (with the specific exception of combating proliferation of weapons
of mass destruction). This evidences a general understanding among all relevant
international authorities and UN Member States that (conventional) weapon supply is
distinct from terrorism financing.
D. THE DRAFTING HISTORY OF ARTICLE 1(1) OF THE CONVENTION
214. As shown in the Counter-Memorial315, the drafting history of the ICSFT shows that,
although an early draft of the Convention produced by France originally defined
“financing” as including not only “funds” and “assets”, but also “other property”, the
latter term being understood at the time to cover “arms, explosives and similar goods”,
the negotiating States decided not include such a provision in the final version of the
Convention. This decision not to make reference in the Convention to property such as
weapons confirms that the term “funds” in Article 1(1) is limited to assets of a financial
or monetary nature, as explained above.
215. Ukraine replies to this by saying, as it did in its Memorial, that the words “other property”
from the earlier version of Article 1(1) of the ICSFT were deleted because the term
“funds” was intended to cover such other property, including weapons; thus, adding the
words “other property” would have been “redundant”316. Yet Ukraine’s selective account
of the drafting history is to no avail. In particular, Ukraine fails to note, for example, that
according to the travaux, “transfer of funds” was understood as “covering all forms of
financial assistance”.317 Coupled with the understanding of the “definition” of funds only
covering “types of financial resources” 318 , and the final definition only including
314 FATF Guidance on criminalizing terrorism financing, ¶10.
315 Counter-Memorial (ICSFT), ¶¶77-81.
316 Reply, ¶85.
317 Measures to eliminate international terrorism: Report of the Working Group (UN doc. A/C.6/54/L.2, 26 October
1999), ¶35 (emphasis added).
318 Ibid., ¶43 (emphasis added).
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examples of these same “types of financial resources” while conspicuously not
mentioning weapons, explosives or military equipment, this gives a clear indication that
the drafters did not intend to go beyond literal financing.
216. The drafting history similarly shows that that:
“Support was expressed by some for providing only a generic definition,
without the inclusion of examples, so as not to include types of financial
resources that might become outmoded in the future, as well as to ensure the
necessary flexibility to encompass new types of funding that might arise in the
future. In the same vein, it was suggested that the paragraph be ended after
the words ‘property’ (see A/C.6/54/1999/CRP.5), ‘intangible’ or ‘acquired’,
respectively”319.
217. Two conclusions can be drawn from the above paragraph. First, when agreeing on the
definition of “funds”, the discussion revolved exclusively around various financial
resources. Its final version was motivated by the desire of States to cover all types of
financial resources. Second, the general debate indicates that the reference to “assets”,
encompassing tangible, intangible and other types of assets, was also dictated by the
desire to cover by definition all possible types of financial resources, even those that may
not have existed at the time. An example is cyber-currency, which had not yet come into
circulation when the ICSFT was drafted.
E. DOMESTIC IMPLEMENTATION OF THE ICSFT
218. Finally, Ukraine’s reference to a small selection of national legislations is of no assistance
to it320. First of all, as was explained previously with reference to the UNODC321, in
terms of combating terrorism States face broader obligations under international law than
those enshrined in the ICSFT, such as those stemming from UN Security Council
resolution 1373, and may choose to implement them in their national legislation together
with the ICSFT, thus creating legal norms that are not necessarily reflected in the latter.
219. However, even those national legal orders to which Ukraine refers do not truly support
its claims. For instance, Ukraine asserts that a “restrictive interpretation of ‘assets of every
kind’ … would create an inconsistency with the meaning of terrorism financing in
319 A/C.6/54/L.2, ¶43 (emphasis added).
320 Reply, ¶¶89-97.
321 See above, ¶199-200.
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[Russia’s] domestic law”.322 However, this claim is only supported by a reference to a
resolution of the Russian Supreme Court Plenary323, which does not create legal norms
but implements them. The existing law, i.e. the Criminal Code of the Russian Federation
(“RCC”), clearly distinguishes between providing weapons to terrorists (“arming”) and
other types of support (“financing of terrorism”).324 This distinction is upheld in the very
resolution of the Plenary relied on by Ukraine: in a passage which Ukraine conveniently
omits in the Reply, the Plenary explains that the supply of weapons to terrorists should
be considered as “arming” (thus constituting a special type of support that is not covered
by the term “property” by implication), while the provision of money and material assets,
such as clothing, medicine, living quarters, and transportation –not including weapons –
is to be considered “financing of terrorism”.
220. Even US law, upon which Ukraine relies, is not uncontroversial. As noted by an author:
“From a U.S. perspective, which applies a very broad definition of support,
this means support beyond pure funding. That is, U.S. law prohibits providing
‘material support or resources’ to terrorists and foreign terrorist
organizations. The term ‘material support or resources’ includes not only
funds and tangible goods, but also ‘training,’ ‘personnel,’ ‘transportation,’
‘service,’ and ‘expert advice or assistance,’ ‘except medicine or religious
materials.’ However, the precise scope of the ‘material support and resourses’
provisions has proved controversial and come under constitutional attack for
their vagueness”325.
221. Furthermore, apart from Ukraine’s carefully curated selection of national laws, other
States have implemented this element of the ICSFT differently, applying a notion of
“funds” that does not include weapons:
“Unlike the United States and other member States that broadly define the
term ‘funds,’ some States limit the definition to pecuniary resources or to
funds of a certain value. Following its proposal in the negotiations on the
Convention, Japan, in Article 2 of the Act on the Punishment of Financing of
Offences of Public Intimidation, uses the term shikin, which is the translation
of the word ‘funds’ and which is used and understood as ‘cash and monetary
322 Reply, ¶97.
323 Resolution of the Plenum of the Supreme Court of the Russian Federation, No. 1 of 9 February 2012, “On Some
Aspects of Judicial Practice Relating to Criminal Cases on Crimes of Terrorist Nature,” ¶16 (Ukraine’s Memorial,
Annex 438).
324 See Article 205.1 of the Criminal Code of the Russian Federation, Annex 874 to the Memorial (“arming or
training a person to commit at least one of these crimes, as well as financing of terrorism”) [Emphasis added].
325 H. Tofangsaz, “Criminalization of terrorist financing: from theory to practice”, in New Criminal Law Review,
Vol. 21(1), p. 86.
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instruments easily convertible into cash.’326 In the case of the law at issue, the
scope of the term shikin has been also defined by the Ministry of Justice of
Japan, under whose jurisdiction a law is enacted and applied, to include not
only ‘cash and other means of payment,’ but also ‘other kinds of assets that
are provided or collected with the intention of gaining such cash or other
means of payment as a fruit or to be converted into such cash or other means
of payment.’327
The scope of the term ‘assets’ is also limited under German law by Section
89a(2), no. 4, of German Penal Code to comprise only assets that are not
‘insubstantial’ in value.328”329
222. As a result, Ukraine’s attempt to rely on State practice in support of its position falls flat.
In reality, the implementation of the ICSFT in national legislation varies because some
States have elected to attach a wider meaning to the term “funds” or “funding” in the
context of terrorism financing, while others have applied a narrower definition (in
particular when it concerns weapons). Neither definition would be at odds with the ICSFT
– one would simply go beyond the scope of Article 1(1).
* * *
223. To sum up, the term “funds” under Article 1(1) of the ICSFT cannot be interpreted as
encompassing “anything under the sun”. The terms of the Convention, interpreted in
accordance with Articles 31-33 of the VCLT, confirm that the Convention concerns only
assets of a financial or monetary nature, to the exclusion of other items such as weapons.
The other provisions of the Convention, and the specific obligations that the latter
imposes, must be understood within these parameters.
326 FATF, Third mutual evaluation report: Anti-money laundering and combating the financing of terrorism: Japan
(Oct. 17, 2008), ¶219.
327 Ibid., ¶221.
328 International Monetary Fund, Germany: Detailed assessment report on anti-money laundering and combating
the financing of terrorism (Mar. 2010), ¶207.
329 H. Tofangsaz, “Criminalization of terrorist financing: from theory to practice”, in New Criminal Law Review,
Vol. 21(1), p. 92.
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V. UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM
FINANCING WITH RESPECT TO FLIGHT MH17
A. INTRODUCTION
224. As noted in the Counter-Memorial, the appalling shooting down of Flight MH17 is central
to Ukraine’s case under the ICSFT. In its Reply, Ukraine continues to rely on this incident
to argue that the Russian Federation has allegedly violated its obligations under the
Convention by failing to cooperate with the Ukrainian authorities.
225. Chapter VI of the Counter-Memorial showed that Ukraine’s claims are entirely
unfounded. The present chapter addresses Ukraine’s remaining arguments on this issue
in the Reply, to the extent that they add anything new. Before doing so, however, a
number of general observations are warranted.
226. First, the Russian Federation has established in Chapter IV above and in Chapter II of the
Counter-Memorial that the provision of weapons cannot be considered as “funding”
within the meaning of Articles 1(1) and 2(1) of the ICSFT. This alone suffices to dismiss
all of Ukraine’s claims concerning Flight MH17 under the Convention.
227. Second, Ukraine stands alone in its allegation that the shooting down of the MH17 is a
terrorist act. Cases of shooting down of civilian aircraft in error are unfortunately not rare
recently, but none of those incidents have been considered to be a terrorist act, including
the shooting down by Ukraine’s own Armed Forces of a Russian Tu-154 over the Black
Sea in 2001, killing all 78 civilians on board.330
228. Third, Ukraine was unable in previous stages of these proceedings, and still is in its
Reply, to produce any credible evidence that whoever provided the weapon used to shoot
down Flight MH17 did so with the specific intent or knowledge that such weapon
should/was to be used to shoot down a civil aircraft, as would be required under Article
2(1)(a) of the ICSFT read in conjunction with Article 1(1)(b) of the Montreal Convention.
The specific intent (dolus specialis) and knowledge required under the Montreal
330 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, ¶¶60-63 (Annex 6).
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Convention and the ICSFT respectively must be established by fully convincing and
conclusive evidence, as explained above.331
229. Fourth, alongside the ATO against the people of Donbass organised as the DPR and LPR,
the Government of Ukraine and its sponsors launched a massive propaganda campaign
against the DPR and LPR and against the Russian Federation, designed to promote
sanctions against the Russian Federation without UN approval. Prominent in this
campaign were allegations against the Russian Federation 332 in connection with the
MH17 incident on 17 July 2014. Since the downing of the flight MH17 in Donbass on
17 July 2014, the Russian Federation has called for a full, thorough, non-biased and
depoliticised investigation into the causes of the crash, based on facts and irrefutable
evidence. The Russian Federation initiated the adoption of the UN Security Council
Resolution 2166 and remains fully committed to its implementation. The Russian side
has repeatedly pointed out that the Joint Investigation Team (“JIT”) pursued a selective
and politicised approach while collecting evidence on the MH17 case, which later served
as the basis for criminal proceedings initiated by The Hague District Court against three
Russian citizens – I.V. Girkin, O.Y. Pulatov and S.N. Dubinskiy, as well as one Ukrainian
citizen, L.V. Kharchenko.
230. The sentence was mainly built on the findings of the Public Prosecution Service of the
Netherlands which were drawn from statements of classified anonymous witnesses and
data supplied by the SBU, which has repeatedly been caught providing false,
contradictory information and is an interested party in the case. The prosecutors and the
judges failed to take into consideration the statements of the witnesses called for by
O.Y. Pulatov's defence and the entire set of materials provided by the Russian Federation,
including radar raw data and reports on the live-fire test carried out by the Almaz-Antey
company, manufacturer of the Buk anti-aircraft missile system.
231. They also disregarded the fact that Ukraine had refused to provide radar data as well as
records of communications of ground flight-tracking services. Furthermore, the
Ukrainian air traffic control officers who were on duty that day and therefore could have
shed light on the facts of the tragedy, disappeared. Since the downing of the flight the
331 See above, Chapter I(D).
332 The Russian Federation reiterates its position that it vigorously denies all such allegations.
Page 100 out of 541
responsibility of Ukraine for not closing the airspace above the zone of hostilities where
the UAF deployed air defence systems, including Buks, has not been duly investigated.
Satellite images made by the US on the day of the crash could have helped clarify its
circumstances, but Washington flatly refused to comply with the judges' request to
disclose the data, or at least allow it to be examined under special conditions.
232. The Russian Federation has presented its evaluation of the work of the JIT and The Hague
District Court decision in an official communication to the UN Security Council.333 A
detailed demonstration of an extreme bias against the Russian Federation and the DPR
and LPR in these investigations and judgments is reflected in the Appendix 2 to this
Rejoinder. However, despite this obvious bias, the JIT and The Hague District Court
could not ignore certain immutable evidence, such as the lack of terrorist intent. In
particular, The Hague District Court concluded its case by rendering four final judgments
in which:
(a) It was determined to be “completely implausible that a civil aircraft was
deliberately downed … those involved initially thought that they had succeeded in
shooting down a Ukrainian military aircraft”;334 it was also considered that “the
accused may not have wanted to shoot down a civil airliner, nor that 298 innocent
civilians be killed as a result”;335
(b) It was not established that Russian troops were involved in the incident;336
333 Permanent Representative of the Russian Federation to the United Nations, Letter addressed to the Secretary-
General and the President of the Security Council, S/2023/96, 7 February 2023, available at:
https://digitallibrary.un.org/record/4002640?ln=en.
334 District Court of The Hague, Case No. 09/748005-19, Judgment against S.N. Dubinsky, 17 November 2022,
¶6.2.5.3, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14036&showbutton=true&keyword=09
%252f748005-19&idx=1%2F.
335 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022, ¶6.2.6,
available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
336 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶4.4.3.1.4: “...the court notes that the DPR was not part of the official Armed Forces of the Russian Federation...”,
“...the DPR cannot be viewed as part of the Armed Forces of the Russian Federation, the members of the DPR also
cannot be considered part of those Armed Forces”, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
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(c) It was not established that the DPR troops were under the command of the Russian
Federation; “effective control” of the Russian Federation over DPR troops was not
established;337
(d) It was not established that the alleged actions of the Buk TELAR crew were
motivated by terrorist goals, or that they were given any such instructions;338
(e) It was clearly established that both the alleged supply and the alleged use of the
Buk TELAR pursued a military purpose;
(f) the only charges brought to the court were for “murder” under Dutch criminal law,
not terrorism or war crimes;
(g) The District Court cast heavy doubt on evidence supplied by Ukraine, pronouncing
that any such evidence must be independently verified to be admissible;339 and
(h) the only accused who defended himself (Mr Pulatov) was acquitted, while the three
persons convicted were tried “in absentia” without any defence.
233. These decisions clearly disprove Ukraine’s claim that the shooting down of Flight MH17
constituted a terrorist offence within the meaning of Article 1(1)(b) of the Montreal
Convention. By extension, no provision of funds within the meaning of the ICSFT in
connection with this incident could constitute terrorism financing.
337 JIT, Transcript of press conference JIT MH17, 8 February 2023, available at:
https://www.politie.nl/en/information/transcript-of-press-conference-jit-mh17-on-8-february-2023.html (Annex
390).
338 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶6.2.5.3: “...the actions of the crew of the Buk TELAR when launching the Buk missile at MH17 cannot be
established on the basis of the case file. The case file also fails to identify who gave the instruction to launch a
missile, and why that order was given...”, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
339 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶4.4.4.3: “To the extent that in so doing use was made of research material brought in by or through the SBU with
potential probative value, the Public Prosecution Service accounted for this. In doing so, the Prosecution expressly
involved the questionable reputation that sources said the SBU had in 2014, which led to caution, verification and
validation research… [I]nformation from questionable sources… requires extra caution and investigation… if the
court will make use of investigative material introduced along the path of the SBU, it will do so with due caution
in accordance with the applicable rules”, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
Page 102 out of 541
234. Fifth, in spite of the judgments rendered by The Hague District Court, uncertainty hangs
over the question of which weapon caused the destruction of Flight MH17 or who used
it. Thus, an US Agency, the position of which was presented in the proceedings in The
Hague District Court, considers it more plausible that a Ukrainian Buk TELAR could
have fired a Buk missile from an area to the east of Zaroshchenskoye.340 This is not
implausible as Ukraine did have several Buk TELAR deployed and operating in the
conflict zone, including in the vicinity of the MH17 crash,341 and the UAF have already
shot down a civilian airliner, in the course of military exercises, in 2001. There is also a
possibility that the Buk TELAR in question originated from Ukraine.342
235. The Court cannot rely on the proceedings of the Dutch criminal court, or the Dutch Safety
Board (“DSB”) or the JIT regarding the issue of who delivered the Buk TELAR or who
used it, in particular since to a large degree these findings relied on purported evidence
supplied by Ukraine, and more precisely the SBU, which has been confirmed to be an
unreliable source.343 The same applies to the findings of the European Court of Human
Rights (“ECtHR”), especially after the withdrawal of the Russian Federation from the
Council of Europe. Solid evidence was presented by the Russian Federation to the
ECtHR. However, it was not answered by Ukraine and the Netherlands, and the ECtHR
decided to make evidence in the process closed to the public.
236. As will be showed in the Appendix 2 to this Rejoinder the evidence used in the
proceedings had clear signs of manipulation and fabrication. For example, the original
photos allegedly showing the Buk have not been made available to the public. The JIT
based its conclusions regarding the alleged route of the Buk on photos that were shown
to be fabricated. Other purported evidence, such as intercepted conversations, videos and
340 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022, ¶6.2.3,
available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
341 Fishki.net, Ukraine draws in BUK missile defence systems to Donetsk Oblast (8 March 2014), available at:
https://fishki.net/1249959-ukraina-podtjagivaet-v-doneckuju-oblast-zrk--buk html (Annex 386); UNIAN, The
Ukrainian air forces receive reconditioned Buk-M1 anti-aircraft missile system (photo) (6 June 2014), available
at: https://www.unian net/army/926317-vozdushnyie-silyi-ukrainyi-poluchili-otremontirovannyiy-zenitnyiyraketnyiy-
kompleks-buk-m1-foto html (Annex 387); UNIAN, Ukraine's first reconditioned Buk-M1 SAMS tested
in Khmelnychchyna (27 June 2014), available at: https://www.unian net/army/933846-na-hmelnitchineispyityivayut-
pervyiy-otremontirovannyiy-v-ukraine-zrk-buk-m1.html (Annex 388); See also below, ¶318.
342 See Annex 370.
343 See also ¶¶235, 416.
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photos of the alleged missile launch site, was likewise manipulated, while handling of
wreckage and missile fragments by the DSB was so careless as to cast significant doubt
on any findings. The Dutch technical investigation carried a significant number of errors
and inconsistencies that show signs of bias towards a preconceived conclusion, while
alternative versions of events were dismissed without substantive justification. A
particular matter of concern is that these manipulations involved people known to have
previously engaged in fabricating false evidence.344
237. Sixth, the Russian Federation retains the position that to reject Ukraine’s contentions of
breach of the ICSFT it is not necessary for the Court to resolve the issues as to who
downed Flight MH17 and where the weapon comes from, in order to dismiss this Case,
since, even if Ukraine’s evidence were to be accepted (quad non), one thing remains
certain: Flight MH17 was downed in a tragic error. As will be shown below, an error
obviously cannot be qualified as terrorism.
B. UKRAINE FAILED TO ESTABLISH THAT THE MONTREAL CONVENTION APPLIES TO THE
SHOOT-DOWN OF FLIGHT MH17
238. In its Reply, Ukraine alleges that “the shoot-down of Flight MH17, killing 298 civilians,
constitutes a terrorist act under Article 2(1)(a) of the ICSFT because it was an offence
under Article 1(1)(b) of the Montreal Convention, which applies when “any person …
unlawfully and intentionally . . . destroys an aircraft in service or causes damage to such
an aircraft which renders it incapable of flight or which is likely to endanger its safety in
flight.”345 It maintains that Russian nationals allegedly provided a Buk TELAR to armed
groups in Donbass346 with the intention that it be used to shoot down the civil aircraft or
in the knowledge that it was to be used in this way.
239. The Russian Federation already responded to these unfounded allegations in its Counter-
Memorial. In particular, it explained that even if the evidence that Ukraine relies on were
to be accepted (quad non), that evidence merely shows, at the most, that whoever
provided weapon did so with the intention that it should be used, or in the knowledge that
it was to be used, to target Ukraine’s military aircraft in the context of the ongoing armed
344 See also below, Appendix 2, ¶42.
345 Reply, ¶202.
346 The Russian Federation reiterates its position that it vigorously denies all such allegations.
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conflict, and that Flight MH17 was downed in a tragic error. Thus, the requisite intention
or knowledge under the chapeau to Article 2(1) of the ICSFT would be absent.347
240. The Counter-Memorial, as well as Chapter III above, also showed that the scope of the
offence of unlawfully and intentionally destroying an “aircraft in service” under Article
1(1)(b) of the Montreal Convention, properly interpreted in accordance with Articles 31
and 32 of the VCLT, is limited to civil aircraft only. For the terrorism offence to be
established, therefore, a specific intent to destroy a civil aircraft, as opposed to a military
aircraft, is required.348 In the present case, where the intent of the persons involved in the
shooting down of Flight MH17 was beyond doubt that of destroying a military aircraft,
the mental element required under Article 1(1)(b) of the Montreal Convention is not met.
241. Ukraine disagrees. In its Reply, Ukraine advances “two independent reasons” to
demonstrate that the Flight MH17 incident was an offence under Article 1(1)(b) of the
Montreal Convention: “First, the status of the destroyed aircraft dictates whether the
Convention applies, but it is not an element of a violation that is subject to an intent
requirement. If a person acts unlawfully and intends to destroy an aircraft, and a civilian
aircraft is destroyed, an offense is committed under the Montreal Convention; any claims
of intent to unlawfully destroy a different kind of aircraft are irrelevant. Second, even if
intent to destroy a civilian aircraft were required, a person who uses a weapon that is
incapable of distinguishing between civilian and military aircraft acts with the intention
of destroying a civilian aircraft”.349
242. These arguments are both unconvincing and should be rejected, because: first, even if the
evidence that Ukraine relies on were to be accepted (quad non), the downing of Flight
MH17 was an error and the intent to destroy a military aircraft is not covered by Article
1(1)(b) of the Montreal Convention (i); second, the contention that the Buk TELAR is an
“inherently indiscriminate” weapon is unfounded (ii).
347 Counter-Memorial (ICSFT), ¶302.
348 Ibid., ¶162.
349 Reply, ¶126.
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i. The Intent Requirement of Article 1(1)(b) of the Montreal Convention Is Not Met
243. Even assuming arguendo that one proceeds on the basis of Ukraine’s factual allegations
(which the Russian Federation vigorously rejects), the downing of Flight MH17 would
still not fall within the scope of the Montreal Convention.
a. Even assuming that Ukraine’s factual allegations were correct (quod non), the
intended target was not a civil aircraft
244. It is important to put the shooting down of Flight MH17 in its true context, that is the
existence at the time of the incident of an ongoing armed conflict between Ukrainian and
the DPR’s armed forces.
245. The existence of an armed conflict between Ukraine and the DPR and LPR at the relevant
time is not in doubt, even if Ukraine prefers to turn a blind eye to it. Even The Hague
District Court in its Judgment of 17 November 2022 agreed that “the fighting between
the Ukrainian army and the Donetsk People’s Republic can … be characterised as an
armed conflict”.350
246. It is in light of this fact that the alleged request for obtaining the Buk TELAR should be
considered. According to the materials presented by the Dutch Prosecution to The Hague
District Court, the DPR’s sole purpose was to defend itself against a series of armed
strikes by Ukrainian military aircraft, not to shoot down a civil aircraft. In this regard,
the JIT’s report found that:
“In July 2014, heavy fighting was going on in the area southeast of Donetsk.
(…) During these fights, the Ukrainian army carried out many air strikes to
stop this offensive. The pro-Russian fighters suffered greatly: there were
many losses, both human and material. Intercepted telephone conversations
show that during the days prior to 17 July, the pro-Russian fighters mentioned
that they needed better air defense systems to defend themselves against these
air strikes.”351
247. The JIT reiterates this conclusion in a report published on 8 February 2023:
350 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶4.4.3.1.2, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
351 Joint Investigation Team, Presentation of first results of the MH17 criminal investigation, 28 September 2016,
available at: https://www.prosecutionservice.nl/topics/mh17-plane-crash/criminal-investigation-jit-mh17/jitpresentation-
first-results-mh17-criminal-investigation-28-9-2016 (Annex 391).
Page 106 out of 541
“In June 2014 there was heavy fighting between the Ukrainian army and
troops of the DPR and LPR. During this fighting both the DPR and LPR
requested heavier weaponry, including better anti-aircraft systems. The
investigation carried out shows that from the second half of July 2014 several
Buk-TELARs have been delivered to the separatists, including the Buk-
TELAR that shot down flight MH17”.352
248. The view of Ukraine’s own Security Service is that the Buk TELAR was supplied for the
purpose of “air defense”. The SBU stated shortly after the tragic downing of Flight MH17
that the weapon had been supplied to take part in a military operation in response to the
combat operations of the UAF. In four Notices of Suspicion issued by the SBU on 18
June 2019, which Ukraine did not put into evidence, it is stated:
“On 16 July 2014, the armed units of the DPR […] attempted to breach the
defenses of the Ukrainian government forces in the area of Savur Mohyla
(Snizhne District, Donetsk Region); however, due to defense combat action
of the Ukrainian Armed Forces (including air warfare), they suffered
significant losses in personnel and military equipment. For this reason, it was
decided to take the further offensive under the cover of military air defense
systems.
For these purposes, the BUK TELAR […] was transported” (Emphasis
added).353
249. According to The Hague District Court’s judgment of 17 November 2022:
“the evidence shows that this particular Buk TELAR was deployed in the
fight that the DPR was waging against the Ukrainian military authorities, and
indeed, this Buk TELAR was used to fire a missile from an area held by the
separatists in combat to establish a corridor that was of great importance to
those separatists (and their battle)”.354
250. The absence of intent to shoot down a civil aircraft also follows even from the new 2023
JIT report:
“However, without concrete information about the circumstances in which
the decision was made to fire the Buk missile at MH17, it is not easy to
determine whether the downing of MH17 was a war crime. The district court
held that it is completely implausible that a civilian aircraft was deliberately
352 Joint Investigation Team, Report, Findings of the JIT MH17 investigation into the crew members of the Buk
TELAR and those responsible in the chain of command, 8 February 2023, p. 37, ¶5.2, available at:
https://www.politie.nl/binaries/content/assets/politie/onderwerpen/mh17/report_jit-mh17_8-februari-
2023_eng.pdf (Annex 392).
353 Counter-Memorial (ICSFT), Annex 76.
354 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶6.2.5.3, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
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shot down and that it is plausible that MH17 was shot down by mistake. As a
consequence there appears to be limited scope for instituting criminal
proceedings in respect of a war crime” (Emphasis added).355
251. Since war crimes require intentionally attacking civilian targets, this clearly shows that
the JIT, along with The Hague District Court, did not believe such intent to be present in
the MH17 case.
252. It follows that even if evidence that Ukraine relies on were to be accepted (quad non),
whoever provided the weapon did so with the intention that it be used, or in the knowledge
that it was to be used, to target Ukraine’s military aircraft, not a civil passenger plane.
Indeed, “there is no military advantage in attacking civilians; it is a waste of military
resources and generally stiffens resistance.”356
253. Another author has noted, with respect to the MH17 incident, that
“… everything we know to date about the attack indicates that the separatists
honestly believed MH17 was a Ukrainian military transport, not a civilian
airplane. If so, that changes the legal assessment of the attack considerably.
The attack… would not qualify as a war crime, under either the Rome Statute
or the jurisprudence of the ICTY.... The actus rei of the war crime of murder
and the war crime of intentionally directing attacks at civilians or civilian
objects each include a circumstance element: the individuals attacked must
qualify as civilians (or as otherwise protected persons). The relevant mens rea
for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome
Statute: “For the purposes of this article, ‘knowledge’ means awareness that
a circumstance exists.” Black-letter criminal law provides that an honest
mistake of fact negatives any mens rea that requires subjective awareness. So
if the separatists honestly believed they were attacking a Ukrainian military
transport, they were not aware that they were attacking civilians. In which
case they could not be convicted of either the war crime of murder or the war
crime of intentionally directing attacks at civilians or civilian objects.”.357
254. In view of The Hague District Court:
“…the telephone reactions following the downing of MH17 show that those
involved initially thought that they had succeeded in shooting down a
355 Joint Investigation Team, Report, Findings of the JIT MH17 investigation into the crew members of the Buk
TELAR and those responsible in the chain of command, 8 February 2023, p. 64, ¶7.2.1, available at:
https://www.politie.nl/binaries/content/assets/politie/onderwerpen/mh17/report_jit-mh17_8-februari-
2023_eng.pdf (Annex 392).
356 M. Bothe, K. Partsch et al., NEW RULES FOR VICTIMS OF ARMED CONFLICTS, (Martinus Nijhofff Publishers,
2013), pp.319-320.
357 K. Heller, MH17 Should Be Framed as Murder, Not as a War Crime (11 August 2014), available at:
https://opiniojuris.org/2014/08/11/mh-17-framed-murder-war-crime/.
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Ukrainian military aircraft … in summary, the court considers that … they
did not intend to kill these people”.358
255. It would be incorrect to regard a mistaken downing of a civilian aircraft during an armed
conflict as proof of terrorist intent under the Montreal Convention. The context and
specifics of aerial targeting as “emerging targets” must be taken into account:
“The main difficulty in this respect is indisputably due to “emerging targets”
for which no advance planning has been possible, and which, by their sudden
appearance, make it necessary to strike within a very short time, leaving no
opportunity to follow complicated procedures. In such circumstances,
determining the military nature of a target and potential collateral causalities
and damage will require an accelerated analysis on the basis of predetermined
criteria”.359
256. The ICAO Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict
Zones confirms this:
“Past events, although rare, would suggest there is a higher risk to civil
aviation as an unintended target when flying over or near conflict zones, in
particular the deliberate firing of a missile whose target is perceived to be a
military aircraft, but which either misses its intended target or is based on the
misidentification of a civil aircraft. In conflict zones the capability may be
high and widespread, but there is arguably little to no intent to target
passenger aircraft. The same applies when also taking into account the use of
missile defence systems by State actors to shoot down ballistic missiles. This
illustrates the complexity of such a threat environment for civil aircraft
operations”.360 [emphasis added]
257. In this document, the ICAO set out its position on the interpretation of the term
“unintentional attack of civil aircraft”, which is defined as an attack where “the intent was
not to destroy a civilian aircraft”.361 Thus, in the ICAO’s view, if a civil aircraft is
358 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶¶6.2.5.3, 12.5.2 available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
359 J-F Queguiner, Precaution Under the Law Governing the Conduct of Hostilites. International Review of the
Red Cross, December 2006, Volume 88, No. 864, pp. 798-799.
360 ICAO, Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones, ICAO Doc 10084,
2018, ¶2.4.1, available at: https://zoek.officielebekendmakingen.nl/blg-846381.pdf.
361 Ibid., ¶2.2. In this document ICAO does not explicitly state that the shooting down of MH 17 is unintentional
attack. However, firstly, it qualifies the attacks on Iran Air Flight 655 in 1988 and Siberia Airlines flight 1812 in
2001 as unintentional attacks; secondly, it notes, that “no documented cases of an intentional SAM attack in a
civilian aircraft have been identified to date”; thirdly, the Hague District Court and available to date sources
confirm that the attack on MH17 was unintentional.
Page 109 out of 541
downed in error (e.g. when believed to be a military target), the intent to destroy a civil
aircraft is not present.
258. Unable to engage with these plain facts, Ukraine points to a notice to airmen (NOTAM)
issued on 16 July by the Russian Federation, one day before the shoot-down of Flight
MH17, to suggest that “the Russian military officials who provided the Buk acted with
knowledge that it was to be used to act in violation of the Montreal Convention”.362
Ukraine claims that “the same day members of the 53rd Anti-Aircraft Brigade sent a Buk
to Ukraine, Russia rushed out a confusing and contradictory NOTAM appearing to
indicate a complete closure of civilian airspace on the Russian side of the border. The
timing alone is suspicious.”363 This argument fails not only because it contradicts even
the findings of the JIT, the Dutch Prosecution, The Hague District Court and Ukraine’s
own SBU that the Buk was allegedly supplied with an explicit military goal, and was
allegedly returned immediately after the incident unexpectedly occurred; but also due to
the following specific reasons:
(a) It must be noted that in the Memorial, Ukraine pointed to the said NOTAM to
demonstrate that the Russian Federation had “guilty knowledge of the dangers of
operating a Buk in civilian-trafficked skies”.364 In the Reply, however, Ukraine
advances the same argument in support of its allegation against Russian military
officials. This is nothing but a flawed attempt by Ukraine to raise once again the
Russian Federation's alleged responsibility for terrorism financing, which the Court
dismissed in the Judgment of 8 November 2019
(b) Ukraine relies on the DSB Report to substantiate its contention on the “internal
contradictions” in the notice. It alleges that “[w]hile part of Russia’s NOTAM
indicated that it imposed restrictions up to FL320 (32,000 feet), “at the end . . . it
states that it applies to the airspace from ground level to FL530 (53,000 feet),”
effectively closing civilian airspace”. 365 Ukraine misrepresents the Russian
Federation’s notice, as there is in fact no contradiction: the relevant area of Russian
362 Reply, ¶290.
363 Ibid., ¶293.
364 Memorial, ¶289.
365 Reply, ¶293.
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airspace was not closed between FL320 and FL530,366 and the NOTAM published
on 16 July 2014 (V6158/14) did not introduce any restriction or closure of the
airspace for civil aviation up to FL530. Rather, it restricted specific segments of
certain air routes up to FL320 and additionally contained directions for aircraft
arriving and departing at the Rostov-on-Don airfield to use specified entry and exit
air routes at FL330 or FL340 and above.367
(c) The Flight Safety Foundation’s Factual inquiry into the airspace closure above and
around eastern Ukraine in relation to the downing of Flight MH17 “did not find
sufficient facts that Russian Federation authorities responsible for analysing
security risk levels in civil aviation airspace and those establishing restriction of
airspace in a conflict zone were aware of a threat to civil aviation before the
downing of Flight MH17” or “could have had a proper awareness of the highaltitude
threat”.368
(d) Ukraine’s contention that “[t]he timing alone is suspicious” is baseless. In the
Counter-Memorial, the Russian Federation explained at length the process leading
to the issuance of the relevant NOTAM, which was triggered by the escalation of
hostilities in Donbass, including the downing of several Ukrainian military aircraft.
The regional civil aviation authority (SITD) sent a warning to this effect on 12 July
2014 “due to a tense situation near the border with Ukraine and to the fact that the
UAF use various weapons”.369 Subsequently, on 14 July and 16 July, new incidents
of Ukrainian military aircraft being shot down occurred. 370 As the Russian
Federation noted in the Counter-Memorial, on 16 July the State ATM Corporation
communicated a submission to the Center of Aeronautical Information (“CAI”),
requesting the issuance of a NOTAM with effect from midnight on 17 July “due to
combat actions on the territory of the Ukraine near the State border with the Russian
366 Counter-Memorial (ICSFT), ¶338.
367 Ibid., ¶337.
368 Flight Safety Foundation, Factual inquiry into the airspace closure above and around eastern Ukraine in relation
to the downing of Flight MH17, January 2021, pp. 12, 13, available at: https://open.overheid.nl/documenten/ronlcd4cd5ba-
881e-4b01-b2ee-99caa2ee9cdf/pdf (Annex 393).
369 Counter-Memorial (ICSFT), ¶342
370 Ibid., ¶343.
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Federation… and the facts of firing from the territory of the Ukraine towards the
territory of Russian Federation”.371
(e) Ukraine seeks to prove that the Russian Federation did establish a full prohibition
of air traffic in the region bordering Donbass on 16 July in an attempt to show the
Russian Federation’s “foreknowledge” of the alleged supply of Buk. However,
Ukraine ignores the fact of a Ukrainian military transport aircraft An-26 shootdown
on 14 July over Donbass, only 3 days before the MH17 downing. This
incident prompted Ukrainian authorities to publicly allege the presence of “heavy
anti-aircraft weaponry” in Donbass – even before the so-called “Russian Buk”
allegedly arrived on 16 July. According to the Head of counterintelligence for the
SBU, “first information hinting at a Buk launcher in the possession of the non-state
forces was received on 14 July and came from counterintelligence units. 372
However, Kiev, having failed to effect closure, did not act diligently and continued
to use civilian air traffic to “shield” its military air operations from the separatists’
anti-aircraft defence. Ukraine’s failure to take all necessary measures is confirmed
by the DSB report. The DSB considered Ukraine’s “risk assessment to be
incomplete because it does take threats to military aircraft into account, but does
not account for the consequences to civil aviation of potential errors or slips”.373
The DSB further stressed that “airspace users should be able to count on unsafe
airspace being closed to civil aviation and that, in any case, airspace users should
be adequately informed about the nature of the conflict and the underlying reasons
for measures such as a (temporary) altitude restriction”.374
259. The DSB reached the following conclusions with respect to Ukraine’s responsibility in
relation to the crash of Flight MH17:
“The decision-making processes related to the use of Ukraine’s airspace was
dominated by the interests of military aviation. […]
371 Ibid., ¶342(b).
372 YouTube, (English) Vitaly Nayda. UCMC, 19th of July 2014 (19 July 2014), available at:
https://www.youtube.com/watch?v=PWtH8AA42Fc&feature=share (Annex 397).
373 Dutch Safety Board, Crash of Malaysia Airlines Flight MH17 (17 July 2014) (13 October 2015), p. 207
(Memorial, Annex 38).
374 Ibid., pp. 208-209.
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The [Ukrainian] NOTAMs did not contain any substantive reason for the
altitude restrictions. Therefore, Ukraine did not act in accordance with the
guidelines in ICAO Doc 9554-AN/932. […]
When implementing the above measures, the Ukrainian authorities took
insufficient notice of the possibility of a civil aeroplane at cruising altitude
being fired upon. This was also the case, when, according to the Ukrainian
authorities, the shooting- down of an Antonov An-26 on 14 July 2014 and
that of a Sukhoi Su-25 on 16 July 2014 occurred while these aeroplanes were
flying at altitudes beyond the effective range of MANPADS. The weapon
systems mentioned by the Ukrainian authorities in relation to the shooting
down of these aircraft can pose a risk to civil aeroplanes, because they are
capable of reaching their cruising altitude. However, no measures were taken
to protect civil aeroplanes against these weapon systems. […]
In the international system of responsibilities, the sovereign state bears sole
responsibility for the safety of the airspace.”375
260. Thus, the DSB viewed Ukraine as potentially responsible for not taking sufficient
measures to preserve the safety of civil aviation from “potential errors or slips” in the
conflict zone and considered that the reason for Kiev’s disregard for aviation safety lied
with “the interests of military aviation”.
261. As noted earlier, even The Hague District Court in its judgments of 17 November 2022
confirmed the erroneous nature of the MH17 incident, in particular:
“the statement of [X], who was present in the field, and the telephone
reactions following the downing of MH17 rather show that those involved
initially thought that they succeeded in shooting down a Ukrainian military
aircraft”.376
262. A detailed transcript of the intercepts of “the telephone reactions” to which The Hague
District Court refers is produced in the Counter-Memorial.377
263. Even according to The Hague District Court, the individuals who used the Buk TELAR
not only were unaware that a civilian target had been hit as opposed to a military one, but
instead of publicly taking responsibility for the act and retaining the capacity to conduct
more such acts in the future (should they indeed had terrorist goals), they denied any
responsibility. This conduct is not at all characteristic of actual terrorist modus operandi,
375 Ibid., p. 209.
376 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶¶6.2.5.3, available at: https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&sho
wbutton=true&keyword=09%252f748004-19&idx=1%2F.
377 Counter-Memorial (ICSFT), ¶¶319-333.
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but on the contrary signifies complete lack of terrorist intent and even direct opposition
to it. This also signifies a lack of such intent or knowledge on the part of an alleged
“financer”.
b. The plain text of the Montreal Convention and of the 1988 Protocol thereto confirms
that attacks intended against military aircraft do not fall within its scope, and
consequently under the ICSFT
264. As explained in Chapter III above, the “intent” requirement under Article 1(1)(b) of the
Montreal Convention requires a specific intent to destroy a civilian aircraft. Furthermore,
as shown in the previous section, Flight MH17 was targeted in error, as the real intent of
persons allegedly involved was to shoot down a military aircraft in the context of the
armed conflict in Donbass. Thus, the Montreal Convention is inapplicable in the present
case.
265. The Russian Federation explained in its Counter-Memorial that the word “intentionally”
is not to be given a broader meaning, which would encompass indirect intent and/or
recklessness.378 This is confirmed by the travaux of the Convention, which show that for
the Legal Committee that prepared the draft convention, only acts that “would be
inherently destructive or harmful and, if intentionally done (and not through inadvertence
or mere negligence), would constitute an offense”.379 [Emphasis added] It is justified to
maintain that the offense done through mistake or error is not intentionally done either.
266. The destruction of an aircraft in the belief that the latter was military, not civil, is not an
intentional destruction in the sense of Montreal Convention. In fact, it is well established
in criminal law that in such a case the intention does not preside over the action: what
was targeted was not intended and what was intended did not happen. Since the adjective
“intentionally” qualifies the mental state of the person who destroys the aircraft, when a
mistake in target occurs (error in objecto/persona), the mental element required for the
commission of the wrongful act is negated, thereby changing the qualification of the act.
378 Ibid., ¶155.
379 ICAO, International civil aviation organization: Proposal concerning interference against international civil
aviation, International Legal Materials, Volume 9, Issue 6, November 1970, p. 1184, ¶5.1.
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Anybody mistaken about or not aware of a material element cannot exhibit ‘the mental
element required’.380
267. Even The Hague District Court came to the conclusion:
“Although the question of why flight MH17 was downed cannot be answered
based on the trial, the court has previously indicated that it assumes that it
was the intention of the accused to bring down a military aircraft.
(…)
Although the intention does not lessen the gravity of the event, it does go to
the degree of culpability.”381
268. There is no reason for it to be any different when it comes to the Montreal Convention.
Since it is established that the shooting down of Flight MH17 was an error, the mental
element required for committing an offence within the meaning of Article 1(1)(b) is
absent. This is the approach of The Hague District Court, which only pronounced its
verdict on the charge of murder; no charges of terrorism or even war crimes were brought
to the court, and the possibility of terrorism was never considered.
269. The Russian Federation established that Article 1(1)(b) of the Montreal Convention is
concerned with the intent to destroy a civil aircraft. It follows from the general definition
of “aircraft” in Article 1 read in conjunction with Article 4, as excluding military aircraft.
Therefore, pursuant to its ordinary meaning, Article 4 of the Montreal Convention limits
the scope of the offense of unlawfully and intentionally destroying an “aircraft” in service
in Article 1(1)(b) of the Montreal Convention, as well as the meaning of an “aircraft in
service” under Article 2(b) of the Montreal Convention. The words “aircraft in service”
are to be read as referring specifically to civil aircraft and the status of the aircraft is
therefore made part of the definition of the offense, including concerning the intention
requirement382 as has been explained above.383
380 O. Triffterer, K. Ambos et al.(eds), ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY, (Bloomsbury T&T Clark, 2016), p.1171.
381 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶10.2.4, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
382 Counter-Memorial (ICSFT), ¶162.
383 See above, Chapter III(A).
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270. The ILC Commentary to the 1972 Draft Articles on the Prevention and Punishment of
Crimes Against Diplomatic Agents and Other Internationally Protected Persons contains
a provision similar to Article 1(1)(b) of the Montreal Convention, which confirms this
conclusion. The ILC states that: “The word ‘intentional’, which is similar to the
requirement found in article 1 of the Montreal Convention, has been used both to make
clear that the offender must be aware of the status as an internationally protected person
enjoyed by the victim” [Emphasis added].384 Ukraine does not dispute the relevance of
the IPP Convention to the present case, but attempts to refute the analogy by referring to
the presence of the victim’s status in the IPP Convention’s definition of the offence,
which, according to Ukraine, makes it different from the Montreal Convention.
271. However, the fact is that the definition of the offence in Article 1(1)(b) only encompasses
intentional attacks against civil aircraft. This fact notwithstanding, Ukraine misses other
critical points, as explained below.
272. Initially, Ukraine’s position was that notwithstanding the unqualified terms of Article 4
of the Montreal Convention, the offense in Article 1(1)(b) of the Montreal Convention
encompasses the unintentional shootdown of a civil aircraft (i.e. where the intent was to
shoot down a military aircraft) because the word “civil” does not appear in Article 1(1)(b)
of the Montreal Convention. In its Reply, however, Ukraine now states that “the status
of the destroyed aircraft dictates whether the Convention applies”. At the same time, it
maintains that “it is not an element of a violation that is subject to an intent
requirement”.385 Ukraine does not explain how “a violation” occurs when the Convention
does not apply.
273. This brings up another critical point missed by Ukraine: that Article 2(1)(a) of the ICSFT
does not refer solely to Article 1(1)(b) of the Montreal Convention, but to the Montreal
Convention as a whole (“An act which constitutes an offence within the scope of and as
defined in one of the treaties listed in the annex”). The scope of the Montreal Convention,
in turn, excludes aircraft in military service by virtue of Article 4(1).
384 International Law Commission, Draft articles on the prevention and punishment of crimes against diplomatic
agents and other internationally protected persons with commentaries, 1972, p. 316, ¶8, available at:
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_4_1972.pdf.
385 Reply, ¶126.
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274. Thus, even if Ukraine’s view that Article 1(1)(b) refers to all aircraft, was correct (quod
non), not only civil aircraft, it is still indisputable that the scope of the Montreal
Convention as a whole does not cover attacks intended against military aircraft, as it is a
purely anti-terrorism instrument, and terrorism is characterised by a specific form of
intent.
275. This is further confirmed by the text of the 1988 Protocol to the Montreal Convention for
the Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation. As between Parties to the Protocol, the Convention and the Protocol are to be
read and interpreted as one single instrument (Article 1 of the Protocol). Article 2 of the
Protocol adds a new paragraph 1 bis to Article 1 of the Convention:
“1 bis. Any person commits an offence if he unlawfully and intentionally,
using any device, substance or weapon:
(a) performs an act of violence against a person at an airport serving
international civil aviation which causes or is likely to cause serious injury or
death; or
(b) destroys or seriously damages the facilities of an airport serving
international civil aviation or aircraft not in service located thereon or disrupts
the services of the airport,
if such an act endangers or is likely to endanger safety at that airport.”
(Emphasis added).
276. This shows that, contrary to Ukraine’s position, “civil status” was not perceived as a
separate, “jurisdictional” element, but plainly a part of the definition of the offence. Thus,
when the need to add a new type of offence to Article 1 of the Montreal Convention arose,
instead of providing for an exception like the one found in Article 4 of the Convention,
the reference to civil aviation was included in the definition itself.
277. From the above it can be concluded that Ukraine’s first argument for the establishment
of an intent element under the Montreal Convention should fail.
278. Finally, it is also worth recalling that the unlawfulness element of the offence within the
meaning of Article 1(1)(b) of the Montreal Convention is absent. This provision stipulates
that “[a]ny person commits an offense if he unlawfully and intentionally: […] (b) destroys
an aircraft in service.” The Russian Federation has previously noted that the Flight MH17
incident happened in the context of an ongoing armed conflict between Ukraine and the
DPR. The relevant rules of IHL apply in accordance with Article 21 of the ICSFT, as
explained in Chapter III above. Ukraine agrees with this position:
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“… there will be no Article 1(1)(b) offense in many or most situations where
there was an intent to destroy a military aircraft — for example, where
members of a State’s military mistakenly, but in good faith, destroy a civilian
aircraft while lawfully attempting to engage a military target — because such
a mistake, while tragic, would not involve an unlawful act”.386
279. However, Ukraine maintains that “[t]he present case is distinctive in that Flight MH17
was destroyed in an unquestionably unlawful act — Russia advances no argument that
the individuals who deployed the weapon had any valid legal justification under
Ukrainian or international law for firing weapons at any aircraft.”387 This is not true. In
the Counter-Memorial, and again in this Rejoinder, the Russian Federation referred to an
armed conflict that was in effect between the Ukraine and the DPR at time of the crash of
Flight MH17. The Russian Federation also stated in the Counter-Memoria that even if
Ukraine’s evidence were to be accepted (quad non), it would merely show that the persons
alleged to have operated the weapon intended to shoot down a Ukrainian military aircraft,
and initially believed that they had done so, which is not unlawful under IHL.
c. Authoritative legal doctrine confirms that Article 1(1)(b) of the Montreal Convention
refers only to civil aircraft
280. This interpretation is supported in doctrine. For example, Prof Dinstein has noted with
respect to Article 1(1)(b) of the Montreal Convention that
“Article 1… creates a parallel offence in respect of any person who
unlawfully and intentionally … (b) destroys a civil aircraft in service or
causes damage which renders it incapable of flight or is likely to endanger its
safety in flight…”388 [Emphasis added].
281. Prof Trapp is similarly of the view that
“The Montreal Convention requires States to prevent the unlawful and
intentional destruction of a civil aircraft in service”389 (Emphasis added);
“Article 1 of the Montreal Convention defines the offence as the unlawful
and intentional performance of an act which endangers the safety of a
civil aircraft in flight”390 (Emphasis added).
386 Reply, ¶133.
387 Ibid.
388 Y. Dinstein. International Criminal law, Israel Yearbook on Human Rights, 1975, Vol. 5, pp.65-66.
389 K. Trapp, Use of Force against Civil Aircraft (28 June 2011), available at: https://www.ejiltalk.org/uses-offorce-
against-civil-aircraft/.
390 K. Trapp, STATE RESPONSIBILITY FOR INTERNATIONAL TERRORISM, (OUP, 2011), p. 169.
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282. Of the same view is Prof Saul who, referring specifically to Article 1(1)(b) of the
Montreal Convention as an international counter-terrorism convention (ICTC), pointed
out that
“… it is an ICTC offence to intentionally destroy a civilian aircraft or damage
it and thereby render it incapable of flight.”391 (Emphasis added)
283. Legal opinions issued by governmental jurists go in the same direction. For instance, the
Deputy Attorney General of the United States, under the authority of the Office of the
Legal Counsel of the Department of Justice, expressed the following position:
“Article 1 of the [Montreal] Convention specifies certain substantive offenses
against civil aircraft: in particular, Article 1.1(b) states that “[a]ny person
commits an offence if he unlawfully and intentionally … destroys an aircraft
in service of causes damage to such an aircraft which renders it incapable of
flight or which is likely to endanger its safety in flight” (Emphasis added).392
284. The Secretariat of the Commonwealth of Nations made a similar assessment in its
“Implementation Kits for the International Counter-Terrorism Conventions”:
“The Montreal Convention is intended to apply only to civil aircraft”393
(Emphasis added);
“The Convention applies to civil aircraft only”394 (Emphasis added).
285. With regard to Article 1 of the Montreal Convention this document states the following:
"The requirement that the act should be intentional applies only to the acts
performed, not to their consequences; it is immaterial whether the
consequences were those intended".395
286. This clearly contravenes the interpretation suggested by Ukraine, which makes intent
conditional upon the (unintended) consequences.
391 B. Saul, From conflict to complementarity: Reconciling international counterterrorism law and international
humanitarian law, International Review of the Red Cross, 2021, Vol. 103, Issue 916-917, p.173. See also R.S.
Rajput, International Conventions on Aerial Hijacking: an Approach to Combat Terrorism, The Indian Journal of
Political Science, 1990, Vol. 51, No. 1, p. 110 (“The Montreal Convention (the “Sabotage Convention”) covers
offences against civil aircraft”).
392 Opinions of the Office of Legal Counsel of the United States Department of Justice, United States Assistance
to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 1994. p. 151, available at:
https://www.justice.gov/file/20316/download (Annex 394).
393 Commonwealth Secretariat, Implementation Kits for the International Counter-Terrorism Conventions, p. 101,
available at: https://www.unodc.org/pdf/crime/terrorism/Commonwealth_Chapter_4.pdf.
394 Ibid., ¶4.
395 Ibid., ¶9.
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d. The official legal position of ICAO confirms that the Montreal Convention does not
encompass attacks intended against military aircraft
287. That the Montreal Convention does not cover an erroneous downing of a civilian aircraft
believed to be in military service in the context of an armed conflict is also confirmed by
the ICAO. Seeking to clarify the applicability of aviation security treaties (including the
Montreal Convention) to military activities, the ICAO Legal Commission expressed the
predominant position in the ICAO that the Convention is not applicable to military
activities by virtue of an implied “military exclusion clause”:
“The Group recognized the value of the Conventions in the international
cooperation for the prevention and suppression of unlawful acts against the
safety of civil aviation. At the same time, it acknowledged that the
Conventions were adopted decades ago and they do not reflect the provisions
commonly found in the relevant conventions concluded recently in the UN
system. Several such provisions are mentioned below. Comparable UN
counter-terrorism conventions concluded after 1997 contain a military
exclusion clause, which expressly specifies that the conventions do not
govern the activities of armed forces during an armed conflict, and the
activities undertaken by military forces of a State in the exercise of their
official duties. In ICAO, it has been widely understood that the aviation
security instruments which criminalize certain acts are not applicable to the
military activities mentioned above. The same clause of military exclusion
can be included in any instrument amending the Conventions, in order to
achieve uniformity and clarity and to prevent any interpretative confusion.
Such a clause would be considered as declaratory in nature.”396 (Emphasis
added).
288. In keeping with this position, the States added a military exclusion clause to the 2010
Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil
Aviation (Article 5(1)), as well as in the 2010 Beijing Protocol to the 1970 Convention
for the Suppression of Unlawful Seizure of Aircraft (Article 3bis(2)). As between its
States Parties, the Beijing Convention replaces the Montreal Convention and the 1988
Protocol thereto. Both instruments exclude from their scope all activities of armed forces
during an armed conflict which are governed by international humanitarian law (i.e.,
irrespectively of whether these activities conform to or violate it). As already shown in
Chapter III, Section D, armed forces also encompass non-State armed groups as long as
they are organized and operate on the basis of command responsibility.
396 ICAO Legal Commission, Working paper A36-WP/12 LE/4, 14 August 2007, ¶¶2.1.3.1 – 2.1.3.2, available at:
https://www.icao.int/Meetings/AMC/MA/Assembly%2036th%20Session/wp012_en.pdf.
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e. State practice confirms that the downing of a civilian aircraft in error cannot be
considered a terrorist act
289. State practice also shows that the downing of a civilian aircraft in error is not considered
a terrorist act falling under the Montreal Convention. Prof Kimberley Trapp provides a
summary of such practice:
“When states condemn a use of military force against a civil aircraft or airport,
they generally do so within the parameters of the Chicago Convention and
customary international law rather than through an invocation of the Montreal
Convention. For example, in presentations to the ICAO Assembly regarding
Israel’s downing of a Libyan airliner on 21 February 1973 over occupied
Egyptian territory, states invoked the Chicago Convention to condemn
Israel’s use of force, but not the Montreal Convention (to which Israel was a
party). Similarly, the ICAO resolution adopted in response to the USSR’s
downing of Korean Airlines flight 007 (‘KAL 007’) on 1 September 1983
characterized the military action as incompatible with the Chicago
Convention, but not the Montreal Convention (to which the USSR was a
party). A proposed draft Security Council resolution condemning the Soviet
downing of KAL 007 also invoked the Chicago Convention and made no
mention of the Montreal Convention, but was not adopted owing to the
USSR’s exercise of its veto. During the Security Council debate on the Soviet
downing of KAL 007, many states had occasion to address the applicable law
and each invoked the Chicago Convention and general international law
prohibiting recourse to armed force, rather than the Montreal Convention.
Similarly, in Iran’s letters to the Security Council, complaining of the Iraqi
air force’s shooting down of an Iranian passenger plane on 20 February 1986,
Iran characterized the Iraqi conduct as a ‘blatant violation of the Chicago
Convention regarding the guarantee for the safety of passenger airliners’, and
as a ‘gross violation of the Chicago Convention’, but nowhere as a violation
of the Montreal Convention… Libya’s letter dated 17 April 1986 to the
Security Council, in which it protested that the US had interfered with a
Bulgarian civilian aircraft on its way from Sophia to Tripoli, invoked the
Chicago Convention, but not the Hague Convention (to which the US, Libya
and Bulgaria were a party). Finally, in reference to the shooting down by the
Cuban air force of two private US civil aircraft on 24 February 1996, both the
ICAO and the Security Council ‘deplored’ the downing of the aircraft on the
basis of general international law on the use of force and the Chicago
Convention (in particular Article 3bis discussed below), without any
reference to the ICAO TCS”397 (Emphasis added).
290. It is thus no wonder that Security Council Resolution 2166 concerning the downing of
Flight MH17 and adopted unanimously on 21 July 2014, makes no mention of the
Montreal Convention, or of terrorism in general.
397 K. Trapp, STATE RESPONSIBILITY FOR INTERNATIONAL TERRORISM, (OUP, 2011), pp. 166-167.
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291. Historically there have been numerous incidents concerning civilian aircraft, yet none of
them were considered as breaches of the Montreal Convention:
(a) The Sibir Tu-154 aircraft performing flight 1812 from Tel Aviv to Novosibirsk was
hit by an anti-aircraft missile C-200B during the exercises of the Ukraine Air
Defence. No restrictions were in place on route, including time restrictions
(NOTAM), at the time of the training manoeuvres conducted by Ukraine Air
Defence. The Ukrainian authorities should have fully assessed all the risks
associated with the exercises and, based on these assessments, take a decision on
the parameters for closing the airspace. Unfortunately, this was not done which in
turn led to the tragedy. 78 people were killed. The then president of Ukraine
commented, “We are not the first or the last, let us not make a tragedy out of it.”398
The investigative commission of Interstate Aviation Committee created to
investigate the causes of this air crash came to a conclusion that there were no
evidentiary alternative versions of the tragedy, except for the version that this
aircraft was shot down by the 5В28 anti-aircraft missile C-200B which had been
launched by the Ukraine Air Defence during the exercises on the Crimean
Peninsula. 399 Ukraine was not held accountable for a breach of the Montreal
Convention.
(b) On 27 July 1955, following the incursion of a Bulgarian MIG-15 fighter jet the
Israeli El Al Lockheed L-049 performing flight 402 from London to Tel Aviv was
shot down. 58 people were killed. The Bulgarian authorities apologised saying
that the pilots were in a hurry, but did not admit guilt.
(c) On 21 February 1973, an Israeli F-4 fighter jet shot down over the Sinai Peninsula
the Libyan Arab Airlines Boeing 727 performing flight 114 from Tripoli to Cairo.
108 people were killed. Israel acknowledged that the civilian aircraft was destroyed
in a miscalculation.
(d) On 12 February 1979, during the war in Southern Rhodesia, Zimbabwe People's
Revolutionary Army (ZIPRA) shot down the Air Rhodesia Vickers Viscount
passenger aircraft operating a domestic flight from Kariba to Salisbury using the
398 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, Exhibit A (Annex 6).
399 Ibid., Exhibit B (Annex 6).
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Strela-2 MANPADS. 59 people were killed. Representatives of ZIPRA stated that,
according to their information, there had been a high-ranking military official of the
government army aboard the aircraft.
(e) On 27 June 1980 the Aerolinee Itavia aircraft performing Flight 870 from Bologna
to Palermo was presumably shot down by a French fighter jet during NATO
exercises or military operations against Libya. According to another version, the
aircraft crashed after explosion of a bomb placed in the tail of the aircraft. 81 people
died;
(f) On 24 February 1985, the Dornier Do 228 aircraft operated by the Alfred Wegener
Institute (Germany) was shot down over Western Sahara by representatives of the
West Saharan Popular Front for the Liberation of Saguia el-Hamra and Río de Oro
(the Polisario Front). 3 people were killed. The fighters of the Polisario Front
mistook the plane for a Moroccan reconnaissance airplane;
(g) On 1 September 1983 the Korean Air Lines Boeing 747 aircraft performing flight
007 from New York to Seoul crashed near island Sakhalin. The Korean aircraft
violated the Soviet airspace, did not communicate and was shot down by the
interceptor Su-15. 269 people were killed;
(h) On 14 October 1987, in Angola, the Lockheed L-100 HB-ILF aircraft operated by
the ICRC on a domestic flight was shot down by unidentified persons involved in
the Angolan Civil War. 8 people were killed;
(i) On 6 November 1987, the Air Malawi SC.7 Skyvan aircraft performing a domestic
flight in the Republic of Malawi crashed. The aircraft was partially flying over the
territory of Mozambique where it was shot down by the Mozambican troops. 10
people were killed. According to one version, the aircraft flew too close to
Mozambique's military base;
(j) On 3 July 1988, an Iran Air flight 655 from Tehran to Dubai was attacked by a
missile from the U.S. Cruiser Vincennes over the Persian Gulf. 290 people were
killed. The reason was that the US military mistook the airliner for an Iranian F-
14;
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(k) On 8 December 1988, a DC-7 aircraft chartered by the U.S. Agency for
International Development was shot down in the sky over Western Sahara. The
Polisario Front mistook it for a Moroccan C-130 aircraft.
(l) On 21 December 2012, in South Sudan a UN chartered Mi-8 of the
Nizhnevartovskavia airline was shot down by the government army. Five people
were killed (among them four Russians). The South Sudanese military mistook the
UN Mi-8 for a Sudanese reconnaissance helicopter;
(m) On 26 August 2014, Utair airlines civil helicopter Mi-8, being on its mission under
the contract signed with UNMISS, was shot down by a surface-to-air missile fired
from the territory occupied by guerrillas in South Sudan. Three crew members
(citizens of the Russian Federation) were killed, one person was wounded.
(n) On 8 January 2020, the Iranian Armed Forces mistakenly shot down a Boeing 737
belonging to Ukraine International Airlines flying from Tehran to Kiev. The reason
for the shootdown was the incorrect identification of the aircraft in a tense militarypolitical
situation.
292. What all of these cases have in common is that: (i) civilian aircraft were shot down in
error (either by States or non-State actors); (ii) the incidents were never legally qualified
as a terrorism offence in the sense of Article 1(1)(b) of the Montreal Convention.
293. Interestingly, Ukraine attempts to argue against this position:
“Moreover, the examples that Russia does mention do not support its position.
Russia highlights the shoot-down of Flight 1812 over the Black Sea in 2001.
According to an investigation, that accident occurred during joint Ukrainian-
Russian military exercises when reflection from the water caused a missile to
veer off course. No suggestion was ever made that these military exercises
were “unlawful,” or that the missile was fired with an intent to destroy any
kind of aircraft. Accordingly, it is not surprising that the Montreal Convention
was never invoked. The shoot-down of MH17 presents the unusual
circumstance of a civilian aircraft shoot-down where it is undisputed that the
attackers acted unlawfully and fired a weapon incapable of distinguishing
between military and civilian aircraft”.400
294. It is noteworthy that Ukraine argues that the shooting-down of a Russian passenger
airliner, killing all 77 civilians on board, in time of peace, was not “unlawful”. Both the
400 Reply, ¶144.
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Russian Federation and Ukraine have opened criminal investigation into the incident; the
Russian Federation transferred its case file to Ukraine, but Kiev decided to close the case
once its own fault in the downing became apparent, leaving the incident without an
effective investigation. It is also noteworthy that Ukraine in that case insists that there
was no “intent to destroy any kind of aircraft”, when the exact goal of the military
exercises was to destroy an aircraft (although a training model).401
295. It is also interesting that while presenting an argument of “a weapon incapable of
distinguishing between military and civilian aircraft” Ukraine forgets that its own antiaircraft
weapon in 2001 proved incapable of distinguishing between the designated aerial
target and a civilian airliner flying 280 kilometres away – in time of peace, in the perfect
conditions of a military exercise, without the stress added by conditions of an ongoing
armed conflict and real threat of “emergent target” being an enemy aircraft aiming to
destroy the anti-aircraft system itself or to bomb civilians which this system was
protecting.
296. Ukraine also attempts to forget its own argumentation about how the mere fact of
launching a missile into airspace with civilian air traffic by itself, allegedly, constitutes
some kind of intent to down a civil aircraft if insufficient precaution was taken:
“Applying the ordinary meaning of the term “intentionally,” a person who
fires a missile toward civilian-trafficked skies, knowing that his weapon
system is unable to distinguish between a civilian and military target and
accepting the extraordinary danger of such an action, intends to destroy a
civilian aircraft”.402
297. To paraphrase Ukraine’s own position, Ukraine “did know that it was deploying a
powerful anti-aircraft system in heavily trafficked civilian airspace”.403 In fact, the C-
200B (S-200V) system used by Ukraine to shoot down the Russian airliner was
significantly more powerful than a Buk TELAR, capable of destroying aerial targets at a
range of up to 300 km and altitude of up to 35 km.
298. If Ukraine believes its own Armed Forces personnel did not “know” about the evident
inability of their weapon system to distinguish between a civilian and military target (even
401 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, Exhibit A (Annex 6).
402 Reply, ¶142.
403 Memorial, ¶223.
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in the perfect conditions of a peaceful exercise), then it cannot claim that the operators of
the weapon system which allegedly shot down Flight MH17 (in the extreme conditions
of an ongoing armed conflict) “knew” about such a limitation of their system.
299. If Ukraine really considers that there was no intent in the downing of the Russian airliner
by the UAF, that the attack was not “unlawful”, and that Ukraine itself was not to blame
even though it failed to take proper precautions by sufficiently closing the airspace to
civilian air traffic in 2001, then it cannot raise similar accusations against the Russian
Federation with regard to the downing of Flight MH17.
ii. The alleged indiscriminate character of the Buk TELAR is unfounded
300. Ukraine’s alternative argument for the establishment of an intent element under the
Montreal Convention is that “a person who uses a weapon that is incapable of
distinguishing between civilian and military aircraft acts with the intention of destroying
a civilian aircraft”. Ukraine suggests that “[a]pplying this principle if a person launches
a weapon at civilian skies knowing that his weapon is incapable of differentiating between
military and civilian targets, the perpetrator is properly described as “willfully” attacking
civilians, “directing” an attack against civilians, or making civilians the “object” of an
attack. For the purposes of the Montreal Convention, that perpetrator has acted
“intentionally” in destroying a civilian aircraft”.404
301. This argument is both factually and legally unfounded. It is factually unfounded because
the attempt to portray the Buk TELAR as an “indiscriminate weapon” is incorrect.
302. In support of its contention, Ukraine mainly relies on Dr Skorik’s report, who believes
that "[w]ithout the combat control center feeding information to the commander, the
commander using the Buk-M1 TELAR radar alone is not able to distinguish civilian
aircraft from military aircraft", and that “viewed solely on the operator's screen, military
and civilian aircraft are “practically indistinguishable”.405 This conclusion does not stand
up to scrutiny. As explained by Lieutenant Colonel Bezborodko, “[t]he TELAR is capable
of operating in the independent target search mode without control or operational
instructions from the command post and in the absence of data from a surveillance and
404 Reply, ¶138.
405 Ibid., ¶207.
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acquisition radar”. Bezborodko concludes in this connection that “the wording of
paragraphs 10-12, 18, 27-30 of the [Dr Skorik’s] Report is misleading”.406
303. Furthermore, the autonomous Buk is equipped with an Automatic Target Class
Recognition System and a television optical sighting device, which consists of a TV
optical head (narrow-field-of-view transmitting camera) and a video receiving device (TV
screen). It is noteworthy that Dr Skorik ignored the presence of this equipment in an
autonomous Buk air defence system. This device makes it possible to obtain an image of
the intended target. As noted in Bezborodko’s report:
“Thus, the combination of instrument readings and information displayed on
indicator devices makes it possible to determine with sufficient reliability the
type of target being tracked, both by its trajectory and signal characteristics
including distinguishing between a passenger aircraft and another type of
aircraft”.407
304. This refutes the view expressed in the Skorik Report that the type of target being tracked
cannot be determined by a TELAR that operates independently.”408.
305. As The Hague District Court pointed out, [o]perating a Buk TELAR requires a welltrained
crew. Furthermore, the weapon cannot be casually deployed. Deployment
demands the necessary preparation (…)”.409 The JIT endorsed this conclusion in its
recent Report.410 Bezborodko explained that “[p]reparation of fire without identifying
the airborne target type and the airborne target flight parameters is impossible, as these
are source data for solving other tasks, such as choosing the tracking method and
determining the number of missiles to be expended and the type of fire and the firing
sequence”.411 This shows that Buk TELAR is far from being a weapon that a person
406 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, ¶11 (Annex 6).
407 Ibid., ¶45.
408 Memorial, Annex 12, ¶39.
409 District Court of The Hague, Case No. 09/748005-19, Judgment against S.N. Dubinsky, 17 November 2022,
¶6.2.5.3, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14036&showbutton=true&keyword=09
%252f748005-19&idx=1%2F.
410 Joint Investigation Team, Report, Findings of the JIT MH17 investigation into the crew members of the Buk
TELAR and those responsible in the chain of command, 8 February 2023, p. 64, ¶2.4, available at:
https://www.politie.nl/binaries/content/assets/politie/onderwerpen/mh17/report_jit-mh17_8-februari-
2023_eng.pdf (Annex 392).
411 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, ¶¶26-28 (Annex 6).
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launches at civilian skies knowing that it is incapable of differentiating between military
and civilian targets.
306. Ukraine further claims that the “technical capabilities of the Buk-M1 TELAR in
autonomous mode do not make it possible to accurately distinguish a civilian aircraft from
a military one”, because in the absence of the combat control centre Buk-M1 doesn’t
receive information from Radio-Technical Troops of the Air Force and their radars about
civilian air traffic. As shown above, however, the capabilities of autonomous Buk-M1
TELAR weapons allow it to distinguish between military and civil targets. This is
confirmed by the JIT, which stated that “crew can use the TELAR’s own radar to identify
or further identify a target”.412
307. Thus, even if one adheres to Ukraine’s version of the events, the factual information
indicates that the persons who allegedly provided the Buk TELAR to the DPR’s armed
forces must have assumed that the crew of this Buk would have all the necessary facilities
and data to distinguish between civilian and military aircrafts. This flatly contradicts the
Ukraine’s position that using a Buk TELAR in autonomous mode constitutes intention to
destroy a civil aircraft.413
308. In addition, many anti-aircraft armaments do not have sophisticated identification
systems, such as nearly all MANPADs and numerous older SAMs, including those in
service in the UAF. The use of these armaments against perceived military targets in a
situation of armed conflict, even in the potential presence of civilian air traffic, has never
been considered an “intentional attack against civilians” or an “indiscriminate attack”. It
is worth mentioning that even sophisticated AA systems, such as the Aegis system
installed on the USS “Vincennes”, do not preclude accidental shoot-downs of civilian
aircraft. Ukraine itself is proof of this since the UAF shot down a Russian airliner in 2001
despite having all components of the S-200 AA system in place, as explained above.414
412 Joint Investigation Team, Report, Findings of the JIT MH17 investigation into the crew members of the Buk
TELAR and those responsible in the chain of command, 8 February 2023, p. 64, ¶4.5, available at:
https://www.politie.nl/binaries/content/assets/politie/onderwerpen/mh17/report_jit-mh17_8-februari-
2023_eng.pdf (Annex 392).
413 Reply, ¶206.
414 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, ¶¶60-63 (Annex 6).
Page 128 out of 541
309. Finally, the expert opinion on the Buk TELAR, submitted by Australia and the
Netherlands in the framework of ICAO proceedings, indicates that the target
identification capabilities of a single Buk would still permit identification of civilian
targets, even if those capabilities are smaller in comparison with a full contingent of Buk
system elements (including the radar vehicle and the command vehicle). For instance,
the target identification instruments mentioned earlier would also display information
about the target, though in a smaller range. The expert states, that this “limits its options
in terms of identifying target,”415 but not removes them altogether. Importantly, the expert
did not conclude that an autonomously operating Buk TELAR is an indiscriminate
weapon.
310. Ukraine’s arguments on the indiscriminate character of the Buk are also legally
unfounded. First, the Court’s finding in the Nuclear Weapons Advisory Opinion that “use
[of] weapons that are incapable of distinguishing between civilian and military targets
[constitutes] mak[ing] civilians the object of attack” is of no relevance for Ukraine’s case
since it concerned the weapons - like nuclear, chemical, etc., - that by their very nature
are incapable of distinguishing between civilian and military targets. It has nothing to do
with the Buk TELAR which is a guided projectile.
311. Second, Ukraine invokes the ICRC’s explanation that the prohibition on “employ[ing] a
method or means of combat which cannot be directed at a specific military objective” is
“an application of the prohibition on directing attacks against civilians or against civilian
objects”. 416 This argument is also of no relevance for Ukraine’s case because Buk
TELAR, being a guided projectile, can in no way be considered as a “means of combat
which cannot be directed at a specific military objective”. Quite to the contrary, it is
designed to be directed at a specific military objective.
312. Third, Ukraine’s reliance on the ICTY’s case law in Prosecutor v. Martic is misleading.
The Tribunal held that:
“In examining the responsibility of Milan Martić for the crime of attacks on
civilians under Article 3, the Trial Chamber recalls that a direct attack on
civilians may be inferred from the indiscriminate character of the weapon
415 Dutch National Police Crime Squad, Official Report Concerning the Buk Surface-to-Air Missile System, 7
October 2019, p. 90 (Annex 389).
416 Reply, ¶137.
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used. The Trial Chamber has previously found that the M-87 Orkan was
incapable of hitting specific targets”417 (Emphasis added).
313. The judgment further explains the indiscriminate character of the M-87 Orkan as follows:
“The M-87 Orkan is a non-guided projectile, the primary military use of
which is to target soldiers and armoured vehicles. Each rocket may contain
either a cluster warhead with 288 so-called bomblets or 24 anti-tank shells.
The evidence shows that rockets with cluster warheads containing bomblets
were launched in the attacks on Zagreb on 2 and 3 May 1995. Each bomblet
contains 420 pellets of 3mm in diameter. The bomblets are ejected from the
rocket at a height of 800-1,000m above the targeted area and explode upon
impact, releasing the pellets. The maximum firing range of the M-87 Orkan
is 50 kilometers. The dispersion error of the rocket at 800-1,000m in the air
increases with the firing range. Fired from the maximum range, this error is
about 1,000 m in any direction. The area of dispersion of the bomblets on the
ground is about two hectares. Each pellet has a lethal range of ten meters.”.418
314. Thus, the M-87 Orkan, as described by ICTY, bears no similarity to the Buk TELAR,
which as explained above is in principle capable of making a distinction between civilian
and military targets, but may hit an unintended target through human error or technical
problems, as it happened in the case of the MH17.
315. Ukraine’s reference to “firing into civilian airspace”419 is worth highlighting. It appears
that, according to Ukraine, there are two types of airspace over land territory: civilian and
military. This is incorrect since aircraft of all types fly in a single airspace. As shown
above, active hostilities had been often conducted in Ukrainian airspace, yet Ukraine did
not close it – while also conducting offensive military operations there. Bezborodko notes
that factors such as the lack of time in active hostilities420 and the deliberate non-closure
of airspace with the aim to cover military aviation behind the “human shield” of civil
aviation421 can lead to error in targeting.
316. The Buk TELAR is thus not a non-discriminatory weapon. However, even with the most
advanced technology, there is always a risk of mistake. As Bezborodko points out, “even
417 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, Case No. IT-95-11-T, Prosecutor
v. Martić, Trial Chamber Judgment, 12 June 2007, ¶472.
418 Ibid., ¶462. Footnotes omitted.
419 Reply, ¶206.
420 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023, ¶¶50-51 (c) (Annex 6).
421 Ibid., ¶51(с)
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when the provisions of the firing regulations are followed by a qualified combat crew,
situations may arise where an airborne object may be misclassified and fired upon by
mistake”.422
317. It has already been argued above that when assessing the use of force against aerial targets
in the context of an armed conflict, the entire context of the events must be taken into
account.423 History is replete with examples of mistakenly hitting civilian aircraft, but
these acts have never been considered acts of terrorism.
318. The unreasonableness of Ukraine's position also follows from the fact that Ukraine has
used Buk TELARs in autonomous mode. Firstly, it follows from the leaked document
from the Netherlands security service,424 which revealed the Netherlands’ understanding
of the distribution of Buk units in Ukraine at the relevant time. It gave coordinates for
the Buks in the region:
319.
422 Ibid., ¶74
423 See above, Chapter V(B)(1).
424 M. Van Der Werff, MH17 properly investigated? available at: https://maxfromthewharf.com/5510-2/#DOC
(Annex 396).
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320.
321. This report also states that “from the table it becomes apparent that flight MH17 was
flying beyond the range of all identified and operational Ukrainian and Russian locations
where 9K37M1 Buk M1 systems were deployed.”425
322. This conclusion can also be drawn from the JIT report:
“It is important to note in this regard that the Ukrainian armed forces were
also using such a system, meaning that it could appear as if the DPR had
captured it from them”.426
323. If the DPR had the opportunity to capture them, then it logically follows that they were
used by Ukraine in the ATO zone. Thus, if Ukraine's erroneous position were applied to
its own conduct, then by engaging Buk systems in the conflict zone Ukraine had
“intended” to shoot down civilian aircraft.
324. From all of the above it follows that, the transfer and the use of the Buk TELAR cannot
per se indicate an intention to shoot down a civilian aircraft.
* * *
425 M. Van Der Werff, MH17 properly investigated? available at: https://maxfromthewharf.com/5510-2/#DOC_4
(Annex 396).
426 Joint Investigation Team, Report, Findings of the JIT MH17 investigation into the crew members of the Buk
TELAR and those responsible in the chain of command, 8 February 2023, p. 64, ¶5.3, available at:
https://www.politie.nl/binaries/content/assets/politie/onderwerpen/mh17/report_jit-mh17_8-februari-
2023_eng.pdf (Annex 392).
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325. Ukraine’s allegation that the shoot-down of Flight MH17 is a terrorist act within the
meaning of Article 2(1) of the ICSFT is unfounded and should be rejected, because the
Russian Federation demonstrated that:
(a) Even assuming that Ukraine’s factual allegations are correct (quod non), the shootdown
of Flight MH17 was an error.
(b) Neither Article 2(1)(a) of the ICSFT and the Montreal Convention, nor Article
2(1)(b) of the ICSFT cover the offence done by error or mistake. Both intentional
and unlawful elements of the offence within the meaning of Article 11b are absent.
(c) The Buk TELAR is not an “inherently indiscriminate weapon”.
(d) In any event the investigations into the circumstances of the crash and connected
Court decisions are highly unreliable and in particular cannot be used to prove that
the alleged Buk was delivered from the territory of the Russian Federation.427
427 The proposition that the Russian Federation vigorously denies.
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VI. UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM
FINANCING WITH REGARD TO THE SHELLING INCIDENTS
A. INTRODUCTION
326. In its Counter-Memorial, the Russian Federation put Ukraine’s allegations 428 on the
shelling incidents in their proper context, that is, an armed conflict between Ukraine and
the DPR and LPR to which IHL applies, as confirmed by international bodies like the
OHCHR, ICRC, and OSCE. Even The Hague District Court came to the same
conclusion.429 The existence of a situation of an armed conflict is also confirmed in the
expert report of Colonel Bondarenko, annexed to the present Rejoinder.430
327. The Russian Federation also explained in detail the interplay between international
humanitarian law and anti-terrorism conventions, 431 stating that the ICSFT is to be
applied alongside and with respect for international humanitarian law, as Article 21
requires explicitly.432 The Russian Federation has shown conclusively that in the context
of an armed conflict, only acts which have “spreading terror” as their “primary purpose”
may fall under Article 2(1)(b) of the ICSFT.433
328. According to Article 2(1)(b) of the ICSFT, the offence of terrorism financing is
established when funds are provided or collected, directly or indirectly, unlawfully and
428 It must be reiterated that Ukraine’s claims with respect to the Russian Federation’s alleged state responsibility
under the ICSFT were dismissed at the preliminary objections stage. Ukraine has also failed to establish that any
specific Russian State official exercised control over the DPR/LPR, had insight into the relevant military planning
and operations, or knew of the alleged “importance of terrorism to the agenda of the DPR/LPR”: Cf. Memorial, ¶
286. This is nothing more than a reformulation of the State responsibility argument which the Court has found
falls outside its jurisdiction. For completeness, and without prejudice to its primary position, the Russian
Federation denies that it has ever exercised control over the DPR/LPR and that it had insight into their military
plans and actions.
429 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶4.4.3.1.2, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F. (“The fighting between the Ukrainian army and the Donetsk People’s Republic can
therefore be characterized as an armed conflict”).
430 Expert Report of Oleg Serzhevich Bondarenko (“Bondarenko Report”), 10 March 2023, Chapter III (Annex 7).
431 Counter-Memorial (ICSFT), ¶196.
432 According to this provision, “[n]othing in this Convention shall affect other rights, obligations and
responsibilities of States and individuals under international law, in particular the purposes of the Charter of the
United Nations, international humanitarian law and other relevant conventions.” (Emphasis added).
433 See Chapter III, Section C above.
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wilfully, with the intention that they should be used or knowledge that they are to be used,
in full or in part, in order to carry out:
“Any other act intended to cause death or serious bodily injury to a civilian,
or to any other person not taking an active part in the hostilities in a situation
of armed conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act”. [emphasis added].
329. The terrorism offence under Article 2(1)(b) can only be committed if death or serious
bodily injury is intentionally caused to a “civilian” or “any other person not taking active
part in the hostilities”. Therefore, if a person targets armed forces, or groups or other
persons taking active part in hostilities, but death or serious bodily injury is caused to a
civilian or other person not taking active part in the hostilities as collateral damages of
the attack, the offence under Article 2(1)(b) may not be established and States’ obligations
under the ICSFT would accordingly not be triggered.434
330. As very aptly put by J.D. Ohlin in his work Targeting and the Concept of Intent:
“It is important to understand what precisely is at stake in this debate: nothing
less than the distinction between the terrorist and the soldier. Although it is
frequently said that one nation's freedom fighter is another's terrorist, neither
ordinary morality nor international law takes this position. There are morally
and legally relevant distinctions to be made between these actions, and failure
to understand these distinctions risks undermining the very foundations of jus
in bello… [I]it is imperative that we continue to insist upon distinguishing
between terrorists who deliberately target civilians and soldiers who foresee
that civilians will be killed as collateral damage while striking a military
target. The former is a war crime, while the latter represents lawful
conduct.”435
331. Ukraine argues that “the DPR committed these large-scale, high-profile atrocities [i.e. the
shelling incidents] one after the other in a span of a few weeks, coinciding with a flurry
of intense diplomatic activity leading up to a summit in Minsk on 11 February 2015,
during which representatives of the Russian Federation, Ukraine, France, and Germany
agreed to a package of measures to stop the conflict in Eastern Ukraine (“Minsk II”)”.436
Ukraine frequently returns to this argument throughout its Reply, sometimes as the
context, sometimes as the purpose of the acts of which it complains, in an attempt to link
434 Ibid.
435 J. D. Ohlin, Targeting and the Concept of Intent, 35 Michigan Journal of International Law 79 (2013), p. 130.
436 Reply, ¶214.
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these incidents to Article 2(1)(b) of the ICSFT. But unable to provide any documentary
evidence in support of this mere speculation, Ukraine relies on the “natural inference” of
the related context.437 It goes without saying that the Court cannot rely on the unilateral
“natural inference” of Ukraine to consider the attacks in question as terrorist acts for the
purpose of Article 2(1)(b) of the ICSFT. As explained in Chapter I above, Ukraine must
provide evidence that is fully conclusive.
332. The Russian Federation established, based on the records of international competent
bodies, that civilian casualties caused by the reported shelling of populated areas have
consistently been greater in territory controlled by the DPR and the LPR than in the
Government-controlled area of the conflict zone438 - i.e., many more civilian casualties
have been caused by the UAF than by those of the DPR and LPR. If the multiple reported
incidents of indiscriminate shelling in Donbass were in fact acts of terrorism (quod non),
as would follow from Ukraine’s misconceived reading of Article 2(1) of the ICSFT,
Ukraine itself would be engaged in such “terrorism” on a massive scale. The Russian
Federation provided evidenced examples of such incidents caused by Ukrainian
governmental forces,439 and there is no need to reproduce them here.
333. Another critical point is that Ukraine alone refers to these shelling attacks as acts of
“terrorism”, while the OHCHR, OSCE, and ICRC have never characterised such acts
(including the specific episodes relied on by Ukraine) either as breaches of the IHL
prohibition on spreading terror or of Article 2(1)(b) of the ICSFT.440
334. In support of its allegations on the shelling incidents, Ukraine refers to some statements
made in multilateral fora. It cites as examples the UN Security Council’s condemnation
of “the shelling of a passenger bus” at Volnovakha as a “reprehensible act”; and the UN
Under-Secretary-General Jeffrey Feltman’s statement that the attackers had “knowingly
targeted a civilian population” in Mariupol; and the statement of the ICC Office of the
Prosecutor indicating that there was evidence of “intentionally directing attacks against
civilians” in Donbass. However, these statements contradict rather than confirm its
437 Reply, ¶231.
438 Counter-Memorial (ICSFT), ¶10.
439 Counter-Memorial (ICSFT), ¶351-352.
440 Counter-Memorial (ICSFT), ¶10.
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allegations, since nowhere do they characterise such acts as terrorist offences within the
meaning of Article 2(1)(b) of the ICSFT.
B. THE SHELLING OF THE ROADBLOCK NEAR VOLNOVAKHA
335. Ukraine’s attempt to present the shelling incidents as falling within the scope of Article
2(1)(b) of the ICSFT relies mostly on the loss of life resulting from the shelling impacts
close to the military installation near Volnovakha (the Buhas/Bugas
roadblock/checkpoint) on 13 January 2015.
336. With regard to this incident, General Samolenkov in his Second Expert Report established
the following key findings:441
(a) The Bugas roadblock was undeniably a military objective. It was manned by units
of armed personnel and armoured vehicles, equipped with fortifications, firing
positions and trenches for personnel and equipment, making it capable of all-round
defence and control of adjacent territory. The roadblock performed military tasks
on an important transportation route, which played a critical role in supplying
Ukrainian positions in the vicinity of Dokuchayevsk. The Kiev-2 battalion
manning the installation was a military unit actively engaged in the hostilities.
Moreover, the Bugas roadblock was regarded by Ukraine itself as a military
installation, which is confirmed by the SBU documents submitted by Ukraine in
these proceedings and by Ukrainian regulatory acts.
(b) The main cause of the collateral damage resulting from the shelling was that
Ukraine organised searches of civilians and civilian vehicles on the territory of this
military installation, which per force put civilians in immediate proximity to a
military target.
(c) The choice of weaponry (BM-21 Grad) does not in itself imply the indiscriminate
nature of the attack. Had any other type of artillery been used, the risk of collateral
damage would have remained due to Ukraine's failure to separate the functions of
a military facility from the functions of a civilian checkpoint. The bus that was on
441 Second Expert Report of Valery Alexeyevich Samolenkov, 10 March 2023 (“Second Samolenkov Report”),
¶9, (Annex 8).
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the territory of the Bugas roadblock at the time of the shelling could have been hit
by a shell fired at the roadblock from any type of artillery.
(d) Ukraine failed to prove that the attack came from DPR-controlled territory. Ukraine
itself submitted evidence to the Court which shows that the missiles that hit the
Bugas roadblock had spoiler rings, indicating a much shorter range of attack, which
the Ukrainian expert General Brown fails to take into account. General Brown also
misjudged the firing range and the location of the firing position due to using
incorrect data provided by the SBU which was never verified by General Brown
himself. The correct calculation of the firing distance based on both the analysis of
the craters and the angle of descent of shell fragments proves that the shelling was
carried out from positions controlled by the UAF. This data indicates that the
Bugas roadblock was hit by UAF artillery fire.
(e) Ukraine also failed to prove specific terrorist intent on behalf of the DPR. Ukraine’s
own evidence, such as the alleged intercepts of DPR communications, confirm that
the DPR aimed to take measures to avoid damage to civilians. This refutes
allegations that civilians were deliberately made the object of attack, for the primary
purpose of spreading terror or otherwise. General Brown raises no objections
against General Samolenkov’s analysis of the intercepts, but merely suggests that
the intercepts do not, in his view, directly relate to the shelling of the Bugas
roadblock – which is, however, hardly relevant as Ukraine failed to provide any
intercepts specifically related to Bugas and there is no reason to conclude that the
DPR’s approach was any different there.
337. Colonel Bondarenko in his Expert Report related to issues of international humanitarian
law made the following relevant findings:442
(a) The Bugas roadblock was a military facility performing combat functions, and this
accords with international military practice (such as that of the US-led “coalition
forces” in Iraq). The Kiev-2 battalion manning the facility was a combat unit under
the operational command of the UAF. The facility provided military advantage to
442 Bondarenko Report, ¶6, Chapter IV (Annex 7).
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the Ukrainian war effort. It was thus a military objective within the meaning of
IHL.
(b) Attacks on military facilities located deep within the lines of deployment of the
UAF in the area of Ukraine's so-called ATO zone may have been carried out by the
DPR forces in order to gain an operational advantage.
(c) The circumstances of the attack on the facility do not conform to Ukraine’s claims
that the attack was carried out by the DPR with the deliberate aim of terrorizing the
civilian population. This is refuted, in particular, by the alleged intercepts provided
by Ukraine itself, as well as the time and place of the attack, which does not coincide
with the time and place of maximum civilian concentration at the roadblock.
(d) Even if the Bugas roadblock was a purely civilian facility, Ukraine consciously
placed it within reach of enemy weapons, thus endangering the safety of civilians
passing through the roadblock. It follows, in particular, that Ukraine has failed to
take all possible precautions to protect civilians and civilian objects under its
control from the consequences of attacks.
338. As a result, and as will be examined in more detail below, compelling evidence shows
that Ukraine has failed to establish that the attack on the Bugas roadblock was carried out
by DPR forces, and even if that were the case (quod non), Ukraine has still failed to prove
the requisite terrorist intent and purpose.
i. Ukraine failed to establish that the attack on the Bugas roadblock was carried out
by the DPR forces
339. As it is established in General Samolenkov’s Second Expert Report, the shelling of the
Bugas roadblock could have been the result of an attack from the UAF, rather than DPR
forces as claimed by Ukraine.
340. First, the presence of spoiler rings on MLRS missiles used to shell the Bugas roadblock
indicates that the shelling could not have been carried out by DPR artillery. While
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General Brown claims that “there is no evidence that spoilers were used”,443 Ukraine’s
own expert evidence confirms presence of spoiler ring remains in the wreckage:
“Object No. 3, in terms of the composition of its chemical elements, is
consistent with steel grades St3 and BSt3 (Table 7). The technical
documentation provides for the use of BSt3-grade steel to manufacture the
“large ring” and “small ring” components of a 9M22 shell [6, 7] (exhibit).”444
“Object No. 3, in terms of the composition of its chemical elements, is
consistent with steel grades St3 and BSt3. It may be a fragment from the
“large ring” or “small ring” of an M-21OF (9M22U) shell”445
"object (No. 3) may be a fragment of a 'big ring' or 'small ring' of M-21OF
(9M22U) shell.”446
341. Considering the presence of spoiler rings, General Samolenkov concludes that:
“Ukraine's own evidence thus refutes General Brown's conclusions. It was
impossible for DPR's MLRS units to carry out the mission (i.e., to move into
a position in close proximity to UAF positions) under such conditions, as
DPR's MLRS would have been hit by close combat weapons or by UAF
artillery. The fact that BM-21s are not fired from positions close to the enemy
is confirmed by General Brown himself.447 In this regard, I believe that the
Bugas roadblock was attacked not by DPR's MLRS but by UAF's MLRS.”448
342. Second, the nature of damage to the bus confirms shelling by UAF artillery. General
Brown relied entirely on the purported angles of descent provided by the SBU; however,
such data is not objective and, in any case, not accurate. By analysing the dispersion
pattern of the fragments that hit the bus, General Samolenkov determines the projectile’s
angle of descent and thus the firing range, which again leads to the conclusion that
shelling was performed from territory under Ukrainian control.449
343. Third, General Brown's analysis of the location of the craters does not support his own
conclusions about the range of fire. The “actual dispersion ellipse” as drawn by General
Brown does not conform – by a large margin – to the expected dispersions that he himself
443 Second Expert Report of Lieutenant General Christopher Brown, 21 April 2022 (“Second Brown Report”), ¶47
(Reply, Annex 1).
444 Ukrainian Scientific Research Institute of Special Equipment and Forensic Expert Examination, Expert Report
No. 16/8, 7 May 2015, p. 12 (Memorial, Annex 123).
445 Ibid., p. 15.
446 Ibid., p. 16.
447 See Second Brown Report, ¶15 (a) (ii), footnote 70 (Reply, Annex 1).
448 See Second Samolenkov Report, ¶22 (Annex 8).
449 Ibid., ¶¶23-28.
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provides in his report for ranges of 15,6 and 19,6 km. In fact, it does not conform to any
expected dispersions according to General Brown’s own sources. Even using General
Brown's “actual” dispersion ellipse parameters, the calculation of the range firing distance
shows that this range is in any case significantly less than General Brown claims, and
excludes the possibility of firing from DPR-controlled territory.450
344. In his dispersion pattern calculations General Brown neglected to account for the fact that
firing from three MLRS units would create different dispersion results than firing from
one unit. By using a method of converting the results of firing from three units to the
results of firing from one unit, as well as a proper analysis of the craters near the Bugas
roadblock, with the help of satellite data from Colonel Bobkov, General Samolenkov
calculates a different range of fire, which cannot be more than 11.6 km (thus deep within
Ukraine-controlled territory).451
345. Fourth, it is implausible how Ukraine’s experts (General Brown and Gwilliam and
Corbett), using two different methods with significantly different accuracy to establish
the firing location, remarkably obtained the same result (19.4-19.8 km), leading to a
conclusion that the purpose of General Brown's analysis was not to establish the true
distance to the launch site, but merely to confirm an otherwise pre-determined location.452
346. Fifth, the range determined by General Brown is the maximum range, which is not used
when firing from MLRS, as it does not ensure accuracy in hitting the target.453
347. Sixth, reports by purported witnesses submitted by Ukraine are implausible, as witnesses
make assertions that are physically impossible (such as seeing the precise angle of ground
entry of a missile that was moving at 690 meters per second before it exploded; or
identifying the precise location, direction, and number of vehicles conducting the shelling
by sound from a distance of 6-8 kilometers). Furthermore, these reports were produced
by the SBU, a notoriously unreliable source, and never independently verified.454
450 See Second Samolenkov Report, ¶¶62-77 (Annex 8).
451 Ibid., ¶¶78-87.
452 Ibid., ¶¶88-93.
453 Ibid., ¶¶96-97.
454 Ibid., ¶¶43-55.
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348. Seventh, the presence of Ukrainian “Grad” MLRS in possible launch area is confirmed
by open sources. General Samolenkov draws attention to several reports in social media
of shelling by Ukrainian “Grad” from the vicinity of the Novotroitskoye village, on 8, 9,
and 10 January 2015. Numerous civilians were killed as a result of these Ukrainian
attacks. This further substantiates the possibility of the strike on Bugas being performed
by the UAF.455
349. Jointly and severally, these factors confirm that the attack on Bugas was not carried out
by the DPR, but, on the contrary, by the Ukrainian side. The goal, as General Samolenkov
suggests, might have been a provocation.456 This would fit the general pattern, also
demonstrated by other incidents, of Ukraine using civilians as human shields and staging
attacks on civilian targets to smear their opponents.
350. However, as further explained below, even assuming the Ukrainian version that the
roadblock was attacked by the DPR forces (quod non), the roadblock should be
considered as a legitimate military target and there was, consequently, no plausible intent
on the part of the attackers to cause death or serious bodily injury to civilians, nor a
purpose of intimidating a population or compelling a government or an international
organisation.
ii. Ukraine failed to establish that the attack on the Bugas roadblock was intended to
cause death to civilians
351. The Russian Federation has established, based on compelling documentary evidence,
including Ukraine’s own documents presented to the Court, the OSCE report, opensource
information, Bobkov’s expert reports, General Samolenkov’s expert reports and
Bondarenko Expert Report, that the Bugas roadblock was a legitimate military target.457
General Samolenkov explains in its Second Report that even
“[i]f one was to assume that the roadblock was shelled by the DPR after all
(which I believe to be wrong), such shelling could have been carried out in
order to neutralize an enemy military facility located within the lines of the
UAF troops deployment in Volnovakha -– Dokuchayevsk direction. I base
this conclusion on the fact that at the Bugas checkpoint there were formations
455 See Second Samolenkov Report, ¶¶98-100 (Annex 8).
456 Ibid., ¶¶32-33, 35.
457 See Second Expert Report of Alexander Alekseevich Bobkov, 10 March 2023 (“Second Bobkov Report”), ¶57
(Annex 4); Second Samolenkov Report, ¶¶102-163 (Annex 8); Bondarenko Report, ¶¶20-25 (Annex 7).
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of armed personnel with light armoured vehicles, with equipped positions,
including for heavy UAF weapons, and also on the fact that the checkpoint
performed tasks on an important road direction, which played a critical role
in supplying Ukrainian positions in the Dokuchayevsk area. However, the
shelling in the middle of the day is not indicative of an intention to harm
civilians, as “queues of civilian vehicles formed at the Bugas roadblock at the
night”.458
352. Ukraine fails to engage with the merits of these facts in its Reply and limits itself to
repeating that its description of the Bugas roadblock as a “civilian checkpoint” is a
“reasonable conclusion” resulting from the witness testimony of Maksim Shevkoplias,
Ukraine’s imagery experts report, and General Brown’s Expert Report.459
353. It is not only the purpose of the roadblock that has not been properly assessed by Ukraine.
A number of key conclusions contained in the Gwilliam and Corbett Report, and in
General Brown’s Second Report are erroneous. According to Bobkov’s Second Report:
“the results of the analysis provided by Gwilliam and Corbett are incorrect. It
was this data, however, that formed the basis of General Brown's conclusions
about the shape and size of the fall of shot ellipse pertaining to the shelling of
the Bugas roadblock and about the location of the alleged missile launch site.
Consequently, General Brown's related conclusions are also incorrect”460.
354. General Samolenkov also indicates that:
“General Brown misjudged the firing range and the location of the firing
position by using incorrect and unverified data. He uncritically relies on the
SBU's analysis of the craters. His own analysis is contradictory and does not
support his conclusion that the shelling was carried out from a distance of
“19.4-19.8 km ”461.
355. Ukraine further maintains that “[u]nable to refute the Buhas checkpoint’s purpose of
screening civilian vehicles, Russia points to the presence of “pistols” and other “small
arms,” arguing that it was therefore not a “purely civilian object.”462 However, Ukraine
misrepresents the Russian Federation’s position. A correct description of the roadblock
was provided in the Counter-Memorial as follows:
“Ukraine’s position is contradicted by its own witness evidence, which states
that the checkpoint was established as part of the so-called “Anti-Terrorist
458 See Second Samolenkov Report, ¶232 (Annex 8).
459 Counter-Memorial (ICSFT), ¶222.
460 Second Bobkov Report, ¶37 (Annex 4).
461 Second Samolenkov Report, ¶9 (l) (Annex 8).
462 Reply, ¶223.
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Operation” and that it was manned by, among others, “State Border Guard
servicemen, Internal Troops of ‘Kyiv-2’ Unit”, both “equipped with small
arms, in particular Kalashnikov assault rifles, pistols, and hand grenades”463.
356. Thus, Ukraine refers to a part of the Russian Federation ’s argument that deals only with
what Ukraine itself had confessed. However, the Russian Federation’s argument did not
stop at that but continued with the description of the real status of the Bugas roadblock as
described by a Ukrainian Court.
357. The Russian Federation explained in its Counter-Memorial the nature of the Kiev-2
battalion based on compelling evidence such as the Svyatoshinsky District Court of
Kiev’s decision, which is still uncontested by Ukraine:
“According to open-source information, the Kyiv-2 battalion engaged in
combat operations in Eastern Ukraine in 2014 and, after receiving additional
heavy weaponry, was redeployed to the area of Volnovakha (including the
Buhas checkpoint) in October 2014. Notably, it appears from a ruling of a
Ukrainian court that Kyiv-2 servicemen were involved in combat tasks while
stationed in the Volnovakha region. The open-source information also
indicates that the Kyiv-2 battalion engaged in combat reconnaissance
operations in the area of Volnovakha, Olenivka, and Dokuchayevsk. There
are also suggestions that the Kyiv-2 battalion became a part of, or at least
cooperated with, the 72nd brigade of the Ukrainian Armed Forces. Ukraine
has not put before the Court contemporaneous documentation recording the
activities of the Kyiv-2 battalion at and around the Buhas checkpoint”464.
358. General Samolenkov with regard to Kiev-2 battalion concludes that:
“the so-called ATO was led by the UAF. It is widely known that not only the
UAF, but also the so-called "volunteer battalions" or "territorial defence
battalions" fought on the Ukrainian side against the DPR and LPR armed
forces, one of which was the Kiev-2, which was redeployed to the Bugas
roadblock in October 2014 during a rotation (according to reports by Kiev-2
representatives). In June 2014, a few months before the Bugas roadblock was
shelled, the Ukrainian Ministry of Defence had announced that all battalions
participating in the ATO in south-eastern Ukraine would be operationally
subordinated to the ATO leadership. Thus, not only was the Kiev-2 Battalion
in practice a combat unit equipped with heavy weapons and military
equipment, but it was also formally subordinate to the ATO command.”465.
463 Counter-Memorial (ICSFT), ¶365, citing in fn the Witness Statement of Maksym Anatoliyevich Shevkoplias,
4 June 2018 (Memorial, Annex 4), ¶¶5, 8 and 10.
464 Counter-Memorial (ICSFT), ¶368 (b)
465 See Second Samolenkov Report, ¶¶152-153 (Annex 8).
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359. Ukraine’s next flawed attempt to demonstrate that the attack on the Bugas roadblock was
an “act intended to cause civilian deaths” is to point out the use of the BM-21 Grad
system. It argues that the Bugas roadblock was deliberately targeted with BM-21 Grad
MLRS and that the use of the latter by itself is sufficient to conclude that the “Volnovakha
shelling was an act intended to cause civilian deaths” and that the “proof of intent to harm
civilians” is established within the meaning of Article 2(1)(b) of the ICSFT466. This
argument is clearly untenable, for several reasons:
360. First, as noted above, the Bugas roadblock was not a civilian object, and it is in light of
this fact that civilian death caused by that attack should be assessed.
361. Second, Ukraine’s argument on the use of MLRS is reflective of its position with respect
to the intention to harm civilians. Ukraine’s position is limited to indirect intent, which
is insufficient under article 2(1)(b) ICSFT467.
362. Third, the contention that MLRS, and in particular BM-21 Grad, is an inherently
indiscriminate weapon is not supported by the findings of international competent bodies,
including the ICRC and international criminal tribunals.
363. In particular, the use of “Grad” MLRS is not prohibited under international humanitarian
law, even if used against targets located in a population centre. The jurisprudence of the
ICTY makes this clear:
“… In general, the rocket systems used in 1995 [BM-21] were less accurate
than the artillery systems, such as Howitzers or mortar systems….468 the Trial
Chamber considers that the evidence allows for the reasonable interpretation
that the forces who fired artillery projectiles which impacted on or nearby
these towns were deliberately targeting military targets”469.
364. As the Appeals Chamber put it,
“The Trial Chamber’s Impact Analysis was premised on its conclusion that
“a reasonable interpretation of the evidence” was that an artillery projectile
fired by the Croatian Army which impacted within 200 metres of a legitimate
target was deliberately fired at that target (“200 Metre Standard”).76 Using
the 200 Metre Standard as a yardstick, the Trial Chamber found that all impact
466 Reply, ¶¶220-221.
467 Counter-Memorial (ICSFT), Chapter V.
468 Gotovina et al., ICTY, IT-06-90, Trial Chamber Judgment, 15 April 2011, ¶1165.
469 Ibid., ¶1162.
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sites located more than 200 metres from a target it deemed legitimate served
as evidence of an unlawful artillery attack”.470
365. Thus, according to the Trial Chamber, “Grad” attacks hitting as far as 200 meters away
from a military target were still lawful. However, even this generous conclusion was
overturned by the Appeals Chamber, which ruled that:
“The possibility of shelling such mobile targets, combined with the lack of
any dependable range of error estimation, raises reasonable doubt about
whether even artillery impact sites particularly distant from fixed artillery
targets considered legitimate by the Trial Chamber demonstrate that unlawful
shelling took place…471 Accordingly, the Appeals Chamber, Judge Agius and
Judge Pocar dissenting, holds that after reviewing relevant evidence, the Trial
Chamber’s errors with respect to the 200 Metre Standard and targets of
opportunity are sufficiently serious that the conclusions of the Impact
Analysis cannot be sustained”.472
366. In the end, the Tribunal concluded that even “Grad” attacks hitting further than the 200-
meter radius from a military target were still not unlawful:473
“The Appeals Chamber dismissed the 200 meter ‘margin of error’ among
other reasons on the ground that firing a weapon from a greater distance could
well have resulted in shells and rockets impacting more than 200 meters away
from a target. The wide spread of impact sites could then be plausibly
explained by a higher margin of error, and it could not be excluded that the
shells were all aimed at legitimate military targets.”474
367. This conclusion was based upon expert reports, such as that of Lieutenant General (ret.)
Shoffner, who rejected the 200-meter standard on the basis that under the given firing
conditions, more than 50% of the rockets could be expected to fall more than 300 meters
from the aim point.475 Contrary to what Ukraine and its experts aim to prove in the
present case, the rate of “Grad” rockets dispersal was not considered as evidence of an
“inherently indiscriminate weapon”, nor of an “indiscriminate attack”.
470 Gotovina et al., ICTY, IT-06-90, Appeals Chamber Judgment, 16 November 2012, ¶25.
471Ibid., ¶66.
472Ibid., ¶67.
473Ibid., ¶84.
474 M. Brehm, Use of Grad Rockets in Populated Areas: What Lessons from Gotovina? (30 July 2014), available
at: https://ejiltalk.org/use-of-grad-rockets-in-populated-areas-what-lessons-from-gotovina/.
475 Gotovina et al., Appellant Ante Gotovina’s motion to admit new evidence pursuant to Rule 115 (Public redacted
version), 4 November 2011, Exhibit 21, 3540.
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368. Extensive State practice confirms that MLRS systems, including “Grad”, are regularly
used in warfare, including against population centres. Ukraine itself is notorious for such
attacks, leading to many civilian casualties.476
369. Cluster submunitions were also a principal characteristic of the “Orkan-87” MLRS used
by Milan Martic in the eponymous case relied on by Ukraine. As usual, Ukraine fails to
take into account a critical element of qualification when attempting to fit a case into its
own narrative. As noted by ICTY:
“The M-87 Orkan is a non-guided projectile, the primary military use of
which is to target soldiers and armoured vehicles.1242 Each rocket may
contain either a cluster warhead with 288 so-called bomblets or 24 anti-tank
shells. The evidence shows that rockets with cluster warheads containing
bomblets were launched in the attacks on Zagreb on 2 and 3 May 1995. Each
bomblet contains 420 pellets of 3mm in diameter.1245 The bomblets are
ejected from the rocket at a height of 800-1,000m above the targeted area and
explode upon impact, releasing the pellets. The maximum firing range of the
M-87 Orkan is 50 kilometres. The dispersion error of the rocket at 800-
1,000m in the air increases with the firing range. Fired from the maximum
range, this error is about 1,000m in any direction. The area of dispersion of
the bomblets on the ground is about two hectares. Each pellet has a lethal
range of ten metres….477 the Trial Chamber notes in this respect that the
weapon was fired from the extreme of its range. Moreover, the Trial Chamber
notes the characteristics of the weapon, it being a non-guided high dispersion
weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by
virtue of its characteristics and the firing range in this specific instance, was
incapable of hitting specific targets. For these reasons, the Trial Chamber also
finds that the M-87 Orkan is an indiscriminate weapon, the use of which in
densely populated civilian areas, such as Zagreb, will result in the infliction
of severe casualties.”478
370. The high dispersal rate of cluster submunitions and their lethality against unprotected
civilian targets played a critical role in the Tribunal’s qualification of the weapon’s use
as “indiscriminate”. As further noted by the ICTY:
“The Appeals Chamber upheld the Trial Chamber’s finding in Gali} which
relied, inter alia, on the Marti} Rule 61 Decision, 8 Mar 1996, paras 23-31,
according to which the Trial Chamber regarded the use of a cluster bomb
476 Second Samolenkov Report, ¶¶100, 335, 399, 426-428 (Annex 8); Ministry of Foreign Affairs of the Russian
Federation, Statement by the Russian Federation on the false allegations against the Russian Federation made by
Ukraine to cover-up its own violations of international law and military crimes against civilian population of
Donbass as well as Kharkov, Kherson and Zaporozhye regions, 27 September 2022, available at:
https://mid.ru/en/foreign_policy/news/themes/id/1831500/.
477 Martic case, ICTY Trial Chamber Judgment, 12 June 2007, ¶462.
478 Ibid., ¶463.
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warhead as evidence of Milan Martić’s intent to deliberately attack the
civilian population.”479 [Emphasis added].
371. The same reasoning is evident in other decisions taken by ICTY regarding Martic, making
it clear that specifically the use of cluster munitions was what guided expert witnesses,
the Prosecution and the Tribunal to conclude that the use of Orkan rockets was contrary
to international humanitarian law. 480 Unlike the American MLRS in Iraq and the
Yugoslavian “Orkan-87”, the BM-21 “Grad” employs unitary projectiles, not cluster
submunitions, and is thus inherently more precise and less dangerous to civilians.
372. Ukraine’s expert General Brown says that “guns, by virtue of their tighter fall of shot
pattern, might have given some credence to the claim that the attackers were at least trying
to target the checkpoint, rather than aiming to obliterate 100 hectares and whatever
happened to be in it”. However, artillery guns, despite the tighter fall of shot pattern in
comparison to BM-21, are also not accurate and it would still be impossible to completely
exclude collateral damage to civilians due to Ukraine’s military tactic of using civilian
objects as a shelter and an opportunity to hide its military equipment and personnel from
attacks as well as to create a pretext for further allegations in case of collateral damage to
civilians that would be made during an attack on Ukrainian military units. This tactic is
confirmed, for example in the IPHR report which shows military objects placed by
Ukraine within residential areas of Avdeyevka: “It should be noted that numerous
incidents of shelling of civilian objects were possible amongst other things because of the
military objects located near to civilian populations and residential areas”481.
373. General Brown believes that the choice of BM-21 Grad to hit the roadblock itself
characterises the shelling as indiscriminate: “For BM-21 Grad, the doctrinal "minimum
target dimensions (width x depth) are 400 x 400 m. The size of the Bugas roadblock is
approximately 100 m x 100 m. Thus, the BM-21 Grad is inherently indiscriminate for a
target of this size, as even if the weapon were accurately aimed at the Bugas roadblock,
479 Ibid., footnote 135, p. 30.
480 Ibid., ¶¶18, 30.
481 International Partnership for Human Rights, Civic Solidarity Platform, Truth Hounds, “Scorching Winter 2016-
2017. Analysis of the shellings of residential areas in Eastern Ukraine”, 2017, p. 27, available at: https://truthhounds.
org/wpcontent/uploads/2017/09/last-UA-eng-20.09-web.compressed.pdf (Counter-Memorial (ICSFT),
Annex 88); See also Kharkov Human Rights Publisher, Armed conflict in the East of Ukraine: the damage caused
to the housing of the civilian population, 2019, pp. 21-22, available at:
https://www.humanitarianresponse.info/sites/www humanitarianresponse.info/files/documents/files/report_on_d
amage_to_housing_of_the_civilian_population_in_the_eastern_ukraine_eng.pdf (Annex 90).
Page 148 out of 541
the pattern of projectile impact would inevitably result in more than 50% of the missiles
missing the target.”482 However, as General Samolenkov explains, this statement is
knowingly incorrect for a number of reasons, such as:
“Firstly, if the documents provided by the SBU are to be trusted, the shell
fragments hit the passenger bus, when the bus was actually in the Bugas
roadblock territory. Thus, based on the protocols of interviews drawn up by
the SBU, at that moment the bus was stopped at the roadblock and inspected
by Ukrainian servicemen. Even if the shelling had been carried out from
cannon artillery, the shells that were fired at the roadblock and landed on its
territory could have hit the passenger bus in the same way. For this reason,
regardless of the DPR's choice of weaponry, the risk of collateral damage
existed precisely because of Ukraine's organisation of civilian transport
inspections at the Bugas roadblock.
Secondly, there is no such criterion for selecting artillery weaponry that
would prescribe that 50% of the projectiles must hit the target. General Brown
cites no source to support his stated criterion, so I assume that this criterion is
merely General Brown's opinion. I disagree with this opinion for the reasons
described below.
Thirdly, General Brown claims that the DPR should have used cannon
artillery and provides a fall of shot pattern created by a 122 mm artillery gun
firing from a distance of 15 km. However, the schematic he provides has
dimensions of 208 by 80 m, which also means that a significant portion of
shells would have fallen outside the roadblock area (100 by 100 m) given by
General Brown.
Fourthly, 15.4 km is the maximum range for firing the appropriate type of
cannon artillery that General Brown refers to (D-30 howitzer). If one was to
agree with General Brown that the shelling was carried out from a distance of
between 19.4 and 19.8 km, this already meant that it was impossible for the
DPR to use cannon artillery (which cannot fire beyond 15.4 km).
At the same time, cannon artillery has much lower mobility and a lower
density of fire. A strike of the same intensity would require several guns to
be moved into positions close to UAF positions, and continuous firing from
such a position for a long period of time. This would make the defeat of a
DPR artillery position by retaliatory fire by the UAF almost inevitable.
Whereas a strike from BM-21 Grad MLRS requires only a few minutes, and
the units themselves can move quickly to a position and just as quickly leave
it after completing the mission.”.483
374. Based on these and other factors, General Samolenkov concludes that BM-21 is not an
indiscriminate weapon, and its use does not imply an indiscriminate strike against the
Bugas roadblock.
482 Second Brown Report, ¶16 (Reply, Annex 1).
483 See Second Samolenkov Report, ¶¶200-206 (Annex 8).
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375. Furthermore, General Samolenkov examines examples when high-precision weaponry
has been used, and concludes that even the use of the most high-precision weaponry does
not eliminate the risk of collateral damage, including cases when a major civilian target
(passenger train) has been hit not once, but twice in a row with precision-guided
munitions, while being in sight of the attacker (military aircraft pilot), causing dozens of
civilian casualties, and yet the International Criminal Tribunal for the Former Yugoslavia
("ICTY") committee found the incident to contain no elements of a war crime.484
iii. Ukraine Failed to Establish the Requisite Intent and Purpose
376. In its Order of 19 April 2017, the Court observed that even if the acts to which Ukraine
refers have given rise to the death and injury of a large number of civilians, in order to
determine whether they constitute the violation of the Article 2(1)(b) of the ICSFT, “it is
necessary to ascertain 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
[…], and the element of purpose specified in Article 2, paragraph 1 (b), are present”.485
The Court found that “At 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”.486 The Russian Federation established in its Counter-Memorial, and again in
this Rejoinder,487 that no credible evidence that could alter this conclusion has been put
forward by Ukraine. Therefore, Ukraine contention in this regard should be rejected.
377. In order to establish the dolus specialis required by Article 2(1)(b), Ukraine maintains
that “[e]vidence of a deliberate attack on a civilian area, particularly absent any military
explanation, is sufficient to conclude that the attack, by its nature or context, had the
purpose of intimidating a civilian population”.488 This argument is unfounded. The
Russian Federation has established that “the characterization of the Bugas roadblock as a
‘civilian checkpoint’ 489 is incorrect, and that the relevant rules of IHL apply to the
situation; therefore, “the likely presence of civilians at or near the checkpoint is only
484 Ibid. ¶¶214-218.
485 Order of 19 April 2017, ¶75.
486 Ibid.
487 See Chapter III above; Counter-Memorial (ICSFT), Chapter IV.
488 Reply, ¶229.
489 Counter-Memorial (ICSFT), ¶396 (a).
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relevant to an assessment of proportionality”490. The Russian Federation also explained
in its Counter-Memorial that even if the attack was disproportionate, and even if it were
to be characterised as indiscriminate (quod non), this would not suffice to establish the
requisite specific intent under Article 2(1)(b) of the ICSFT.491 This “specific purpose” as
dolus specialis cannot be established by “inference” and “conclusion”. A higher standard
of conclusive evidence is required that Ukraine was unable to produce in support of its
claim.
378. General Brown’s attempt to prove that “the attack was a deliberate targeting of civilians”
with reference to the shelling of the roadblock during the day and not at night492 is
thoroughly rebutted by General Samolenkov in his Second Report. In particular,
“Ukraine's own sources refute the claim that firing at the Bugas roadblock at night would
have resulted in fewer civilian casualties. For instance, recommendations on passing
through the Bugas roadblock in 2015 pointed to an important feature of the roadblock:
unlike other roadblocks, queues of civilian vehicles formed at the Bugas roadblock at
night:
“Features of the Bugas roadblock (Volnovakha, Mariupol direction) <...>.
It is in the Mariupol direction that [people willing to pass] most frequently
spend the nights under the open sky.”493
379. This is confirmed by the satellite image analysed in the First Bobkov Report: it shows
that in the morning there were queues of civilian vehicles in both directions from the
roadblock.494 However, according to the video of the shelling, there were far fewer, if
not non-existent, vehicles during the shelling itself.495
490 Ibid., ¶396 (b).
491 Ibid., ¶396.
492 Second Brown Report, ¶¶14,18 (d) (Reply, Annex 1).
493 Kharkov Human Rights Group, How to Drive Across the Line of Contact. Step-by-step instructions (9
September 2015), available at: https://khpg.org/1441791221; (Second Samolenkov Report, Exhibit P (Annex 8));.
See also, Rinat Akhmetov Foundation, How to drive across the contact line. Step-by-step instructions (25
September 2015), available at: https://akhmetovfoundation.org/ru/news/kak-proehat-cherez-lynyyusoprykosnovenyya-
poshagovaya-ynstruktsyya (Second Samolenkov Report, Exhibit Q (Annex 8)); See also,
Second Samolenkov Report, ¶233 (Annex 8).
494 Expert Report of Alexander Alekseevich Bobkov, 8 August 2021 (“First Bobkov Report”), ¶36 (2), Figure 8
(Counter-Memorial (ICSFT), Annex 1).
495 Memorial, Annex 696, Dashboard camera footage of the 13 January 2015 shelling.
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380. Therefore, if, as General Brown suggests, the shelling would have taken place at night,
the risk of hitting a concentration of civilian vehicles would have been greater, especially
considering that the DPR forces probably lacked night vision equipment for guidance and
adjustment of fire.
381. General Samolenkov also provides a list of examples when NATO forces attacked, in
broad daylight, targets with concentration of civilian vehicles, such as bridges, tunnels
and industrial hubs; in every instance, despite civilians being hit, it has been explained by
NATO as collateral damage stemming from lawful strikes on legitimate military
targets.496 No charges of terrorism have been brought with regard to these strikes.
382. Ukraine’s next flawed argument for establishing the terrorist nature of the shelling of the
Bugas roadblock is the proposition that the attack was part of a campaign to obtain
political concessions. In this regard, it maintains that “an attack on a long line-up of
civilians, which lacked any plausible military purpose, had the purpose of supporting
ongoing DPR efforts to compel political concessions, particularly where civilians were
attacked in close proximity to major diplomatic negotiations. The most recent atrocities
of 2022, in which the Russian military is itself attacking civilians in order to exert political
pressure, only confirms the point”.497 This calls for some observations:
(a) Ukraine does not specify which political concessions the DPR was seeking to
obtain, and does not substantiate its contention.
(b) The Russian Federation stresses that proving a purpose of “compelling a
government to act or abstain from acting”, being part of the dolus specialis of the
terrorism offence under Article 2(1)(b) of the ICSFT, requires “fully conclusive”
evidence that Ukraine in this case of shelling was unable to present to the Court.
When terrorists seek to compel a government to act in a certain way, they usually
do it openly and do not hide their intentions. However, Ukraine fails to show that
this is what happened in the present case.
(c) The existence of the “campaign” to obtain political concessions requires additional
evidence that Ukraine was unable to present to the Court. The only argument that
496 See Second Samolenkov Report, ¶¶243-245 (Annex 8).
497 Reply, ¶231.
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Ukraine brings in support of this point is that the shelling took place “in close
proximity to major diplomatic negotiations”.498 But this is highly speculative.
Indeed, military clashes in this area were ongoing at the time, and a direct link
between them and the diplomatic negotiations leading to the Minsk Agreements is
not supported by any evidence.
(d) As regards the alleged “recent atrocities of 2022”,499 Ukraine’s accusation is purely
political, speculative and erroneous, and in any event irrelevant in the present case,
which is limited ratione temporis to events that occurred between 2014 and 2017.
Moreover, relying on the incidents of 2022 for purposes of the attack that occurred
in 2015 in itself shows that there was no particular purpose on the part of the DPR
to compel the Ukrainian Government to do or abstain from doing any act in
connection to the Minsk Agreements.
383. Therefore, the “purpose” requirement under Article 2(1)(b) of the ICSFT is not met.
C. MARIUPOL
384. The Russian Federation established that the shelling at Mariupol on 24 January 2015 took
place in the context of a significant escalation of hostilities near the contact line. Ukraine
maintains the opposite but fails to substantiate its claim. Here again, Ukraine turns a
blind eye to the real context of the incident, that is an armed conflict to which IHL is
applicable in the assessment of the attack that caused the death and injury of civilians in
the Vostochniy residence.
i. Ukraine Fails to Establish that the Attack on the Vostochniy Residential
Neighbourhood Was Intended to Cause Death to Civilians
385. Failing to provide any conclusive evidence in support of its allegation that “the civilians
of the Vostochniy neighbourhood were the targets”500, Ukraine points to “the use of BM-
21 weapon system” and an alleged “lack of military explanation” for the attack to
establish what it calls “the “real reason” behind it. Ukraine maintains that this “real
498 Memorial, ¶234.
499 Reply, ¶231.
500 Reply, ¶236.
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reason” was “to harm civilians in the residential area”501. This argument fails for the
simple reason that it is based on Ukraine’s flawed position that the intent required under
Article 2(1)(b) of the ICSFT includes indirect intent502. Some additional observations are
however required.
386. As shown by General Samolenkov in his Second Report, Ukraine’s own evidence
(testimonies obtained by SBU and intercepts) and other Ukrainian sources (Ukrainian
court judgments, statements by the Ukrainian prosecutor's office, reports of Ukrainian
media) confirm that the DPR intended to engage the UAF's defensive positions on the
outskirts of the city, and the hitting of residential areas was the result of the informant
Kirsanov (apparently secretly pro-Kiev) providing knowingly incorrect target coordinates
to the DPR forces.503
387. Some of the materials are particularly illustrative of this. For example, in Kirsanov's
testimony, which he gave to the SBU, he asserted:
“I always intentionally gave him wrong coordinates.”
“On 21 and 22 January, 2014, I provided coordinates for the sites in
Taganrogskaya Street and Marshala Zhukova Street. However, those
coordinates were wrong”.504
388. The verdict of the Ukrainian Court on Kirsanov’s case confirms this:
“He added that at PERSON_5's request, he gave him false information about
the coordinates of the UAF's positions. Further, he did not ask PERSON_5
why he needed such coordinates. He transmitted this information about UAF
roadblocks using a Google map from the Internet. At the same time, he noted
that the location of such roadblocks was common knowledge. While
communicating with PERSON_5, he also met PERSON_7, whose last name
he did not know. He confirmed that the information he gave to PERSON_7
was similar to the information provided by him to PERSON_5, which was
false.”505[Emphasis added].
501 Ibid., ¶235.
502 See above, Chapter III(C).
503 See Second Samolenkov Report, ¶¶246-256.
504 Witness Interrogation Protocol of Valeriy Kirsanov, 25 January 2015 (Memorial, Annex 213).
505 Ordzhonikidze District Court of Mariupol, Case No. 265/4773/15-k, Sentence, 22 June 2016, available at:
http://web.archive.org/web/20211128095111/https://reyestr.court.gov.ua/Review/58450086 (Second Samolenkov
Report, Exhibit AQ (Annex 8)).
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389. The same is confirmed by Ukrainian media reports citing data obtained by the SBU
during its investigation:
“The SBU officers established that former Mariupol police officer Valeriy
Kirsanov was involved in adjusting the fire. According to the special services,
the militants' main targets were military roadblocks near Mariupol, but due to
inaccurate coordinates, the shells hit a residential area.”506
“According to the Ukrainian special services, the militants wanted to shell a
roadblock of the ATO forces, which was about a kilometre away from
residential buildings, but missed.”507
390. And it is again confirmed by the Ukrainian Prosecution service in 2016:
“Thus, on 24 January 2015, the former policeman [Kirsanov] also adjusted
the terrorists' fire. Their main target, according to investigators, was
roadblocks and other places where UAF forces were deployed near the city
of Mariupol. However, due to inaccurate coordinates, the militants shelled the
Vostochny residential area in Levoberezhny district of Mariupol from Grad
launchers.”508
391. Considering that, as noted by General Samolenkov in his First Report, the intercepted
conversations in the case file also confirm that the residential area was not the target of
the strikes,509 “all available sources clearly indicate that the shelling of residential areas
in Mariupol was due to targeting errors and that the actual target of the DPR shelling was
Ukrainian defensive positions outside the city”.510
392. Even without taking into account Kirsanov's transmission of incorrect coordinates, the
hits on residential areas could have been the result of errors and malfunctions.511 This is
confirmed, in particular, by Ukraine’s own purported intercept of a DPR communication,
informing the DPR commander that “one unit was overshooting… could not account for
506 Mariupol City, Mariupol court adjourns trial of Vostochny shelling spotter (16 January 2018), available at:
https://mrpl.city/news/view/v-mariupole-perenesli-zasedanie-suda-po-delu-navodchika-obstrelavostochnogo?
utm_source=ukr.net&utm_medium=referral&utm_campaign=rss (Second Samolenkov
Report, Exhibit AR (Annex 8)).
507 Mediaport, Mariupol shelling: court finds ex-policeman guilty of adjusting fire (23 June 2016), available at:
https://www.mediaport.ua/obstrel-mariupolya-sud-priznal-vinovnym-eks-milicionera-v-korrektirovke-ognya
(Second Samolenkov Report, Exhibit AS (Annex 8)).
508 Donetsk Regional Prosecutor's Office, Press release, 22 June 2016, available at:
https://don.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=187414 (Second Samolenkov
Report, Exhibit AT (Annex 8)).
509 Expert Report of Major General V.A. Samolenkov, 8 August 2021 (“First Samolenkov Report”), ¶¶171-172
(Counter-Memorial (ICSFT), Annex 2).
510 See Second Samolenkov Report, ¶256 (Annex 8).
511 Ibid., ¶¶314-327.
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the number of rockets that impacted the residential area.” 512 Of course, it is not
implausible that the report played down the mistake, and in fact more than one unit had
erroneously overshot their targets.
393. Ukraine further maintains that “the choice of the BM-21 weapon system against targets
on the outskirts of a densely populated residential area would have ensured that civilian
harm was a certain outcome of the attack”.513 It relies on General Brown’s opinion that
“the weapon system used was incapable of damaging the northern checkpoint and other
nearby positions without hitting the eastern section of the residential area”, to conclude
that “even if Russia’s speculation about the actual targets of the attack is credited, the
choice of the BM-21 weapon system against targets on the outskirts of a densely
populated residential area would have ensured that civilian harm was a certain outcome
of the attack.”514 This argument is far from being convincing because the use of the BM-
21 weapon system proves nothing by itself. In fact, it is not the type of weapon used that
is decisive for the characterisation of an attack as a terrorist offence. Moreover, as
explained above, the contention that MLRS is an inherently indiscriminate weapon
remains unfounded.515 In this regard, Samolenkov explains that “[t]he mere choice of
MLRS as a means of attack does not in itself imply the indiscriminate nature of the
shelling”. 516 “As NATO's military experience shows, even the use of the highestprecision
weapons in an urban environment inevitably results in civilian casualties”,517
and that “the choice in favor of MLRS may have been made based on military necessity
and expediency, as MLRS have advantages over cannon artillery and/or could have been
the only available means of destruction at the relevant time.”518
394. Concerning Checkpoint No. 4014, General Brown focuses on the question of whether
more precise and accurate weapons (i.e., tanks, infantry, or artillery guns) could feasibly
512 Ibid., ¶322; Second Brown Report, ¶30 (c) (Reply, Annex 1).
513 Reply, ¶237.
514 Ibid.
515 See above, ¶¶301, 310.
516 See Second Samolenkov Report, ¶10 (g) (Annex 8).
517 Ibid., ¶308.
518 Ibid., ¶10 (f).
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have been used by the DPR.519 However, as General Samolenkov observes, this is to
assume that such options were reasonably available to the DPR when this is far from
being clear520. As explained above, there is also considerable evidence that the UAF
themselves used, inter alia, BM-21 against civilian areas in territory controlled by the
DPR.
395. Regarding military explanation, the Russian Federation has established, based on
conclusive evidence (including the Decision of Ukraine’s Tribunal in the Kirsanov case,
Ukraine’s own expert opinion, and the OSCE Report),521 that, first, the attack of Mariupol
took place in the context of an ongoing armed conflict, in particular during preparation
for an assault on the city by DPR forces, and, second, the attack was aimed at military
objectives. It is in the light of these undisputed facts that civilian harm resulted from the
shelling of the Vostochniy Residential Neighbourhood should be considered.
396. In fact, the shelling was intended to target the military positions in front of the city,
namely Checkpoint No. 4014 (company strongpoint No. 4014 of the Operational
Regiment of the National Guard of Ukraine) and Company Position 4013, very close to
the Vostochniy residential area. Ukraine concedes that Checkpoint No. 4014 and
Company Position 4013 could legitimately have been treated as military objects which
could be attacked by reason of this status. Its focus is on the question of whether attacking
these objects served an apparent military advantage.522 According to General Brown’s
opinion, there would have been a military advantage in attacking this object only “if
followed up immediately by a ground assault”523. However, Ukraine omits to note that
its own purported recordings of intercepted DPR communications suggest that ground
assaults were carried out in the area, and that “based on the location of these objectives,
if shelling from a north-eastern or eastern direction was directed at these targets, it would
follow that overshooting could have impacted the residential area beyond”.524 As General
Samolenkov explains:
519 Expert Report of Lieutenant General Christopher Brown, 5 June 2018 (“First Brown Report”), ¶¶53-54
(Memorial, Annex 11).
520 First Samolenkov Report, ¶189 (Counter-Memorial (ICSFT), Annex 2).
521 Counter-Memorial (ICSFT), ¶421.
522 Reply, ¶235.
523 Ibid.
524 See First Samolenkov Report, ¶168 (Counter-Memorial (ICSFT), Annex 2).
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“In this regard, I would like to point out that from the analysis of the material
submitted to me for examination, I can also assume the existence of the
following several factors or a combination thereof:
(a) errors in the information received about the coordinates of firing positions
and selected military targets,
(b) errors in aiming the launchers,
(c) improper technical preparation of the launchers,
(d) malfunction of the launchers.
It may also be a "human error", such as misinterpretation of received orders
(commands) during fire control, reduced capabilities of personnel due to
tensions in operations, enemy pressure, etc.”525
“The very location of UAF military positions in close proximity to residential
areas, combined with the fact that the population had not been evacuated from
nearby areas, was the principal condition for the occurrence of collateral
damage. When combat activity takes place in close proximity to residential
areas from which civilians have not been evacuated, collateral damage is
almost inevitable. The warfare practice of NATO member states in modern
history confirms this.”526
397. General Samolenkov also clearly showed in his Second Report that “Ukraine's and
General Brown's arguments about the deliberate nature of the attack on residential areas
in order to allegedly intimidate the civilian population are contradicted by the fact that
the DPR was planning an offensive on Mariupol”, a fact that has been acknowledged by
Ukraine and by General Brown.527 Both Russian and Ukrainian military doctrine, which
had presumably been followed by the DPR, envisages the destruction of enemy defensive
positions on the outskirts of a city as one of the first steps in capturing it.528 Possible
plans by the DPR forces to encircle Mariupol also do not refute that the shelling of
Ukrainian positions on eastern outskirts of city was expedient.529 Even in the absence of
any subsequent ground offensive, the defeat of the Ukrainian positions defending the city
was justified from a militarily point of view.530
398. Therefore, Ukraine failed to demonstrate that the “real reason” for that attack was “to
harm civilians in the residential area”. On the other hand, the Russian Federation
525 Second Samolenkov Report, ¶¶316-317, (Annex 8).
526 Ibid., ¶10 (a).
527 Ibid., ¶270.
528 Ibid., ¶¶281-282.
529 Ibid., ¶¶283-296.
530 Ibid., ¶¶297 - 306.
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established that the attack was aimed at military objects and that it served significant
military advantage.
ii. Ukraine Fails to Establish that the Purpose of the Attack on the Vostochniy
Residential Neighbourhood Was to Intimidate the Ukrainian Civilian Population
and Compel the Ukrainian Government to Act or Abstain from doing any Act
399. Insisting on its position that the shelling of the Vostochniy Residential Neighbourhood
“was a deliberate attack on a civilian area with a battery of BM-21 Grad systems”,
Ukraine concludes that “The nature of such an attack is sufficient in itself to establish the
purpose of intimidation”.531 Failing to find any conclusive evidence in support of this
“inference of such a purpose”, it refers to the timing of the attack: “The DPR launched
the attack on a Saturday morning when civilians in the Vostochniy district were likely
either at home with their families or conducting errands in the neighborhood”532.
400. The Russian Federation established above that:
(a) First, the attack on the Vostochniy Residential Neighbourhood was not a deliberate
attack targeting a civilian area, but an attack that took place in the context of an
ongoing armed conflict between the DPR and Government-controlled Forces,
targeting certain military objectives (Checkpoint 4041) that presented military
advantages for the DPR.
(b) Second, the use of BM-21 Grad systems proves nothing by itself as it is not an
“inherently indiscriminate weapon”.
(c) Third, the timing of the attack is irrelevant to the establishment of the alleged
purpose, as other similar shelling incidents took place before and after the attack of
24 January 2015;
(d) Fourth, while conceding that “direct evidence of a purpose to intimidate is rare”
under Article 2(1)(b), Ukraine maintains that “in the case of Mariupol it exists: a
DPR member on the ground, after the civilian death and destruction were apparent,
531 Reply, ¶238.
532 Ibid., ¶239.
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proclaimed: “Let the f*cking bitches be more afraid.”, alleging that “Russia has no
innocent explanation for this statement”.533
401. The Russian Federation has actually addressed this intercepted conversation but
addressed it completely, unlike Ukraine:
“… Ponomarenko S.L.: - Let the f****** b****** be more afraid.
Valeriy Kirsanov - Well, yes.
Ponomarenko S.L. – It just f****** sucks, you know that they’re forcing
people to leave now, and they’re going to sit there.
Valeriy Kirsanov – Yeah. That’s right. And the people there, I tell you,
they’re leaving in droves. In droves!”534
402. The Russian “innocent explanation” of these intercepts, which should be read together, is
the following:
“The context of the comment that Ukraine portrays as celebrating the
spreading terror is also important. The two individuals are discussing
Ukrainian forces (“they” and “they’re”) that are being deployed from
Mariupol to engage with the attacking DPR troops. The comment about
causing fear is most naturally read as relating to the Ukrainian forces.
Immediately after this comment, the speakers regret that the Ukrainian forces
are “forcing people [i.e., civilians] to leave now” and that “the people” (i.e.,
civilians) are leaving in droves”535.
403. Ukraine’s last ground for concluding that the Mariupol shelling is covered by Article
2(1)(b) of the ICSFT is its focus on its alleged “purpose of compelling the Ukrainian
government to act”. It argues that “it is undisputed that Mariupol’s civilian population
was shelled less than two weeks after a bus full of civilian pensioners were killed near
Volnovakha, just a week before a major diplomatic conference at which the DPR was
seeking to extract political concessions, and as a prelude to the attack on the civilians of
Kramatorsk discussed below. Considered in light of this political context, it is proper to
infer that the shelling of the Vostochniy neighborhood had the purpose of compelling the
Ukrainian government to act or abstain from acting”.536
533 Reply, ¶239.
534 Counter-Memorial (ICSFT), ¶437. It is important to emphasize here that the “Let the f****** b****** be more
afraid.” refers to Ukrainian forces, not to the civilian population (“the people there”), which the Ukrainian forces
(“they”) are forcing to “leave in droves”.
535 Counter-Memorial (ICSFT), ¶438 (b).
536 Reply, ¶240.
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404. The Russian Federation reiterates its position that:
(a) First, in its Order of 19 April 2017, the Court noted that Ukraine was not able to
put before the Court evidence which affords a sufficient basis to submit a plausible
case as far as the required purpose to intimidate a population, or to compel a
government or an international organisation to do or to abstain from doing any act
is concerned.537 No such evidence that could alter this conclusion has been put
forward by Ukraine in this Reply regarding the shelling of Mariupol.
(b) Second, the Russian Federation stresses that “compelling a government to act or
abstain from acting”, being part of dolus specialis of terrorism, its establishment
requires “fully conclusive” evidence, that Ukraine in this case of shelling was
unable to present to the Court. Therefore, this allegation remains a mere speculation
and should be rejected.
D. KRAMATORSK
i. Ukraine Fails to Establish that the Attack on Kramatorsk Was Intended to Cause
Death to Civilians
405. Ukraine similarly fails to establish that the shelling impacts at the residential areas of
Kramatorsk on 10 February 2015 constituted an act of terrorism within the meaning of
Article 2(1)(b) of the ICSFT.
406. The Russian Federation established in its Counter-Memorial that the rockets which hit
the residential areas of Kramatorsk were targeted at the Kramatorsk airfield, with the
possibility that the rockets may have malfunctioned and overflown or deviated. 538
Ukraine disagrees. It suggests that the shelling of the airfield must have been separate
from the shelling that landed on the residential areas, such that the residential areas was
directly attacked.539
537 Order of 19 April 2017, ¶75.
538 First Samolenkov Report, ¶¶224-227 (Counter-Memorial (ICSFT), Annex 2).
539 Reply, ¶245.
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407. Ukraine has never contested, nor could it, that the Kramatorsk airfield (which is located
around two km south-east of the edge of the city) was a legitimate military target of great
significance, and that this military objective was in fact attacked on 10 February 2015.540
408. General Samolenkov explains that
“The Kramatorsk airfield housed important military facilities, including the
ATO command headquarters, UAF combat aircraft, air defence systems,
long-range tactical missile systems (Tochka-U Missiles and BM-30 Smerch
MLRS), ammunition and fuel depots, at least 26 military units and others.541
409. The presence of long-range missile systems is particularly notable, including the same
BM-30 “Smerch” heavy MLRS that is said to have been used to attack the airfield. It
highlights that a suitably powerful weapon was needed to eliminate this military hub.
410. Ukraine’s expert General Brown also confirms the high value of the Kramatorsk airfield
as a military objective:
“Neutralization of such a target would significantly impact the operational
capability of the Armed Forces of Ukraine, particularly in terms of command
and control, but also in damage to material; personnel casualties were
particularly heavy in senior officers, a reflection of the level of the
headquarters. It would be a high priority target for any enemy”.542
411. Indeed, General Brown himself attests that the BM-30 “Smerch” was an “ideal” weapon
to use against the airfield:
“BM-30 is not just the only weapon available, it is also the ideal weapon for
neutralization of an airfield and its associated infrastructure, accompanying
units, tented accommodation and soft-skinned vehicles. BM-30 firing 9M55K
sub-munition missiles is optimized to defeat personnel, armoured and soft
targets in concentration areas, artillery batteries, command posts and
ammunition depots.”543
412. Nor did Ukraine challenge the evidence showing that “an aide to Ukraine’s President was
reported as saying that the shelling “must have been targeting the headquarters of the
operation against them”, i.e. the headquarters of the so-called ATO at the airfield.544
540 Counter-Memorial (ICSFT), ¶¶455-456.
541 Second Samolenkov Report, ¶383 (Annex 8).
542 First Brown Report, ¶66 (Memorial, Annex 11).
543 Ibid.
544 Counter-Memorial (ICSFT), ¶457.
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413. Notwithstanding these undisputed facts, Ukraine contends that “The record thus permits
only one possible conclusion: the airfield and the residential area were targeted
separately”.545 This position, however, is thoroughly rebuffed by the available evidence,
including from Ukraine’s own side.
414. First, as regards the “record” that would permit such “conclusion”, Ukraine refers only
to the witness statement of Kyrylo Dvorskyi, who believes that the attack that impacted
the residential area would have happened five minutes later than the shelling of the
airfield.546 However, this allegation fails to stand against the undisputed evidence put
forward by the Russian Federation, including the OSCE reports, a report of the press
centre of Ukraine’s ATO and Ukraine’s witness evidence which prove that both targets
were impacted at the same time, i.e., at around 12.30 pm.547 General Samolenkov
explains this in greater detail in his Second Report.548
415. Second, when attempting to prove two distinct attacks General Brown contradicted his
own reasoning and based his analysis and conclusions on an extremely sparse and
incomplete body of evidence, as he himself admits:
"The Ukrainian Security Service investigation was primarily focused on
evidence of impacts that killed or injured civilians and damaged civilian
property. Moreover, the investigation of the casualties and damage on the
aerodrome appears to have been carried out separately by the military
authorities. The Security Service report is therefore an incomplete picture".549
[Emphasis added]
416. Thus, the SBU once again proved to be an unreliable source of information, according to
Ukraine’s own expert. Notably, the same excuse has been used by General Brown when
attempting to explain why the SBU has provided him with misleading information for his
First Expert Report, leading to incorrect conclusions about the strike at Bugas.550
417. Regardless, even according to the data provided by the SBU and used by General Brown,
only three rockets fell outside the airfield, whereas the airfield was struck, again according
545 Reply, ¶245.
546 Memorial, ¶102.
547 Counter-Memorial (ICSFT), ¶461.
548 Second Samolenkov Report, ¶¶429-432 (Annex 8).
549 Second Brown Report, ¶39 (a) (Reply, Annex 1).
550 Second Brown Report, ¶15 (а) (iii), footnote 72 (Reply, Annex 1).
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to a Ukrainian source, by at least “6 to 12 rockets”. This clearly indicates that in any
event the primary purpose of the attack was to destroy the numerous high-value military
targets at the Kramatorsk airfields. Notably, Ukraine did not provide a tally of military
losses incurred by the strike – evidently, to conceal the advantage gained by the DPR.551
418. Third, contrary to General Brown’s assertion,552 the attack on the north-west sector of the
airfield did not mean that civilian facilities were to be inevitably hit. In particular, General
Samolenkov has shown that General Brown incorrectly calculated the range and
dispersion ellipse of the strike,553 and Colonel Bobkov has disproved the "possible firing
positions" indicated in the Gwilliam and Corbett Report.554
419. General Samolenkov further shows that the DPR had taken steps to mitigate collateral
damage, but it was almost inevitable that it would occur, as the Ukrainian side had
positioned a large, high-value military facility in close proximity to the city and neglected
to evacuate the neighbouring residential areas. General Brown’s claim that the DPR
could have avoided civilian casualties by locating the missile launchers south of the
airfield is untenable because the area south of Kramatorsk was controlled by Ukrainian
forces; and his claim that missile wreckage poses the same threat to civilians as live
warheads is likewise implausible.555
420. The real reason for the collateral damage, as General Samolenkov suggests, was that these
few rockets may have malfunctioned and overflown the target,556 and that they hit the
residential areas of Kramatorsk by error. In its Second Report, General Samolenkov
explains again that:
“The shelling of Kramatorsk residential areas was unintentional and most
likely related to failures of flight range adjustment systems of a small number
of rockets. Unintentional nature of the shelling of residential areas and the
desire to avoid hitting those areas is confirmed by the DPR's use of a UAV
for target reconnaissance in the airfield prior to the attack.”557
551 See Second Samolenkov Report, ¶¶392-396 (Annex 8).
552 Ibid., ¶42 (a).
553 Second Samolenkov Report, ¶¶405-411 (Annex 8).
554 Second Bobkov Report, ¶¶59-82 (Annex 4); Second Samolenkov Report, ¶¶433-436 (Annex 8).
555 Second Samolenkov Report, ¶¶412-416 (Annex 8).
556 Counter-Memorial (ICSFT), ¶464.
557 Second Samolenkov Report, ¶12 (e) (Annex 8).
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421. Unfortunately, deviations of even guided munitions can occur for various reasons and do
occur in practice, even with the best-trained armed formations; General Samolenkov
provides examples of such misfiring from NATO military practice, which led to civilian
casualties that were considered by NATO to be legitimate collateral damage.558
422. It must be added that Ukraine has repeatedly used MLRS systems with cluster munitions,
including BM-30 “Smerch”, hitting population centres in Donetsk and Lugansk with little
to no military justification, leading to numerous civilian deaths (including an employee
of the ICRC) and sparkling an outcry from human rights bodies.559 Ukraine, however,
has never considered these attacks to be acts of terrorism.
ii. Ukraine Failed to Establish that the Purpose of Attack Was to Intimidate the
Ukrainian Civilian Population and Compel the Ukrainian Government to Act or
Abstain from Doing any Act
423. Ukraine alleges that “Evidence of a deliberate attack on a civilian residential sector of a
city, particularly with a powerful and sophisticated weapon system that rains down cluster
munitions, is sufficient to conclude that the attack, by its nature or context, had the
purpose of intimidating a civilian population”. 560 This contention is unfounded and
should be rejected, since:
424. First, the Russian Federation has established that the residential areas of Kramatorsk were
impacted at the same time that the airfield and as a result of mechanical error.
Consequently, it cannot be considered as an attack that could have the purpose of
intimidating a civilian population.
425. Second, the use of BM-30 proves nothing by itself, and this argument is reflective of
Ukraine’s position with respect to the intention to harm civilians. Ukraine’s position is
limited to indirect intent, which is insufficient under article 2(1)(b) ICSFT.561
558 Ibid., ¶¶423-424.
559 Ibid., ¶¶426-428.
560 Reply, ¶247.
561 Counter-Memorial (ICSFT), Chapter V.
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426. Ukraine also alleges that “Separate from the DPR’s purpose to intimidate, the attack on
Kramatorsk had the purpose of compelling the Ukrainian government to act or abstain
from acting”. Here again562 the Russian Federation reiterates its position that:
(a) First, in its Order of 19 April 2017, the Court noted that Ukraine was not able to
put before the Court evidence which affords a sufficient basis to submit a plausible
case as far as the required purpose to intimidate a population, or to compel a
government or an international organisation to do or to abstain from doing any act
is concerned.563 No such evidence that could alter this conclusion has been put
forward by Ukraine in this Reply regarding the shelling of Kramatorsk.
(b) Second, the Russian Federation stresses that “compelling a government to act or
abstain from acting”, being part of dolus specialis of terrorism, its establishment
requires “fully concluding” evidence, that Ukraine in this case of shelling was
unable to present to the Court. Therefore, this allegation remains a mere speculation
and should be rejected.
E. AVDEYEVKA
427. Ukraine has also failed to demonstrate that the shelling of Avdeyevka between late
January and February 2017 was an act of terrorism within the meaning of Article 2(1)(b)
of the ICSFT, and once again, stands alone in characterizing the said shelling as a
“terrorist” act. In fact, Ukraine’s own public position, and the statements or reports of
the OHCHR, the ICRC or the UNSC contradict Ukraine’s characterisation of the shelling
that is at issue in this case.564
i. Ukraine Failed to Establish that the Shelling of Avdeyevka Was Intended to Cause
Death to Civilians
428. In its Counter-Memorial, the Russian Federation established that the residential area
around Avdeyevka was subject to the intense military operations involving a full scale
battle565 in that period, and that the key cause of the escalation of hostilities in January
562 Reply, ¶248.
563 Order of 19 April 2017, ¶75.
564 Counter-Memorial (ICSFT), ¶468.
565 Memorial, Annex 454, ¶31.
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2017 was Ukraine’s so-called “creeping offensives” and the heavy presence of the UAF
both positioned in and moving through residential areas.566
429. These key elements of context of attacks that impacted the residential area of Avdeyevka
remain undisputed in Ukraine’s Reply. Nor does Ukraine deny the significant presence
of its military equipment (including at least three tanks) in the impact sites in Avdeyevka.
General Brown himself admits that:
“in Avdiivka the delineation between UAF and civilian activity is more
blurred”. 567 Moreover, contemporaneous media reported that Ukrainian
heavy artillery, including MLRS, located in the residential areas of Avdiivka,
repeatedly conducted heavy shelling of residential areas in DPR-controlled
Donetsk and Makeyevka, making it an urgent need for DPR to deal with this
threat.568 NGOs and even Ukraine’s own State ministries confirmed that in
Avdiivka Ukrainian Armed Forces used civilian infrastructure such as
schools for military purposes.569
430. Unable to counter these facts, Ukraine attempts to reframe its argument by claiming that
alleged strikes occurred away from Ukrainian military targets admittedly located in the
town:
“Many of the documented incidents of harm to civilians in Avdiivka were far
from Ukrainian military positions. Though Russia’s Counter-Memorial
attempts to focus on specific areas of Avdiivka, particularly those at the edge
of the city, [quote] it identifies no credible military explanation for the attacks
on civilian homes in the northern residential area, away from UAF positions
and possible resupply routes”.570
431. This calls for some observations. First of all, as far as it concerns “specific areas of
Avdeyevka, particularly those at the edge of the city”, Ukraine appears to accept the
military explanation put forward by the Russian Federation in its Counter-Memorial.
Secondly, Ukraine’s assertion that “Many of the documented incidents of harm to
civilians in Avdeyevka were far from Ukrainian military positions”, shows once again
566 Counter-Memorial (ICSFT), ¶¶475-479.
567 Second Brown Report, ¶52 (Reply, Annex 1).
568 RBC, Who started the war in Avdeyevka (31 January 2017), available at:
https://www.rbc ru/newspaper/2017/02/01/589063099a79474b524c6b1d (Second Samolenkov Report, Exhibit R
(Annex 8)).
569 Global Development Commons, Attacks on Schools. Military Use of Schools during the Armed Conflict in
Eastern Ukraine, 2016, available at: https://gdc.unicef.org/resource/attacks-schools-military-use-schools-duringarmed-
conflict-eastern-ukraine.
570 Reply, ¶251.
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the ambiguity that surrounds Ukraine’s allegation regarding the shelling of Avdeyevka,
already highlighted in the Counter-Memorial.571
432. Ukraine’s allegation that the Russian Federation “identifies no credible military
explanation for the attacks on civilian homes in the northern residential area, away from
UAF positions and possible resupply routes”,572 is quite striking. In fact, Ukraine itself
acknowledges that these alleged attacks “were identified based on witness statements and
property inspection reports contained in investigation files obtained after Ukraine filed its
Memorial”.573 It does not explain how and where the Russian Federation was supposed
to provide such an explanation. The Russian Federation reiterates its position that due to
Ukraine’s failure to put into evidence much of the relevant information, which is in its
exclusive possession, the Russian Federation is precluded from responding to the specific
allegations concerning each shelling impact at Avdeyevka.
433. Moreover, as noted by General Samolenkov, open-source evidence suggests that the
information on Ukraine's military positions that it presented in Annex 28 to its Memorial
is misleading at the very least. There were many more such positions, and residential
areas were used to set up firing positions for MLRS, from which Donetsk, which was 6
km from Avdeyevka, was shelled.574
434. Furthermore, Ukraine’s manifest practice of locating its military assets in civilian
infrastructure or closely proximate thereto already makes it plausible – even expected –
that Ukrainian forces would be peppered throughout the town, not only on the outskirts.
435. Nevertheless, General Samolenkov in his Second Report identifies certain specific
fortified positions, artillery emplacements and supply routes of the UAF located in deeper
parts of Avdeyevka, which would explain shelling of those areas.575 Also, the necessity
and possibility of hitting Ukrainian reserves advancing to combat positions and
preventing the supply of ammunition was a militarily important task for the DPR, and
artillery engagement of such mobile targets along the routes would similarly explain the
571 Counter-Memorial (ICSFT), ¶499.
572 Reply, ¶251.
573 Reply, ¶132, fn 452.
574 Second Samolenkov Report, ¶335 (Annex 8).
575 Ibid., ¶¶341-346.
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occurrence of shelling’s in these areas.576 That such targets represented valid military
objectives despite possible collateral damage is shown by General Samolenkov through
the practice of NATO forces.577
436. As explained by General Samolenkov:
437. “The operational situation in the Avdeyevka area during the reporting period was far from
"stable", there was active fighting and an exchange of artillery strikes and other types of
fire. In a situation where the UAF were using residential areas to deploy firing positions
for strikes on Donetsk and other settlements, the DPR forces were faced with a choice:
either expose their own positions and their own civilians in Donetsk and other settlements
to the threat of regular shelling, or respond to strikes in order to hit UAF firing positions
despite their deployment in residential areas. Even if full firing preparations are made and
all prescribed procedures are followed, some projectiles will miss the target, which is a
virtually unavoidable part of artillery firing.”578
438. The possibility of civilian targets being hit by error or as a result of deviations of
projectiles is examined in detail by General Samolenkov. In fact, Ukraine’s expert
General Brown himself claims that civilian damage in Avdeyevka was a result of
irregularities (rather than deliberate targeting), and in effect admits the likelihood of
misses resulting in civilian damage through the sheer nature of artillery, even if firing
occurred in ideal conditions, with no errors or mechanical faults.579
439. General Samolenkov thus demonstrates that shelling was carried out exclusively against
military targets and was justified by combat tactics. Damage to civilian objects resulted
from their proximity to military objects and targets, stemming primarily from Ukrainian
practice of using civilians as “human shields” to protect their forces against attacks.580
440. Invoking the argument of “inherently indiscriminate weapon” is the last flawed attempt
of Ukraine to demonstrate that the shelling of Avdeyevka was an act intended to cause
civilian deaths. It argues that “even if some military targets were in the vicinity, Russia’s
576 Ibid., ¶¶347-358.
577 Ibid., ¶¶359-360.
578 Ibid., ¶366.
579 Ibid., ¶¶361-367.
580 Ibid., ¶373-374.
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use of MLRS in densely populated civilian areas of Avdeyevka was inherently
indiscriminate and qualifies as acts intended to cause civilian deaths on that basis
alone”581. This argument fails too:
(a) First, the Russian Federation has already established that Ukraine’s contention on
the use of MLRS in the Avdeyevka shelling episode is unfounded582. As General
Samolenkov explains, it is “unlikely that the damage was caused by a BM-21
missile (i.e., an area weapon) since this would be expected to cause damage to other
buildings in the immediate vicinity of this populated area. If, however, there were
to be an isolated BM-21 impact site, this would mean that it was unlikely that the
building was the actual target” 583 . This conclusion has not been disputed in
Ukraine’s Reply. Regardless, it must be noted that the use of wide-area weapon
systems (such as BM-21) in the shelling of UAF positions and other military targets
in Avdeyevka does not in itself indicate that the shooters intended to harm civilians.
There are numerous examples of the use of such weapons in urban environments,
both by NATO forces and by the UAF themselves.
(b) Second, Ukraine’s argument on the use of MLRS is reflective of its position with
respect to the intention to harm civilians. Ukraine’s position is limited to indirect
intent, which is insufficient under Article 2(1)(b) of the ICSFT.584
(c) Third, even if it was proven that MLRS was used in those attacks, Ukraine’s
argument on the use of MLRS would not be of great assistance to its case, since the
contention that MLRS is an inherently indiscriminate weapon is not supported by
the finding of international competent bodies, including the ICRC, and international
tribunals jurisprudence. 585 In any event, even if the DPR forces used cannon
artillery, as opposed to MLRS, it would still be inaccurate enough to make hitting
civilian targets highly probable due to the close proximity of Ukrainian military
positions to residential buildings.
581 Reply, ¶252.
582 Counter-Memorial (ICSFT), ¶504.
583 Ibid., ¶504 (b), reference omitted.
584 Counter-Memorial (ICSFT), Chapter V.
585 Ibid.
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(d) Fourth, military doctrine does not require choosing the highest-precision weapon,
even if lower precision would increase the probability of collateral damage.
General Samolenkov provides appropriate examples from the doctrines of various
States such as the US, the UK, Germany, Australia, Denmark and New Zealand.586
(e) Fifth, as the Court observed in its Order of 19 April 2017, even if the acts to which
Ukraine refers have given rise to the death and injury of a large number of civilians,
in order to determine whether they constitute the violation of the Article 2(1)(b) of
the ICSFT, “it is necessary to ascertain 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 […], and the element of purpose specified in
Article 2, paragraph 1 (b), are present”.587 The Court found that “At 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”.588 The Russian
Federation established in its Counter-Memorial, and again in this Rejoinder589 that
no credible evidence has been put forward by Ukraine supporting the presence of
these two elements. Therefore, Ukraine’s contention on this regard should be
rejected.
ii. Ukraine Failed to Establish that the Purpose of Attacks Was to Intimidate the
Ukrainian Civilian Population or to Compel the Ukrainian Government to Act or
Abstain from Doing any Act
441. The Russian Federation established that Ukraine’s assertion that the escalation of
hostilities in late January 2017 was part of a campaign by the militants to obtain political
concessions, is wholly inaccurate.590 In fact, as noted above, Avdeyevka remained a
major flashpoint of the armed conflict for over a month and as the Russian Federation
demonstrated, based on compelling evidence, including the statements of Ukraine’s own
586 Second Samolenkov Report, ¶¶376-381 (Annex 8).
587 Order of 19 April 2017, ¶75.
588 Ibid.
589 See above, Chapter III.
590 Counter-Memorial (ICSFT), ¶475.
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authorities and those of OSCE SMM, the escalation was a reaction to Ukraine’s so-called
“creeping offensives”591.
442. Ukraine pretends that “Russia also does not deny that evidence of repeated, long-term,
and persistent attacks against civilians is evidence of the purpose to intimidate a civilian
population”.592 Ukraine deliberately misrepresents the Russian Federation’s position.
Not only does the Russian Federation deny that the civilians were targeted by “repeated,
long-term, and persistent attacks”, but it also demonstrated in its Counter-Memorial and
in this Rejoinder, that many of the shelling impacts at the residential areas were located
along possible convoy routes, and that the targeting of military equipment moving along
these roads explains collateral damage to the civilian objects located nearby.593
443. Ukraine’s contention that “General Samolenkov concedes that some attacks on
Avdeyevka civilians were not aimed at military targets” 594 is also misleading. The
complete reproduction of General Samolenkov’s opinion shows the exact opposite of
Ukraine’s understanding:
“I do not know which part of the registered explosions resulted from the
shellings by the DPR. In any event, the number of explosions clearly
demonstrates that massive exchanges of fire took place in this area in the
relevant period, and only a relatively small number of explosions affected
civilian areas. It seems reasonable to assume, therefore, that the
overwhelming majority of the shellings were aimed at military targets. If
instead the DPR armed forces really had pursued the purpose of attacking
civilians, they would have presumably directed much more shellings to the
civilian areas and I would have expected a much greater proportion of the
shelling to have affected civilian areas. In general terms, it is not surprising
to me that collateral damage to civilian objects took place given the total
number of explosions registered by the OSCE SMM”595.[Emphasis added]
444. Therefore, Ukraine’s allegations that the attacks on Avdeyevka were aimed at
intimidating the civilians are wholly inaccurate and should be dismissed.
445. Finally, Ukraine contends that “The attacks on civilians in Avdiivka also had the purpose
of compelling the Ukrainian government to act”. Recalling that “attacks occurred at a
591 Counter-Memorial (ICSFT), Annex 209.
592 Reply, ¶253
593 Counter-Memorial (ICSFT), ¶498.
594 Reply, ¶253.
595 First Samolenkov Report, ¶253 (Counter-Memorial (ICSFT), Annex 2).
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time of significant geopolitical uncertainty as a new US administration took office”,
Ukraine concludes that “the purpose of the shelling campaign against the citizens of
Avdiivka was to exert pressure during a period of geopolitical uncertainty in an attempt
to compel the Ukrainian government to give in to political demands”.596
446. The Russian Federation reiterates that “compelling a government to act or abstain from
acting”, being part of dolus specialis of terrorism, its establishment requires “fully
conclusive” evidence, that Ukraine in this case of shelling, like in other cases, was unable
to present to the Court. Therefore, this allegation also remains a mere speculation and
should be rejected.
596 Reply, ¶254.
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VII. UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM IN
RESPECT OF THE ALLEGED KILLINGS AND BOMBINGS WITHIN ITS
TERRITORY
447. As the Russian Federation already explained,597 Ukraine must provide “fully conclusive
evidence” of a terrorism-financing offence to trigger the Russian Federation’s
responsibility under the ICSFT. Ukraine has not fulfilled this evidentiary standard as
regards its claims of alleged killings and bombings within the Ukrainian territory.
448. As with indiscriminate shelling, if Ukraine were correct that the acts of killing and illtreatment
amount to “terrorist” acts under Article 2(1)(b), Ukraine would likewise be
centrally implicated in such “terrorist” acts and that is a legal characterisation that Ukraine
presumably would not accept. In particular Ukraine has nothing to say with respect to
the 2017 report on “Unlawful detentions and torture committed by the Ukrainian side in
the armed conflict in Eastern Ukraine”, prepared by a source which Ukraine relies on and
that the Russian Federation referred to in its Counter-Memorial.598
449. Moreover, Ukraine failed to demonstrate in the Memorial that these extremely grave
allegations are based on any credible evidentiary material at all.599 Those additional
observations and materials that Ukraine submitted with the Reply do not remedy that flaw
in any way.
450. As the Russian Federation will show below, Ukraine’s evidence on the alleged killings
and bombings is a combination of coerced confessions, planted or fabricated evidence
and biased reports by law enforcement authorities, which contain multiple inconsistencies
and errors. Moreover, the “killings” that Ukraine put forward in this case are for the most
part obviously staged performances where nobody has actually been killed and the entire
incident was fabricated. Such staged incidents or “fake” evidence was the modus
operandi of Ukrainian authorities in order to create artificial grounds for extension of the
anti-terrorism operation, to promote the publicity of certain individuals or simply to
detain more individuals under false pretences for exchanging with the DPR and LPR.
597 See Chapter I above and Counter-Memorial (ICSFT), ¶13.
598 Counter-Memorial (ICSFT), ¶513.
599 Counter-Memorial (ICSFT), ¶¶509–515.
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A. THE ROLE OF THE SBU AND OTHER LAW ENFORCEMENT AGENCIES
451. When talking about explosions and murders mentioned by Ukraine in its Memorial as
well as in its Reply, the first thing to keep in mind is that any claims referring to data from
Ukrainian law enforcement and investigative agencies should be treated with scepticism.
452. Domestic political clashes in Ukraine often involve law enforcement agencies that
compete for influence and power, one of the consequences of this situation is a poor level
of coordination that is demonstrated by the following facts.
453. On 4 December 2016, in the village of Knyazhichi near Kiev, two Ukrainian police units
engaged in a shootout, mistaking each other for bandits. Five officers were killed.600 On
19 September 2018, detectives of the National Anti-Corruption Bureau of Ukraine tried
to wiretap the office of the head of the Specialized Anti-Corruption Prosecutor’s Office
Kholodnitskiy. They were caught red-handed by officers of the State Guard Department,
who were guarding the prosecutor’s office. The guards then called the police. In their
turn, the Bureau’s Director Mr Sytnik sent a special force group to rescue his messed-up
colleagues. As a result, officers of four Ukrainian law enforcement agencies fought in
the center of Kiev.601 On 5 March 2022, banker Denis Kireev, who in February 2022
took part in Russian-Ukrainian peace negotiations in Minsk, was summarily executed by
the SBU in Kiev. Later, the head of the Main Directorate of Intelligence of Ukraine’s
Defence Ministry (the “GUR”), Budanov, stated that Denis Kireyev was an agent of the
Directorate, and that “no one expected such a reaction from the SBU officers towards the
GUR agent”.602
454. In its Reply, Ukraine relies predominantly on the statements that the SBU was able to
elicit during interrogations of suspects.603 The Russian Federation has already noted that
600 Hromadske, Deadly “friendly fire”: why 5 policemen were killed in Knyazhychi (4 December 2016), available
at: https://hromadske.ua/posts/specoperaciya-knyazhichi-vbivstvo-policeiskih (Annex 378).
601 UNIAN, Kholodnytskyi accuses Sytnyk of using NABU for revenge and “satisfying his ego” (19 September
2018), available at: https://www.unian.ua/politics/10267230-holodnickiy-zvinuvativ-sitnika-u-vikoristanni-nabuzadlya-
pomsti-ta-zadovolennya-vlasnih-kompleksiv.html (Annex 379).
602 Hromadske, Budanov about the death of Denis Kireev: “He was killed in an SBU car” (22 January 2023),
available at: https://hromadske.ua/ru/posts/budanov-o-gibeli-denisa-kireeva-byl-ubit-v-mashine-sbu (Annex 380).
603 For example, Signed Declaration of Andrii Baranenko, Suspect Interrogation Protocol (23 October 2014),
(Memorial, Annex 191); Signed Declaration of Marina Kovtun, Suspect Interrogation Protocol (16 November
2014), (Memorial, Annex 196); Signed Declaration of Vasily Pushkarev, Suspect Interrogation Protocol (31
August 2015), (Memorial, Annex 242), etc.
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such materials do not amount to evidence establishing terrorism financing, and the
individuals on whose testimony Ukraine now relies have already sought to withdraw their
statements because they were obtained by torture or ill-treatment.604
455. It is, however, important to underscore the context in which the SBU was conducting
these activities. The period from 2014 to 2017 saw a pattern of brutal violence by Maidan
coup supporters against their political opponents. Waves of attacks occurred throughout
Ukraine, including Kiev,605 Odessa,606 and Kharkov.607 Pro-Maidan thugs conducted
mass beatings, murders, and even house burnings in order to impose power of the Maidan
leaders on the Russian-speaking population.608 It is therefore unsurprising that in big
cities with a large proportion of the Russian population, such as Kiev, Odessa, and
Kharkov, resentment against the Maidan regime was fomenting, and possibly taking
violent forms. However, this can qualify as a civil strife and not in any way as evidence
of terrorism or terrorism-financing.
456. Ukraine, and more specifically the SBU, was notorious for using “staged” or “faked”
“plots” in order to incite hatred towards the Russian Federation and raise tensions in
Ukrainian society. One such “staged assassination” was the fake “murder” of anti-
Russian journalist Arkadiy Babchenko in Kiev in May 2018,609 who was discovered alive
after being declared dead by the SBU as a result of a “Russian plot”. 610 Arkadiy
Babchenko himself admitted the SBU had approached him with a proposal to organise an
imitation of his death.611 This is very similar to the present case, where victims of alleged
604 Counter-Memorial (ICSFT), ¶508.
605 BBC News, Ukraine Crisis: Russia Condemns Attack on Kiev Embassy (14 June 2014), available at:
https://www.bbc.com/news/world-europe-27853698 (Annex 95).
606 The Guardian, Ukraine Clashes: Dozens Dead after Odessa Building Fire (2 May 2014), available at:
https://www.theguardian.com/world/2014/may/02/ukraine-dead-odessa-building-fire (Annex 94).
607 AIF.RU, Ukrainian barbarians, Ukrainian nationalists demolish Lenin monument in Kharkov (29 September
2014), available at: https://aif.ru/euromaidan/prediction/1348374 (Annex 77).
608 See for example, The Guardian, Ukraine Clashes: Dozens Dead after Odessa Building Fire (2 May 2014),
available at: https://www.theguardian.com/world/2014/may/02/ukraine-dead-odessa-building-fire (Annex 94).
609 Ukrainian Pravda, Journalist Babchenko is alive, the murder is staged (30 May 2018), available at:
https://www.pravda.com.ua/rus/news/2018/05/30/7181836/ (Annex 78).
610 The Guardian, Arkady Babchenko Reveals He Faked His Death to Thwart Moscow Plot (30 May 2018),
available at: https://www.theguardian.com/world/2018/may/30/arkady-babchenko-reveals-he-faked-his-death-tothwart-
moscow-plot (Annex 93).
611 Ibid.
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killings “miraculously survived” and the body of evidence on the alleged “Russian
assassination plots” consists of information supplied by the SBU.
B. “KHARKOV PARTISANS”
457. Ukraine’s evidence on the alleged activities of the group “Kharkov Partisans” is based on
unreliable and contradictory evidence obtained by the SBU.
458. First, when Ukraine alleges that Mr Sobchenko and Mr Monastyrev founded the
“Kharkov Partisans”, 612 “began to receive funding and support from the Russian
Federation intelligence services” 613 and “loosely recruited, arranged training, and
supported numerous members to carry out acts of violence in Kharkov”,614 it relies on the
testimony of so-called terrorist suspects and witnesses. 615 However, most of these
testimonies were given without the presence of an attorney-at-law,616 which is a grave
procedural violation that renders such testimonies inadmissible evidence at trial.
459. Second, the testimony of some of the accused is unconvincing. For example, according
to Mr Bondarenko’s testimony:
(a) Mr Sobchenko arranged for Mr Bondarenko to work at a “construction site” in
Belgorod for “about a month and a half”.617
612 Memorial, ¶117.
613 Ibid.
614 Ibid.
615 Signed Declaration of Aleksandr Bondarenko, Suspect Interrogation Protocol of 23 October 2014 (Memorial,
Annex 190); Signed Declaration of Yevhen Kaliberda, Suspect Interrogation Protocol of 21 October 2014
(Memorial, Annex 189); Signed Declaration of Andrii Baranenko, Suspect Interrogation Protocol of 23 October
2014 (Memorial, Annex 191); Signed Declaration of A.M. Tyshchenko, Suspect Interrogation Protocol of 26
December 2015 (Memorial, Annex 245); Signed Declaration of Yaroslav Zamko, Suspect Interrogation Protocol
of 26 August 2015 (Memorial, Annex 241); Signed Declaration of Vadim Chekhovsky, Suspect Interrogation
Protocol of 9 May 2015 (Memorial, Annex 229); Signed Declaration of Kostiantyn Nuzhnenkoenko, Suspect
Interrogation Protocol of 16 July 2015 (Memorial, Annex 233); Signed Declaration of Dmytro Kononenko,
Suspect Interrogation Protocol of 22 February 2016 (Memorial, Annex 246).
616 See, for example, Signed Declaration of Yevhen Kaliberda, Suspect Interrogation Protocol of 21 October 2014,
(Memorial, Annex 189, p. 2); Signed Declaration of Yaroslav Zamko, Suspect Interrogation Protocol of 26 August
2015, (Memorial, Annex 241, p. 2); Signed Declaration of Vadim Chekhovsky, Suspect Interrogation Protocol of
9 May 2015, (Memorial, Annex 229, p. 2); Signed Declaration of Dmytro Kononenko, Suspect Interrogation
Protocol of 22 February 2016, (Memorial, Annex 246, p. 2).
617 Signed Declaration of Aleksandr Bondarenko, Suspect Interrogation Protocol of 23 October 2014 (Memorial,
Annex 190, pp. 4-5).
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(b) Then Mr Sobchenko sent Mr Bondarenko to a military “camp”, having taken away
his documents.618 There he allegedly had a five-day shooting training and theory
of using explosives.619
(c) At the same time, Mr Bondarenko allegedly did not ask any questions about why
he was in that camp and subsequently simply followed Mr Sobchenko’s instructions
to participate in the bombings unconditionally, without any reservations.
(d) This is a very unrealistic narrative that no unbiased investigator would seriously
consider to be even remotely plausible. In addition, Mr Bondarenko’s testimony is
not corroborated by any photographs of Mr Sobchenko, whom he allegedly
identified.620
460. Mr Kaliberda’s testimony621 is similarly flawed:
(a) The “testimony report” states that Mr Kaliberda recognised Mr Sobchenko by
pictures, but the pictures themselves are not attached to this document.622 Thus,
this testimony cannot be properly verified and is unreliable.
(b) Just as Mr Bondarenko’s testimony, Mr Kaliberda’s evidence is unconvincing
because it describes him following unconditionally the instructions of people whom
he barely knew, such as to conceal “grenades” where he chose or travel to Belgorod
on several occasions for no plausible reason.
(c) Further, Ukraine conceals Mr Kaliberda’s real name,623 thus preventing the Russian
Federation to even check if that person had ever crossed the Russian border.
461. Mr Baranenko’s testimony624 is likewise contradictory. The date of Mr Baranenko’s
interrogation report as a suspect is 23 October 2014. Mr Baranenko was accused under
618 Ibid., p. 6.
619 Ibid., p. 7.
620 Ibid.
621 Signed Declaration of Yevhen Kaliberda, Suspect Interrogation Protocol of 21 October 2014 (Memorial, Annex
189).
622 Ibid.
623 Ibid., p. 1.
624 Signed Declaration of Andrii Baranenko, Suspect Interrogation Protocol of 23 October 2014 (Memorial, Annex
191).
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Articles 258-3 of the Criminal Code of Ukraine (committing a terrorist act) and, according
to his interrogation report, fully pleaded guilty to the charges. However, according to
publicly available information,625 Mr Baranenko was put on the wanted list only on 22
September 2016. Clearly, if he made his confession in 2014, there would be no reason
for him to be at large in 2016. Baranenko’s testimony should therefore be treated
critically as well.
462. Third and finally, “Kharkov Partisans’” representatives in media vehemently denied their
involvement in any terrorist attacks and indicated that Ukraine purposefully painted them
as terrorists to smear their image. Mr Ekoziants, who was a representative of the
“Kharkov Partisans”, explained that the explosions that Ukraine attributed to the
“Kharkov Partisans” were in fact staged on the orders of Ukrainian Interior Minister
Arsen Avakov, so that Kiev could introduce the regime of anti-terrorist operation in the
Kharkov region.626
C. STENA PUB BOMBING
463. The allegations of the Russian Federation’s involvement in providing weapons for the
bombing of Stena Pub in Kharkov by SPM limpet mine627 are likewise unsubstantiated.
However, before turning to that it must be recalled that weapons in any case do not
constitute funds under the ICSFT. 628 Ukraine relies primarily on Marina Kovtun’s
testimony, which she, like many of the other criminal defendants referred to in the present
case, provided without the presence of an attorney-at-law.629
464. When Ukraine alleges that the “Russian officials armed Kovtun with an array of weapons,
including three SPM limpet mines, a military weapon developed for use in naval
warfare”,630 it refers to the “Expert Conclusion” No. 532/2014, drafted by a governmental
625 5140.org, Baranenko Andrii Volodymyrovych (25 January 2023), available at: https://5140.org/wantedpeople/
639374673-baranenko-andrej-vladimirovich?ysclid=lb9xdz81py470992811 (Annex 84).
626 Polit.ru, The “Kharkov Partisans” Disclaim Responsibility for Terrorist attack in Kharkov (23 February 2015),
available at: https://polit.ru/news/2015/02/23/no_responsibility/ (Annex 79).
627 See Reply, ¶¶268-277, Memorial, ¶¶118-120.
628 See Chapter IV above.
629 Signed Declaration of Marina Kovtun, Suspect Interrogation Protocol of 16 November 2014, (Memorial, Annex
196).
630 Memorial, ¶118.
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agency of Ukraine.631 At the same time, the expert report contains no references to any
marking of the SPM limpet mines, nor does it explain why the only source of the SPM
limpet mines could have been the Russian Federation. In fact, SPM limpet mines have
been used in various countries, including in Ukraine.632 SMP limpet mine, allegedly
produced in 1990, was a Soviet-made weapon in the arsenal of the UAF after the
dissolution of the USSR in 1991; furthermore, armaments were still officially supplied
from the Russian Federation to Ukraine up until 1994. In the present case there is no
evidence that the mine was of later Russian origin. In fact, even Ukrainian police officers
have been reported to be the potential suppliers of SMP mines.633
465. Further, when Ukraine claims that “on the night of 8 November 2014, Kovtun and an
accomplice planted the first of these limpet mines in an attempt to destroy the Malyshev
Plant”,634 it relies on the Expert Conclusion No. 557/2014,635 the Signed Declaration of
Kovtun636 and the video recording that was allegedly found in Kovtun's phone.637 None
of these pieces of evidence support this claim:
(a) As Ukraine itself admits, “no markings were left to trace the specific mine used to
Russia”.638
(b) The Expert Conclusion No. 557/2014, which is also drafted by a governmental
agency of Ukraine, contains no analysis of markings on the mine and no
confirmation that its only possible source is the Russian Federation. Moreover, the
631 Expert Conclusion No. 532/2014, drafted by the Forensic Research Center, Ministry of Internal Affairs of
Ukraine, Main Directorate of the Ministry of Internal Affairs of Ukraine in Kharkov Region of 3 April 2015
(Memorial, Annex 116).
632 According to S.B. Kozlov, after the collapse of the USSR, the Ukrainian navy was provided with a large number
of weapons, including Soviet SPMs. See S.B. Kozlov, GRUSPETSNAZ: FIFTY YEARS OF HISTORY, TWENTY YEARS
OF WAR (Russkaya Panorama Publishers, Essays on Contemporary History Series, 2003), (Annex 41).
633 BAGNET, Kharkov terrorists may have been helped by police officers (22 November 2014), available at:
https://www.bagnet.org/news/accidents/249149/harkovskim-terroristam-mogli-pomogat-rabotniki-militsii
(Annex 81); Ukranews.com, Kharkov police officer kept mine at home (22 November 2014), available at:
https://ukranews.com/news/289036-kharkovskyy-mylycyoner-khranyl-doma-mynu (Annex 82).
634 Memorial, ¶118.
635 Expert Conclusion No. 557/2014, drafted by the Forensic Research Center, Ministry of Internal Affairs of
Ukraine, Main Directorate of the Ministry of Internal Affairs of Ukraine in Kharkov Region of 23 March 2015,
(Memorial, Annex 112).
636 Signed Declaration of Marina Kovtun, Suspect Interrogation Protocol of 16 November 2014 (Memorial, Annex
196).
637 Kovtun video of Malysheev Plant bombing (video) (Memorial, Annex 693).
638 Reply, ¶269.
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very conclusion that the explosion resulted from the SPM limpet mine was only
“probable”.639
(c) The video recording shows an unknown man with a bag walking towards a
collection well, then stopping and holding the bag. It is impossible to ascertain
from the video neither the location, nor the identity of the man, nor the manipulation
that the man was performing with the object in the bag. Furthermore, even the file
metadata may have been tweaked because the file modification time (11:48 AM)
plainly does not correspond to the late night-time depicted in the video.640
(d) Finally, and most importantly, the Ukrainian court found that Ms Kovtun’s guilt
was not proven in other explosions: at “the collector of the Malyshev plant and near
Britannia restaurant”.641 In this way, Ukraine’s claim is directly refuted by its own
evidence.
466. Ukraine then asserts that three assault rifles were retrieved from Marina Kovtun’s
“hideout”, which had specific markings tracing them to Crimea, implying that they were
taken by the Russian Federation after the reunification of Crimea with the Russian
Federation in 2014.642 This assertion is also unfounded:
(a) Pursuant to the letter on which Ukraine bases its allegation, the weapons were
manufactured in 1985 and 1986 and were located in Crimea.643 This letter does not
suggest that the weapons were moved exactly between March and November 2014,
and not in the preceding 30 years.
639 Expert Conclusion No. 557/2014, drafted by the Forensic Research Center, Ministry of Internal Affairs of
Ukraine, Main Directorate of the Ministry of Internal Affairs of Ukraine in Kharkov Region of 23 March 2015
(Memorial, Annex 112, p. 17).
640 Kovtun video of Malysheev Plant bombing (video) (Memorial, Annex 693).
641 Novynarnia, “Separam – Freedom”: Whom Ukraine Released to ORDLO at the Big Exchange in 2019 List (30
December 2019) (Reply, Annex 78, p. 3).
642 Reply, ¶269.
643 Central Missile and Artillery Directorate of the Armed Forces of Ukraine Letter No. 342/2/3618 of 11 March
2015 (Memorial, Annex 110).
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(b) In addition, there is no indication in the “Search and Seizure Report” that the
examination of evidence was conducted in the presence of witnesses and an
attorney-at-law, which indicates a procedural violation.644
(c) The records of Marina Kovtun’s crossing of the Ukraine-Russian border645 are also
unreliable and do not constitute proper evidence - according to the entry and exit
data in the submitted report, Marina Kovtun left Ukraine twice in a row – on 30
September 2014 and 9 October 2014, with no entry mark between these dates.646
This would have been impossible. Also, the dates of crossing the border in Marina
Kovtun’s testimony clearly do not match those in Ukraine’s records, sometimes
differing by several weeks.647
467. In fact, Marina Kovtun’s sister stated that Marina Kovtun happened to be a random
passer-by whose confession was received under torture.648 According to her, when she
saw the video where Marina Kovtun confessed to working for the “Russian special
services”, she realised that these words were beaten out of her under torture:
“She had absolutely nothing to do with [the explosion in the rock-pub
‘Stena’]. She didn't do anything like that. I saw her confession on the Internet;
I could hear it in her voice that it hurt to talk. How she was beaten up, if I saw
her four weeks later in the jail through two glass panes and two bars, and one
side of her face was just blue. I can imagine what happened to her then”.649
468. According to the Commissioner for Human Rights in the Lugansk People’s Republic, the
explosives found in Marina Kovtun’s possession had been planted on her by the SBU.650
644 Search and Seizure Report, drafted by Senior Lieutenant of Justice O.B. Butyrin, Senior Investigator,
Investigations Department of the Directorate of the Security Service of Ukraine in the Kharkov Region of 16
November 2014 (Reply, Annex 9, p. 3).
645 Ukrainian Border Guard Service Letter No. 51/680 to Lieutenant Colonel I.V. Selenkov, Deputy Head of the
Investigations Department, Directorate of the Security Service of Ukraine in the Kharkov Region, dated 16 April
2015 (Reply, Annex 30, pp. 2‒3).
646 Ibid.
647 For instance, Ukraine’s official records refer to her entry to Ukraine on 23 July 2014 (Ukrainian Border Guard
Service Letter No. 51/680, p. 4 (Reply, Annex 30). Kovtun’s testimony, however, refers to arrival to Kharkov “on
or around August 3, 2014”, some two weeks later (Declaration of Marina Kovtun, Suspect Interrogation Protocol
of 16 November 2014, (Memorial, Annex 196, p. 4).
648 See Korrespondent net, SSU Has Tortured Marina Kovtun Accused of Blowing up Stena Rock Pub for Three
Years (22 November 2017), available at: https://blogs korrespondent.net/blog/events/3909377/ (Annex 80);
Witness Statement of , 10 March 2023, ¶¶13-15 (Annex 9).
649 Korrespondent net, SSU Has Tortured Marina Kovtun Accused of Blowing up Stena Rock Pub for Three Years
(22 November 2017), available at: https://blogs korrespondent.net/blog/events/3909377/ (Annex 80).
650 Witness Statement of , 10 March 2023, ¶14 (Annex 9).
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Her teeth were knocked out during her detention.651 Physical injuries on her face were
visible at the trial.652 Marina Kovtun herself also reported ill-treatment, stating that she
had been tortured, threatened and blackmailed.653 She retracted her earlier confession
given under torture and went on numerous hunger strikes.654 She was tortured, tormented,
and subjected to psychological pressure during her imprisonment.655 Under threats to her
family and relatives, and torture, Marina Kovtun confessed and incriminated herself.656
469. The fact that Marina Kovtun was later exchanged to the Russian Federation does not in
any way prove the Russian Federation’s involvement with the bombings. The real
reasons of Marina Kovtun’s exchange were purely humanitarian - as complaints were
made by her relatives as to her unlawful detention, prosecution, and torture by Ukraine’s
officials.657 Marina Kovtun was put on the exchange list on suggestion of the OSCE
SMM. When its representative Tony Frisch visited Ukraine, Marina Kovtun confirmed
her consent and was put on the exchange list.658 In fact, along with Marina Kovtun,
dozens of other people, whose involvement in any bombings, killings or other attacks is
not alleged by Ukraine, were put on the exchange list.659
470. Finally, even if the veracity of Ukraine’s improbable account was assumed (quod non),
the bombing of the Stena Pub still would not qualify as an act of terrorism. The owner of
this pub was a sympathiser of the “Azov” battalion and on the day of the attack he
651 Ukraine ru, 11 years for a note. Political prisoner Kovtun convicted in Kharkov on falsified evidence (10
October 2019), available at: https://ukraina.ru/20191010/1025278110 html (Annex 83).
652 Korrespondent net, SSU Has Tortured Marina Kovtun Accused of Blowing up Stena Rock Pub for Three Years
(22 November 2017), available at: https://blogs korrespondent.net/blog/events/3909377/ (Annex 80).
653 5.ua, The terrorist attack in the Stena pub in Kharkov: Prosecutors ask for 12 years in prison for the accused -
details (27 September 2019), available at: https://www.5.ua/ru/rehyoni/terakt-v-pabe-stena-v-kharkoveprokuratura-
prosyt-12-let-tiurmi-dlia-obvyniaemoi-podrobnosty-199997 html (Annex 216).
654 Anti-fascist, Kharkov political prisoner Marina Kovtun is to be sentenced on 7 October. The prosecutor's office
requested 12 years in prison (2 October 2019), available at: https://antifashist.com/item/harkovskojpolitzaklyuchennoj-
marine-kovtun-7-oktyabrya-oglasyat-prigovor-prokuratura-zaprosila-12-let-lisheniyasvobody
html (Annex 85).
655 Ibid.
656 Letter of the Commissioner for Human Rights in Lugansk People’s Republic N 851 dated 8 December 2022
(Annex 459).
657 Witness Statement of , 10 March 2023, ¶16 (Annex 9).
658 Ibid.
659 Novynarnia, “Separam - Freedom”: Whom Ukraine Released to ORDLO at the Big Exchange in 2019. List of
30 December 2019 (Reply, Annex 78, p. 3).
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provided Stena Pub’s premises for a meeting of the members of this nationalist group that
just returned from the ATO.660
471. It should also be noted that the Stena Pub is located in Kharkov at Rymarskaya st., 13.
Back in 2014, on the opposite site of the street – at Rymarskaya st., 18, the office of the
Neo-Nazi organisation “Patriot of Ukraine” was located, whose members formed the socalled
“Azov” volunteer battalion and later, in 2016, the Neo-Nazi organisation “National
Corps”. Further information on these Neo-Nazi organizations and their role in the genesis
of the Ukrainian conflict will be given below in the corresponding section on the CERD.
472. On 14 March 2014, “Patriot of Ukraine” activists opened fire from the windows of their
office at the supporters of the federalization of Ukraine, leaving 2 killed and 5
wounded.661 At the same time, the Stena Pub was used by Neo-Nazis as an observation
point from which they monitored the situation on Rymarskaya Street.662
473. Nikolay Kruk, an associate of “Patriot of Ukraine’s” leader Andrei Biletsky (later – also
commander of the “Azov” battalion and leader of National Corps), also confirmed that
there was a “hornet's nest” of Ukrainian Neo-Nazis on Rymarskaya Street in Kharkov:
“On Rymarska Street in Kharkov, the main center of the nationalist
movement was located. The building was obtained from the State by the
Prosvita Society for the promotion of the Ukrainian Language in the mid-
2000s. Since 2006, the office of the Patriot of Ukraine organization, headed
by Andriy Biletsky, has been located here. We had about two hundred
activists in Kharkov…
We returned there on March 6-7 [2014]. There were old ladies from Prosvita
sitting there. And we started building a fortress from Rymarskaya Street. We
covered the windows with sandbags and boarded up the back door. There
were water barrels and a fire extinguisher in the rooms. We placed "cocktail
bars" [Molotov cocktails stored together for further use in fighting] on the
roof of our building on both sides. Imagine: the city center, the flag of the
Russian Federation on the Kharkov regional state administration, and
sandbags and the flag of Ukraine in our windows.
660 Korrespondent net, SSU Has Tortured Marina Kovtun Accused of Blowing up Stena Rock Pub for Three Years
(22 November 2017) available at: https://blogs korrespondent.net/blog/events/3909377/ (Annex 80).
661 See Magnolia-TV, Nightmare in Kharkov. A chronicle of bloody events (15 March 2014), available at:
http://magnolia-tv.com/text-news/2014-03-15/37376-n-chnii-koshmar-u-kharkov-khron-ka-krivavikh-pod-i
(Annex 311).
662Wikipedia, Schematic diagram of the battle on Rymarskaya Street in Kharkov, 14/15 March 2014 (23 September
2019), available at:
https://commons.wikimedia.org/wiki/File:%D0%91%D1%96%D0%B9_%D0%BD%D0%B0_%D0%A0%D0%
B8%D0%BC%D0%B0%D1%80%D1%81%D1%8C%D0%BA%D1%96%D0%B9.jpg (Annex 463).
Page 184 out of 541
We were collecting weapons: traumatic, hunting, shovels, pickaxe handles,
Molotov cocktails. Twenty people were on duty all the time. We organised a
mobilization center, a mini-headquarters.”663
474. There is also quite a remarkable coincidence - on 17 January 2017, the Verkhovnaya Rada
of Ukraine adopted a resolution on the establishment of the Day of Ukrainian Volunteer,
setting it on 14 March – the day of the above-mentioned shootout at Rymarskaya street,
in front of the Stena Pub.664 Neo-Nazi from the National Corps have never denied the
fact that the Day of Ukrainian Volunteer was established in honor of the Neo-Nazi, which
took part in this shootout:
“The battle on Rymarska Street on 14 March was, in fact, the first armed
confrontation in the Russian-Ukrainian war. It was one of the few cases when
Ukrainians did not act as “tepees” but gave a worthy rebuff to separatism.
Therefore, this date is doubly important for our Movement, because that day
4 years ago became a baptism of fire and gave impetus to the formation of the
Azov volunteer unit”.665
475. In the context of armed conflict in Donbass, it is important to note that members of the
“Azov” battalion are combatants. The fact that they were not in an active combat zone
does not change their status. As M.N. Schmitt noted:
“The nexus need not be a battle itself. For instance, combatants may be
attacked anywhere they are found outside neutral territory as an example. If
a civilian attacks a combatant who is on leave at a resort because of his or her
membership in the armed forces of a Party to the conflict, the civilian has
directly participated in hostilities.”666
476. Thus, the gathering of the “Patriot of Ukraine” and the “Azov” fighters in this pub, who
in addition previously have already killed people in front of it, would qualify as a military
target for the alleged attack under the IHL, and fall, in particular, under the military
exclusion clause in Article 19 of ICSBT.
663 Cenzor.net, 14 March 2014 – Ukraine stands up for Kharkov (14 March 2018), available at:
https://censor net/ua/resonance/3055537/14_bereznya_2014_ukrayina_vidstoyala_harkiv (Annex 312).
664 Resolution of the Verkhovna Rada of Ukraine “On Establishing Ukrainian Volunteer Day Kyiv” No. 1822-
VIII, 17 January 2017, available at: https://zakon.rada.gov.ua/laws/show/1822-19#Text (Annex 480), See also:
Euro.kharkiv.ua, Day of the Volunteer. Anniversary of the defense of Rymarskaya (24 February 2023), available
at: https://euro kharkiv.ua/den-dobrovolczya-richnyczya-oborony-rym/ (Annex 313).
665 Ibid.
666 Schmitt, M. Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian
Employees., Chicago Journal of International Law (Vol. 5: No. 2, 2005, pp. 536-537).
Page 185 out of 541
D. ALLEGED BOMBING OF PRIVATBANK
477. The allegations that the Russian Federation officials “supplied” the weapons used in an
attack on the regional office of PrivatBank in Kharkov, 667 is equally unfounded.
Furthermore, the circumstances of the case and the very “evidence” supplied by Ukraine
point towards this being yet another staged incident, with no real attack having occurred.
In any case, even if Ukraine’s claims were taken for granted, this event would not fall
under the ICSFT as it lacks the most basic elements of a terrorist act.
478. First, there is no credible evidence that an MRO-A “Borodach” incendiary grenade
launcher was used in the attack.668 The SBU claims to have found an empty launcher
tube at the site of the attack.669 However, empty (used and discarded) launcher tubes are
not considered weapons and are available for purchase in Ukraine as replicas; actual
replicas can also be purchased freely.670
479. There is likewise no evidence that the explosion itself was a result of specifically an
MRO-A attack: another incendiary grenade launcher might have been used for similar
results, such as RPO-“Shmel” in service with the UAF,671 or the attack could have been
performed with a different weapon entirely, such as an improvised explosive device.672
480. In fact, even Ukraine’s own evidence contravenes Ukraine’s claim on the matter. The
alleged perpetrator Mr Pushkarev, in his “interview” submitted by Ukraine, first mentions
“either grenade launchers or flamethrowers” (indicating he cannot clearly identify even
the type of weapon, much less its exact model). Then he says that his apparently more
knowledgeable companion M. Reznikov called the weapon a “Shmel flamethrower”. Mr
Pushkarev continues to refer to the weapon as “Shmel flamethrower” throughout his
“interview”. The MRO-A launcher is never mentioned in the document.673 As noted,
667 Memorial, ¶120; Reply, ¶272.
668 Expert Report of Vladislav Alexeyevich Filin (“Filin Report”), 10 March 2023, ¶43 (Annex 5).
669 Indictment in the Criminal Case Against Vasyl Vitaliyovych Pushkariov, Registered in the Uniform Register
of Pretrial Investigations Under No. 22015220000000431 on 22 December 2015 (Memorial, Annex 145).
670 Filin Report, ¶58 (Annex 5).
671 Witness Statement of Ivan Gavryliuk (2 June 2018), ¶35 (Memorial, Annex 1).
672 Filin Report, ¶¶53-54 (Annex 5).
673 Signed Declaration of Vasily Pushkarev, Suspect Interrogation Protocol of 31 August 2015, (Memorial, Annex
242, p. 4).
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“Shmel” flamethrowers (RPO-A) are in service with the UAF and have no specific ties
to the Russian Federation. They are also difficult to confuse with MRO-A since the latter
is noticeably smaller and more compact.
481. Second, and more importantly, an MRO-A flamethrower could not be used in the attack
on the PrivatBank office. According to media reports, the rocket fired did not detonate,
as it, having broken the window, accidentally got stuck in the wall or ceiling inside the
office, but was allegedly later removed by the SBU’s forensic team.674 However, due to
their constructive and physical characteristics, rockets fired from MRO-A flamethrowers
are incapable of being removed after firing, as they can only be destroyed. 675
Accordingly, had an MRO-A indeed been used, its rocket would have detonated either
immediately or when removal was attempted. Tellingly, Ukraine did not adduce any
photo or video evidence of the rocket being launched or removed, nor of the empty
launcher allegedly found at the crime scene.
482. This again directly contravenes Ukraine’s own “evidence”. Mr Pushkarev in his
“interview” claims that when he allegedly shot the weapon, there was a “very loud bang”,
which deafened him. However, as the rocket did not detonate and there was no explosion
at the site, no deafening “very loud bang” could have occurred. The sound of the rocket’s
launch is relatively quiet, particularly for MRO-A “Borodach” which was designed to be
used in close quarters and has a weaker engine than RPO-A “Shmel”, so could not have
been “deafening” (this is easily ascertained by openly available videos of use of MROA,
where the shooters do not wear any ear protection and the sound is low). Furthermore,
Mr Pushkarev says he knew that he “might fall within the view of the video surveillance
cameras”; however, no video surveillance footage was supplied by Ukraine – not of Mr
Pushkarev, not of the rocket being launched, not of the hit, nor of any “deafening”
explosion.
483. Third, there are material inconsistencies in Ukraine’s evidence that could not be
overlooked by any serious investigator. Due to its technical characteristics, a rocket fired
from MRO-A could only fail if the firing was handled unprofessionally.676 This is in
674 Interfax.ru, PrivatBank branch shelled in Kharkov (28 July 2018), available at:
https://www.interfax ru/world/388201(Annex 86).
675 Filin Report, ¶63 (Annex 5).
676 Filin Report, ¶10 (Annex 5).
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conflict with Ukraine’s evidence that Mr Pushkarev served in the UAF for two years and
then allegedly had been trained in a military camp.677 Further, while Mr Pushkarev
testified to not have used ear plugs when firing and to have been “deafened” by it,678 his
indictment refers to discovery at the crime scene of “two white ear plugs for noise
suppression, which were impregnated with a light-yellow substance”. 679 Also, no
explanation is provided as to why Mr Pushkarev would simply leave the flame thrower
and other evidence on the crime scene rather than take them with him. If anything, it
suggests that this evidence was specifically planted to be discovered on the site by the
SBU. This fits with the SBU’s overall pattern of conduct which includes staged
“assassinations”,680 falsified evidence and extracting false confessions under torture.
484. It is conceivable that the owner of the “PrivatBank” Igor Kolomoiskiy was interested in
smearing the DPR and LPR sympathisers as “terrorists” and agreed to use his bank’s
office as a stage for imitating a “terrorist attack”. Mr Kolomoiskiy is a powerful
Ukrainian oligarch and supporter of the Maidan Coup. After the coup Kolomoiskiy was
appointed as Governor of Dnepropetrovsk Oblast (neighbouring Donbass) by Chairman
of the National Security and Defense Committee and a Maidan leader Alexander
Turchinov, with the express goal of curbing the “insurgency” in the East. In this role Mr
Kolomoiskiy funded and organised “volunteer battalions” “Dnepr” and “Donbass”, which
took active part in the hostilities with the DRP and LPR. In effect, the “PrivatBank” was
part of the mechanism through which the armed conflict in Donbass was financed.
485. In any event, even if Ukraine’s claims as to factual circumstances of the incident were
taken for granted, the alleged attack on the “PrivatBank” office would still not qualify as
an act of terrorism falling under ICSFT. Most importantly, it manifestly lacked any
terrorist intent. Indeed, the alleged attack took place late at night (“shortly after 2:00
AM”),681 when the office was closed and neither personnel nor customers were present
inside, and there were even no incidental passers-by in the vicinity. As a result, not a
677 Signed Declaration of Vasily Pushkarev, Suspect Interrogation Protocol of 31 August 2015 (Memorial, Annex
242 pp. 1, 3).
678 Ibid., p. 5.
679 Indictment in the criminal case against Vasyl Vitaliyovych Pushkariov Registered in the Uniform Register of
Pretrial Investigations Under No. 22015220000000431 on 22 December 2015 (Memorial, Annex 145, p. 2).
680 See above, Chapter VII(A)(F).
681 Signed Declaration of Vasily Pushkarev, Suspect Interrogation Protocol (31 August 2015), (Memorial, Annex
242, p. 4).
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single person was injured from the attack, or even witnessed it occurring. There was not
even any significant property damage (a broken window and a damaged ceiling). This
excludes not only the application of Article 2(1)(b), but also 2(1)(a), as it does not fit the
criterial of an offence under the ICSTB.682
486. Here, once again Ukraine’s own evidence contradicts its claims. According to Mr
Pushkarev’s “interview”, he specifically avoided the presence of any persons in the
vicinity when making his purported “attack”. Furthermore, when purportedly planning
attacks, Mr Pushkarev and his companions specifically did not intend to cause any deaths
or injuries to any persons, whether or not taking an active part in hostilities. The
purported aim, according to Mr Pushkarev interview, was only to “scare the volunteers”
(i.e. the volunteer soldiers seeking to take part in the armed conflict). Particularly, when,
according to Mr Pushkarev, he purportedly engaged in another alleged act (which Ukraine
does not raise up in the present case) against a military recruitment center, he moved the
explosive device in order to avoid any potential harm to passers-by, and as a result got
injured himself.683 So the only damage this so-called “terrorist” has ever caused was only
to himself, and even that in protection of innocent bystanders.
487. Of course, such manifest lack of intent coupled with absence of actual harm precludes
any qualification as a terrorist attack and cannot trigger application of the ICSFT.
488. In light of the above-mentioned inconsistencies of the account of the event suggested by
Ukraine it can have well be fabricated by the SBU.
E. THE RALLY BOMBING
489. Ukraine also erroneously claims that the bombing of the 22 February 2015 unity rally in
Kharkov was carried out using a MON-100 antipersonnel mine supplied by Russian
officials.684 Before turning to the substance of the allegation it should be noted that
weapons are not part of the term funds and thus do not fall under the ICSFT.685
682 See above, Chapter III, Section B.
683 Signed Declaration of Vasily Pushkarev, Suspect Interrogation Protocol (31 August 2015), (Memorial, Annex
242, p. 12).
684 Reply, ¶273.
685 See above, Chapter IV.
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490. MON-100 mine is a Soviet-made weapon686 that is in service with the UAF.687 No
evidence of its supply by the Russian Federation was provided, except “confessions”, that
the SBU elicited under torture. 688 In fact, according to the documents provided by
Ukraine one of the suspects (Mr Dvornikov) in the bombing crossed the border from the
Russian Federation legally in a designated border crossing and no contraband was found
upon him.689
491. According to the Commissioner for Human Rights of the DPR, on 26 February 2015, the
SBU detained three men and charged them with planting an improvised explosive device
during the unity rally in Kharkov. The SBU officers hit one man in the back and head
with a buttstock and then subjected him to a mock execution (“They told him he would
not stay alive unless he agreed to cooperate and testify against himself”).690
492. The fact that Mr Dvornikov and Mr Tetutskiy were later exchanged to the DPR and LPR
does not in any way prove their involvement with the bombings: Ukraine is notorious for
arresting Russian sympathizers in order to boost its exchange pool for the return of
Ukrainian detainees.691 The exchange itself was arranged in 2019 (i.e. 4 years after the
bombing) within the “Normandy Format” by leaders of France, Germany, the Russian
Federation and Ukraine, under the formula “everyone for everyone”, i.e. all Ukrainian
detainees held by the DPR/LPR were to be exchanged for all persons held by Ukraine
under allegations of pro-Russian (or pro-DPR/LPR) activities.692 As with Ms Kovtun,
Mr Dvornikov and Mr Tetutskiy were put on the exchange list for purely humanitarian
reasons, as their relatives or other people who personally knew them had complained
686 Explosive Ordnance Guide for Ukraine, GICHD, 2022, pp. 10-12 (Annex 472).
687 Sm.news, UAF uses MON-50, MON-100 and Claymore on drones (24 December 2022), available at:
https://sm.news/vs-ukrainy-nachali-ispolzovat-na-bespilotnikax-mon-50-mon-100-i-claymore-59590-
u3t5/?ysclid=ldmzva075k431514547 (Annex 87).
688 Witness Statement of , 10 March 2023, ¶¶ 19, 22, 23, 26 (Annex 9).
689 Signed Declaration of Volodymyr Dvornikov, Suspect Interrogation Protocol of 26 February 2015 (Memorial,
Annex 223).
690 See Letter of the Commissioner for Human Rights in Donetsk People’s Republic N 4/04-8408 dated 5
December 2022 (Annex 458); Witness Statement of , 10 March 2023, ¶¶ 26-27 (Annex
9).
691 See Letter of the Commissioner for Human Rights in Donetsk People’s Republic N 4/04-8408 dated 5
December 2022 (Annex 458); Witness Statement of , 10 March 2023, ¶36 (Annex 9).
692 See Letter of the Commissioner for Human Rights in Lugansk People’s Republic N 851 dated 8 December
2022 (Annex 459).
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about their unjustified prosecution, torture and inhumane treatment by Ukraine.693 After
the high publicity of the Kharkov case, and public statements by Mr Dvornikov and Mr
Tetutskiy about being subjected to torture, it would have been strange if they were not
included in the exchange.
F. “ATTEMPTED ASSASSINATION” OF ANTON GERASHCHENKO IN KIEV
493. Ukraine claims that “Ukrainian nationals working with the LPR militants and Russian
intelligence operatives planted a car bomb in an attempt to assassinate Anton
Gerashchenko, a Ukrainian member of Parliament and outspoken critic of Russian
aggression”.694
494. The only piece of evidence that according to Ukraine somehow supports the conclusion
that “an LPR leader took actions in the Russian Federation to provide funds for use in the
bombing attack against a Ukrainian member of parliament”695 is “recordings made by
Ukrainian intelligence of conversations between Andriy Tyhonov, a member of the LPR,
and Oleksiy Andriyenko, a confidential informant of Ukrainian intelligence, in Andriy
Tyhonov’s apartment in Belgorod, the Russian Federation, during which Tyhonov
referred to the interest of the “Main Intelligence Directorate” in “chasing”
Gerashchenko”.
495. It is difficult to understand how this recording between unknown persons in an unknown
place and reference by one of them to a “Main Intelligence Directorate” may be
considered as a proof of anything let alone “funds for use in the bombing attack” (which
did not end with anyone being “assassinated”, or detonation of any explosive device, or
anything at all).
496. Ukraine also refers to Oleksiy Andrienko’s suspect interrogation protocol, in which he
allegedly said quite the same, that was caught on the above mentioned “recording”. At
the same time, it would be worthy to note that Andrienko was held in custody and
interrogated in the premises of the USBU of Kharkov oblast, notorious for its brutal
practice of torturing detainees in order to “beat” confessions out of them. Such practice
693 Witness Statement of , 10 March 2023, ¶37 (Annex 9).
694 Memorial, ¶123.
695 Reply, ¶¶278, 280.
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was fully reflected in 2021 OHCHR Thematic report “Arbitrary detention, torture and illtreatment
in the context of armed conflict in Eastern Ukraine, 2014-2021”:
“Among Government actors, the most common perpetrator of arbitrary
detention, torture and ill-treatment was the Security Service of Ukraine
(SBU), which had a large coordinating role in the Anti-Terrorist operation,
and was responsible for investigating crimes of terrorism. At the initial stages
of the conflict, volunteer battalions were also among the regular
perpetrators”.696
497. The Kharkov SBU case, examined in Annex I, is particularly emblematic of the impunity
enjoyed by perpetrators. The SBU has consistently denied that its Kharkov premises were
used as an unofficial detention facility from 2014 to 2016, and the few criminal
investigations initiated following complaints of former detainees have not progressed
since 2017. Journalists of Hromadske TV who, in March 2018, produced a documentary
on the Kharkov SBU in which they alleged it was an unofficial detention facility, were
named on the Mirotvorets website as “enemies of Ukraine” and as a result, harassed by
unidentified individuals.697
498. In any event, since Ukraine never provided the Russian Federation with any other
information about the case except the alleged name of the “GRU officer” (which Ukraine
itself admits might be an alias), it is difficult to see what co-operation the Russian
Federation could afford Ukraine in this “case” except checking for all persons with that
name in the Russian Federation, which the Russian Federation did, finding that none of
the three such persons in existence with the name provided had any connection to the
Russian Government or to events in Ukraine.
499. As far as an attempt to assassinate Mr Gerashchenko is concerned, according to media
reports, citing sources in the SBU, the attempt on Mr Gerashchenko's life was likewise
staged:
“This story has been prepared for a long time. Geraschenko's people prepared
a statement to the SBU about a threat to his life. On the basis of this statement,
Anton Gerashchenko was allocated a guard consisting of two fighters of the
special unit ‘Alpha’. However, according to them, Gerashchenko behaved
quite strangely and did not seem to be a man who feared for his life,” said the
source. However, it immediately became clear to them that Gerashchenko did
696 UN OHCHR Report, Arbitrary Detention, Torture and Ill-treatment in the Context of Armed Conflict in Eastern
Ukraine, 2014-2021 (2 July 2021), ¶¶2, 4, 13, available at:
https://www.ohchr.org/sites/default/files/Documents/Countries/UA/UkraineArbDetTorture_RU.pdf.
697Ibid., ¶82.
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not really fear for his life, because at the first meeting Gerashchenko said that
he would personally call the fighters when he considered it necessary. You
should agree that this is strange behavior for a man who fears an assassination
attempt. And at the moment when the SBU was allegedly monitoring the
criminals, there was no action on Geraschenko’s part. That is, he also knew
that it was staged”.698
500. Other media reported that “the attempt on Mr Gerashchenko's life is being staged to raise
the rating of the “Popular Front”, to blur the eyes against the background of the purchase
of overpriced Japanese cars for the police, to distract attention from the closing of the
Lipetsk factory. Cheap PR campaigns, instead of professionalism and a real fight, are all
that the incumbent authorities are capable of”.699
501. Taken together with the overall lack of evidence of the Russian involvement in the alleged
“attempted assassination”, those public sources portray the more probable picture of
another staged incident that has no relation to the Russian Federation.
G. “ATTEMPTED ASSASSINATION” OF GORDIYENKO IN ODESSA
502. Ukraine alleges that the bombing attack in Odessa occurred and was coordinated by “a
member of the DPR known as Aleksandr (who also went by “Morpekh”)”.700
503. Once again, here a “Russian plot” is purportedly uncovered by the SBU, with “evidence”
consisting of “confessions” which refer to a mysterious “representative of Russian secret
services” called “Aleksandr” (not even with a last name this time). The “plot” consisted
of attempting to “assassinate” a target who “miraculously survived” without any injuries.
504. The “weapon” allegedly used in the “assassination” had no links to the Russian
Federation: it was said to be a makeshift, improvised explosive device using a casing of
a TM-62M anti-tank mine. 701 This type of anti-tank mines are a Soviet-produced
698 Ukraina.ru, Gerashchenko Could Stage Attempt on Him (22 January 2017) available at:
https://ukraina ru/20170122/1018184795.html (Annex 88), Sila v Pravde, Attempt on Gerashchenko Was Feign
Staged by SSU and Interior Ministry (22 January 2017) available at: https://x-true.info/50402-pokushenie-nageraschenko-
inscenirovka-kotoruyu-gotovili-sbu-i-mvd html (Annex 89).
699 Slovo i Delo, Assassination Attempt on Anton Gerashchenko. Was It Real? (23 January 2017) available at:
https://ru.slovoidilo.ua/2017/01/23/kolonka/igor-smaglyuk/pravo/pokushenie-na-antona-gerashhenko.-a-byl-limalchik
(Annex 92).
700 See Reply, ¶¶281-282, Memorial, ¶¶127–130.
701 Armedconflicts, SOV - TM-62 (protitanková mina), available at: https://www.armedconflicts.com/TM-62-
antitank-mine-t236984 (Annex 472).
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armament that is in extensive service with the UAF702 and is also produced outside the
USSR, for example in Bulgaria, Georgia, Poland.703
505. Because Ukraine did not provide any actionable information related to the alleged
assassination, and specifically information as to the persons allegedly involved in that
“plot”, the Russian Federation would be unable to assist Ukraine with “investigating” this
“crime”.
H. DEATH OF VLADIMIR RYBAK
506. With regard to Gorlovka mayor Vladimir Rybak, Ukraine did not provide any compelling
evidence that confirmed the connection between his death and his political views, or the
involvement of the DPR’s militia in this crime.
507. At the outset, it should be noted that during Ukraine’s rule, the Donetsk region had a fairly
high level of crime, and in 2013 it was the highest in Ukraine. In particular, in January –
June 2013, 170 intentional murders were committed in the region (the highest rate in the
country). 704 At the same time, the rate of resolving these murder cases remained
extremely low. In July 2013, first deputy chairman of the Verkhovnaya Rada Committee
on Combating Organized Crime and Corruption Gennadiy Moskal said that 80% of
crimes registered in 2013 remained unsolved by the police.705
508. Thus, cases of kidnapping, disappearances and/or murders were also not rare in Donetsk
region. For example, on 5 November 2014, Slavyansk City District Court sentenced three
local residents who committed an intentional murder for the purpose of robbing the
victim’s house. After the murder, they dropped the victim's corpse into the Kazenny
Torets River – the same, where Mr Rybak ended his life.706 Another egregious example
– on 18 March 2014, in the center of Ukrainsk, the Donetsk region, a previously convicted
702 Explosive Ordnance Guide for Ukraine, GICHD, 2022, p. 24 (Annex 472).
703 Armedconflicts, SOV - TM-62 (protitanková mina), available at: https://www.armedconflicts.com/TM-62-
antitank-mine-t236984 (Annex 472).
704 Tyzhden.ua, Donetsk region has the highest crime rate in Ukraine (11 July 2013), available at:
https://tyzhden.ua/na-donechchyni-najvyshchyj-v-ukraini-riven-zlochynnosti/ (Annex 315).
705 Tyzhden.ua, Moskal: In the first half of the year, police managed to solve only one in five registered crimes (10
July 2013), available at: https://tyzhden.ua/moskal-za-pershe-pivrichchia-militsiia-spromohlas-rozkryty-lyshekozhen-
p-iatyj-zarieiestrovanyj-zlochyn/ (Annex 316).
706 Slavyansk City District Court, Sentence of 5 November 2014, Case No. 243/3885/14, available at:
https://reyestr.court.gov.ua/Review/41273158 (Annex 438).
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man kidnapped a young woman in the street in a large crowd of people – just in the same
way, Mr Rybak was allegedly kidnapped. The investigation found that the kidnapping
had been ordered by a criminal who was serving time in prison and who had a conflict
with the husband of the kidnapped girl.707
509. In light of the high criminality rate in the region, doubtless exacerbated by ongoing civil
strife and armed conflict, the death of Mr Rybak cannot be seen as a unique occurrence
only explicable by his political opposition to the DPR.
510. Ukraine misleadingly claims that OHCHR “reported on the shocking political murder of
Volodymyr Rybak, and the role of a leading DPR commander in that crime”.708 However,
the report in question only mentioned that “Volodymyr Rybak was last seen alive on 17
April, at approximately 6 p.m., on Peremohy Avenue, in the city of Horlivka (Donetsk
region), controlled by the armed groups. According to a witness, unidentified people
forcefully took him to a car and drove away”.709 In other words, the OHCHR reported
on what its monitors had heard from a certain unidentified person, which is mere hearsay.
The report also doesn’t contain any evaluation of the story’s plausibility. In fact, the
OHCHR was not capable of examining the ‘testimony’, because such examination would
lie beyond its mandate.
511. Neither had the OHCHR made any judgments on “the role of a leading DPR commander”
in Mr Rybak’s death. It was just stated in the Report, that “the Main Investigative
Department of the Ministry of Internal Affairs established that all three men were kept at
the premises of the SBU department of the town of Slavyansk. Two commanders of the
armed groups allegedly involved in the death of the victims were charged and put on a
wanted list”.
512. What remains is Ukraine’s alleged “intercepted telephone conversation”, purportedly
between “DPR commander” Bezler and his subordinate. Ukraine did not provide the
audio recording itself, instead referring the Court to an article in a pulp Russian (sic!)
707 Selidovo City Court of Donetsk region, Sentence of 24 December 2014, Case No. 242/2571/14-к, available at:
https://reyestr.court.gov.ua/Review/42086406 (Annex 476).
708 Reply, ¶284.
709 OHCHR, Accountability for Killing in Ukraine from January 2014 to May 2016 (2016), p. 33, ¶34, available
at: https://www.ohchr.org/sites/default/files/Documents/Countries/UA/OHCHRThematicReportUkraineJan2014-
May2016_EN.pdf.
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newspaper. According to the article, the only source of the “intercept” was the SBU.
Interestingly, the article quoted by Ukraine notes that “Bezler is indeed a retired lieutenant
colonel, but of the Ukrainian special forces, not the Russian special forces”.710
513. Moreover, the above-mentioned article in the Russian newspaper MK, to which Ukraine
refers in its Memorial, reads as follows:
“To confirm its "suspicions," the SBU released an audio recording of talks in
which Ponomariov, Bezler, and Strelkov discuss Rybak's murder. In
particular, it shows the "people's mayor" of Slovyansk deciding with the head
of Russian saboteurs where to dispose of the corpse. Strelkov asks Ponomarev
to "resolve the issue with the corpse" ("Slava, please resolve the issue with
the corpse. So that they can take him away from us quickly. It stinks here"),
to which he replies: "With the corpse? I'm going to solve the problem of
burying this [cursing].”711 [Emphasis added].
514. Thus, Bezler, Ponomariov and Strelkov were allegedly discussing how to get rid of Mr
Rybak’s corpse as soon as possible. However, according to Ukrainian investigators’
version of events, Mr Rybak was thrown into water still alive: “According to the press
service of the Ministry of Internal Affairs, “The cause of death of both victims was a
combined body trauma as a result of torture, followed by drowning of the still alive
unconscious victims”. 712 The same can be read from the OHCHR relevant 2016
Report.713 One should also keep in mind that Mr Rybak’s corpse was found in the river
on 21 April 2014 and buried by his family three days later, on 24 April 2014. This begs
for the conclusion that the so-called “interception of Bezler’s conversation” – was another
fake among others that Ukraine uses in the present case.714
710 Memorial, Annex 509, p. 2.
711 MK.ru. SBU: SBU: Slavyansk ‘people's mayor’ discussed with Russian GRU officer how to get rid of MP
Rybak's corpse (24 April 2014), available at: https://www mk.ru/incident/article/2014/04/24/1019785-sbunarodnyiy-
mer-slavyanska-obsuzhdal-s-ofitserom-gru-rf-kak-izbavitsya-ot-trupa-deputata-ryibaka.html (Annex
381).
712 Ukrinform, “Batkivshchyna” deputy was brutally tortured by foreign saboteurs before his death (24 April
2014), available at:
https://web.archive.org/web/20140611192438/http://www.ukrinform.ua/ukr/news/deputata_batkivshchini_pered
_smertyu_po_zviryachomu_katuvali_inozemni_diversanti_1931671 (Annex 460).
713 OHCHR, Accountability for Killing in Ukraine from January 2014 to May 2016 (2016), p. 33, ¶34, available
at: https://www.ohchr.org/sites/default/files/Documents/Countries/UA/OHCHRThematicReportUkraineJan2014-
May2016_EN.pdf..
714 See above, ¶862.
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515. In any event, the “intercept” as quoted by Ukraine715 only contains a request to “slightly
press” Mr Rybak and take him “further out” from the administration building where he
was “misbehaving”. No mention of killing or torturing Mr Rybak is made; all such claims
(according to Ukraine’s source) are just speculations of the SBU.
516. The sum of Ukraine’s evidence is thus as follows:
(a) unverified hearsay from an unknown person about how Mr Rybak was “taken” by
“unidentified people”;
(b) unverified claim from the Ministry of Internal Affairs of Ukraine that Mr Rybak
was kept in the SBU Department in Slavyansk;
(c) an alleged seemed-to-be-fake “intercept” produced by the SBU, of a person who,
according to Ukraine’s own source, was a lieutenant colonel of the SBU, asking to
escort Mr Rybak out of the Gorlovka administration building, take him “further
out” and “lightly press him”.
517. It should be added that, in April 2014, Gorlovka was not under the absolute control of the
DPR militia. The very fact that a manifestly pro-Ukrainian mayor –Mr Rybak – remained
in the city administration building asserts to that; but there is also direct evidence of
Ukraine’s law enforcement agencies still being present in the city. For instance,
according to the Joint State Registry of Judicial Decisions of Ukraine, on the very day of
Mr Rybak’s disappearance, Ukraine’s courts in Gorlovka made more than 200 judicial
decisions including 32 on criminal cases.716 Such judicial decisions from Gorlovka can
be traced in the Ukrainian Judicial Registry, at least, until July 2014. The latter also
implies that Ukraine’s prosecution authorities, whose participation in hearings of criminal
cases is mandatory, were also present and still performed their duties in Gorlovka.
Ukrainian police, which investigated the Mr Rybak’s death, also was in charge in
Gorlovka. The capacity of Ukraine’s security services to operate in the city thus is more
than possible.
715 Memorial, ¶45.
716 Central City Court of Gorlovka, Sentence of 18 April 2014, Case No. 253/12580/13-к, available at:
https://reyestr.court.gov.ua/Review/38320990 (Annex 439).
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518. In light of the above it is not really clear what happened to Mr Rybak, it is very probable
that he fell victim to a crime that was used by the SBU to stage a provocation against the
DPR.
I. DEATH OF VALERIY SALO AND ALLEGED KILLINGS OF PRO-UKRAINE FARMERS
519. Ukraine’s attempt to speculate on the deaths of several farmers in Donetsk region in order
to present those tragic cases as a part of an alleged “intimidation campaign” by the
Donetsk people’s militia is completely groundless.
520. First, it should be noted, that the OHCHR had never established the facts of those killings
in its reports, since criminal investigation is not within its purview. The OHCHR had
mentioned that “on 8 May, the burned body of Valeriy Salo, a farmer and head of a local
cultural organization known as a “Pro-Maidan” activist, was found a day after he had
been abducted by armed persons from his village. There have also been several reports
of killings at checkpoints held by armed groups …717 as well as reports of “summary
executions”.718 To be more precise, the OHCHR had just admitted it was aware of the
fact that Valeriy Salo’s body was found after his alleged abduction by some unnamed
armed persons, and had also received several reports of killings and executions from
unnamed witnesses. Thus, the OHCHR had not established the fact that such “summary
executions” had taken place indeed and Valeriy Salo’s death was one of those alleged
“executions”.
521. Second, It follows from the OHCHR Report of 15 June 2014 that several unknown armed
men in camouflage entered Salo’s house and took him away to an unknown destination,
after which his body was found. Thus, it is not clear what the motive behind the crime
was: it may well have been a common crime committed for personal reasons, for the
purposes of extortion or as a result of a business conflict. That time of political instability
with many radicals on the loose was characterized by the highest crime rate in Ukraine
and incidents like the one that happened to Mr Salo were not uncommon among farmers
and private entrepreneurs.
717 OHCHR, Report on Human Rights Situation in Ukraine (15 June 2014), ¶209, available at:
https://www.ohchr.org/sites/default/files/Documents/Countries/UA/HRMMUReport15June2014.pdf.
718 Ibid., ¶210.
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522. For instance, in August 2016, in the Dnepropetrovsk region, unknown persons kidnapped
a 64-year-old farmer by stopping his car on the highway. The farmer’s wife explained
that “the farm was subject to constant raider attacks. A week ago, 40 people came with
weapons, attacked the mechanized site, and took the sprayer for the fields. The police
did not react in any way”.719 In August 2017, in the village of Matveevka, Volnyansky
district, Zaporozhye region, unknown persons in balaclavas broke into the house of a local
farmer, tied up the owners and stole a safe with $500 thousand.720 In 2018 in the Kharkov
region, a farmer after another argument over debts and financial obligations, decided to
kidnap his business partner and kill him after the victim would sign over his assets to
him.721 Ukrainian investigators have never qualified these cases as political and/or DPRrelated.
523. Such crimes still happen in Ukraine. Thus, on 23 March 2022, a group of young men
stole a tractor and a trailer with grain from a farm in the Velikiy Burluk district of Kharkov
region. The owner and his two employees began to chase the thieves. The young men
left the tractor and fled. However, they soon returned to take revenge. They ambushed
the farmers in the village. As soon as the car drove into the village, they shot at it with
automatic weapons they had taken from a broken military convoy. Later, they took the
car to another place and set it on fire along with the three victims, simulating death as a
result of shelling.722
524. Third and finally, on 2 May 2014, just a few days before Valeriy Salo’s death, Ukrainian
radicals and Neo-Nazi committed one of their gravest crimes – burning 48 people in
Odessa Trade Union House. Ukraine never admitted that the 42 burned bodies and six
bodies with gunshot wounds found in the Odessa Trade Union House were part of a
campaign by Ukrainian neo-Nazis of “immersing civilians in horror”. Moreover,
Ukrainian authorities, at first, prosecuted the victims of this atrocity instead of the real
719 Gazeta.ua, Farmer Was Kidnapped from His Car in the Middle of the Road (19 August 2016), available at:
https://gazeta.ua/articles/np/_fermera-vikrali-z-mashini-posered-trasi/718318 (Annex 382).
720 Interfax-Ukraine, Farmer was robbed at night in Zaporozhskaya Oblast (8 August 2017), available at:
https://interfax.com.ua/news/general/440950 html (Annex 383).
721 Kharkov Region Prosecutor’s office’s website, Prosecutor’s Office prevents contract killing of farmer (photos,
video) (10 December 2018), available at:
https://khar.gp.gov.ua/ua/news html?_m=publications&_c=view&_t=rec&id=241335 (Annex 461).
722 Ukraine National Police Facebook account, The National Police of Ukraine’s Press-service (6 April 2022),
available at: https://www.facebook.com/watch/?v=1113881682488692 (Annex 462).
Page 199 out of 541
perpetrators, which are still unpunished.723 Ukraine also never considered as a “campaign
of immersing civilians in horror” the burned bodies of a Russian photo-correspondent
Andrey Stenin and his two fellow colleagues and two locals, found in a burned car in
August 2014 in the Donetsk region.724
* * *
525. Consequently, Ukraine’s own evidence on each of these alleged “bombings” and
“killings” consists of confessions obtained under duress, unreliable or contradictory
evidence and, on closer scrutiny, reveals nothing more than ordinary crimes and/or staged
incidents arranged by the SBU to try to implicate the DPR and LPR.
526. In any event, as the Russian Federation has established in the Counter-Memorial and this
Rejoinder, Ukraine has failed to demonstrate that the only inference that could reasonably
be drawn from the killing and ill-treatment of particular individuals is that the perpetrators
acted with the specific purpose to intimidate “a population” at large. In particular,
Ukraine has not explained how those killings and acts of ill-treatment (and the
accompanying psychological effect) rise beyond so-called “ordinary crimes” so as to fall
within the definition of “terrorist” acts.
723 Hromadske, Odessa Tragedy: Why the Court Acquitted the “Anti-Maidan Activists” (22 September 2017),
available at: https://hromadske.ua/posts/odeska-trahediia-sud-vypravdav-antymaidanivtsiv (Annex 384).
724 RIA Novosti, Investigative Committee reveals new details of investigation into Andrei Stenin's death (2 August
2017), available at: https://ria.ru/20170802/1499592355.html (Annex 385).
Page 200 out of 541
VIII. THE RUSSIAN FEDERATION DID NOT BREACH ITS SPECIFIC
OBLIGATIONS UNDER THE ICSFT
527. This chapter responds to Chapter 8 of Ukraine’s Reply and shows that, contrary to what
Ukraine argues, the Russian Federation did not breach its specific obligations under
Articles 8, 9, 10, 12 and 18 of the ICSFT. Before analysing each of these specific
obligations, three introductory comments are in order.
528. First, the Court will need to proceed to decide whether the Russian Federation breached
its specific obligations under the ICSFT only if it finds that a terrorism-financing offence
within the meaning of the ICSFT has occurred. In particular, the Court first needs to
reject the Russian Federation’s interpretation of “intent”, “knowledge”725 and “funds”726
and accept Ukraine’s assessment of the facts.727 If, on the contrary, the Court agrees with
the Russian Federation on these issues, then no terrorism-financing offence has occurred
and thus no specific obligations under the ICSFT have been triggered in this Case.
529. Second, Ukraine confuses two evidentiary standards. As the Russian Federation already
explained on the basis of the Bosnia Genocide case,728 Ukraine must provide “fully
conclusive evidence” of a terrorism-financing offence to trigger the Russian Federation’s
responsibility under the ICSFT. This is the standard of proof that any applicant State
must fulfil when it pursues a claim under the ICSFT.
530. Ukraine rejects this standard and suggests that the Court should instead apply, at least as
regards specific obligations under the ICSFT, the lower standards of “sufficient
evidence”, “reasonable basis to believe” or even “reasonable suspicion” that a terrorismfinancing
offence has occurred or is occurring.729 However, these standards operate on a
different level: they do not apply to establishing whether a State Party to the ICSFT
breached its obligations. Instead, they are addressed to competent bodies of State Parties,
which must, for example, furnish such “sufficient evidence” in their MLAT requests.
Thus, even if Ukrainian authorities had provided the Russian authorities with “sufficient
725 See Chapter III above.
726 See Chapter IV above.
727 See Chapters V-VII above.
728 See above, ¶¶36-41; see also Counter-Memorial (ICSFT), ¶13.
729 Reply, ¶¶48, 61, 328.
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evidence” of a terrorism-financing offence as part of a proper MLAT request, which they
had not, Ukraine must still provide this Court with “conclusive evidence” of terrorismfinancing
to establish that the Russian Federation breached its specific obligations under
the ICSFT by failing to process that MLAT request.
531. In any case, Ukrainian authorities failed to comply even with lower evidentiary standards
or provide the Russian authorities with “sufficient information” on terrorism-financing
offences and conspicuously avoided any references to the ICSFT or terrorism-financing
in their requests. The Russian Federation will demonstrate this in respect of each note
verbale and MLAT request below.
532. Third, as noted earlier, the Russian Federation’s specific obligations under the ICSFT
became the focus of Ukraine’s case only very recently. In the Memorial, Ukraine’s
principal case was the Russian Federation’s responsibility for financing terrorism.
However, the Court found that “[t]he financing by a State of acts of terrorism… lies
outside the scope of the Convention.”730 Due to this adverse finding, Ukraine had to
change its strategy and concentrate in the Reply on the Russian Federation’s alleged
failure to cooperate and assist. Such a shift causes the Russian Federation to provide a
more detailed response on these issues in this Chapter.
A. ARTICLE 8: THE RUSSIAN FEDERATION DID NOT VIOLATE ITS OBLIGATION TO TAKE
APPROPRIATE MEASURES TO IDENTIFY, DETECT AND FREEZE OR SEIZE FUNDS USED
FOR TERRORISM FINANCING
533. Article 8 of the ICSFT contains an obligation to “take appropriate measures … for the
identification, detection and freezing or seizure” of funds used for terrorism-financing.
Ukraine’s arguments on this Article have not changed in the Reply as compared to the
Memorial and remain wrong in two respects: Ukraine improperly reads the “reasonable
suspicion” standard into the text of Article 8 (i); and none of Ukraine’s Notes Verbales
pass even this artificially lowered standard (ii).
730 Judgment of 8 November 2019, ¶59.
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i. Article 8 does not incorporate the “reasonable suspicion” evidentiary standard
534. Ukraine does not dispute anywhere in the Reply that there is no textual support to
incorporate the “reasonable suspicion” standard of proof into Article 8. Ukraine also
ignores the Russian Federation’s arguments that the context of Article 8 does not support
such incorporation either:
(a) Unlike Articles 9 and 10, Article 8 does not use the qualifier “alleged [use of funds
for the purpose of terrorism-financing]”. This means that Article 8 requires
concrete evidence of terrorism-financing to freeze or seize funds.731 Ukraine tacitly
admits this distinction in its own submissions on Articles 9 and 10, where it states
that the qualifier “alleged [offender]” sets a lower evidentiary standard than what
Article 8 requires.732
(b) Unlike Article 8, Article 18 expressly refers to the “reasonable suspicion” standard
regarding inquiries about the identity of a person involved in the terrorismfinancing
offence. The drafters of the ICSFT were thus aware of and used this
standard where they intended it to apply, but deliberately chose not to use it in the
context of Article 8.
535. Ukraine also ignores the Russian Federation’s arguments that the freezing or seizure of
assets is a serious invasion of the property rights of a person, which can have a significant
negative impact on normal economic life and freedom of capital movement, and which
the authorities thus cannot apply on a mere “suspicion”.733 The ICSFT drafters must have
thought it necessary to provide for such a drastic measure because they repeatedly
recognised terrorism-financing as a grave matter.734 However, as the Court stated in the
Bosnia Genocide case, the evidential standards in grave matters are always heightened to
the level corresponding to the gravity involved.735 Thus, the seriousness of the measures
provided for in Article 8 leave no room for their application on a mere “reasonable
suspicion”.
731 Counter-Memorial (ICSFT), ¶523(a).
732 Reply, ¶338.
733 Counter-Memorial (ICSFT), ¶523(b).
734 See the Preamble (“Considering…”), Articles 4(b) and 10(1) of the ICSFT.
735 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007 (I), p. 90, ¶210.
Page 203 out of 541
536. Instead of engaging with these arguments, Ukraine continues to rely on its previous
sources: (a) Mr Wainwright’s letter to the Chair of the Counter-Terrorism Committee, (b)
the FATF Recommendations and (c) the Russian law on combating terrorism-financing.
537. Ukraine does not dispute that Mr Wainwright’s letter does not purport to give a
comprehensive interpretation of Article 8(1) of the ICSFT and only aims to provide
guidance on the implementation of UN Security Council Resolution 1373.
538. Indeed, the letter provides that:
“One means of providing legal authority for the freezing (or, indeed,
forfeiture) of assets is for the identification of the persons and entities whose
assets are to be frozen by including their names in a list, whether sanctioned
by the Security Council or compiled by the State concerned, that is given legal
force by legislation. It should be noted that neither sub-paragraph 1(c) of the
Resolution nor Article 8 of the Convention mandates the use of lists. Their
value in the implementation of the Resolution lies in the fact that they can be
adopted quickly by countries having no first-hand knowledge of the identity
of terrorist groups identified elsewhere and they eliminate the need for proof
of actual involvement.”736 [Emphasis added]
539. Thus, Mr Wainwright expressly recognised “the need for proof of actual involvement” in
terrorist activities for the freezing or seizure of assets, but then offers one exception –
“that neither… Article 8 of the Convention mandates” – in the form of a list made either
by the UN Security Council or the State concerned, “that is given legal force by
legislation”. As the Russian Federation has shown, the DPR and LPR have never been
on any such list of terrorist groups.737 Furthermore, the “State concerned” is clearly the
State performing the freezing, so according to Mr Wainwright’s letter, for the Russian
Federation such a list could only come from the UN Security Council or from the Russian
Federation’s own legislation – not from any foreign, including Ukrainian, sources.
540. Mr Wainwright’s letter also provides that:
“However, lists of that kind are of little use where the authorities of a country
have evidence supporting a reasonable suspicion that a person or group
hitherto unknown or operating under a new name is actually engaged in
activities in support of terrorism.”
736 J.W. Wainwright, Letter to the Chairman of the Counter-Terrorism Committee, 12 November 2002, ¶6
(Memorial, Annex 281).
737 See above, ¶103.
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541. It follows that when Mr Wainwright writes of “evidence supporting a reasonable
suspicion that a person or group ... is actually engaged in activities in support of
terrorism”, he does not introduce a different evidentiary standard but merely refers to the
above-mentioned “proof of actual involvement”.
542. Thus, read properly, Mr Wainwright’s letter demands proof of actual involvement in
terrorist activities for the freezing or seizure of assets as well, contrary to what Ukraine
suggests.
543. In addition, while Ukraine focuses solely on the “efficiency” of asset freezing, it
disregards concerns expressed by the Counter-Terrorism Committee about the boundaries
of these actions. Mr Wainwright himself acknowledges that freezing and forfeiture of
assets are “subject to the constitutional and other legal constraints applicable in a State”,
and even “the most effective means possible” are “subject to safeguards”.738 Similarly,
Article 8(5) of the ICSFT provides that such measures “shall be implemented without
prejudice to the rights of third parties acting in good faith”.
544. Another obvious exception to asset-freezing measures is humanitarian aid, which is well
documented in the resolutions of the UN Security Council. For example:
(a) In Resolution 1844 (2008), the UN Security Council decided that a freeze on assets
of designated entities threatening the peace, security or stability of Somalia will not
apply to the payment of funds, other financial assets or economic resources
necessary to ensure the timely delivery of urgently needed humanitarian assistance
in Somalia.739
(b) In Resolution 2462 on terrorism financing, the UN Security Council urged States,
“when designing and applying measures to counter the financing of terrorism, to
take into account the potential effect of those measures on exclusively humanitarian
activities, including medical activities, that are carried out by impartial
humanitarian actors in a manner consistent with international humanitarian law”.740
738 J.W. Wainwright, Letter to the Chairman of the Counter-Terrorism Committee, 12 November 2002, ¶¶6, 8
(Memorial, Annex 281).
739 UN Security Council, Resolution 1844 (2008), 20 November 2008, ¶48.
740 UN Security Council, Resolution 2462 (2019), 28 March 2019, ¶24.
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545. As shown below, Ukraine’s allegations of terrorism-financing concerned primarily
humanitarian aid by private individuals to the DPR and LPR.741
546. Ukraine also wrongly asserts that the Russian Federation “attempts to downplay the
significance of FATF recommendations”.742 In fact, the Russian Federation has never
disputed their significance in general, but it has drawn the Court’s attention to the FATF’s
statement that its Recommendations aim to “complement the obligations in the context
of the United Nations Security Council […] resolutions”743 and not States’ obligations
under the ICSFT. Ukraine does not provide any substantive response to this. Thus, the
FATF Recommendations are inapposite to interpretation of Article 8 of the ICSFT.
547. With respect to the Russian law on combating terrorism-financing, it must be noted that
Russian laws are irrelevant for purposes of interpreting the Russian Federation’s
obligations under the ICSFT in the same way as the FATF Recommendations are. A State
Party’s domestic regime may set a different (stricter or more relaxed) evidentiary standard
as to the freezing of funds that complements the one existing under the ICSFT.
548. Ukraine attempts to bootstrap its reliance on Russian law by observing that Article 8
expressly mentions “domestic legal principles”. But such reference is misplaced for
several reasons:
(a) “Domestic legal principles” are not incorporated into the ICSFT but form part of
the State Party’s national law and are thus not subject to the Court’s jurisdiction.
(b) “Domestic legal principles” do not refer to any specific laws such as the Russian
law on combating terrorism financing. The term “legal principles”, as opposed to
“legislation” or “law”, refers to fundamental tenets or general rules of law that exist
in the State and that its authorities will have to consider when “taking appropriate
measures” under Article 8. For example, the FATF commentary to its
Recommendation 5 interprets the same term “domestic legal principles” in Article
5 of the ICSFT as “fundamental principles of domestic law … this is a very narrow
741 See below, ¶¶554-555.
742 Reply, ¶328, fn 603.
743 Counter-Memorial (ICSFT), ¶524(b), citing FATF, Special Recommendation III: Freezing and Confiscating
Terrorist Assets, Text of the Special Recommendation and Interpretative Note, October 2001, ¶3 (Memorial,
Annex 360).
Page 206 out of 541
concept which is limited to principles expressed within a national Constitution (or
equivalent document) or binding decisions of the country’s highest court.”744 In
contrast, where the ICSFT drafters intended to refer to specific laws of the State
Party, they used different language such as “domestic law” or “domestic
legislation” rather than “domestic legal principles”.745
(c) The drafting history of Article 8 confirms the difference between “domestic law”
and “domestic legal principles”. During treaty negotiations, some States were
concerned that the ICSFT would require them to adopt measures that would be
contrary to their established legal order. To avoid this risk, the drafts first debated
inserting a separate “savings clause” that would allow States Parties to subject the
application of measures under ICSFT to “fundamental legal principles” existing in
their respective legal order. Subsequently, however, they found that they would
achieve the same effect by inserting a qualifier “in line with its domestic legal
principles” into the wording of paragraphs (1) and (2) of Article 8. The purpose of
this wording is, accordingly, completely opposite to what Ukraine suggests: rather
than incorporating provisions of domestic law into the ICSFT, it serves to prevent
alien legal concepts from upsetting the States’ respective established legal order.746
(d) Ukraine itself takes an opposite approach and inconsistently alleges that its own
domestic laws are irrelevant to this Case. For example, when Ukraine complains
that the Russian Federation failed to fulfil the MLAT requests under Article 12 of
the ICSFT, Ukraine argues that whatever criminal taxonomy Ukrainian authorities
employed in their MLAT requests under its domestic criminal code are “an internal
matter for Ukraine, and not a concern of Russia’s”.747
549. Finally, Ukraine tellingly does not cite the relevant provisions of the Russian law on
combating terrorism-financing. 748 In reality, this law does not use the language of
744 FATF Guidance: Criminalising Terrorist Financing, Recommendation 5, October 2016, ¶68.
745 See, for example, Articles 6, 18(1), 19, 22 of the ICSFT.
746 UN General Assembly, Sixth Committee (54th session), Report of the Working Group, 12 November 1999,
UN Doc A/C.6/54/L.2, p. 73.
747 Reply, ¶317.
748 Instead, Ukraine relies on a questionable secondary source (Reply, Annex 62) – a short journal article that was
written by two junior employees of Rosfinmonitoring in their personal capacity, who did not even quote the text
of the relevant law and loosely paraphrased its contents.
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“reasonable suspicion”, but rather authorises asset-freezing only where there are
“sufficient grounds to suspect that a person or entity participates in terrorist activity”.
550. The standard of “sufficient grounds to suspect” is a different and much stricter standard
of Russian law because it requires law-enforcement authorities to provide “concrete” and
“documented” proof of a person’s implication in the crime; a “formal reference to
investigative bodies possessing sufficient data” is not allowed. For example:
(a) The Constitutional Court of the Russian Federation noted that the freezing of assets
is allowed:
“… only on the condition that there are sufficient, documented by evidence
grounds to suspect that it is obtained by way of criminal actions of the suspect,
the accused or was used or intended to be used as an instrument of crime or
to fund criminal activities.”749 [Emphasis added]
(b) The Supreme Court of the Russian Federation likewise noted, in the context of pretrial
detention measures that:
“… sufficient grounds for suspicion in involvement in a crime requires
presence of data that this person is involved in the commission of the crime
(caught “red-handed” at the crime scene or immediately after; the victim or
witnesses indicated this person as the culprit; this person, their clothing or
dwelling carry manifest signs of the crime, etc.) … The verification of
sufficient grounds for suspicion cannot be limited to a formal reference …
to investigative organs possessing sufficient data on the person’s involvement
in the crime that was committed … the court must ascertain whether the
application [for detention] and materials appendiced to it contain concrete
information pointing towards involvement of this concrete person in the
crime that was committed.”750 [Emphasis added]
(c) Other courts followed identical approaches in respect of allegations of terrorismfinancing
operations.751
551. Consequently, there is no basis to incorporate the “reasonable suspicion” standard into
Article 8.
749 Constitutional Court of the Russian Federation, Resolution No. 25-P, 21 October 2014, ¶3.1.
750 Plenum of the Supreme Court of the Russian Federation, Resolution No. 41 on Practice of Application by the
Courts of the Laws on Pretrial Restrictions in the Form of Detention, House Arrest, Bail and Ban on Certain
Activities, 19 December 2013, ¶2.
751 See, for example, Moscow Circuit Commercial Court, Resolution, 18 October 2021, Case No. А40-
207643/2020 (Annex 425).
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ii. Ukraine’s Notes Verbales did not contain evidence that would give even reasonable
suspicion of terrorism-financing
552. Irrespective of which evidentiary standard applies, Ukraine failed to provide any material
in its Notes Verbales, based on which the Russian Federation would be able to conclude
that a terrorism-financing activity was ongoing.
553. First, although all of Ukraine’s Notes Verbales referred to the financing of the DPR and
LPR, Ukraine consistently failed to provide the Russian Federation with any evidence
that the DPR and LPR are terrorist organisations. As explained above, the DPR and LPR
have never been listed as terrorist groups either by the UN Security Council or by the
Russian Federation.752 In fact, even Ukraine itself failed to officially designate the DPR
and LPR as terrorist organisations and did not provide the Russian authorities with
evidence of such designation even when the Russian authorities specifically requested
it.753
554. Second, Ukraine has not proven that the individuals that allegedly provided financing to
the DPR and LPR were linked to any “terrorist activity”. To the contrary, Ukraine’s
allegations of “terrorism” and “terrorism financing” concerned peaceful private
campaigns or efforts of humanitarian assistance to the civil population of Donbass.
Remarkably, Ukraine never suggested that the official humanitarian convoys that the
Russian Federation regularly sent to Donbass also qualified as “terrorism-financing”.
555. Third, Ukraine never attempted to explain in its Notes Verbales or provide any evidence
how any alleged instances of providing financing to individuals specified by Ukraine
constituted financing of the DPR or LPR or qualified as financing of terrorism within the
meaning Article 2 of the ICSFT. Instead, Ukrainian authorities simply demanded that the
Russian authorities freeze the assets of multiple persons who had never been implicated
in anything related to terrorism. Some of these persons were prominent public persons
who engaged in purely humanitarian activities and provided relief to the people of
Donbass.754 Other individuals could not be identified at all because Ukraine failed to
752 See above, ¶103.
753 Russian Federation Note Verbale No. 13355/днв to the Ukrainian Ministry of Foreign Affairs, 14 October 2014
(Memorial, Annex 373).
754 Ibid.
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provide any details necessary to this end.755 Blind compliance with Ukraine’s demands
to freeze assets would have infringed upon the rights of these persons or interfered with
humanitarian aid. Thus, it was reasonable for the Russian authorities to require sufficient
evidence from Ukraine before taking any measures provided for in Article 8.
556. In response, Ukraine suggests that the Russian authorities were to deduce themselves that
a potential terrorism-financing offence was occurring, for example by analysing “widely
reported facts of the DPR and LPR’s acts against civilians in Ukraine”,756 and investigate
these allegations themselves. This suggestion – that the Russian authorities were to freeze
or seize the funds of multiple individuals based on mere mass media reports rather than
official evidence received from Ukraine – is clearly absurd and at odds with the provisions
and spirit of the ICSFT.
557. Fourth, the Russian Federation had reasonable grounds to believe that Ukrainian
authorities were acting in bad faith by targeting the DPR and LPR’s supporters as their
political enemy rather than as potential terrorism financiers. Ukraine never requested to
take anti-terrorism measures against persons that supported the Maidan movement in
Ukraine, although that movement involved violence, such as an actual armed coup in the
country’s capital, and left many civilians and law enforcement officers dead or
wounded. 757 Even the most horrible atrocities, such as the burning of anti-Maidan
protesters in Odessa, which left 48 people dead and 174 wounded, did not receive any
effective investigation, let alone terrorism-financing investigation from the Ukrainian
authorities.758
558. Such omission only means that the Ukrainian authorities – either before or after Maidan
– did not view uprising as “terrorism” or providing support to such a cause as “terrorism
financing”. In this context, Ukraine’s allegations that calls by various Russian prominent
public persons to gather humanitarian aid to the people of Donbass somehow constituted
755 Russian Federation Note Verbale No. 10448 to the Ukrainian Ministry of Foreign Affairs, 31 July 2015
(Memorial, Annex 376).
756 Reply, ¶331.
757 See above, ¶14.
758 See Report of the International Advisory Panel on its Review of the Investigations into the Events in Odesa on
2 May 2014, 4 November 2015, available at:
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804861
0f
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“financing of terrorism” are outrageous and manifestly implausible. In this respect, the
UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief
Coordinator and the Secretary General of the Norwegian Refugee Council noted that:
“Counter-terrorism measures have often hindered humanitarian work in areas
where armed groups are present, and at times have even criminalized
legitimate aid activities, depriving civilians of life-saving aid precisely when
international law entitles them to it…759 [and]
are violations of the right to life, in the name of countering ‘terrorism’.”760
559. Fifth and finally, Ukraine’s Notes Verbales had multiple other defects that would not
allow the Russian authorities to act on them.
(a) Ukraine did not provide any explanation of why the Russian authorities should have
frozen the funds in 2013 or early 2014, which is even before the DPR and LPR
came into existence.761
(b) Ukraine did not provide any explanation of how the accounts of Ms Tatiana
Mikhailovna Azarova and Mr Andrey Gennadievich Lazarchuk were involved in
the terrorism-financing activities and why it was necessary to freeze them.762
(c) Ukraine did not explain why the Russian Federation was requested, or how it was
indeed able, to freeze accounts with the banks registered and located in Ukraine.763
560. Ukraine has not provided any answer to any of these issues.
561. In light of the above, Ukraine has failed to establish that the Russian Federation breached
its obligations under Article 8 of the ICSFT.
759 Norwegian Refugee Council, Aid workers are staying in Afghanistan - as they do in crises globally. We must
protect them, 30 August 2022, available at: https://www.nrc no/opinions-all/aid-workers-are-staying-inafghanistan-
as-they-do-in-crises-globally/
760 Agnes Callamard, United Nations Security Council Draft Resolution on the Financing of Terrorism: Protecting
and Safeguarding Humanitarian Actions, 22 March 2019, available at:
https://www.ohchr.org/sites/default/files/Documents/Issues/Executions/StatementDraftResolutionFinancingTerr
orism.pdf
761 Ukrainian Note Verbale No. 72/22-620-2087 to Russian Federation Ministry of Foreign Affairs, 12 August
2014 (Memorial, Annex 369).
762 Ukrainian Note Verbale No. 72/22-620-2221 to Russian Federation Ministry of Foreign Affairs, 29 August
2014 (Memorial, Annex 371).
763 Ukrainian Note Verbale No. 72/22-620-2221 to Russian Federation Ministry of Foreign Affairs, 29 August
2014 (Memorial, Annex 371).
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B. ARTICLE 9: THE RUSSIAN FEDERATION DID NOT VIOLATE ITS OBLIGATION TO
INVESTIGATE THE FACTS RELATED TO TERRORISM-FINANCING
562. To recall, Article 9 of the ICSFT contains an obligation of the State Party
“1. Upon receiving information that a person who has committed or who is
alleged to have committed an offence set forth in article 2 may be present in
its territory, the State Party concerned shall take such measures as may be
necessary under its domestic law to investigate the facts contained in the
information.
2. Upon being satisfied that the circumstances so warrant, the State Party in
whose territory the offender or alleged offender is present shall take the
appropriate measures under its domestic law so as to ensure that person’s
presence for the purpose of prosecution or extradition.”
563. Ukraine’s claim that the Russian Federation breached this obligation must fail because
Ukraine gives an implausibly broad interpretation of Article 9 of the ICSFT (i) and its
Notes Verbales did not contain any sufficient or even credible allegations of terrorismfinancing
against any specific offenders (ii).
i. Ukraine’s interpretation of Article 9(1) is implausibly broad
564. In the Reply, Ukraine deliberately omits the full text of Article 9(1) and instead craftily
quotes selective words from it, scissoring out any language that may limit its
application.764 As a result, Ukraine makes this Article look like an obligation by the State
Party to investigate any allegation of terrorism, however vague or imprecise. However,
this is not what the plain text of Article 9 states.
565. First, there must be sufficient factual evidence that gives rise to a reasonable suspicion
of a terrorism-financing offence. Article 9 does not require a State Party to look into
every allegation of terrorism-financing – rather, a State Party must investigate “the facts
contained in the information” [Emphasis added]. Although Ukraine appears to equate
every allegation to a fact, these terms obviously have the opposite meaning: a fact is a
piece of information used as evidence, whereas an allegation is a claim made without any
proof. Further, as Article 9 makes clear, the “facts” or factual evidence should be
sufficient to warrant an investigation under the domestic law of the requested State Party,
that is, pass the domestic evidentiary standard as well.
764 Reply, ¶335.
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566. Thus, contrary to what Ukraine argues, it cannot be enough for the requesting State Party
merely to refer to the ICSFT or to assert that an offence of terrorism financing has been
committed. The requesting State must provide sufficient information that would give rise
to a reasonable suspicion and justify commencing an investigation of a terrorism
financing offence in the requested State, which is in itself an allegation of a grave nature.
567. Second, Ukraine implausibly alleges that “Article 9(1) refers only to ‘information that a
person who has committed or who is alleged to have committed an offence’ and not
information about ‘a specific person’.”765 In fact, the ordinary meaning of the phrase “a
person” Article 9(1), read in its context, must mean a person with sufficiently specific
characteristics so as to afford the requested State a sufficient basis or leads to conduct a
proper investigation – that is, not just any unidentified individual.
568. In this respect, Ukraine leaves out that the person in question must be shown to actually
have committed, or at least be alleged to have committed, a terrorist offence (which is
not the case with Ukraine’s requests in any case). The text of Article 9(1) refers to an
Article 2 offence that has been committed, and thus the occurrence of such an offence
must be conclusively proven, with the requisite specific intent, although that person’s
participation can be “alleged”. Further, in the subsequent paragraph 2 of this Article that
person is referred to as “the offender”, which assumes that it is a known individual. A
situation when no information is given about either the commission of a terrorist offence,
or any clue as to “the offender”, or both is untenable and cannot be considered reasonable
ground for cooperation under Article 9 of the ICSFT.
ii. Ukraine’s Notes Verbales did not contain sufficient or even credible allegations of
terrorism-financing by specific persons
569. What Ukraine provided to the Russian Federation in its Notes Verbales cannot be
considered as sufficient or credible allegations of terrorism financing by specific persons.
570. First, the Notes Verbales, neither by their form, content or channel of communication
represented proper requests for assistance under the relevant MLA treaties applicable in
accordance with Article 12(5) ICSFT. The mere use of diplomatic channels for requests
to investigate alone signified Ukraine’s lack of interest in prompt or speedy performance
765 Reply, ¶338.
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of these requests because such channels are much more complex and slower than direct
communication protocols established under MLA treaties between the Russian and
Ukrainian competent authorities. If Ukraine were genuinely interested in combating
terrorism-financing rather than pursued a political agenda, the appropriate way for
cooperation with the Russian Federation would be through the established channels
between their respective law-enforcement bodies and via the comprehensive mechanisms
set out in the applicable MLA treaties.
571. Second, Ukraine’s “allegations” put forward in these Notes Verbales were vague in the
extreme. The Notes Verbales did not contain a single reference to a concrete offence of
terrorism financing and merely claimed that the DPR and LPR were “terrorist
organisations” and were engaged in various criminal acts. The Note Verbale dated 12
August 2014 is an illustrative example:
“from March 2014, terrorist organizations “Donetsk People’s Republic”,
hereinafter referred to as the DPR, and “Lugansk People’s Republic”,
hereinafter referred to as the LPR, have been operating illegally in the
territory of Ukraine; they intentionally and consciously carry out in the
territory of Ukraine terrorist acts aimed at intimidation of population, killing
of civilian population, causing grave bodily injury to civilian population,
seizure of hostages and administrative buildings of state and local authorities
in order to compel the Ukrainian Government to do acts aimed at toppling
constitutional order in Ukraine, recognition of the terrorist organizations, and
other acts that threaten Ukraine’s territorial integrity and security.”766
572. This Note Verbale does not contain any information as to specific acts, persons or their
intent, as required under Article 9, which could indicate to the Russian Federation that it
may concern terrorism-financing.
573. Third, the context of these Notes Verbales indicated that they had a political rather than
terrorism-combating purpose. Only a few months before these Notes Verbales were sent
the pro-Maidan activists were openly engaged in intimidating of population, killing of
civilian population, causing grave bodily injury to civilian population, seizing hostages
and administrative buildings of State and local authorities in order to compel the
Ukrainian Government to do acts aimed at toppling constitutional order in Ukraine, which
in February 2014, culminated in an armed revolt toppling Ukraine’s legitimate
766 Ukrainian Note Verbale No. 72/22-620-2087 to Russian Federation Ministry of Foreign Affairs, 12 August
2014 (Memorial, Annex 369).
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government.767 However, this upheaval was not qualified as “terrorism” by the Ukrainian
authorities.
574. In this situation, when Ukraine was clearly reeling from civil strife, instances of unrest
could not be automatically interpreted as “terrorism” in the absence of concrete evidence
which Ukraine refused to supply – and in all likelihood did not possess.
575. In its Reply, Ukraine states that “if Russia had genuinely believed that Ukraine had not
provided sufficient information capable of supporting an investigation, a good faith
response would have been to promptly inform Ukraine of that view and request further
information.”768 Yet this is exactly what the Russian Federation did – and repeatedly,
both in diplomatic correspondence and through MLA channels, while also raising this
issue during its bilateral consultations with Ukraine. Ukraine, however, did not provide
concrete evidence in response to Russia’s requests.
576. For example, in response to the above-mentioned Ukrainian Note Verbale of 12 August
2014,769 the Russian Federation replied with a Note Verbale dated 14 October 2014,
where it requested factual information to substantiate claims raised by Ukraine.770 No
response from Ukraine was forthcoming.
577. Lack of evidence on Ukraine’s claims about the “terrorist activities” of the DPR and LPR
came into full view later, when Ukraine finally started sending its MLA requests. For
example, coming back to claims made in Ukrainian Note Verbale of 12 August 2014 to
which Ukraine refers in its Reply,771 Ukraine sent an MLA request concerning O.I.
767 See Chapter I(A) above.
768 Reply, ¶354.
769 Ukrainian Note Verbale No. 72/22-620-2087 to Russian Federation Ministry of Foreign Affairs, 12 August
2014 (Memorial, Annex 369).
770 Russian Federation Note Verbale No. 13355/днв to the Ukrainian Ministry of Foreign Affairs, 14 October 2014
(Memorial, Annex 373) (“The Ministry of Foreign Affairs of the Russian Federation informs the Ukrainian side
about the need to provide the Russian side with factual data on the issues brought up in the notes of the Ministry
of Foreign Affairs of Ukraine No. 72/22-484-1964 dated July 28, 2014, No. 72/22-620-2087 dated August 12,
2014, No. 72/22-620-2185 dated August 22, 2014, No. 72/22-620-2221 dated August 29, 2014, No. 72/22-620-
2406 dated September 24, 2014, No. 72/22-620-2443 dated September 30, 2014, No. 72/22-620-2495 dated
October 7, 2014 and No. 72/22-620-2529 dated October 10, 2014, as well as to hand over to the Russian Federation
the criminal cases brought by Ukrainian law enforcement authorities against Russian citizens and individuals
permanently residing in the Russian Federation, such as mentioned and identified in the notes of the Ukrainian
side, in the order set forth in the Commonwealth of Independent States' Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters dated January 22, 1993.”).
771 Reply, ¶356.
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Kulygina and others. In its response dated 23 October 2015, the Prosecutor General’s
Office of the Russian Federation noted the following:
“It follows from the text of the request that in May-June 2014 Russian citizen
O.I. Kulygina, acting jointly with Ukrainian citizens V.F. Chernyak, S.V.
Suvorov, A.N. Levkin, and Yu.A. Kukashov, assisted the terrorist
organization Donetsk People’s Republic. While committing the crime, she
coordinated her actions with leaders of the terrorist organization according to
the established criminal plan with the intention of putting up armed resistance
against representatives of the incumbent authorities in Luhansk and Donetsk
Oblasts, intimidating the population, committing serious and grave crimes
against the fundamentals of national security of Ukraine, human lives and
health, by enabling the transfer and smuggling of firearms, ammunition, and
explosives from Russia to Ukraine.
After reviewing the request we found that this request (to the extent of the
request for information about the instances in which “citizen O.I. Kulygina”
crossed the state border during the period since January 1, 2011) contains a
request for a procedural formality that is irrelevant to the subject matter of the
pretrial investigation being conducted by the Central Investigative
Directorate of the Security Service of Ukraine. The request initiator has also
requested certified copies of documents proving or disproving the
involvement of O.I. Kulygina in illegal paramilitary groups. However, the
request fails to state which procedural or other formalities should be carried
out in order to provide legal assistance.
We also find it impossible at this time to honor the request in terms of
identifying and questioning the next of kin of O.I. Kulygina as witnesses.
According to the requirements of Clause (d), Part 1, Article 7 of the
Convention on Legal Assistance and Legal Relations in Civil, Family, and
Criminal Cases of January 23, 1993, the request must state: the first names
and last names of witnesses, their address of residence, and in the case of
criminal cases – also the date and place of birth. The request in question lacks
the above-mentioned information. In light of this, the Prosecutor General's
Office of the Russian Federation would like to suggest that you additionally
send to us the information that we need to further review your request for
legal assistance. Also present copies of official documents based on which
the self-proclaimed Donetsk People’s Republic has been declared a terrorist
organization in Ukrainian territory.”772
578. Ukraine never followed up on this and numerous other similar requests from the Russian
side. By way of further example,
772 Office of the Prosecutor-General of the Russian Federation, Letter from the No. 82/1-5444-14, 23 October 2015
(Memorial, Annex 428).
Page 216 out of 541
(a) In its Note Verbale of 22 August 2014 Ukraine communicated that unidentified
individuals were directly or indirectly providing the DPR and LPR with various
kinds of assistance which could be considered terrorism-financing.773
(b) In its Note Verbale of 29 August 2014, Ukraine informed the Russian Federation
of an alleged scheme used to engage in terrorism-financing.774
(c) In its Note Verbale of 10 October 2014, Ukraine stated that it suspected that several
Russian citizens could be involved in terrorism-financing and demanded that:
“[Russia] take all feasible measures in order to terminate acts that constitute
offences within the meaning of the ICSFT, as well as provide appropriate
assurances and guarantees of non-repetition of such acts in the future”775
579. In response, the Russian Federation requested that Ukraine provide additional
information in connection with its allegations: provide evidence of the offences
purportedly committed by those citizens and provide their case files, as required by the
1999 Legal Assistance Convention.776 Ukraine did not reply.
580. Furthermore, in its Note Verbale of 3 November 2014 Ukraine accused the Russian
Federation of
“acting by means of its governmental bodies, agents, physical and legal
persons entrusted with performing functions of a state, as well as by means
of the terrorist organizations, which act under management and control of the
Russian Side, commit offences within the meaning of the Convention.”777
581. In its responses, the Russian Federation assured Ukraine that all information that the latter
relayed was investigated properly and enclosed a report that detailed actions that the
Russian Federation undertook on that basis.778 It also provided additional confirmation
773 Ukrainian Note Verbale No. 72/22-620-2185 to Russian Federation Ministry of Foreign Affairs, 22 August
2014 (Memorial, Annex 370).
774 Ukrainian Note Verbale No. 72/22-620-2221 to Russian Federation Ministry of Foreign Affairs, 29 August
2014 (Memorial, Annex 371).
775 Ukrainian Note Verbale No. 72/22-620-2529 to Russian Federation Ministry of Foreign Affairs, 10 October
2014 (Memorial, Annex 372).
776 Russian Federation Note Verbale No. 13355/днв to the Ukrainian Ministry of Foreign Affairs, 14 October 2014
(Memorial, Annex 373).
777 Ukrainian Note Verbale No. 72/22-620-2717 to the Russian Federation Ministry of Foreign Affairs, 3
November 2014 (Memorial, Annex 374).
778 Russian Federation Note Verbale No. 10448 to the Ukrainian Ministry of Foreign Affairs, 31 July 2015
(Memorial, Annex 376).
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that the investigations were still ongoing and provided a schedule of actions that it already
undertook in response to the information contained in Ukraine’s Notes Verbales. Ukraine
does not allege that it showed any similar kind of cooperation.
582. Ukraine’s approach to the MLA requests proved no better. It repeatedly sent the Russian
Federation defective requests and did not follow up on requests to provide the information
required to properly act on them.779
583. As it is clear from these exchanges between the Russian Federation and Ukraine, the
Russian Federation processed information communicated in Ukraine’s Notes Verbales
and MLA requests in due course and was ready to act on that information; its requests for
additional information from Ukraine were entirely reasonable and grounded in law. At
the same time, Ukraine repeatedly failed to respond to those queries and now attempts to
shift the blame onto the Russian Federation for not being able to follow up on its Notes
Verbales in full.
584. Finally, the political character of Ukraine’s Notes Verbales that sought to push the
Russian Federation to investigate terrorism-financing was further illustrated by the fact
that Ukraine widely used the “terrorism” label in order to justify the launch of the ATO
which allowed Ukraine to bypass its own domestic rules on the use of its armed forces
against its own citizens.
585. In this context, Ukraine's assertions about the alleged “terrorist” nature of the DPR and
LPR do not fit its own legislation. Article 24 of Ukrainian Law No. 638-IV of 20 March
2003 “On the fight against terrorism” states that
“An organization that is accountable for commission of a terrorist act and is
declared as a terrorist organization by a decision of the court, shall be
dissolved… A petition to declare the organisation accountable for terrorism
activities shall be submitted to the court by the General Prosecutor…”780
586. At the same time, Ukraine failed to provide evidence of a decision by its courts to
recognise the DPR and LPR as “terrorist organisations”. Moreover, there simply could
not have been such a decision by a Ukrainian court, because Ukrainian law has never
779 See below, ¶615.
780 Law of Ukraine No. 638-IV “On the fight against terrorism”, 20 March 2003, Article 24, available at:
https://zakon rada.gov.ua/laws/show/638-iv (Annex 456).
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specified either the grounds and procedure for prosecutors to file such applications or the
courts which would have jurisdiction to consider them.
587. It is remarkable that on 8 December 2014, MP Viktor Baloga submitted to the Verkhovna
Rada of Ukraine draft law No. 1286 “On Recognition of the Luhansk and Donetsk
People's Republics as Terrorist Organizations”. On 10 December 2014, a similar bill No.
1278 was introduced by MPs S. Pashinsky, A. Teteruk, and Y. Bereza. Both draft laws
have failed. The first was rejected by Verkhovnaya Rada’s Committee on Legislative
Support of Law Enforcement on the basis that “it was not within the competence of the
Parliament to decide on the recognition of organizations as terrorist”. 781 The Main
Scientific-Expert Department of the Verkhovnaya Rada rejected the second bill because
it “did not eliminate the existing gap in Ukrainian legislation, which had not provided a
mechanism and procedure for recognizing organizations as terrorist”. Further, it
concluded that "the idea of recognizing organizations as terrorist through the adoption by
Parliament of certain legislative acts raised doubts about its legal correctness and
compliance with the Constitution of Ukraine”.782
588. Consequently, at first the Ukrainian judges that considered criminal cases against the
DPR and LPR militants often did not understand on what legal basis they should consider
them to be terrorists. Therefore, judges often re-qualified the “terrorist” charges against
them as “participation in an illegal armed formation” (Article 260 of the Criminal Code
of Ukraine)783 or as “assistance to criminal organizations” (Article 256 of the Criminal
Code of Ukraine). Later Ukrainian courts began to qualify the militants’ actions as related
to "terrorism”. However, this shift in their practice was purely political and was due to
pressure from the “Maidan” leadership of Ukraine, but not grounded on any legal norms.
589. Of course, painting the DPR and LPR militants as “terrorists” required Ukraine to take
some formal measures to investigate their activities under terrorism offences. In this
respect, it is remarkable that the alleged financing of terrorism would take place before
781 Verkhovnaya Rada Committee on Legal Support of Law-Enforcement Activities, Letter of the Chairman No.
1286, 8 December 2014, available at: http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=52751
&pf35401=324535.
782 Verkhovnaya Rada Chief Directorate, Opinion on the draft Law of Ukraine No. 1278, 10 December 2014,
available at: http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=52808&pf35401=325138.
783 See, for example, Slavyansky District Court, Case No. 243/5919/14, Sentence, 7 November 2014, available at:
https://reyestr.court.gov.ua/Review/41273251.
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downing the MH17 or any of the acts of shelling in January 2015 – February 2017. that
Ukraine relies on in this Case as acts of terrorism.
590. Accordingly, Ukraine failed to establish that the Russian Federation breached Article 9
of the ICSFT.
C. ARTICLE 10: THE RUSSIAN FEDERATION DID NOT VIOLATE ITS OBLIGATION TO
PROSECUTE OR EXTRADITE TERRORISM-FINANCING OFFENDERS
591. Similar to the obligation to investigate under Article 9 of the ICSFT, the obligation to
prosecute or extradite alleged offenders under Article 10 of the ICSFT is triggered only
if the following conditions are met:
(a) the requested State Party has been provided with information that specifies a person
within its territory and sufficient facts that give rise to a reasonable suspicion that
this person is involved in terrorism-financing;
(b) jurisdiction has been properly established in accordance with Article 7;
(c) in case of extradition, the request is submitted in accordance with the requirements
in Article 12(5) and Article 15;
(d) in case of prosecution, there is a case that may be submitted to competent authorities
of the requested State for purposes of prosecution in accordance with its domestic
laws.
592. As the Russian Federation has already explained,784 Ukraine failed to provide any such
information apart from blanket, generic accusations of terrorism-financing. This does not
form a sufficient basis for the Russian authorities to launch any prosecution or extradition
process.
593. Furthermore, as extradition of Russian citizens is formally excluded due to express
prohibition by the Russian Constitution, in response to Ukraine’s Notes Verbales the
Russian Federation almost immediately, and very explicitly, requested to be provided
with
784 See above, ¶618.
Page 220 out of 541
“… the criminal cases brought by Ukrainian law enforcement authorities
against Russian citizens and individuals permanently residing in Russia, such
as mentioned and identified in the Note Verbales of the Ukrainian side, in
accordance with the procedure set forth in the Commonwealth of Independent
States' Convention on Legal Assistance and Legal Relations in Civil, Family
and Criminal Matters dated January 22, 1993.”785
594. Ukraine refused to do so, thereby excluding the possibility for the Russian Federation to
undertake prosecution of these persons due to absence of any incriminating evidence.
595. In any case, as the Russian Federation explained in the Counter-Memorial, Article 10 of
the ICSFT is an aut dedere, aut judicare obligation, that is, not an absolute obligation to
prosecute any persons specified by Ukraine. 786 The Russian authorities have an
unfettered discretion to decide whether there is sufficient evidence for them to prosecute
particular individuals for terrorism-financing. Ukraine has not offered any response and
thus appears to agree that this principle applies in this Case.
596. Accordingly, Ukraine failed to establish that the Russian Federation breached Article 10
of the ICSFT.
D. THE RUSSIAN FEDERATION DID NOT VIOLATE ITS OBLIGATION UNDER ARTICLE 12 OF
THE ICSFT TO ASSIST WITH THE CRIMINAL PROSECUTION OF THE TERRORISM
FINANCING
597. Article 12 of the ICSFT requires the Russian Federation to “afford … assistance in
connection with criminal investigations or criminal or extradition proceedings in respect
of [Article 2 offences], including assistance in obtaining evidence in their possession
necessary for the proceedings”.
598. In an attempt to prove that the Russian Federation did not fulfil its obligations to assist
Ukraine in prosecuting terrorist-financing, the latter confines itself to overgeneralisation
that the Russian Federation did not execute any of Ukraine’s MLAT requests that Ukraine
selected for this Case, had no grounds to refuse assistance under the ICSFT or only
provided excuses of non-compliance.
785 Russian Federation Note Verbale No. 13355/днв to the Ukrainian Ministry of Foreign Affairs, 14 October 2014
(Memorial, Annex 373).
786 Counter-Memorial (ICSFT), ¶554.
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599. In the Counter-Memorial the Russian Federation has proved that all of Ukraine’s MLA
requests fell outside the scope of the ICSFT. 787 Ukraine’s vain attempts to prove
otherwise in its Reply are unavailing.
600. First, Ukraine argues that its MLA requests fall under the ICSFT insofar that they touch
upon the issues of financing of the DPR and LPR as “terrorist organisations”. The
Russian Federation has expounded upon this issue both in its Counter-Memorial and this
Rejoinder multiple times and will merely briefly restate that it is plainly false.
601. Second, and relatedly, Ukraine alleges that:
“At a minimum, Ukraine had a sufficient basis to request investigative
assistance in order to establish whether financing the DPR or LPR constitutes
Article 2 offenses.”788
602. The Russian Federation takes no position as to whether such requests are admissible in
general. It notes, however, that none of Ukraine’s MLA requests described below
contained a general request for investigative assistance of that nature. Accordingly, this
argument is also false.
603. Third, Ukraine suggests that for its MLA requests to fall under the ICSFT, it did not have
to do anything to identify them as such. In particular, Ukraine claims that since “from
the content of Ukraine’s MLA requests […] Russia was well aware that Ukraine was
seeking assistance relating to terrorism financing” and “there was no requirement under
Article 12(1) to expressly reference the ICSFT”.789 Ukraine also explains its failure to
identify terrorism-financing as the subject of investigation even under its own laws in
eleven out of twelve MLA requests as “an internal matter for Ukraine, and not a concern
of Russia’s”. It even tries to shift the blame onto the Russian Federation, stating that “it
is ironic that Russia would object to providing assistance concerning the occurrence of
acts of terrorism.”790 In the Reply, Ukraine extrapolates that:
“What matters for purposes of the application of Article 12 is that the
substance of the investigations concerned terrorism financing within the
meaning of Article 2 of the ICSFT.”791
787 See Counter-Memorial (ICSFT), Chapter VIII, Section V.
788 Reply, ¶369.
789 Ibid., ¶370.
790 Ibid., ¶372.
791 Ibid., ¶371.
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604. These suggestions are blatantly incorrect and show how Ukraine is trying to retroactively
build up evidence for its case.
605. Although Article 12(1) expressly refers to “offences set forth in article 2”, Ukraine did
nothing to identify its MLA requests as related to ICSFT or even to terrorism-financing.
Essentially, it suggests that the Russian Federation should have itself somehow identified
the alleged offences as relating to the ICSFT, when Ukraine itself ostensibly left out any
reference to it. It is also striking that only a single request out of twelve, on which Ukraine
relies, actually concerns terrorism-financing under Ukraine’s domestic law (Article 258-
5 of the Penal Code of Ukraine, entitled “Terrorism-financing”). Even though the 1999
Legal Assistance Convention attaches considerable significance to proper qualification
of the alleged offence in a MLA request,792 all Ukraine’s requests save for one refer to
completely different charges. Ukraine now attempts to retroactively rectify these glaring
deficiencies by trying to place the duty of second-guessing the legal basis of a mutual
legal assistance request upon the Russian Federation. These attempts should fail.
606. Fourth, Ukraine’s attempt to accuse the Russian Federation of failing to provide
assistance in respect of “occurrence of acts of terrorism” is also misplaced. Not only has
the Russian Federation regularly addressed Ukraine’s requests for legal assistance in
those matters, but in any event, they are irrelevant for the purposes of assessing whether
Ukraine’s MLA requests fall under the ICSFT. As the ICSFT is not designed to prevent
the “occurrence of acts of terrorism” in general, such MLA requests plainly do not fall
within its scope.
607. Fifth, Ukraine’s claims that the Russian Federation rejected several MLA requests
unjustifiably should also be dismissed.
608. Article 12(5) ICSFT provides that:
“… the parties must carry out their obligation to afford assistance in
conformity with the mutual legal assistance treaties in force between them.”
609. Accordingly, the exchanges between Ukraine and the Russian Federation in respect of
mutual legal assistance must be subject to the requirements contained in those treaties.
792 Article 7(1)(g) of the 1999 Convention on Legal Assistance.
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610. Ukrainian authorities sent its MLA requests under the 1993 Convention on Legal
Assistance and Legal Relations in Civil, Family, and Criminal Matters, and the 1959
European Convention on Mutual Legal Assistance in Criminal Matters. Ukraine thus
cannot be unaware that its MLA requests must comply with the requirements set forth in
these instruments. The same instruments will also govern the requests’ processing and
grounds for dismissal.
611. The extent to which Ukraine goes to misrepresent the content of the applicable MLA
treaties is remarkable. For example, Ukraine asserts that Article 17 of the Minsk
Convention does not require a translation of MLA requests into Russian language.793
However, Ukraine exhibits an outdated version of the Minsk Convention and conceals
that in 1997, the State Parties (including the Russian Federation and Ukraine) amended
Article 17 specifically to include a requirement that such documents must be
accompanied by a translation into Russian.794
612. Likewise, Ukraine misrepresents the requirements of Article 19 of the 1993 Convention,
which provides that in case a legal assistance request is denied, the requesting party
should immediately be notified of reasons therefor. As confirmed by the Parties’
subsequent practice (including Ukraine’s competent bodies as well), the Parties have
considered reference to Article 19 of 1993 Convention a sufficient justification for
dismissal of a legal assistance request, and where Ukrainian competent bodies required a
further justification, the Russian competent bodies provided it.795
613. Furthermore, even if Ukraine had qualms about the Russian Federation’s mode of
compliance with the relevant MLA treaties, it did not follow through the appropriate
mechanisms with its complaints. In particular, Article 81 the 1999 Legal Assistance
Convention provides that:
“Any differences arising out of this Convention’s application shall be
resolved by competent bodies of the State Parties as per mutual agreement.”
793 Reply, ¶373.
794 See Protocol of 28 March 1997 to the Minsk Convention of 22 January 1993 on legal aid and legal relations in
civil, family and criminal cases (Annex 457).
795 See, e.g. Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-5095-15 dated
18 November 2016 (Annex 51); Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-5100-15 dated 20 October 2016 (Annex 50); Letter from the Office of the Prosecutor of the Russian
Federation No. 82/1-5094-15 dated 7 February 2017 (Annex 49); Letter from the Office of the Prosecutor-General
of the Russian Federation No. 82/1-5099-15 dated 16 November 2016 (Annex 52).
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614. Ukraine does not allege that it has ever raised concerns with the Russian Federation’s
mode of compliance with 1999 Convention. Therefore, it cannot now bring its
accusations of the Russian Federation’s alleged improper fulfilment of its application
under the Convention.
615. In addition, if one looks at each of the twelve MLAT requests separately, one can easily
identify multiple grounds why each request was doomed to be refused.
(a) The Request dated 4 September 2014 in respect of the Russian State Duma Deputy
Speaker Vladimir Zhirinovsky. This request did not mention the ICSFT or any
terrorism-financing offence; instead, it relied on Article 258-3 of the Criminal Code
of Ukraine, entitled “Creation of a terrorist group or organization” which would fall
outside the scope of the ICSFT. The Prosecutor General had to refuse assistance
because it could harm the sovereignty, security and other vital interests of the
Russian Federation.796
(b) The Request dated 30 September 2014 in respect of the Russian citizen O.I.
Kulygina. This request did not mention the ICSFT or any terrorism-financing
offence; instead, it relied on Article 258-3 of the Penal Code of Ukraine, entitled
“Creation of a terrorist group or organization”, which would fall outside the scope
of the ICSFT. The Prosecutor General had to refuse assistance because the request
contained irrelevant requests (border crossing records) and sought to interrogate a
witness without specifying any of the details as required by the Minsk Convention.
At the same time, the Prosecutor General invited Ukraine to send additional
information to process the request.797
(c) The Request dated 11 November 2014 in respect of the Russian State Duma Deputy
Speaker Sergey Mironov. This request did not mention the ICSFT or any terrorismfinancing
offence; instead, it relied on Article 258-3 of the Criminal Code of
Ukraine, entitled “Creation of a terrorist group or organization”, which would fall
outside the scope of the ICSFT. The Prosecutor General had to refuse assistance
796 Letter from the Office of the Prosecutor-General of the Russian Federation No. 87-158-2015, 17 August 2015
(Memorial, Annex 425).
797 Letter from the Office of the Prosecutor-General of the Russian Federation No. No. 82/1-5444-14 23, October
2015 (Memorial, Annex 428).
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because it could harm the sovereignty, security and other vital interests of the
Russian Federation.798
(d) The Request dated 3 December 2014 in respect of the Russian State Duma Deputy
Speaker Gennady Zyuganov. This request did not mention the ICSFT or any
terrorism-financing offence; instead, it relied on Article 260(3) of the Criminal
Code of Ukraine, entitled “Creation of an illegal armed groups”, which would fall
outside the scope of the ICSFT. The Prosecutor General had to refuse assistance
because it could harm the sovereignty, security and other vital interests of the
Russian Federation.799
(e) The Request dated 2 July 2015 in respect of the Russian citizen A.I. Mozhaev and
R.Z. Khalikov. This request did not mention the ICSFT or any terrorism-financing
offence; instead, it relied on Article 258-3 of the Criminal Code of Ukraine, entitled
“Creation of a terrorist group or organization”, which would fall outside the scope
of the ICSFT. The Prosecutor General invited Ukraine to send additional
information to process the request and, after receiving it, provided documents in
respect of R.Z. Khalikov. The Prosecutor General had to refuse assistance in
respect of witnesses because Ukraine failed to specify any of their details as
required by the Minsk Convention.800
(f) The Request dated 3 July 2015 in respect of the Russian citizen A.Yu. Boroday. This
request did not mention the ICSFT or any terrorism-financing offence; instead, it
relied on Article 258-3 of the Criminal Code of Ukraine, entitled “Creation of a
terrorist group or organization”, which would fall outside the scope of the ICSFT.
The Prosecutor General forwarded Ukraine the information that the Russian
authorities had in its disposal.801
798 Letter from the Office of the Prosecutor-General of the Russian Federation No. 87-159-2015, 17 August 2015
(Memorial, Annex 426).
799 Letter from the Office of the Prosecutor-General of the Russian Federation No. 87-157-2015, 17 August 2015
(Memorial, Annex 424).
800 Letter from the Office of the Prosecutor of the Russian Federation No. 82/1-5094-15, 4 March 2016, p. 5
(Memorial, Annex 419); Letter from the Office of the Prosecutor of the Russian Federation No. 82/1-5094-15, 7
February 2017 (Annex 49).
801 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-5095-15, 18 November
2016 (Annex 51).
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(g) The Request dated 3 July 2015 in respect of the Russian citizen I.N. Bezler. This
request did not mention the ICSFT or any terrorism-financing offence; instead, it
relied on Article 258-3 of the Criminal Code of Ukraine, entitled “Creation of a
terrorist group or organisation”, which would fall outside the scope of the ICSFT.
The Prosecutor General forwarded Ukraine the information that the Russian
authorities had in its disposal.802
(h) The Request dated 3 July 2015 in respect of the Russian citizen I.V. Girkin. This
request did not mention the ICSFT or any terrorism-financing offence; instead, it
relied on Article 258-3 of the Criminal Code of Ukraine, entitled “Creation of a
terrorist group or organisation”, which would fall outside the scope of the ICSFT.
The Prosecutor General forwarded Ukraine the information that the Russian
authorities had in its disposal.803
(i) The Request dated 28 July 2015 in respect of a group of Russian senior army
officers. This request did not mention the ICSFT or any terrorism-financing
offence; instead, it relied on Article 258-3 of the Criminal Code of Ukraine, entitled
“Creation of a terrorist group or organisation”, which would fall outside the scope
of the ICSFT. The Prosecutor General had to refuse assistance because it could
harm the sovereignty, security and other vital interests of the Russian Federation.804
(j) The Request dated 15 September 2015 in respect of a Russian citizen V.A. Starkov.
This request did not mention the ICSFT or any terrorism-financing offence; instead,
it contained various charges, including Article 263 (“Illegal handling of weapons,
ammunition and explosives”), Article 332-1 (“Illegal crossing of the State border
of Ukraine’), Article 258-3 (“Creation of a terrorist group or organization”),
Article 437 (“Planning, preparation for, instigating and waging aggressive war”)
and Article 28 (“Committing a crime by a group of persons, a group by prior
conspiracy, an organised group or a criminal organization”), which do not fall
within the ICSFT. The Prosecutor General had to refuse assistance because by the
802 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-5100-15, 20 October 2016
(Annex 50).
803 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-5099-15, 16 November
2016 (Annex 52).
804 Letter from the Office of the Prosecutor-General of the Russian Federation No. 87-200-2015, 29 February 2016
(Annex 53).
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time the Prosecutor General received the request, V.A. Starkov had already been
convicted, which was an automatic reason for refusing legal assistance.805
(k) The Request dated 23 March 2017 in respect of a member of the Russian armed
forces A.A. Sinelnikov. This request did not mention the ICSFT or any terrorismfinancing
offence; instead, it contained various charges, including Article 438
(“Violation of laws and customs of war”), Article 437 (“Planning, preparation for,
instigating and waging aggressive war”), Article 258-3 (“Creation of a terrorist
group or organisation”), and Article 258 (“Terrorist act”) of the Criminal Code of
Ukraine which do not fall within the ICSFT. The Prosecutor General had to refuse
assistance because it could harm the sovereignty, security and other vital interests
of the Russian Federation and there were clear signs of political motivation behind
criminal prosecution.806
(l) The Request dated 14 November 2017 in respect of the Russian citizen G.L.
Kornilov. This was the only request that alleged the offence of terrorism financing
(funding of an alleged “terrorist organisation” under Article 258-3 of the Criminal
Code of Ukraine). However, even that request did not invoke or otherwise refer to
the ICSFT. The Prosecutor General had to refuse assistance because it could harm
the sovereignty, security and other vital interests of the Russian Federation and
there were clear signs of political motivation behind criminal prosecution.807
616. As the above summary makes clear, in each case the Russian Federation either had legal
grounds to refuse assistance to the Ukrainian authorities per the applicable international
treaties or did in fact provide assistance to Ukraine. In any case, the MLAT requests did
not concern the ICSFT and even terrorist-financing in general was mentioned only in one
request.
617. In the Reply, Ukraine also fails to observe that, pursuant to Article 12(5) of the ICSFT,
Ukraine had an obligation to comply with the order (procedure) of mutual legal assistance
805 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-6425-15, 13 September
2016 (Counter-Memorial (ICSFT), Annex 41).
806 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-1897-17, 28 February
2019 (Annex 55).
807 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-5598-17, 19 December
2018 (Annex 56).
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set by MLA treaties in force between the Russian Federation and Ukraine. The Russian
authorities rejected or postponed the performance of Ukraine’s requests based on the
failure of the Ukrainian authorities to comply with the applicable treaty requirements.
618. Below are just a few examples of Ukraine sending incomplete or otherwise unworkable
MLA requests:
(a) Ukraine’s MLA request for interrogation of witnesses, which lacked the description
of the crime that those witnesses had allegedly seen happen;808
(b) Ukraine’s MLA request that does not provide the causal link between the factual
circumstances described and the qualification of the offence, or information about
the criminal proceedings in question;809
(c) Ukraine’s MLA request for interrogation of witnesses that does not specify their
addresses and dates of birth, in contravention of the 1999 Legal Assistance
Convention and the 1959 Legal Assistance Convention;810
(d) Ukraine’s MLA request that alleges that several officers of the Federal Security
Service of the Russian Federation may have committed treason (whereas as per the
Criminal Code of Ukraine only Ukrainian citizens could be convicted for this
crime).811
619. Taking into consideration these multiple deficiencies, in multiple instances it was
impossible to provide the requested assistance in full. Insofar as it was possible, the
Russian Federation relayed to Ukraine the information and documents sought.
620. Remarkably, Ukraine also omits that when it was the Russian authorities who requested
legal assistance on terrorism-related charges from the Ukrainian authorities based on the
808 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-2791-15, 25 September
2015 (Annex 54).
809 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-580-17, 22 June 2017
(Annex 57).
810 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82/1-3545-15, 11 February
2016 (Annex 58).
811 Letter from the Office of the Prosecutor-General of the Russian Federation No. 82-1-2445-15, 17 February
2016 (Annex 59).
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same MLA treaties, the latter consistently denied the MLAT requests on the substantially
the same grounds. For example:
(a) In November 2018, one of the leaders of the Ukrainian nationalist battalion National
Corps Konstantin Nemichev arranged a violent attack on the Russian Consulate at
Kharkov. The Russian authorities sent a MLAT request to Ukraine for Mr
Nemichev’s interrogation.812 However, the Ukrainian authorities denied assistance
on the ground that it may prejudice Ukraine’s sovereignty or security.813
(b) In March 2016, there was a similar attack on the Russian Embassy in Kiev. The
Russian Federation sent five MLAT requests to Ukrainian authorities, seeking to
interrogate witnesses of the attack. However, Ukraine denied all five MLAT
requests on the ground that a different investigation proceeding was ongoing in
Ukraine, without disclosing any details of that investigation.
621. Accordingly, Ukraine failed to establish that the Russian Federation breached its
obligations under Article 12 of the ICSFT.
E. ARTICLE 18: THE RUSSIAN FEDERATION HAS NOT VIOLATED ITS OBLIGATIONS TO
COOPERATE IN THE PREVENTION OF TERRORISM FINANCING
622. Article 18 requires States to prevent terrorism financing by certain specific means, that
is, by cooperating in the prevention of these offences by establishing a regulatory
framework and by taking certain specific steps aimed at hindering terrorism financing
operations in their territories. Ukraine’s claim that the Russian Federation failed to
comply with this obligation is wrong because that obligation requires establishment of a
regulatory framework for the prevention of terrorism-financing (i), which the Russian
Federation successfully did and (ii) Ukraine failed to disprove.
i. Article 18(1) imposes only an obligation to establish a regulatory framework for the
prevention of the financing of terrorism
623. Article 18(1) provides that “States Parties shall cooperate in the prevention of the offences
set forth in article 2 by taking all practicable measures, inter alia, by adapting their
812 Russian Federation General Attorney’s Request for assistance, 23 September 2021 (Annex 455).
813 Ukraine’s General Attorney Office Letter, 9 February 2022, (Annex 454).
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domestic legislation, if necessary, to prevent and counter preparations in their respective
territories for the commission of those offences within or outside their territories,
including […]”. Article 18(2) provides that “States Parties shall further cooperate in the
prevention of offences set forth in article 2 by considering” (emphasis added) certain
measures. Article 18(3) provides for sharing of information and coordinating of
administrative and other measures” and Article 18(4) provides for exchanging of
information through the INTERPOL.
624. In its Memorial, Ukraine quoted language from Article 18(1),
Article 18 of the ICSFT requires States to “cooperate in the prevention of the
[terrorism financing] offenses set forth in article 2.” That obligation includes
“taking all practicable measures . . . to prevent and counter preparations in
their respective territories for the commission of those offenses within or
outside their territories.”814
625. Ukraine then proceeded to make very broad charges of violations of Article 18, without
identifying which paragraphs of Article 18 have been violated, showing that it based its
Article 18 allegations on Article 18(1) only. In its Reply, it seized upon the wording “all
practicable measures, inter alia […]” in Article 18(1) and repeated its charges against the
Russian Federation, and again without identifying which paragraphs of Article 18 have
been violated. This affirmed that Ukraine based all its Article 18 allegations on Article
18(1) only, and the Russian Federation will also address Article 18(1) only.
626. Ukraine’s broad allegations of violations of Article 18 by the Russian Federation show
that Ukraine reads Article 18(1) as providing for a general duty to prevent the financing
of terrorism. Ukraine grounds this general duty on the wording “all practicable measures,
inter alia […]” in Article 18(1), taken at face value, and considered capable of holding
any and all instances of alleged failure to prevent the financing of terrorism. For Ukraine,
“all” means any and all, while “inter alia” means “among other things”, and what follows
“inter alia” is just one practical measure among many.815
814 Memorial, ¶296.
815 Ibid., ¶311.
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627. Ukraine’s argument fails. As the Russian Federation made clear in its Counter-Memorial,
Article 18(1) imposes upon States parties only a duty to establish a regulatory framework
for the prevention of the financing of terrorism.816
628. In this respect, Ukraine alleges that:
“Article 18(1) further provides that “all” such measures must be taken. “All”
means all, and not, as Russia expressly argues, only “certain” measures. Thus,
if a measure is feasible, workable, and reasonable, and if it has the capacity
to prevent the commission of Article 2 offenses, the State is obligated to take
the measure.”817
629. Article 18(1), however, does not exist in isolation. Ukraine’s interpretation of this article
contradicts both Articles Article 18(2), which states that:
“2. States Parties shall further cooperate in the prevention of offences set forth
in article 2 by considering:
(a) Measures for the supervision, including, for example, the licensing, of all
money-transmission agencies…”
630. If Ukraine’s logic were correct, and Article 18(1) indeed covered all possible measures
under the sun, Article 18(2), which merely requires the States Parties to consider
implementing certain further measures would be superfluous.
631. Whether or not Article 18(1), especially the use of the phrase “all practicable measures,
inter alia”, is a model of advisable drafting, interpreters of the language are not entitled
to just take that language at face value so as to read it as including any practicable
measures. Generic or general terms must be given concrete content by reading them in
context, with due regard to the object and purpose of the treaty and the particular
provision at issue, and with the assistance of supplementary means. This finds support in
the Court’s judgment in Immunities and Criminal Proceedings (Equatorial Guinea v.
France), where the phrase “principles of sovereign equality” in Article 4(1) of the
Palermo Convention was not interpreted as incorporating all rules and principles that can
be put in the basket called “sovereign equality”, but was given meaning by reading it
together with other provisions of that convention.818
816 Counter-Memorial (ICSFT), ¶¶579-592.
817 Reply, ¶310.
818 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J.
Reports 2018, pp. 321, 324, ¶¶92-93, 102.
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632. In this case, we must keep in mind that often when “inter alia” is used, the general term
preceding the phrase “inter alia” and the concrete illustrations following that phrase both
refer to things of the same genre, rather than creating a completely opening ended
obligation. Regarding Article 18(1) of the ICSFT, this view is strengthened by the French
version—the original version of the ICSFT—where the word “notamment” was used
instead of “inter alia”. “Notamment”, or “notably” in English — which means
“especially, particularly” — is usually used to refer to a more prominent item among the
same category of things, rather than to any item among a hodgepodge of disparate items.
Thus, the Merriam-Webster Dictionary illustrates this sense of the word “notably” by
giving this sentence, “other powers, notably Britain and the United States”, which clearly
shows the general term “other powers” preceding the phrase “notably” and the concrete
illustrations following that phrase both refer to things of the same genre — powers.
Illustrations of this usage can be found in the jurisprudence of the Court. For example,
this is the sense in which the Court used the word “notably” in a 2015 judgment in the
joint cases between Costa Rica and Nicaragua: “[Costa Rica] further reproaches
Nicaragua with conducting works (notably dredging of the San Juan River) in violation
of its international obligations”.819 [Emphasis added] Here the word “works” must be
interpreted as referring to the same category as what follows “notably”, that is, “dredging
of the San Juan River”, rather than to just any kind of “works”.
633. The same obtains with the judgment in Djuibouti v. France, where the Court said:
“Djibouti claims that these witness summonses have violated international
obligations, both conventional and deriving from general international law,
notably the principles and rules governing the diplomatic privileges,
prerogatives and immunities laid down in the Vienna Convention on
Diplomatic Relations of 18 April 1961 and the principles established in the
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents of 14
December 1973.”820 [Emphasis added]
634. Here “general international law” must be interpreted as referring to “rules of general
international law” in the same category as what follows “notably”, i.e., principles and
rules on privileges and protection of special categories of persons, rather than any general
819 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction
of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p.
665, ¶1.
820 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports
2008, p. 240, ¶181.
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international law rules. The general term refers to the same genre of “things”, rather than
things from different genres. In the same vein, “all practicable measures” in Article 18(1)
of the ICSFT refers to legislative or regulatory measures in place (or regime) before the
conduct at issue takes place.
635. Furthermore, this view finds support in the drafting history. The original proponent and
drafter of the ICSFT, France explained the rationale behind the preventive measures in
its draft Article 17 (now Article 18) thus:
“10. Preventive measures based on generally accepted principles followed in
combating money-laundering (art. 17). All magistrates and police
investigators who were consulted prior to and during the drafting of this
convention emphasized one point in particular: it is very difficult to find
evidence in financial cases. Consequently, this convention includes a number
of provisions which are directly based on generally accepted principles
followed in combating money-laundering, and which are designed to
encourage States to adopt domestic measures to require financial institutions
to improve the identification of their usual or occasional customers, notably
by prohibiting the opening of anonymous accounts, formally identifying
account holders, and preserving for at least five years the necessary
documents in connection with the transactions carried out.”821
636. This explanation confirms that the drafters used the term “inter alia” to highlight that, if
necessary, the States Parties were also required to modify their existent legislation to
implement the measures listed in points (a) – (b) of the same Article.
637. Ukraine also attaches significance to the term “prevention” used in Article 18. Ukraine
highlights that the only other instance that it appears is the ICSFT’s preamble and alleges
in this respect that:
“In light of the treaty’s twin purposes of suppression and prevention, it would
not be faithful to the ICSFT’s object and purpose to interpret Article 18 as
simply requiring States to update their regulatory frameworks and nothing
more”.822
638. Ukraine’s interpretation is incorrect. The term “prevention” indeed appears in the
preamble of the ICSFT twice, both times in relation to domestic legislation:
“Recalling General Assembly resolution 51/210 of 17 December 1996,
paragraph 3, subparagraph (f), in which the Assembly called upon all States
821 UN General Assembly, Ad Hoc Committee, Third Session, Draft international convention for the suppression
of the financing of terrorism, Working document submitted by France, 11 March 1999, A/AC.252/L.7/Add.1, ¶2-
3. Available at: https://digitallibrary.un.org/record/1490608/files/A_AC.252_L.7_Add.1-EN.pdf
822 Reply, ¶312.
Page 234 out of 541
to take steps to prevent and counteract, through appropriate domestic
measures, the financing of terrorists and terrorist organization …
…and in particular to consider, where appropriate, adopting regulatory
measures to prevent and counteract movements of funds suspected to be
intended for terrorist purposes…” [Emphasis added.]
639. This is further indicative of the drafters’ intent to induce the States Parties to link the aim
of prevention of terrorism-financing offences.
640. Finally, Ukraine suggests that:
“‘taking all practicable measures’ means taking every feasible measure that
is capable of preventing acts of terrorism financing, regardless of whether it
is a regulatory measure, a law enforcement measure, a border control”.823
641. Here, Ukraine misreads the term “cooperation” used in Article 18, alleging that:
“Article 18 imposed on Russia a duty to act in a cooperative manner under
the circumstances presented here, but Russia simply chose to violate that duty
and to refuse to cooperate in the prevention of terrorism financing.”824
642. This is not a correct interpretation of this term, particularly in the overall context of
Article 18. This Article provides that the States Parties must adopt new, or adapt the
existing legislation, to conform to the internationally recognised standards, which enables
cooperation between the States Parties.
643. The above interpretation is also consistent with the undisputed “obligation of conduct”
nature of Article 18. Whereas a State may strive to adopt all reasonable measures to
prevent terrorism-financing, it is inevitable that some offences will slip through the
cracks. Contrary to Ukraine, the Russian Federation does not allege that such offences
should be left unpunished; this punishment, however, would remain outside the scope of
Article 18. Ukraine’s attempts to read into this Article a State Party’s international
responsibility for every instance where, notwithstanding the existing legislation, an
offence has occurred. Following this logic, Ukraine accuses the Russian Federation of
not having taken very specific “measures”, which, it invented in hindsight. This
interpretation of Article 18 is plainly unreasonable and should be rejected.
823 Reply, ¶309.
824 Reply, ¶304.
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644. Accordingly, the drafters of Article 18(1) of the ICSFT clearly have in mind regulatory
regime matters and not any other measures.
ii. Ukraine has failed to demonstrate that the Russian Federation did not take
regulatory measures to combat terrorism-financing
645. Ukraine has made broad allegations that the Russian Federation breached its Article 18
obligation to prevent terrorism financing. With regard to specific alleged instances of
terrorism, the duty to prevent the financing of terrorism cannot be breached until terrorism
has been committed. This is the lesson from the Court’s holding in Bosnia Genocide that:
“… a State can be held responsible for breaching the obligation to prevent
genocide only if genocide was actually committed. It is at the time when
commission of the prohibited act (genocide or any of the other acts listed in
Article III of the Convention) begins that the breach of an obligation of
prevention occurs.”825
646. In this case, Ukraine failed to establish even a single act of terrorism and accordingly
there is no question of any failure to prevent the financing of terrorism.
647. In its submissions, Ukraine requests that the Court hold the Russian Federation in
violation of its obligations under Article 18 of the ICSFT by failing to designate the DPR
and LPR as terrorist organisations; by failing to stop fundraising for the DPR and LPR in
the Russian Federation, by failing to police its borders to prevent the transfer of weapons
and resources to the DPR and LPR, and because Russian officials engaged in financing
the DPR and LPR.826 However, these allegations do not plead a breach of Article 18 of
the ICSFT.
648. As highlighted above, Ukraine grounds its Article 18 allegations on Article 18(1), and
without identifying other paragraphs in Article 18 as the basis for its allegation. Yet, as
elaborated above, Article 18(1) only provides for adopting a regulatory framework rather
than requiring the prevention of specific incidents of terrorism financing. None of the
above allegations fall within the ambit of Article 18(1).
825 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007 (I), p. 90, ¶431.
826 Reply, ¶734(a).
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649. Properly speaking, to make out a claim of violation of Article 18(1) would entail proving
a failure to establish regulatory regimes for the prevention of terrorism financing. Yet
Ukraine failed to show any examples of non-adoption of such an appropriate regulatory
framework.
650. In any event, the Russian criminal code includes articles that provide for severe
punishment for involvement in terrorist activities, in particular Articles 205, 205.1, 205.2.
Those are regularly implemented articles, imposing liability for terrorism and terrorism
financing shall be considered as a proper practicable measure to combat terrorism. As
noted above, Article 18 of the ICSFT is a provision specifically designed to establish an
obligation to cooperate in the prevention of the financing of terrorism by taking certain
legislative and administrative measures rather than containing a general obligation to
prevent specific acts of terrorism financing.
651. For the above reasons, Ukraine has failed to make out its claims under Article 18.
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SUBMISSIONS ON PART 1
652. In view of the foregoing, the Russian Federation respectfully requests the Court to dismiss
all of the claims made by Ukraine under the ICSFT.
Agent of the Russian Federation
Alexander V. SHULGIN
The Hague, 10 March 2023
Page 238 out of 541
PART 2
APPLICATION OF THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
Page 239 out of 541
Page 240 out of 541
I. INTRODUCTION
653. This part of the Rejoinder addresses Ukraine’s claims under the CERD Consistent with
the Counter-Memorial (CERD), which is maintained in full, the Russian Federation will
respond to the Reply and again show that those claims are without any merit. The Russian
Federation has always been a strong supporter of the CERD and takes its obligations
arising thereunder seriously. The “systematic racial discrimination campaign” alleged by
Ukraine is nothing but a work of fiction that could not be further away from reality.
654. Before turning to Ukraine’s specific arguments, four general observations are warranted:
(a) First, Ukraine’s entire case is based on a false narrative. Ukraine portrays the
situation in Crimea before 2014 as one where different ethnic groups’ rights under
the CERD were fully respected. In fact, however, for many years Ukraine
consistently neglected and mistreated them. The well-being of the ethnic groups
living in Crimea, including Crimean Tatars, has significantly improved since 2014.
(b) Second, Ukraine’s case is based on flawed, misleading and unreliable evidence,
most often emanating from sources that are detached from the reality on the ground
in Crimea, do not represent the Crimean population or the ethnic groups living
there, and are associated with the Ukrainian Government itself. Regarding the latter,
the impartiality of these sources could not be taken for granted.
(c) Third, it is self-evident that the true purpose of Ukraine’s case under the CERD is
to challenge the status of Crimea. It is telling in this regard that Ukraine does not
plead a case for all Crimean Tatars and Ukrainians living in the whole of the
Russian Federation, but only those present in Crimea. Indeed, Ukraine simply
cannot show that the Crimean Tatars and Ukrainian communities living in Crimea
are treated differently from those living elsewhere in the Russian Federation.
(d) Fourth, Ukraine seeks to found its grave allegations of a “systematic racial
discrimination campaign” targeted against Tatar and Ukrainian communities in
Crimea on the basis of the conflation of unconnected allegations, which are
unrelated to issues of racial discrimination. These allegations are not only
unsubstantiated, but also do not prove the existence of a “systematic campaign”
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alleged by Ukraine or any intention on the part of the Russian Federation to engage
in any such campaign.
A. RUSSIA’S ONGOING SUPPORT OF CRIMEAN TATARS AND ETHNIC UKRAINIANS IN
CRIMEA
655. The Counter-Memorial (CERD), described the various measures that the Russian
Federation undertakes to support Crimean Tatars and Ukrainians in Crimea. It is telling
that Ukraine simply ignores these facts. It is necessary to briefly recall them in this
Rejoinder. The measures taken for the benefit of these communities would have never
been adopted if Ukraine’s allegation of a “systematic racial discrimination campaign” had
some truth to it. Clearly, it does not.
656. It is worth recalling that the first step taken by the Russian Federation in Crimea was the
rehabilitation of several groups of ethnic minorities that had suffered from deportation
during the Soviet times. In April 2014, President Putin declared the following:
“... We certainly need to do everything we can to rehabilitate and restore the
legitimate rights and interests of the Crimean Tatar people at a time when
Crimea is joining the Russian Federation.
… That is why my colleagues in the Government and the Presidential
Executive Office and I are now preparing an executive order on the
rehabilitation of the Crimean Tatars.”827[Emphasis added]
657. The representatives of different ethnic groups in Crimea have praised the positive
measures taken by the Russian authorities. In particular, during a meeting of President
Putin with the representatives of the Crimean Tatar, Jewish, Ukrainian and Greek
communities, the Head of the Qirim Interregional Crimean Tatar Public Movement, Mr
Remzi Ilyasov, stated:
“I represent and head the Qirim public movement of the Crimean Tatar
people. From the outset, we established a constructive dialogue with the
authorities and are systematically holding meetings with the public; among
other things, we have assumed a certain level of responsibility for the overall
situation in Crimea, sharing it with the authorities. We are participating in all
Crimea-wide events held in the Republic of Crimea and are organising and
holding Crimean Tatar celebrations.
Thanks to the initiative and active work by members of the Qirim public
movement of Crimean Tatar people, during the elections to the State Council
827 Direct Line with Vladimir Putin, President of Russia (17 April 2014), available at:
http://en.kremlin ru/events/president/news/20796 (Memorial, Annex 51).
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and local offices, we were able to reduce a certain amount of political conflict
and ethnic tensions.”828
658. Likewise, the Head of the Ukrainian Ethnic and Cultural Community in City of
Simferopol District, Mr Oleg Kravchenko, stressed the peaceful coexistence of different
ethnic groups in Crimea:
“Despite the many attempts to distort the facts about the Ukrainian
population’s life in the Republic of Crimea, I want to tell you that Crimea is
a land of calm, of constructive creativity and communication between all
ethnic groups. We maintain relations with everyone.
We are a relatively young organisation within the framework of Russian
legislation, but now we are building momentum and creating a regional
organisation; we are forming chapters in all the cities and representation in
all municipalities. We maintain relations with the Ukrainian population
through our community in Ukraine and we are trying to convey to them that
ethnic Ukrainians’ choice for Crimea, which we declared at the referendum
on Crimea’s accession to the Russian Federation, was a conscious decision
by ethnic Ukrainians and there is no need for speculation, there is no need to
make some sort of interpretation, which has been happening very often
lately.”829
659. As the Russian Federation described in the Counter-Memorial, the Rehabilitation Decree
on 21 April 2014 sets general framework for the support of ethnic minorities that had
suffered from deportation during the Soviet times, particularly Crimean Tatars.830 Thus
Decree is implemented in Crimea through local legislation. For example, the Law No.
38-ZRK of 31 July 2014 provides for a simplified procedure for the registration and
legalization of land and real property in order to address the core problems encountered
before 2014 by Crimean Tatars, who did not always possess official documents proving
their ownership title.831 These measures are aimed at resolving a decades-long problem
by Crimeans previously ignored by Ukraine.
660. The Russian Federation also showed that “substantial financial resources have been
budgeted yearly for the socio-economic development of the ethnic minorities as part of
their rehabilitation under the Federal Target Program for the period till 2025 (from 10.36
828 President of the Russian Federation official website, “Meeting with representatives from Crimean ethnic
groups’ public associations”, Yalta, 17 August 2015, pp.3,14 available at:
http://en.kremlin ru/events/president/news/50140 ((Counter-Memorial (CERD), Annex 460)).
829 Ibid.
830 Counter-Memorial (CERD), Annex 63.
831 Counter-Memorial (CERD), ¶63.
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million roubles832 in 2015 to 2.497 billion roubles833 in 2018 and 3.473 billion roubles834
in 2022)”. 835 To date, these resources have been used to foster development of the
residential real estate and public facilities, construction of water and energy supply
communications and improvement of infrastructure in the clusters predominantly
inhabited by Crimean Tatars, as well as to grant financing to the families in order to
upgrade their housing conditions.
661. Crimean Tatar and ethnic Ukrainian children study in newly built schools and
kindergartens if they so choose in their own languages.836
662. The Russian Federation has also ensured the provision of finance837and housing,838
implementing targeted social security programs839 as well as support for ethnic group’s
practice of different religions.840
663. In addition, the Russian authorities have worked in the development of schools, 841
monuments,842 museums,843 theatres844 and religious facilities845 , all of which preserve
and promote history, traditions and culture of the Crimean Tatar and Ukrainian
communities. People whose mother tongue is Crimean Tatar or Ukrainian, have access to
several media outlets in those languages that are subsidized by State funds. This includes
832 Сirca 185 000 USD.
833 Сirca 43 000 000 USD.
834 Сirca 53 000 000 USD.
835 Counter-Memorial (CERD), ¶68.
836 Second Witness Statement of Aider Serverovich Ablyatipov, Annex 13, ¶¶7, 15.
837 Counter-Memorial (CERD), ¶68.
838 Ibid., ¶69.
839 Ibid., ¶71.
840 Witness Statement of , 9 June 2021, ¶¶29-43 ((Counter-Memorial (CERD), Annex
19)).
841 Counter-Memorial (CERD), ¶72.
842 Witness Statement of
y, 22 April 2021, ¶34 ((Counter-Memorial (CERD), Annex 8));Witness Statement of
, Annex 29, ¶5.
843 Counter-Memorial (CERD), Annex 498, pp. 7-12.
844 Counter-Memorial (CERD), Annex 498, pp. 21-24; Witness Statement of , Annex
14 , ¶¶5-9.
845 Counter-Memorial (CERD), ¶77; Witness Statement of , 9 June 2021, ¶¶29-38
((Counter-Memorial (CERD), Annex 19)).
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the first actual Crimean Tatar TV channel which makes more than 80% of its content in
Crimean Tatar language.846
664. Furthermore, over 200 newly published books on history and culture of various peoples
of Crimea, including Crimean Tatars and Ukrainians, have been made available by the
efforts of the Gasprinsky Media Centre. (the Centre funded by the Crimean State
Committee on inter-ethnic relations, whose main objectives are support for ethnic media
and publication of the books related to various ethnic communities of Crimea). Only in
2022, the Centre hosted or promoted more than 25 public events with a focus on Tatar
and Ukrainian culture.847 The overall number of public events related to Ukrainian or
Crimean Tatar culture is much higher, as Crimean Ministry of Culture invests
unparalleled efforts in arranging and facilitating them throughout the peninsula.848
665. The Russian Federation also provides essential support for regions in Crimea
predominantly inhabited by Crimean Tatar communities by investing significant
resources in their infrastructure. This has improved the living conditions for many
families, boosted their social and economic development as they were neglected by the
Ukrainian authorities for decades. By 2023 the Russian Federation managed to provide
in Crimea 76,9 kilometers of gas supply networks; 73,7 kilometers of electrical grid; 49
kilometers of water supply networks; and 21,7 kilometers of roads.849
666. The funds allocated by State to these projects amount to 17,3 billion roubles (over 200
million US Dollars). These public investments are naturally in addition to other
infrastructure projects that are undertaken throughout Crimea for the benefit of all its
inhabitants.
667. Other projects undertaken by Russian authorities include:
846 ANO OKTRK, Letter, 8 February 2023 (Annex 173); Witness Statement of , Annex
33, ¶¶19-25.
847 Letter of State Autonomous Institution of the Republic of Crimea «Ismail Gasprinskiy Media Center»,
Information about the work of Ismail Gasprinskiy Media Center, 2 March 2023, Annex 37, ¶25.
848 Witness Statement of Tatyana Anatolyevna Manezhina, Annex 16; Counter-Memorial (CERD), Annex 498,
pp. 2-7; Witness Statement of , 31 May 2021, ¶¶19-23 ((Counter-Memorial
(CERD), Annex 16)); Second Witness Statement of , Annex 10, ¶14.
849 State Committee for Inter-ethnic Relations of the Republic of Crimea, Information for MFA (from 2014 to
2022 and plans for 2023), ¶2, Annex 481.
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(a) The construction of the Suren Complex, a landmark site for all the formerly
deported peoples including Crimean Tatars has been completed.850 The allocation
of over 451,68 million roubles (over 6 million US Dollars) for this project has led
to the creation of a modern memorial complex, that would allow future generations
of Crimean Tatars to better understand their history;
(b) A land plot has been assigned for the construction of new premises for Feodosia
School No. 20, which offers its students a complete primary and basic general
education in Ukrainian. 851 Around 500 million roubles (over 6,5 million US
Dollars); will be allocated for this project.
(c) In 2022 more than 300 apartments were granted to Crimean Tatar families by the
State in an effort to improve their living conditions. It is planned that 1,262
additional apartments will be provided in the near future. Furthermore, more than
167 million roubles of State funds (over 2,2 million US Dollars) have been provided
as grants to more than 850 families of formerly deported peoples, mainly Crimean
Tatars, for private housing projects.852
(d) The State budget of the Russian Federation has allocated to the reconstruction of
the Khan Palace amount to a total investment of nearly USD 50 million (RUB 3.6
billion).853
(e) Construction process of a large Cathedral Mosque in Simferopol is in its final
stages. The work is planned to be completed by July 2023. The Mosque grounds
are currently being refurbished. Construction of the Mosque was planned in
Ukraine in early 2000-s, but only started in 2015, after Crimea’s reunification with
the Russian Federation.854
850 Witness Statement of , Annex 29, ¶5.
851 Witness Statement of Valentina Vasilyevna Lavrik, Annex 25, ¶14.
852 Council of Ministers of the Republic of Crimea, Letter No. 1/01-46/8775/3/3/214, 14 February 2023 (Annex
38).
853 See below, Chapter XI, Section A.
854 Witness Statement of , ¶¶35-38 (Counter-Memorial (CERD), Annex 19).
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(f) The Crimean Center for Multiethnic Youth Culture of the Crimean Engineering and
Pedagogical University is currently under construction now. More than 532 million
roubles (circa 8 million USD) have been invested in this project.855
(g) In 2020 and 2022, 6 million roubles were allocated to non-governmental
organization “the Ukrainian Community of Crimea” per year in order to finance the
functioning of the Ukrainian website “Pereyaslavs’ka Rada 2.0”, which provides
coverage of the events related to Ukrainian language and culture.856
(h) All along, the Russian Federation continues to provide support to various
educational and cultural undertakings arranged by Tatar and Ukrainian civil society
institutions, such as the “Armanchik”, “Ukrainian Community of Crimea”,
“Crimean regional public organization for support and promotion of Crimean Tatar
culture and art”857 and others.
668. While Ukraine, which did not effectively allow Crimean Tatars to take full part in the
political life of peninsula,858 the Russian Federation efficiently implements inclusion
practices. It encourages Tatar representatives to engage with local policy and to enter
representative bodies. This has allowed more than 450 ethnic Tatars to be elected as
deputies of various municipal and regional bodies.
669. The Russian Federation’s consistent efforts to support all of the Crimean population
without any distinction have not gone unnoticed by the Crimean Tatar community itself.
In August 2019 the Forum of the Crimean Tatar Social-Political Powers and the Crimean
Tatar Council issued a declaration, in which they praised the Russian Federation’s
measures to rehabilitate the Crimean Tatar people as well as enumerated multiple
achievements that they obtained after the Crimean Republic reunited with the Russian
Federation.859
855 Council of Ministers of the Republic of Crimea, Letter No. 1/01-46/8775/3/3/214, 14 February 2023 (Annex
38).
856 Ibid.
857 Letter of State Autonomous Institution of the Republic of Crimea «Ismail Gasprinskiy Media Center»,
Information about the work of Ismail Gasprinskiy Media Center, 2 March 2023, Annex 37, p. 4.
858 Witness Statement of Ervin Kyazimovich Musaev, Annex 33.
859 Facebook, Ruslan Balbek, Forum of the Crimean Tatar Social-Political Powers, Declaration (17 August 2019)
available at
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670. Indeed, Russia’s efforts are in stark contrast with Ukraine’s previous behaviour. As noted
by a report produced by the OSCE in 2013 “The Integration of Formerly Deported People
in Crimea, Ukraine”:
“Nearly a quarter of a century has passed since the members of the
communities that were deported on ethnic grounds began returning to Crimea
in large numbers. The passing of time has not resolved all problems in
Crimea; if anything, it has made them worse.”860
B. UKRAINE’S CASE IS ARTIFICIAL AND BASED ON FLAWED EVIDENCE
671. Ukraine’s case continues to be based on flawed evidence that do not come near proving
the serious accusations that it has made against the Russian Federation
672. “Evidence” put forward by Ukraine stems from individuals who do not have first hands
knowledge of the situation in Crimea. This includes former members of the Mejlis who,
as shown in the Counter-Memorial and again in this Rejoinder, have done nothing but
acting to the detriment of the Crimean Tatars, not least orchestrating blockade of the
peninsula that severely affected its inhabitants.
673. In its groundless accusations Ukraine also extensively relies on the Reports produced by
the OHCHR, the concrete findings of which are dealt with in more detail below.
However, as a preliminary remark, it is worth underlining that the OHCHR has never
suggested that there was a “systematic racial discrimination” planned and deployed by
the Russian Federation against Crimean Tatar and Ukrainian communities in Crimea, as
Ukraine falsely claims in the present case.
674. Moreover, the OHCHR reports on the situation in Crimea can hardly be treated as
compelling and full evidence. This is because the OHCHR has not visited Crimea to
collect evidence first-hand, in spite of the Russian Federation’s invitations to do so.861
https://www.facebook.com/story.php?story_fbid=pfbid031LDapErFLdRtZmnJVUqtfcUsSzefqQZNcEPCvdVag
h8MM9CaYvf57UDFEJJ84gntl&id=100009094776367&mibextid=Nif5oz (Annex 484).
860 OSCE, The Integration of Formerly Deported People in Crimea, Ukraine: Needs assessment, 16 August 2013,
pp. 30-31, available at: https://www.osce.org/files/f/documents/e/a/104309.pdf.
861 See below, ¶1064.
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675. Being aware of shortcomings of its case, Ukraine seeks to bolster its position by referring
to the special military operation,862 which has no relation to the allegations of Ukraine in
the present case.
C. STRUCTURE OF THIS PART
676. This part of the Rejoinder is structured as follows:
(a) Chapter II shows that Ukraine’s claims under the CERD are precluded by virtue
of the clean hands doctrine.
(b) Chapter III shows that Ukraine’s claims are manifestly outside the scope and
subject-matter of the dispute as defined by the CERD and the Court.
(c) Chapter IV responds to Ukraine’s allegations regarding the ban of the Mejlis.
(d) Chapter V shows that there is no racial discrimination with respect to education
targeted against Crimean Tatars and ethnic Ukrainians in Crimea.
(e) Chapter VI addresses Ukraine’s allegations regarding alleged disappearances,
murders, abductions and torture of Crimean Tatars and Ukrainians.
(f) Chapter VII shows the absence of racial discrimination int he context of law
enforcement measures.
(g) Chapter VIII address es the alleged violations of the CERD with respect to matters
of citizenship.
(h) Chapter IX responds to Ukraine’s accusations regarding public events.
(i) Chapter X shows that there is no racial discrimination of the Crimean Tatar and
Ukrainian Media in Crimea.
(j) Chapter XI responds to Ukraine’s accusations with respect to the preservation of
cultural heritage.
862 Reply, ¶379.
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(k) Chapter XII will show that the Russian Federation has not violated the Court’s
Order on provisional measures.
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II. UKRAINE’S CLAIMS UNDER THE CERD ARE PRECLUDED BY VIRTUE OF
THE CLEAN HANDS DOCTRINE
677. As explained in Chapter II of Part One above, a State that seeks the assistance of the Court
must do so with clean hands.863
678. The Russian Federation has set out in its Counter-Memorial Ukraine’s misconduct related
to the CERD. The Russian Federation showed Ukraine’s wrongful policies that are
inconsistent with the aim of ensuring peaceful coexistence among ethnic groups,
including Russians. It was also explained that over the years Ukraine in fact threatened
and discriminated against the Crimean Tatar community it now purports to protect.864
Ukraine did not deny these facts, and the Russian Federations considers that the
conditions for applying the principle of clean hands are met.
679. As will be shown below, since 1991, Ukraine failed to protect ethnic groups in Crimea.
In fact, prior to 2014 in Crimea representatives of different ethnic groups, including
Crimean Tatars, regularly protested their situation, some even referring to it as
“apartheid” and “racial discrimination.”865
680. Notably, the CERD Committee itself was concerned about the situation with the Crimean
Tatars, the Romas, the Karaites, the Rusyns (Ruthenians) in Ukraine and in 2006 noted
that:
“8. Although it is not widespread, the Committee is nevertheless concerned
about reports of vandalism of religious sites of minorities, such as defacing
of synagogues in different areas of Ukraine, as well as of anti-Muslim and
anti-Tatar statements by Orthodox priests in Crimea.
…
15. While noting that an important number of formerly deported persons have
been repatriated to Crimea since 1990, the Committee is concerned about
reports that only 20 per cent of Crimean Tatars have obtained plots of land,
mainly in areas considered undesirable by them.
…
863 See above, Chapter II.
864 Counter-Memorial (CERD), ¶31.
865 Krymsky Analitik, Photos. Crimean Tatars Demand that Yushchenko and Tymoshenko Stop Racial
Discrimination in Ukraine (18 May 2009), available at: http://www.agatov.com/content/view/1451/19/ (Annex
98).
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16. The Committee is concerned about the shortage of publications, in
particular textbooks for schoolchildren, in minority languages other than
Russian, and about reports that some textbooks contain historically inaccurate
information about minorities.
…
18. The Committee notes with concern that cultural and religious sites,
including cemeteries, of minorities such as the Crimean Tatars, the Karaites
and the Roma, are reportedly often not registered or protected and that only
very limited funds are allocated to the preservation of the cultural heritage of
minorities by the State party;
…
20. The Committee is concerned about the absence of official recognition of
the Ruthenian minority despite its distinct ethnic characteristics.”866
681. As the following sections will demonstrate, Ukraine fails to protect ethnic groups from
violence and hate speech, objects of their cultural heritage are being vandalized, ethnic
groups suffer from unemployment and lack of adequate housing. Moreover, progressive
restrictions are being imposed on the use of the Russian language and culture. This
Chapter will also show that following 2014 coup d’etat current regime in Kiev has been
heavily influenced by extreme-right radicals deeply rooted in Nazi and fascist ideology.
Modern Ukrainian neo-Nazis are heirs of the World War II Nazi collaborators and spread
their ideology throughout the country.
682. As will be shown below, the rise of the extreme-right ideology rooted in Nazism in the
modern Ukrainian has dramatic repercussions for ethnic communities in Ukraine,
especially Russians.
683. These circumstances demonstrate how cynical allegations that Ukraine makes against the
Russian Federation in this case are. As a result, the “clean hands” doctrine precludes
Ukraine from making any valid claims under the CERD.
866 CERD, Consideration of Reports Submitted by States Parties under Article 9 of the Convention, Concluding
Observations of the Committee on the Elimination of Racial Discrimination, Ukraine, CERD/C/UKR/CO/18,
8 February 2007, ¶¶8, 15-16, 18, 20, available at: https://digitallibrary.un.org/record/585087.
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A. UKRAINE FAILED TO PROTECT ETHNIC MINORITIES LIVING ON ITS TERRITORY
i. Failure to protect minorities from racist violence
684. Ukrainian authorities have consistently allowed violence towards ethnic minorities.
Reports of international organisations documented Ukraine’s reluctance to prevent and
properly investigate attacks of radicals against members of various ethnic groups.
685. In 2007, the Third Report of the European Commission against Racism and Intolerance
(“ECRI”) indicated “a worrying increase in racist violence by youth belonging to
skinhead and neo-fascist groups” against foreigners, including immigrants, foreign
students and even diplomats and family members of United Nations personnel. 867
Various fascist actions were organised and information on their barbarities was published.
Although the Ukrainian police could monitor and prevent the violence, for some reason
they failed to do so:
“[S]kinhead activities appear to be organised and [] racist attacks occur
regularly (at least once a week) in the largest cities such as Kiev, Odessa,
Lviv, Kharkiv and in the Crimea. Skinhead and neo-fascist groups regularly
hold public rallies and concerts where they make Nazi salutes and chant
racist, xenophobic and antisemitic slogans. One such rally was reportedly
held in Kiev on 3 March 2007 by 50 extremists near the city’s Shulyavsky
Market where most traders are from African and other developing countries.
ECRI has also received reports of a torchlight procession held on campus on
18 March 2007 in Kharkiv by university students who chanted racist slogans.
It appears that the university authorities authorised this event and that this is
the third such demonstration in recent months… ECRI has also been informed
that on April 20th, Adolf Hitler’s birthday, there is a marked increase in
skinhead violence and activities and that foreigners feel that they have to
remain indoors on that day for their own safety. The authorities do not appear
to have taken specific steps to either ban or curb such activities nor have
special security measures been taken to protect those who may become the
target of violence when these types of activities are held. As skinhead and
neo-Nazi groups have officially registered websites and some publications,
monitoring their activities appears to be possible.”868 [Emphasis added]
686. The ECRI found reaction of Ukraine’s authorities to such outrageous and provocative
violence inadequate and stated with regret that “in general there is reluctance on the part
867 European Commission against Racism and Intolerance, Third report on Ukraine, 29 June 2007, p. 29, ¶117,
available at: https://rm.coe.int/third-report-on-ukraine/16808b5ca2. See also ibid., p. 10, ¶22 p. 25, ¶¶96, 118, 121.
868 Ibid., p. 30, ¶119.
Page 253 out of 541
of the Ukrainian authorities to recognize the existence of violence by skinhead groups
which they consider to be by and large sporadic acts of hooliganism.”869
687. The situation did not turn for the better at the time the Fourth Report of the ECRI was
published in 2012. 870The report refers to numerous attacks against ethnic minority
members which took place in Kiev and other major cities, when a higher degree of the
public order is usually expected.871 In constant threat of another attack from skinheads
foreign students said they “tr[ied] to be invisible” while moving around the city as no
help from the police was expected.872
688. Because Ukrainian authorities failed to bring racially motivated violence to an end, this
led to all increasing numbers of attacks against minorities. In 2017 Ukraine showed a
twofold increase in number of Anti-Semitic manifestations.873 Among the registered acts
of violence were (i) the beating of Alexander Dukovsky, Ukraine’s chief paediatric
neurosurgeon on 17 March 2015 in Kiev; (ii) the killing of Israeli Rabbi Mendel Deitsch
on 7 October 2016 in Zhitomir; (iii) the pogrom in Uman city synagogue on the eve of
Jewish Hanukkah on 21 December 2016; and (iv) the attempted arson of the Lvov’s main
synagogue on 30 June 2017 during “Shukhevich-fest” festival.874
689. The Fifth Report of the ECRI, published in 2017, also signifies multiple episodes of
hostilities:
“Roma appear to be the most frequent victims of racist violence. For example,
in February 2014, a group of about 15 people attacked four Roma households
869 Ibid., p. 31, ¶122.
870 European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fourth monitoring cycle), 8
December 2011, p. bere19, ¶45, available at: https://rm.coe.int/fourth-report-on-ukraine/16808b5ca5 (“ECRI
remains concerned by the phenomenon of racist violence in Ukraine”).
871 Ibid., p. 19, ¶43 (“While incidents of desecration of cemeteries have continued to be reported in Ukraine, most
racist incidents reported to the authorities or – more often – to civil society consist of physical attacks committed
against foreign students, migrants, refugees, asylum seekers, Roma and other persons of non-Slavic appearance,
including Africans, Central and South-East Asians and persons from the Middle East or the Caucasus. Such attacks
clearly target people based on their appearance and most commonly occur in Kyiv and other major urban centres
where there is a significant number of foreign students or migrants. Violent racist attacks are often committed by
groups of skinhead youths, who are not necessarily members of structured right-wing organisations but may belong
to a skinhead subculture. Such attacks are frequently severe, resulting in serious wounding by beating, knifing or
shooting”).
872 The Guardian, Euro 2012: Ukraine’s festering football racism (1 June 2012), available at
https://www.theguardian.com/world/2012/jun/01/euro-2012-ukraine-football-racism-sol-campbell (Annex 217).
873 Irina Berezhnaya Institute for Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHTS AND
FREEDOMS IN UKRAINE (2018), p. 9 (Annex 350).
874 Ibid.
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in Korosten, and in April 2014 a Roma family’s house in Cherkasy was set
on fire. In August 2016, as reported above, unrest broke out in Loshchynivka
and several Roma households were ransacked and burned down by locals.
More than 300 people took part in the violence, resulting in property damage
but no injuries. Seven Roma families, including 17 children, fled the village
following a local council decision on their eviction.”875
“Regarding foreign students, in June 2015, a group of approximately 30
young men wearing balaclavas and armed with knives and sticks attacked
foreign students in Kharkiv. The attackers wounded nine students,
hospitalising six. According to witnesses the assailants targeted the victims
because they “looked like foreigners”. Law enforcement officers were present
but did not attempt to stop the attackers. Later they detained five persons,
charging them with hooliganism, attempted murder and armed assault.”876
690. Radicals’ violent attacks on Roma have repeatedly fallen under the attention of the OSCE
Special Monitoring Mission to Ukraine (SMM). In its Daily report of 25 May 2018 SMM
reported that:
“The SMM followed up on reports of an attack against members of the Roma
community on 22 May at a camp on the western edge of Velyki Hai (94km
north-east of Ivano-Frankivsk) where the SMM saw an abandoned area that
had been recently burned and was covered in ash. At another nearby Roma
camp, two women (thirties) and five children (five-ten years old) told the
SMM that they had been at the first camp on the evening of 21 May when a
group of about 20 masked people arrived and physically assaulted a woman
and a man from the Roma community. They said that one of them then fired
serval rounds into the ground next to another woman from the Roma
community as well as several small children and another poured gasoline over
the tents and set them on fire, destroying all belongings.”877 [Emphasis added]
691. In its Daily report of 9 June 2018 SMM reported on another violent attack on the Roma
in Kiev:
“In Kyiv, the SMM followed up on reports of an incident at a Roma
community camp on the evening of 7 June in a park in the Sviatoshynskyi
district. According to a statement of the local police, after members of the
Roma community had been requested to leave the park, park workers began
dismantling the camp structures and clearing the area. The police said that a
group of people wearing T-shirts with the Natsionalni Druzhyny insignia had
gone to the site and had been tearing down the structures with axes and
875 European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fifth monitoring cycle), 20
June 2017, p. 19, ¶47, available at: https://rm.coe.int/fifth-report-on-ukraine/16808b5ca8.
876 Ibid., p. 19, ¶49.
877 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 24 May 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/382531.
Page 255 out of 541
hammers while recording their own actions and preventing the park workers
from clearing up the area”.878
692. In May 2018, SMM several times witnessed the consequences of another Roma pogrom
in Lvov, Western Ukraine:
“In Lviv city, the SMM continued to follow up on media reports of arson at a
Roma camp on 9 May. On 14 May, the head of the Department of Culture
and Religions of the Lviv Regional State Administration told the SMM that
prior to the alleged attack approximately 30 people had been living in the
settlement in Rudne (11km west of Lviv City).”879
“In Lviv city, the SMM followed up on media reports of an attack on members
of the Roma community. In the western outskirts of Lviv in a bush area
opposite 24 Koniushynna Street on 12 May the SMM found the location
where the attack was alleged to have occurred to be abandoned; cooking
utensils and children’s toys were seen strewn about”.880
693. On 23 August 2018, during a briefing for the diplomatic corps at the SMM headquarters
in Kiev, the Deputy Head of the Mission, Mr Alexander Hug, showed photos taken by
the monitors depicting the consequences of attacks on Roma camps near Kiev: in the
Lysaya Gora neighbourhood (21 April 2018), Rusanovka Gardens (23 April 2018) and
Goloseevsky National Park (7 June 2018).881
694. The reports of independent observers for the recent periods also contain numerous
episodes of racially motivated violence in Ukraine. For example, only in May 2018 at
least three episodes of attacks of neo-Nazis against the members of ethnic communities
were placed on record:882
(a) On 9 May 2018, a Roma camp in Rudnoye village near the city of Lvov was burned.
878 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 8 June 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/384027.
879 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 15 May 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/381634.
880 Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of
19:30, 13 May 2018, available at: https://www.osce.org/special-monitoring-mission-to-ukraine/381160.
881 See photo from the SMM briefing (Annex 327). See other photos from OSCE SMM briefings (Annexes 324,
326-329).
882 Other episodes include destruction of Roma homes in the Goloseevsky Park in Kiev by the members of
“National Militia” on 7 June 2018; attack against a Roma village with resulting in death of one citizen and severe
injuries to several others on 23-24 June 2018 (the perpetrators were subsequently found guilty but received no
punishment from the local court); dispersion of the Roma camp near Kiev railway station on October 2018; See
Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND FREEDOMS
IN UKRAINE (2019), p. 7 (Annex 351).
Page 256 out of 541
(b) On 22 May 2018, right-wing radicals with firearms attacked a tent Roma camp near
the city of Ternopol.
(c) On 27 May 2018, extreme-right activists in Kiev attacked Caucasian and Turkish
delis at one of the city markets.
(d) On 22 April 2020, mayor of Ivano-Frankovsk R. Martcinkiv officially gave
instruction to take all Roma off to the Zakarpatskaya (trans-Carpathian) region883.
(e) On 17 October 2021, activists of ultra-right organizations “C14” and “municipal
guard” attacked a Roma camp in Irpen town in Kiev region884.
(f) On 17 November 2021 neo-Nazi radicals attacked Roma women and girls in center
of Kiev. Radicals damaged their clothes and painted them with antiseptic of brilliant
green. Neo-Nazis translated their action on the Internet.885 Countless episodes of
extreme-right violence, pogroms and killings, which occur to this day,886 are the
most vivid example of the cynical approach taken by Ukraine in this case.
ii. Failure to prevent hate speech against members of ethnic minorities887
695. Ukraine did nothing to prevent the growth of neo-Nazi sentiment in Ukraine. Ukraine
effectively failed to ban dissemination of fascist, antisemitic, and white supremacy ideas,
which led to a wide-spread development of intolerance agenda in media, politics and, as
shown above, ultimately resulted in violence on the streets.
696. In 2007 the Third Report of the ECRI demonstrated pathologically high numbers of
people sharing antisemitic ideas and intolerance towards ethnic minorities, especially
among young men:
“Surveys carried out in 2006 indicate a relatively high level of antisemitism
among the general public with 29 % of the respondents indicating their
883 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 95 (Annex 352).
884 Ibid. p. 97.
885 Ibid. p. 98.
886 For the violence against Roma population see A. Dyukov, M. Vilkov, FROM MURDERS TO POGROMS:
UNPUNISHED VIOLENCE FROM THE SIDE OF RIGHT-WING ACTIVISTS AGAINST ROMA IN UKRAINE (Warsaw, 2018)
(Annex 39).
887 On this issue see also Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT
AS A TOOL FOR VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), pp. 47-70 (Annex 352).
Page 257 out of 541
aversion to Jewish people living in Ukraine and only 31% stating that they
would welcome a Jewish person in their family. These surveys have also
noted an increase in antisemitism among young people, especially among 18
to 20 year olds. A poll carried out in 2006 noted that 45% of respondents from
this age group would like to see no Jewish people living in Ukraine.”888
“[R]acist and antisemitic attacks against persons and property flourish
because of the current environment and that although skinhead groups operate
underground, they are enjoying increasing public support.”889
697. Despite glaring evidence of a further ideological catastrophe, Ukrainian authorities made
no effort to prevent development of radical ideas in the country. Xenophobic rhetoric
flourished in the general public debate, with political parties using slogans such as
“Ukraine for Ukrainians” and politicians accusing each other of being Jewish.890
698. Specifically, in 2012 the Fourth Report of the ECRI described hatred against Crimean
Tatars as follows:
“As noted elsewhere in this report, anti-Tatar sentiment remains an issue in
Ukraine and appears to have increased in recent years as politicians’ rhetoric
has given it a semblance of respectability. Local politicians’ tendency to
ignore or deny the specific problems faced by Crimean Tatars also pushes the
latter to seek their own solutions and voice their identity more strongly. The
end result is a risk of radicalisation rather than resolution of the issues, to the
detriment of Crimean society as a whole and Tatars in particular as targets of
prejudice.”891
699. Noteworthy, the discriminatory attitude towards members of different cultures was
transmitted even in school textbooks. The ECRI found that “[s]chool textbooks are
reported to portray Muslims in a negative light, which perpetuates misconceptions and
prejudice.”892
888 European Commission against Racism and Intolerance, Third report on Ukraine, 29 June 2007, p. 25, ¶96,
available at: https://rm.coe.int/third-report-on-ukraine/16808b5ca2.
889 Ibid., p. 27 ¶107. See also ibid., pp. 24-25, ¶¶94-95, discussing an unprecedented increase in antisemitic
publications (“[ECRI] has been informed that there is little response to antisemitic publications and manifestations
from the authorities and society in general.”)
890 European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fourth monitoring cycle), 8
December 2011, pp. 20, 35, ¶¶49, 133, available at: https://rm.coe.int/fourth-report-on-ukraine/16808b5ca5.
891 Ibid., p. 28, ¶94. The ECRI also found a wide hatred against other ethnic minorities, for example, Roma. See
ibid., p. 21 ¶56 and pp. 24-25, ¶73 (“Roma in particular are still often stereotyped by the media as criminals”;
“hate speech, negative stereotypes and prejudice against Roma are still widespread”; “Overtly negative stereotypes
and prejudices are, however, frequent. Some bars and restaurants refuse to serve Roma, anti-Roma graffiti is
sprayed in public places (and occasionally left there by the authorities until Roma paint over it themselves) and
hostile messages inviting Ukrainians to kick Roma out of Ukraine or into the Chernobyl exclusion zone are posted
on Internet forums”).
892 Ibid., p. 29, ¶97.
Page 258 out of 541
700. After Crimea reunited with the Russian Federation, and the armed conflict broke out in
Donbass, ECRI collected further evidence of intolerance in Ukrainian society. In 2014,
the population of the DPR and LPR became another group vulnerable to hate speech. The
Fifth ECRI Report states that:
“[I]t seems that while there was initially sympathy for IDPs in 2014, this
appears to be waning. ECRI has been informed that it is not uncommon to see
discriminatory advertisements for housing or employment, such as “no one
from Donetsk should apply”893
701. In addition, ECRI highlighted that right-wing radicals that were engaged in armed conflict
in Donbass gained popularity:
“In its fourth report, ECRI recommended that the authorities intensify their
efforts to monitor, combat, prevent and punish illegal neo-Nazi activities and
events.
…
According to the head of the State Security Service, there are no radical right
organisations registered in Ukraine. ECRI notes, however, that there continue
to be extremist organisations which manifest intolerance towards vulnerable
groups and incite racial hatred. ECRI has also been informed that some of
these groups, or individuals within them, have become involved in military
action in the East of the country, thus gaining popularity for their openly ultranationalist
agenda.”894
702. On 30 June 2019 in Lvov on the 78-th anniversary of Pogrom and massacre of Jews, the
radical movements “National Corps”, “Svoboda” and “The Right Sector” held the
“Millennium March of Ukrainian State”.895
703. As will be shown below, extreme-right organizations converted that popularity and
tolerance of Ukrainian public in political influence.
iii. Ethnic minorities suffered from unemployment and lack of adequate housing
704. For decades, Ukraine has failed to guarantee the most vulnerable ethnic minorities –
Crimean Tatars and Roma – even with the basic standard of living, such as providing
them with housing and employment.
893 European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fifth monitoring cycle), 20
June 2017, p. 15, ¶26, available at: available at: https://rm.coe.int/fifth-report-on-ukraine/16808b5ca8.
894 Ibid., p. 16, ¶29.
895 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 25 (Annex 351).
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705. In 2001, the Second Report of the ECRI indicated that the process of reintegration of
Crimean Tatars was hindered due to scarce financing of resettlement programs by
Ukraine.896 Ukraine’s authorities failed to provide Crimean Tatars with good title to
property over land in peninsula; to find a place for a living, Crimean Tatars had to squat
abandoned or empty lands in the peninsula.897 The ECRI reports note inhuman living
conditions of many of the Crimean Tatars, that lacks “basic infrastructure, such as water,
electricity, gas, roads, and sewage systems”898 and conclude that “much remains to be
done to ensure that the formerly deported population enjoys in practice the same rights as
the rest of the population of Crimea and Ukraine as a whole.”899
706. Although Ukraine was aware that various ethnic communities, such as Crimean Tatars
and Roma, require urgent governmental aid, it failed to take appropriate measures for
years. In 2007 and 2012, the Third and the Fourth Reports of the ECRI documented grave
problems of ethnic minorities and lack of appropriate response from Ukraine, stating that
“concerns raised and proposals made in recent years by Crimean Tatars do not seem to
have been addressed in a transparent way by the authorities”900 and that “Roma continue
to live in desperately poor conditions with many facing severe safety and health
hazards…no access to running water, electricity, roads, transportation and
communication facilities… with only half of Roma persons being able to afford to eat
every day”901.
896 European Commission against Racism and Intolerance, Second Report on Ukraine, 14 December 2001, p. 18,
¶46, available at: https://rm.coe.int/second-report-on-ukraine/16808b5c9f. The situation was the same with Roma
community: in 2017, the Fifth Report of the ECRI indicated that the program for Protection and Integration of the
Roma Ethnic Minority in Ukraine failed as it was not sufficiently funded. See European Commission against
Racism and Intolerance, ECRI Report on Ukraine (Fifth monitoring cycle), 20 June 2017, pp. 21-22, ¶¶61-62; p.
25, ¶82, available at: https://rm.coe.int/fifth-report-on-ukraine/16808b5ca8.
897 OSCE, the Integration of Formerly Deported People in Crimea, Ukraine, August 2013, pp. 11-14, available at:
https://www.osce.org/files/f/documents/e/a/104309.pdf.
898 European Commission against Racism and Intolerance, Second Report on Ukraine, 14 December 2001, p. 19,
¶49, available at: https://rm.coe.int/second-report-on-ukraine/16808b5c9f.
899 Ibid., p. 19, ¶47. See similar considerations in relation to Roma communities: ibid., p. 22, ¶59 (“many
Roma/Gypsies live in slums and camps, where sanitary conditions are often extremely poor to the point where the
health of those living in such slums and camps is adversely affected”).
900 European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fourth monitoring cycle), 8
December 2011, p. 28, ¶91, available at: https://rm.coe.int/fourth-report-on-ukraine/16808b5ca5.
901 European Commission against Racism and Intolerance, Third report on Ukraine, 29 June 2007, p. 22, ¶83,
available at: https://rm.coe.int/third-report-on-ukraine/16808b5ca2. See also European Commission against
Racism and Intolerance, ECRI Report on Ukraine (Fourth monitoring cycle), 8 December 2011, p. 38 ¶¶153, 155,
available at: https://rm.coe.int/fourth-report-on-ukraine/16808b5ca5.
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707. Every Report of the ECRI referred to enormously high levels of unemployment of Roma
and Crimean Tatars. 902 For example, as of 2017, more than 60% of Roma were
unemployed, which the ECRI specifically attributed to discrimination.903
708. As a result of Ukrainian authorities’ policy in the area of employment and labour
protection, Crimean Tatars and Roma were among the most vulnerable population
groups, with massive numbers of community members below the poverty line. As
indicated in the OSCE 2013 Report:
“Crimean Tatars belong to one of the most vulnerable groups: 43 per cent of
Crimean Tatar households qualify as poor, compared to 33 per cent for ethnic
Russians and 38 per cent for ethnic Ukrainians…
While rural residents can grow their own food, many Crimean Tatars respond
to poverty by accumulating debt, delaying payments for rent or communal
services or not purchasing food, clothing or medicine, which has an adverse
impact on human development in Crimea.”904
709. Remarkably, even the Mejlis, which Ukraine now portrays as the most authoritative
indicator of Crimean Tatars’ views, criticised Kiev for scarce financing of services and
utilities for Crimean Tatars.905
iv. Political activity and representation
710. In fact, Ukraine has failed to create any conditions for diversified political representation
of ethnic minorities.
902 European Commission against Racism and Intolerance, Second Report on Ukraine, 14 December 2001, pp. 19-
20, ¶50; p. 22, ¶59, available at: https://rm.coe.int/second-report-on-ukraine/16808b5c9f; European Commission
against Racism and Intolerance, Third report on Ukraine, 29 June 2007, p. 12, ¶30, available at:
https://rm.coe.int/third-report-on-ukraine/16808b5ca2; European Commission against Racism and Intolerance,
ECRI Report on Ukraine (Fourth monitoring cycle), 8 December 2011, p. 28, ¶92; p. 37, ¶146, available at:
https://rm.coe.int/fourth-report-on-ukraine/16808b5ca5.
903 European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fifth monitoring cycle, p. 22,
¶64. p. 24, ¶77, available at: https://rm.coe.int/fifth-report-on-ukraine/16808b5ca8. The ECRI recognized
Ukrainian authorities’ poor management of employment issues and scarce protection of employees belonging to
ethnic minorities: “ECRI observes that despite numerous accounts of discrimination against national/ethnic
minorities in the field of employment, there appear to be few or no cases in which anti-discrimination provisions
have been applied in this field” (European Commission against Racism and Intolerance, ECRI Report on Ukraine
(Fourth monitoring cycle), 8 December 2011, p. 38, ¶150, available at: https://rm.coe.int/fourth-report-onukraine/
16808b5ca5)
904 OSCE, the Integration of Formerly Deported People in Crimea, Ukraine, August 2013, p. 20, available at:
https://www.osce.org/files/f/documents/e/a/104309.pdf.
905 Lenta.ru, Kyrym Khanlygy: Crimea Remembers Its Local Statehood (12 January 2012), available at:
https://lenta.ru/articles/2012/01/12/crimea/ (Annex 218).
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711. In 2001, the ECRI admonished Ukraine for failure to ensure sufficient representation of
Crimean Tatars in public life:
“Although, at the national level Crimean Tatars currently have two
representatives in the Ukrainian Parliament - one elected under the majority
system and the other under the proportional system – there are on the other
hand practically no Crimean Tatars among the members of the Crimean
Parliament. This situation is linked with the electoral majority system in force
since 1998 for elections in Crimea. As a result of this system, Crimean Tatars
experience difficulties electing their representatives to the Crimean
Parliament, as they constitute a minority, albeit significant, throughout the
different regions of the Crimean peninsula.”906
712. Ukraine simply ignored these recommendations. In 2009, the Crimean Tatars held a rally,
on which they claimed “to ensure the political representation of Crimean Tatars in all
authorities of Crimea and Ukraine.”907
713. In 2013, OSCE reiterated its criticism on Ukraine for lack of political representation of
the Crimean Tatars in governmental and local bodies. In particular, the OSCE pointed at
the instances of political re-districting (“gerrymandering”), which were aimed at reducing
the chances of the Crimean Tatar candidates to be elected:
“Due to the mixed electoral system with single-mandate constituencies, the
demographic distribution of Crimean Tatars across districts and the absence
of cross-ethnic voting, not a single Crimean Tatar was elected in singlemandate
districts in the 2010 elections for the Supreme Council of the ARC.
On the other hand, the threshold for ARC elections (three per cent) is lower
than the nationwide elections in Ukraine (five per cent). In total, six Crimean
Tatars were elected on party lists. There have been some allegations of
gerrymandering: in its report on the 2012 parliamentary elections, the OSCE
Office for Democratic Institutions and Human Rights (ODIHR) also noted
that electoral boundaries “should not be altered for the purpose of diluting or
excluding minority representation.”
Overall, in the Supreme Council of the ARC, Crimean Tatar representation is
gradually decreasing, from 14.5 per cent in 1994 (when a short-lived quota
system gave 14 guaranteed seats to Crimean Tatars and one each to the other
four groups of FDPs) to only six per cent in the 2010 elections.”908 [Emphasis
added]
906 European Commission against Racism and Intolerance, Second Report on Ukraine, 14 December 2001, p. 19,
¶48, available at: https://rm.coe.int/second-report-on-ukraine/16808b5c9f.
907 Krymsky Analitik, Photos. Crimean Tatars Demand that Yushchenko and Tymoshenko Stop Racial
Discrimination in Ukraine (18 May 2009), available at: http://www.agatov.com/content/view/1451/19/ (Annex
98).
908 OSCE, the Integration of Formerly Deported People in Crimea, Ukraine, August 2013, pp. 17-18, available at:
https://www.osce.org/files/f/documents/e/a/104309.pdf.
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v. Studying of and in mother language
714. Ukraine insists that the shear decrease in number of students in a particular language is
somehow indicative of discrimination. However, it did not find any problem with that
when it concerned Russians in Ukraine. According to the ECRI, in 1991 50% of the whole
student population of Ukraine studied in Russian-language schools; by 2001 Ukraine has
reduced this number to 15%.909
715. In the 2004-05 academic year, the number of schools with Russian as the primary
language of education in Ukraine was 1,555 units910. Until 2014, it steadily decreased –
down to the target figure of 2020 in 1,275 schools911, i.e. an average of 4-5% per year. In
2014, the number of Russian schools fell sharply by more than two times – to 621 schools
– primarily due to the withdrawal from the statistics of the Crimea and parts of the
Luhansk and Donetsk regions, where the majority of the Russian-speaking population
lives. However, until 2017, the number of Russian schools declined by no more than 5.3%
per year. However, already in 2017-18, the number of Russian-language schools was
reduced by 15.5%, and in 2018-19, it was reduced further by 58.8%. In the 2019-20
academic year, their number in Ukraine was 125 units. Thus, from 2004 to 2020, the
number of Russian schools in Ukraine has decreased 12 times.912
716. In 2013, the OSCE explained there are numerous impediments for studying Crimean
Tatar language in Ukraine, including lack of legal guarantees for minority-language
education, lack of financing of Crimean-Tatar language schools from Ukraine,913 lack of
909 European Commission against Racism and Intolerance, Second Report on Ukraine, 14 December 2001, p. 14,
¶29, available at: https://rm.coe.int/second-report-on-ukraine/16808b5c9f.
910 Center for Analysis of the Radical Right, Can new educational reforms in Ukraine be seen as a tool for forced
assimilation of national minorities? (8 September 2020), available at:
https://www.radicalrightanalysis.com/2020/09/08/can-new-educational-reforms-in-ukraine-be-seen-as-a-toolfor-
forced-assimilation-of-national-minorities/ (Annex 399).
911 Ibid.
912 Ibid.
913 OSCE, the Integration of Formerly Deported People in Crimea, Ukraine, August 2013, p. 28, available at:
https://www.osce.org/files/f/documents/e/a/104309.pdf. (“[I]n recent years, some district authorities, such as
Belogorsk, have reduced the number of classes in Crimean Tatar due to financial constraints”).
Page 263 out of 541
qualified teachers, and Ukraine’s reluctance to train new personnel,914 non-availability of
textbooks in the Crimean Tatar language.915
vi. Failure to protect cultural heritage of ethnic minorities
717. Ukraine’s allegations that the Russian Federation destroyed cultural heritage of
Ukrainians and Crimean Tatars are to no avail. As will be shown below, the episodes
referred to by Ukraine show the Russian Federation’s intention to preserve, rather than
destroy, cultural property, which were underfunded and mismanaged by Ukraine (with
restoration of Khan’s Palace being the most vivid example).916
718. Here, the Russian Federation draws attention to the fact that Ukraine failed to address the
numerous occasions on which Crimean Tatars appealed to Ukrainian authorities for
restoration or construction of the mosques and other cultural and spiritual memorials. To
name only a few examples:
(a) The reconstruction of the Seit-Settar religious complex in Simferopol was closed in
2006 as Ukrainian authorities decided to demolish the building due to its critical
conditions and erect a new mosque and facilities from scratch. However, the
restoration was not initiated until 2014.917
(b) Although the decision to construct the Cathedral Mosque in Simferopol, which was
important for holding major religious events of Crimean Tatars, was made in 2000s,
Ukrainian authorities did not assist, but rather impeded Crimean Tatars’ attempts
to proceed with the construction for more than ten years, despite public calls and
914 Ibid., p. 29 (“Teaching in and of FDP languages in Crimea is hampered by a lack of qualified teachers, which
in turn is a consequence of inadequate teacher training and the relatively low value that Ukraine’s teacherevaluation
system attaches to the ability to teach in a minority language. The professional and career development
of teachers is not linked to their competencies in any language other than Ukrainian, and the ability to teach
bilingually is not recognized as a competency that opens up additional career opportunities or remuneration.
Several Crimean Tatar teacher-training programmes exist at a few higher-education institutions in Crimea, but
these programmes only train teachers of the language, not those who can teach other subjects in the language”).
915 Ibid., p. 29 (“[T]here are problems regarding the availability of textbooks, especially in the Crimean Tatar
language… Teachers claim that the textbooks are insufficiently related to the curriculum and are too difficult to
use, requiring them to spend significantly more time to prepare their classes. The translated textbooks also do not
appear to have the aim of gradually raising the linguistic competence of the pupils”).
916 See below, Chapter XI(A).
917 Witness Statement of , ¶¶29-30 (Counter-Memorial (CERD), Annex 19).
Page 264 out of 541
campaigns for the expedient realization of the project.918 The construction of the
Mosque started only after 2014 with substantive financial support of the Russian
Federation.
719. Further, Ukraine’s accusations against fully legitimate archaeological works during
construction of the “Tavrida” highway 919 are as ridiculous as its indifference and
continuous failure to prevent numerous attacks against cultural heritage of various ethnic
minorities. From 2014 to 2019, at least 518 acts of vandalism, desecration of synagogues,
Jewish cemeteries, memorials to the victims of Holocaust, other victims of the World
War II and soldiers who liberated Ukraine from Nazi occupation occurred in Ukraine,
which means, that a neo-Nazi action took place every 4 days.920
B. MEASURES TAKEN BY UKRAINE WITH RESPECT TO RUSSIAN LANGUAGE AND
CULTURE
720. Ukraine insists that the Russian education system is inconsistent with the CERD, while
at the same time Ukraine finds no wrong in adopting legal acts that directly restrict
education in and use of Russian language.
918 Ibid., ¶¶35-36. See also OSCE, the Integration of Formerly Deported People in Crimea, Ukraine, August 2013,
p. 25, available at: https://www.osce.org/files/f/documents/e/a/104309.pdf (“Efforts to build a new, larger central
mosque in Simferopol have been stalled for many years: a building permit was obtained in 2004 and land was
allocated by the Simferopol City Council in 2011, but construction has still not begun”).
919 Reply, ¶657.
920 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019) pp. 7-8, 24 (Annex 351) (“On August 29, 2018 vandals desecrated Hungarian flag
in the village of Solotvino (Transcarpathian region) in a progress of a church robbery… On the night of October
14, 2018, in the city of Kamenetz-Podolsky (Khmelnitsky region), neo-Nazis desecrated a memorial dedicated to
Holocaust victims… In 2014-2019, the church named in honor of the icon of the Mother of God “Joy of All Who
Sorrow” near Holocaust victims monument in Babi Yar in Kiev survived 11 arson attempts”). For further
examples, see, e.g., European Commission against Racism and Intolerance, ECRI Report on Ukraine (Fifth
monitoring cycle), 20 June 2017, p. 19, ¶48, available at: https://rm.coe.int/fifth-report-on-ukraine/16808b5ca8
(“Graffiti swastikas continued to appear in Kyiv and other cities. Repeated vandalism of the Holocaust memorial
at Kyiv’s Babi Yar ravine took place with six incidents in 2015. In March 2016, “Kill the Jews” was scrawled on
a synagogue in Cherkasy. A wreath laid by an Israeli Cabinet minister for Holocaust victims at Babi Yar was
torched”); European Commission against Racism and Intolerance, Third report on Ukraine, 29 June 2007, p. 25,
¶96. p. 10, ¶23, p. 12, ¶31, available at: https://rm.coe.int/third-report-on-ukraine/16808b5ca2 (“ECRI also notes
with concern that antisemitic attacks are on the rise, with a record number registered in 2006. These attacks range
from serious physical violence against, amongst others, Yeshiva students and rabbis to Holocaust memorial sites,
synagogues, cemeteries and cultural centres being vandalised. The police often classify these acts as hooliganism
and only a few individuals have been prosecuted and convicted for these crimes”).
Page 265 out of 541
721. Further, and especially following the illegitimate Maidan coup, Ukraine adopted various
legislative to supress education in Russian language and its enjoyment in various spheres
of life:921
(a) Since 2014 Ukraine tried to abolish the Law “On the Fundamentals of the State
Language Policy”, which provided Russian language and other minority languages
with the status of regional within the territories when such languages are native for
at least 10% of the population. Despite protests against cancellation of the Law in
Donbass, the Constitutional Court of Ukraine rendered the Law unconstitutional in
2018, i.e., more than 5 years after the Law was enacted.922
(b) On 5 February 2015 the Verkhovna Rada legislatively banned the broadcasting of
films produced in the Russian Federation after 1 January 2014.923 By October 2018,
Ukraine banned more than 780 Russian films and TV-shows.924
(c) On 16 May 2017 President Poroshenko signed a decree on new sanctions against
the Russian Federation, which included ban of Russian-originated social networks
“Odnoklassniki” and “VKontakte”, the total monthly audience of which was 25.3
million people.925
(d) On 5 October 2017 the Law “On Tour Events in Ukraine” was amended to introduce
a pre-tour inspection of Russian performing artists by the Security Service of
Ukraine. As of January 2018, more than 100 Russian artists were prohibited entry
in Ukraine.926
921 Counter-Memorial (CERD), ¶¶41-51.
922 TASS, How the Use of the Russian Language Was Restricted in Ukraine (15 July 2021), available at:
https://tass ru/info/11907705 (Annex 219).
923 Vedomosti, Ukraine Legislatively Bans Screening of Russian Movies Filmed after January 2014 (21 April
2016), available at: https://www.vedomosti.ru/politics/news/2016/04/21/638562-ukraine-zaprete-rossiiskihfilmov
(Annex 220).
924 TASS, Ukraine Banned 780 Russian Movies and Series Since 2014 (5 October 2018), available at:
https://tass ru/kultura/5643645 (Annex 221).
925 Uspishna Varta, THE RIGHT TO FREEDOM OF SPEECH AND OPINION IN UKRAINE: THREATS AND OPPORTUNITIES
(2018), p. 16 (Annex 36).
926 Uspishna Varta, THE RIGHT TO FREEDOM OF SPEECH AND OPINION IN UKRAINE: THREATS AND OPPORTUNITIES
(2018), p. 8 (Annex 36).
Page 266 out of 541
722. In 2019, Ukraine adopted the Law “On Ensuring the Functioning of the Ukrainian
Language as the State Language”, which imposed numerous restrictions on the use of the
languages of ethnic minorities, including Russian.927 In particular:
(a) The Law drastically decreased the guarantees for education in Russian language.
First, Article 21 of the Law established guarantees for education in the minority’s
language for only 4 years. Second, in accordance with Articles 9(1)(13) and
9(1)(14) of this Law directors of educational facilities of all forms as well as
pedagogical, scientific-pedagogical and scientific personnel are legally obliged to
“apply [Ukrainian language] in the performance of official duties.”928
(b) Article 22 of the Law restricted publication of scientific materials in Russian
language, while permitting to publish them in English or EU language.929
(c) Article 25 of the Law prohibited publication of printed media in Russian language
if the Ukrainian version of the newspaper in the same amount is not printed together
with the Russian one.930 As it appears, the Russian media are now obliged to allow
for translation of their media items into Ukrainian and spend twice more funds to
print their papers in both Ukrainian and Russian, if they want to continue activity
in Ukraine. As in the case of scientific works,931 the said compulsory requirements
do not concern media published in languages of indigenous peoples of Ukraine
(Crimean Tatars, Crimean Karaites, and Krymchaks – minorities, the vast majority
of which live in Crimea after Crimea become part of Russia), English language and
official languages of the EU. This is a clear indicator as to what is more valuable to
the current Ukrainian regime in power, when it is choosing between the interests of
its own population and its short-term political alliances.
927 Notably, OSCE High Commissioner for National Minorities on 29 July 2019 stated that the language law
adopted in Ukraine does not contain guarantees for protection of national minorities languages. See Iryna
Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND FREEDOMS IN
UKRAINE (2019), p. 6 (Annex 351).
928 Law of Ukraine No 2704-VIII “On Ensuring the Functioning of the Ukrainian Language as the State Language”,
25 April 2019, Articles 9, 21, available at: https://zakon.rada.gov.ua/laws/show/2704-19#Text (Annex 444).
929 Ibid., Article 22.
930 Ibid., Article 25.
931 See above, ¶722(b).
Page 267 out of 541
(d) Under Article 24 of the Law together with Article 9 of the Law “On Television and
Radio Broadcasting” tele and radiobroadcasting companies became obliged to
broadcast not less than 75% of the running time in Ukrainian, with a number of
censorship restrictions.932
723. In 2020, Ukraine adopted the Law “On Complete General Secondary Education”, which
in line with the goal of “On ensuring the functioning of the Ukrainian language as the
state language” further narrowed down opportunity to receive education in Russian.
Under Article 5(4) of the Law the “indigenous peoples” are granted the right to receive
complete general secondary education in their language. However, the notion of
“indigenous peoples” in Ukraine includes only Crimean Tatars, Crimean Karaites, and
Krymchaks (which, as stated above, mostly live in Crimea and the law has been adopted
after Crimea became part of Russia).933 For other minorities (such as Russians) Article
5(5) of the Law applies, which provides only for the possibility to receive “primary
education” (that is, four years). Therefore, the Russian community members are now able
to study in Russian for only four years. As will be shown below, Ukrainian authorities do
not abide even by this legally guaranteed term.
724. Ukraine’s attitude for languages other than Ukrainian was emphasized in the speech of
Mr Taras Kremin – the Commissioner for the Protection of State Language – who advised
932 Law of Ukraine No. 3759-XII “On Television and Radio Broadcasting”, 21 December 1993, Article 9(6),
available at: https://zakon rada.gov.ua/laws/show/3759-12#Text (Annex 445) (“The broadcaster shall have no
right to distribute audio-visual works that: deny or justify the criminal nature of the communist totalitarian regime
of 1917-1991 in Ukraine or the criminal nature of the National Socialist (Nazi) totalitarian regime; create a positive
image of persons who held senior positions in the Communist Party (the position of the secretary of a district
committee or a higher position), the highest authorities and governments of the USSR, the Ukrainian SSR (USSR),
or other union and autonomous Soviet republics (except in cases related to the development of the Ukrainian
science and culture) or employees of Soviet state security agencies; or justify the activities of Soviet state security
agencies, the establishment of Soviet power in the territory of Ukraine or in certain administrative and territorial
units or the persecution of participants in the struggle for independence of Ukraine in the XX century”).
It is worth mentioning that PACE Resolution No. 2196 of 23 January 2018 found that establishing language quotas
by Ukraine reduces the rights of ethnic minorities and urged Ukraine from exacerbating the situation. See PACE
Resolution 2196, The Protection and Promotion of Regional or Minority Languages in Europe (2018), available
at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=24410&lang=en.
933 Law of Ukraine No 1616-IX “On Indigenous Peoples of Ukraine”, 1 July 2021, available
at: https://ips.ligazakon.net/document/view/T211616?utm_source=jurliga.ligazakon.net&utm_medium=news&ut
m_content=jl03&_ga=2.132976974.1354839119.1668871241-51954790.1668871241 (Annex 446).
Page 268 out of 541
people unhappy with Ukraine’s language policy to “go to another country, where [such
people] think [they] will feel comfortable”.934
725. Subsequently, in 2022, the restrictions against the Russian language and ethnic Russians
snowballed with a vengeance:
(a) The Ukrainian authorities have restructured the educational programs in Ukrainian
schools, excluding from their curriculum “Russian language” as a subject, as well
as removing books of Soviet and Russian authors.935
(b) Several regions of Ukraine have even gone as far as to prohibit teaching and
studying Russian in schools.936
(c) It has been made illegal to listen to Russian music and songs in Russian or of
Russian origin, and to perform musical acts created by Russians. Same restrictions
were also extended to books written by Russian authors.937 For instance, one of the
radio stations was forced to move to Hungary due to the ban to play music in
Russian.938
934 NV, “Where it will be comfortable.” Kremin called on opponents of the language law to leave Ukraine (6
August 2021), available at https://nv.ua/ukr/ukraine/events/movniy-zakon-taras-kremin-zaklikav-protivnikivzakonu-
zalishiti-ukrajinu-50176123 html (Annex 96).
935 TASS, How Russian Was Restricted in Ukraine (1 August 2022), available at: https://tass ru/info/15358089
(Annex 222); RT, Ukraine Issues New Ban on Russian Language, available at: https://www.rt.com/russia/560957-
ukraine-schools-russian-courses/ (Annex 466).
936TASS, How Russian Was Restricted in Ukraine (1 August 2022), available at: https://tass ru/info/15358089
(Annex 222); MK, Kiev Schools to Abandon Study of Russian (12 August 2022), available at:
https://www.mk ru/politics/2022/08/12/v-shkolakh-kieva-reshili-otkazatsya-ot-izucheniya-russkogo-yazyka.html
(Annex 223); RT, “The Spirit of Intimidation and Terror”: How Ukraine Is Fighting Russian (12 November 2022),
available at: https://russian rt.com/ussr/article/1072836-ukraina-russkii-yazyk-zapret (Annex 224); Kyiv Post,
Russian Language Excluded from Kyiv State Schooling (11 November 2022), available at:
https://www.kyivpost.com/ukraine-politics/russian-language-excluded-from-kyiv-state-schooling html (Annex
467).
937 TASS, How Russian Was Restricted in Ukraine (1 August 2022), available at: https://tass ru/info/15358089
(Annex 222); DW, Ukraine bans music, books from Russia, Belarus (29 June 2022), available at:
https://www.dw.com/en/ukraine-bans-russian-music-and-books/a-62305280 (Annex 226); The Guardian, Ukraine
Restricts Russian Books and Music in Latest Step of ‘Derussification’ (20 June 2022), available at:
https://www.theguardian.com/world/2022/jun/20/ukraine-restricts-russian-books-and-music-in-latest-step-ofderussification
(Annex 227).
938 CNE, Ukrainian Ban on Russian Language Forces Christian Radio to Move to Hungary (8 September 2022),
available at: https://cne news/artikel/1670-ukrainian-ban-on-russian-language-forces-christian-radio-to-move-tohungary
(Annex 228).
Page 269 out of 541
(d) For violating the provisions of the State language law and other legislative language
quotas, one can face serious fines.939 For example, in March 2018 the radio station
“Pyatnitsa” was imposed a fine of circa 10 000 EUR as the proportion of songs
performed in Ukrainian from 07 am to 14 pm was 29% instead of 30%.940 The
episode of charging fines extend even to instances of being served in the Russian
language in a restaurant.941
726. Furthermore, since 2014 Ukraine has expanded its attacks against the objects of Russian
cultural heritage and memorials commemorating heroes of fight against Nazism. The
episodes of forced cancellation of Russian culture are in the hundreds and include:
(a) Destruction of monuments of prominent Russian writers, such as Alexander
Pushkin942 and Maxim Gorky.943
(b) Demolition and defacing of monuments of heroes of the Second World War,
including monuments to Marshal Georgy Zhukov,944 the hero of Stalingrad battle
939 Uspishna Varta, THE RIGHT TO FREEDOM OF SPEECH AND OPINION IN UKRAINE: THREATS AND OPPORTUNITIES
(2018), p. 7 (Annex 36).
940 Uspishna Varta, THE RIGHT TO FREEDOM OF SPEECH AND OPINION IN UKRAINE: THREATS AND OPPORTUNITIES
(2018), p. 9 (Annex 36).
941 TASS, Ukraine Imposes Fines for Breach of State Language Law (16 July 2022), available at:
https://tass ru/mezhdunarodnaya-panorama/15232059 (Annex 225).
942 Wikipedia, Demolition of monuments to Alexander Pushkin in Ukraine available at:
https://en.wikipedia.org/wiki/Demolition_of_monuments_to_Alexander_Pushkin_in_Ukraine (Annex 229);
Mosregtoday, Ukraine Continues to Dismantle Monuments Linked to Russian History and Culture (22 April 2022),
available at: https://mosregtoday ru/culture/na-ukraine-prodolzhaetsya-demontazh-pamyatnikov-svyazannyh-srossiyskoy-
istoriey-i-kul-turoy/ (Annex 230); MK, From Pushkin to Suvorov: How Many Monuments Have
Already Been Demolished in Ukraine (2 December 2022), available at: https://www.mk.ru/social/2022/12/02/otpushkina-
do-suvorova-skolko-pamyatnikov-uzhe-snesli-na-ukraine.html (Annex 231); Lenta.ru, Pushkin
Monument Dismantled in Zaporozhye (27 July 2022), available at: https://lenta ru/news/2022/07/27/pushkinagain/
(Annex 232).
943 Urdupoint, Ukraine Dismantles Monument to Soviet Writer Maksim Gorky – Reports (14 November 2022),
available at: https://www.urdupoint.com/en/world/ukraine-dismantles-monument-to-soviet-writer-1594412 html
(Annex 233).
944 Babel, A Monument to Marshal Zhukov, Which Has Been the Subject of Controversy for Years, Was Dismantled
in Kharkiv (17 April 2022), available at: https://babel.ua/en/news/77818-a-monument-to-marshal-zhukov-whichhas-
been-the-subject-of-controversy-for-years-was-dismantled-in-kharkiv (Annex 234); Irina Berezhnaya
Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR VIOLATION OF RIGHTS AND
FREEDOMS IN UKRAINE (2022), p. 124-125 (Annex 352).
Page 270 out of 541
and liberator of Ukraine general Nikolay Vatutin,945 and many others.946 On 16
June 2017 peaceful protesters, mostly elderly people, who came to voice against
renaming General Vatutin Avenue into Shukhevich Avenue in honour of the OUNUPA
leader (the role of this organization in support of Nazi Germany in World War
II will be explained below),947 were severely beaten by activists of the “National
Corps” headed by its leader Nazar Kravchenko.948
(c) Destruction and desecration of monuments of commanders of the Russian Empire,
in particular, generalissimos Alexander Suvorov949 and hero of the Patriotic War
against Napoleon Mikhail Kutuzov.950
(d) Renaming of streets named after eminent Russian artists and historic figures, such
as Anton Chekhov, Leo Tolstoy, Fyodor Dostoevsky and many others.951 Newly
renamed streets are often assigned names of Ukrainian Nazi collaborators of the
WWII. As will be shown below, such renaming is in line with Ukrainian policy of
commemorating Nazi collaborators and supporting extreme-right radicals.952 For
example, on 25 November 2022, the City Council of Vinnitsa voted to rename the
Leo Tolstoy street in honour of the World War II Nazi collaborator Stepan
945 Gazeta.Ru, “The Bloody Russian”: a Monument to Vatutin Demolished in Ukraine (16 July 2022), available
at: https://www.gazeta.ru/science/2019/04/16_a_12304231.shtml (Annex 235). See also Irina Berezhnaya Institute
for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR VIOLATION OF RIGHTS AND
FREEDOMS IN UKRAINE (2022), p. 125. (Annex 352).
946 TASS, Soviet Soldier-Liberator Monument Demolished in Western Ukraine (23 June 2022), available at:
https://tass ru/mezhdunarodnaya-panorama/15014807 (Annex 236); Iz ru, Soviet Army’s Glory Monument
Demolished in Ukraine (24 July 2021), available at: https://iz.ru/1197647/2021-07-24/na-ukraine-sneslimonument-
slavy-sovetskoi-armii (Annex 237); Irina Berezhnaya Institute for Legal Policy and Social Protection,
ONLINE ENVIRONMENT AS A TOOL FOR VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), pp. 124-129
(Annex 352).
947 See below, Chapter II(C)(ii).
948 Irina Berezhnaya Institute for Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHTS AND
FREEDOMS IN UKRAINE (2018), p. 7 (Annex 350).
949 Lenta ru, Ukrainians Dismantled Suvorov Monument (4 February 2022), available at:
https://lenta.ru/news/2022/02/04/otvetite/ (Annex 238); RIA, Suvorov's Monument in Nikolaev is Covered in Paint
(3 December 2022), available at: https://ria.ru/20221203/pamyatnik-1836124436.html (Annex 239).
950 TASS, Kutuzov Monument Dismantled in Western Ukrainian Town of Brody (25 February 2014), available at:
https://tass ru/mezhdunarodnaya-panorama/1001597 (Annex 240); Vzglyad-Info, Journalists Found Demolished
Kutuzov Monument in Ukrainian Landfill (15 March 2014), available at:
https://www.vzsar ru/news/2014/03/15/jyrnalisty-nashli-snesennyi-pamyatnik-kytyzovy-na-ykrainskoisvalke.
html (Annex 241).
951 Gazeta ru, Chekhov, Pushkin and Gagarin Streets Change Names in Ternopol (11 July 2014), available at:
https://www.gazeta.ru/politics/news/2022/07/11/18106088.shtml (Annex 242).
952 Ibid.
Page 271 out of 541
Bandera;953 the city council of Ternopol renamed Anton Chekhov street after a
member of Organization of Ukrainian Nationalists954 Elena Teliga.955
727. Further, on 13 December 2022 Ukraine adopted Law No. 2827-IX “On National
Minorities (Communities) of Ukraine”. The law stipulates that “popularization or
propaganda of terrorist state (aggressor state) is prohibited”. 956 Ukraine uses this
provision in order to prohibit or “cancel” Russian culture, use of and education in Russian
language. The law also sets a specific definition of a national minority as “an established
group of Ukraine’s citizens”, thus precluding minorities representatives that are citizens
of other countries from necessary protection framework.957 Hungarian Minority Parties
already issued a critical statement regarding the law.958
728. The above restrictions on the use of mother languages by ethnic groups, including Russian
language, continue to increase.
C. UKRAINE’S CURRENT REGIME WAS INSTALLED BY EXTREME-RIGHT RADICALS
DEEPLY ROOTED IN NAZI AND FASCIST IDEOLOGY
729. The current political regime in Kiev, established after the so-called “2014 Revolution of
Dignity”, makes no secret of its ideological continuity with the Organization of Ukrainian
Nationalists (“OUN”) created in 1929 and its militant wing, the Ukrainian Insurgent
Army (“UPA”), formed in 1942.
730. Materials of the Nuremberg trials directly indicate that OUN-UPA’s leader Stepan
Bandera and related organizations allied to German Nazi forces in World War II,
953 RIA Novosti, Leo Tolstoy Street Renamed in Honour of Bandera in Vinnytsia (25 November 2022), available
at: https://ria ru/20221125/vinnitsa-1834301918.html (Annex 243).
954 Ibid.
955 Gazeta ru, Chekhov, Pushkin and Gagarin Streets Change Names in Ternopol (11 July 2014), available at:
https://www.gazeta.ru/politics/news/2022/07/11/18106088.shtml (Annex 242).
956 Law No. 2827–IX “On National Minorities (Communities) of Ukraine”, 13 December 2022, Article 5(5),
available at: https://zakon rada.gov.ua/laws/show/2827-20#Text (Annex 97).
957 Ibid., Article 1(1).
958 HHRF, New Ukrainian Law on National Minorities Misses the Mark (19 December 2022), available at:
https://hhrf.org/2022/12/19/new-ukrainian-law-on-national-minorities-misses-the-mark/ (Annex 244).
Page 272 out of 541
receiving the German Army’s instructions to “kindl[e] national antagonism among the
people of the Soviet Union” to facilitate German’s attack against the USSR.959
731. Thus, OUN-UPA was responsible for multiple military crimes and crimes against
humanity during World War II, including Jewish pogroms, mass-murders of civilians and
probably their most famous atrocity – the Volhynian Massacre resulted in death of at least
60 thousand poles.960 OUN-UPA troops were widely used by the Nazi Germany to hold
power over the occupied soviet territories. With the same purpose, the German occupation
administration authorized creation of a number of paramilitary units subordinated to the
Third Reich: the punitive battalions Nachtigal, Roland, the 201st Schutzmannschaft
Battalion, the 14th SS Volunteer Infantry Division as well as the Ukrainian auxiliary
police. At the same time, a number of Ukrainians were recruited in German SS divisions
"Leibstandart", "Reich", "Totenkopf", and "Viking", as well as in the 1st SS Motorized
Brigade. All these troops were involved in military crimes as well – this fact was
established by the International Military Tribunal at Nuremberg that declared the whole
SS as criminal organization.961
732. In modern Ukraine, the day of UPA’s foundation – 14 October 1942 – is now celebrated
as a state holiday – the Day of the Defender of Ukraine.962 OUN-UPA leaders – Stepan
Bandera (hence the second name for all Ukrainian Nazi – the Banderites), and Roman
Shukhevich are presented by the Maidan authorities as national heroes. Both were
959 The Avalon Project, Nuremberg Trial Proceedings Vol. 7, Fifty-Sixth Day, Monday, 11 February 1946, pp.
271-272, available at: https://avalon.law.yale.edu/imt/02-11-46.asp (Annex 245) (“The testimony of a former
colonel of the German Army, Erwin Stolze, who was Lahousen's deputy in Department II, Ausland Abwehr,
attached to the Supreme Command of the German Armed Forces… Stolze testified as follows: … It was pointed
out in the order that for the purpose of delivering a lightning blow against the Soviet Union, Abwehr II, in
conducting subversive work against Russia, with the help of a net of V men, must use its agents for kindling
national antagonism among the people of the Soviet Union… In carrying out the above-mentioned instructions of
Keitel and Jodl, I contacted Ukrainian National Socialists who were in the German Intelligence Service and other
members of the nationalist fascist groups, whom I roped in to carry out the tasks as set out above… In particular,
instructions were given by me personally to the leaders of the Ukrainian Nationalists, Melnik (code name 'Consul
I' and Bandara, to organize immediately upon Germany's attack on the Soviet Union, and to provoke
demonstrations in the Ukraine in order to disrupt the immediate rear of the Soviet armies, and also to convince
international public opinion of alleged disintegration of the Soviet rear”).
960 Gazeta Wyborcza, Forget about Giedroyc: Poles, Ukrainians, IPN (24 May 2008), available at:
https://archive.is/R9ze1 (Annex 318).
961 International Military Tribunal (Nuremberg). Judgement of 1 October 1946, p. 92, available at:
https://www.legal-tools.org/doc/45f18e/pdf/.
962 Decree of the President of Ukraine No. 806/2014 “On the Day of the Defendant of Ukraine”, 14 October 2014,
available at: https://www.president.gov.ua/documents/8062014-17816 (Annex 325).
Page 273 out of 541
awarded the title of the Hero of Ukraine after the so called “2004 Orange Revolution”.963
The Ukrainian government continues to grant this honorary title to other OUN-UPA
criminals.964 Since 2015, elderly Banderites are legally equalized to veterans of World
War II and are entitled to the same benefits.965 Year by year, on 1 January (Bandera’s
birthday) and 14 October, they march freely with their young followers through the streets
of Ukrainian cities under Nazi banners.966
733. Even the ideologists of the current Kiev regime have never denied the evident fact that
OUN-UPA, both by its ideological principles and methods of struggle, can be classified
as a typical Nazi organization.967
734. To date, about 15 neo-Nazi parties and organizations have been formed in Ukraine, which
do not hesitate to promote the neo-Nazi ideology of national and racial superiority and
hatred of other people, and openly use Nazi symbols - red and black flags of the OUN,
Celtic crosses and swastika. Among them – VO Svoboda, National Corps, the Right
Sector, Centuria, Freikorps, Karpatska Sich, C14, UNA-UNSO, OUN and others, which
function and carry out extremist activities with the tacit approval or direct support of the
Ukrainian Government.
735. Modern Ukrainian neo-Nazi movements do not hide their succession from the OUN-UPA
and other collaborationists of the World War II. In early 1990-s OUN was legalized in
Ukraine under the new title – Congress of Ukrainian Nationalists, however the leaders
were the same – Congress’s first chairman was Slava Stetsko – former head of OUN’s
women and youth section and wife of Yaroslav Stetsko, the former deputy of OUN’s
963 Administration of the President of Ukraine, Letter No 12-09/2938, 16 July 2019, available at:
https://dostup.pravda.com.ua/request/51414/response/123805/attach/3/2281..pdf (Annex 330); Decree of the
President of Ukraine No. 46/2010 “On Awarding S. Bandera the title of Hero of Ukraine”, 10 January 2010,
available at: https://zakon rada.gov.ua/laws/show/46/2010#Text (Annex 331); Decree of the President of Ukraine
No. 965/2007 “On Awarding R. Shukhevych the Title of Hero of Ukraine”, 12 October 2007, available at:
https://zakon rada.gov.ua/laws/show/965/2007#Text (Annex 332).
964 Decree of the President of Ukraine No. 699/2022 “On Awarding M. Simchich the Title of Hero of Ukraine”,
14 October 2022, available at: https://www.president.gov.ua/documents/6992022-44385 (Annex 342).
965 Law of Ukraine No. 3551-XII “On the Status of War Veterans and Guarantees of Their Social Protection”, 22
October 1993, Article 6(16), available at: https://zakon.rada.gov.ua/laws/main/3551-12#Text (Annex 344).
966 Nv.ua. “Bandera is our father”. Torchlight procession to mark 113th anniversary of Ukrainian nationalist
leader held in Kyiv - photos, video (1 January 2022), available at: https://nv.ua/ukr/kyiv/den-narodzhennyabanderi-
v-kiyevi-vidbulasya-smoloskipna-hoda-video-50206090 html (Annex 317).
967 National Academy of Sciences of Ukraine, I.F. Kuras Institute of Political and Ethnic Studies, Alexander Sych.
Thesis “Modern Ukrainian nationalism: political science aspects of paradigm transformation”, p. 135, available
at: https://ipiend.gov.ua/spetsializovana-vchena-rada-svr/dysertatsii/ (Annex 294).
Page 274 out of 541
leader Stepan Bandera.968 In his turn, Yury Shukhevich, son of Roman Shukhevich,969
established and led another Ukrainian major Neo-Nazi party – The Ukrainian National
Assembly – Ukrainian People's Self-Defense (UNA-UNSO). 970 The true genesis of
Ukrainian Neo-Nazi movement will be explained in more detail below, but here it would
be enough just to quote the current leader of another neo-Nazi party VO Svoboda Oleg
Tyagnibok’s 2021 speech:
“Local authorities around Ukraine raise Bandera’s revolutionary black-andred
flags along with Ukraine’s blue-and-yellow state banner. We have already
more than 350 such decisions… This is our ideological victory… In our
capital city Kiev, there is no Moscow Avenue, but there are Bandera Avenue
and Shukhevych Avenue… This ideological sword of fight with Bandera on
its point will defeat not only the Muscovites but also internal
collaborators…”971
i. Modern Ukrainian neo-Nazis claim to be heirs of the World War II Nazicollaborators
and spread their ideology throughout the whole country
736. OUN was founded in 1929 by emigrants from the Western Ukraine, who during the World
War I were part of the military formations of the Central Rada and Directory - puppet
quasi-states created by the German Empire on the German-occupied territories of the
Russian Federation. Not surprisingly, from the very the moment of its emergence, OUN
came under the scrutiny of the German secret services, which, even before Hitler came to
power, established close ties with it. Several hundred OUN fighters were trained in Nazi
Germany and Fascist Italy.
737. During World War II, the OUN leaders actively cooperated with the Nazi government of
the new German Reich, hoping to obtain Hitler’s agreement for establishment of the
independent Ukrainian state in exchange for their assistance.
968 OUN-UPA, Personalities, Slava Stetsko (14.05.20 - 12.03.03) (1 January 2015), available at :
https://web.archive.org/web/20150101141420/http://oun-upa.org.ua/personalities/#stetsko_slava (Annex 319).
969 See above, ¶732.
970 Unian, Hero of Ukraine Yuriy Shukhevich dies (22 November 2022), available at :
https://www.unian.net/society/umer-geroy-ukrainy-yuriy-shuhevich-novosti-lvova-12053652.html (Annex 320).
971 Youtube, UPA’s March of Glory: Oleg Tyagnibok's speech / October 14 / Protection / Day of Defenders of
Ukraine (17 October 2021), available at : https://www.youtube.com/watch?app=desktop&v=2kCzI6wa4U0.
Page 275 out of 541
738. Memoirs of one of the OUN leaders Yaroslav Stetsko reveal OUN’s close cooperation
with Hitler’s regime972 and its general support for Nazi’s abhorrent methods of repression
of ethnic minorities, especially Russians and Jews, on the territory of Ukraine:
“[A]t a time of chaos and confusion liquidation of undesirable Polish,
Muscovite, and Jewish activists is permitted, especially supporters of
Bolshevik-Muscovite imperialism.”973
“Jews are very insolent . . . They have to be treated very harshly ... We must
finish them off ... In [eastern] Ukraine, marriages with Jewish women occur
mainly in the cities. Jewish women married Ukrainians in order to have a
comfortable life. When the Ukrainians went bankrupt, they would divorce
them ... I like the German view very much.”974
“I am aware that the reconstruction of a sovereign and united Ukrainian state
is possible only with Germany’s victory. Historical fate and geopolitical
reality have determined both Ukraine's and Germany’s path. Ukraine’s
economic structure dictates its cooperation with German.”975
739. After Germany invaded the USSR on 22 June 1941, “field groups” of Banderites were
sent to the territory of Ukraine as an auxiliary occupation force to spread terror against
Jews, Poles and Communists in the Soviet territories controlled by Germany.976 OUN’s
leaflets of the WWII-era urged Ukrainians to “destroy” members of ethnic minorities,
including Russians, Poles, Hungarians and Jews.977
740. Subsequently, the Nazis formed the punitive battalions “Nachtigal”, “Roland”, the 201st
Schutzmannschaft Battalion (“Ukrainian Legion”), the 14th SS Volunteer Infantry
Division (“Galicia”, named after a West Ukraine region), and the Ukrainian auxiliary
police which, together with the Einsatzkommandos, participated in the mass murder of
civilians and punitive actions against partisans in Ukraine and Belorussia. From October
1941 to January 1942, up to 2,000 Galician Ukrainians found themselves in the elite
972 Specifically, it is shown that the participants at the Second OUN Congress were “primarily representatives of
the homeland [Ukraine] and Greater Germany.” K.C. Berkhoff, M. Carynnyk, The Organization of Ukrainian
Nationalists and Its Attitude toward Germans and Jews: Iaroslav Stets’ko’s 1941 Zhyttiepys, Harvard Ukrainian
Studies, Vol. 23, No. 3/4 (December 1999), p. 168.
973 Ibid., p. 153.
974 Ibid., p. 154.
975 Ibid., p. 171.
976 The Independent, To see what Ukraine's future may be, just look at Lviv's shameful past (9 March 2014),
available at: https://www.independent.co.uk/voices/commentators/to-see-what-ukraine-s-future-may-be-justlook-
at-lviv-s-shameful-past-9178968.html (Annex 246).
977 K.C. Berkhoff, M. Carynnyk, The Organization of Ukrainian Nationalists and Its Attitude toward Germans and
Jews: Iaroslav Stets’ko’s 1941 Zhyttiepys, Harvard Ukrainian Studies, Vol. 23, No. 3/4 (December 1999), p. 154.
Page 276 out of 541
German SS divisions “Leibstandart”, “Reich”, “Totenkopf”, and “Viking”, as well as in
the 1st SS Motorized Brigade.
741. Faithful fellows of Hitler’s regime, Bandera and his allies were responsible for flagrant
episodes of ethnic cleansing in Eastern Europe. Bandera’s associate Roman Shukhevich
served as a deputy commander of Wehrmacht-controlled “Nachtigall” battalion, which
participated in mass killings of Jews and Soviet citizens.978 After that, Shukhevich joined
UPA, which openly received arms from Nazi Germany to suppress anti-Nazi movements
in the Germany-controlled territories of Belorussia and Ukraine. 979 One of the most
horrific crimes perpetrated by UPA was the mass murder of inhabitants of some 100
villages in Eastern Galicia and in Volyn. Up to 60 thousand of ethnic Poles in total are
reported to have been killed by UPA.980 Ukrainian collaborators were also involved in the
1941 Babi Yar massacre in Kiev, where 100 to 150 thousand of soviet war prisoners, Jews
and Roma were killed. In all, more than 5.3 million people died in Ukraine at the hands
of the Nazis and their henchmen.
ii. The 2014 coup d’état brought the OUN UPA followers, neo Nazi’s and ultra Nazi’s
to power
742. As has been explained above, 981 in 2014, after President Yanukovich was
unconstitutionally removed from his office and left Ukraine in fear for his life, the Maidan
leaders created a government of the victors.982 One of them, taking the position of the
Deputy Prime Minister, was Alexander Sych, Verkhovna Rada deputy from the neo-Nazi
party Svoboda and associate professor of History in the Ivano-Frankovsk Oil and Gas
Institute. In his 2020 PhD thesis on “Modern Ukrainian Nationalism” he directly
emphasized that OUN willingly adopted experience of fascism and Nazism:
“the OUN belonged to the category of those political movements that were
already based on the considerable experience of their predecessors. That is
why it used the experience of the early successes of fascism and Nazism, but
978 RT, “Divide and Rule”: What Were the Real Relations between the UPA and Nazi Germany? (14 October
2022), available at: https://russian.rt.com/science/article/1060517-upa-godovschina-sozdanie (Annex 247).
979 Ibid.
980 Gazeta Wyborcza, Forget about Giedroyc: Poles, Ukrainians, IPN (24 May 2008), available at:
https://archive.is/R9ze1 (Annex 318).
981 See above, Chapter I(A).
982
Page 277 out of 541
did not copy them blindly. This is evidenced by the statement of D. Myron-
Orlyk: "Undoubtedly, it is necessary to follow the development of nationalist
movements in other countries, in particular to learn from the experience of
fascism and national socialism, but everything must be adapted to Ukrainian
relations and needs, organically assimilated and melted in the crucible of the
Ukrainian spirit and though”.983
743. Activity of OUN-UPA were condemned by the Resolution of the European Parliament
dated 25 February 2010 “On Situation in Ukraine”.984
744. In 2016, the Polish Parliament adopted a resolution declaring 11 July a National Day of
Remembrance of Victims of massacre committed by UPA. The resolution states:
“The victims of crimes committed in the 40s by Ukrainian nationalists have
so far not been commemorated in an appropriate manner and the mass
murders have not been named - in keeping with historical truth - as
genocide.”985
745. After the collapse of the USSR and the formation of independent Ukraine, radical
Ukrainian nationalism received a second wind. Neo-Nazi organizations quickly emerged
and multiplied in the country. The process of their radicalization significantly accelerated
after the so-called “Orange Revolution” of 2004, which showed that extremism in
Ukraine ceased to be a marginal phenomenon and became politically mainstream.
Ukrainian authorities from 1990 to 2010 did not take any visible steps to curb neo-Nazi
sentiments in society, but instead used them in their domestic political struggle.
746. As a result, there are currently about 15 radical Neo-Nazi groups in Ukraine. Among them
is the National Corps, which was created in 2016 on the basis of the Patriot of Ukraine
group and the Azov volunteer battalion fighters who joined it.986 The National Corps and
its leader Andrey Biletsky had closer ties to the Ukrainian leadership and felt absolute
983 National Academy of Sciences of Ukraine. I.F. Kuras Institute of Political and Ethnic Studies. Alexander Sych.
Thesis "Modern Ukrainian nationalism: political science aspects of paradigm transformation". pp. 135, 239, 241-
248, 257, available at: https://ipiend.gov.ua/spetsializovana-vchena-rada-svr/dysertatsii/ (Annex 294).
984 European Parliament Resolution on the Situation in Ukraine, 25 February 2010, available at:
https://www.europarl.europa.eu/doceo/document/TA-7-2010-0035_EN.html.
985 Resolution of the Sejm of the Republic of Poland on paying tribute to the victims of the genocide committed
by Ukrainian nationalists on citizens of the Second Republic of Poland in the years 1943–1945, 22 July 2016,
available at: http://orka.sejm.gov.pl/proc8.nsf/uchwaly/625_u htm (Annex 248)
986 Gazeta.ua, Biletskiy: “Azov" will become a party” (28 May 2016), available at:
https://gazeta.ua/articles/politics/_bileckij-azov-stanepartiyeyu/
701012?mobile=falsehttps://en.interfax.com.ua/news/general/376717 html (Annex 283)
Page 278 out of 541
impunity.987 In 2020, the Centuria, a far-right organization with a Nazi bias, was formed
from members of the National Corps. Among its supporters were many cadets from
Ukrainian military schools, including the Lvov National Academy of Land Forces named
after P. Sagaidachny, which is closely patronized by the U.S. State Department.
747. A notable role on the right wing is played by the Carpathian Sich movement, founded in
2014, which professes Nazi ideology and uses appropriate symbols - Celtic crosses,
swastikas, and the numbers “14/88”. They are known for their violent actions against
Russians, Hungarians, Jews, and migrants from other countries.988 Another scandalous
structure is С14, which emerged in 2009 as an informal movement of supporters of
Ukrainian nationalism and soccer hooligans who joined them. It is also known for attacks
on Russians, Jews, and Roma.989
748. On 14 February 2004, the regular congress of the Social-National Party of Ukraine
(SNPU) was held where it was renamed into the All-Ukrainian Association “Svoboda”
and Oleh Tyagnibok was elected its chairman. In 2012, the party won 37 out of 450 seats
in the Verkhovna Rada of Ukraine of the VII convocation. Subsequently, this party would
play a significant role in the organization of the 2014 coup d’etat.
749. Modern Ukrainian neo-Nazi are followers of OUN-UPA. Their ideologists openly admit
it. For instance, Mr Alexander Sych, the former Deputy Prime Minister, in his 2019 article
987 BBC News Ukraine, National Corps in Faces: Who are these people and where are they from? (11 March
2019), available at: https://www.bbc.com/ukrainian/features-47527045 (Annex 321) (“Who are the people who
lead the "Azov" movement, which is playing an increasingly important role in Ukrainian politics... Biletsky was
imprisoned in 2011. At that time, representatives of nationalist organisations, including the "Patriot of Ukraine",
were arrested in Ukraine... He was released on 24 February 2014, when the Verkhovna Rada passed a resolution
to release political prisoners from the time of Viktor Yanukovych. In the spring of 2014, Andrey Biletskiy became
one of the founders of the battalion, and later the "Azov" police Regiment, which participated in the ousting of
militants from Mariupol and a number of other operations in Donbass. During the fighting in the East, the
Regiment's commander had a good relationship with the Minister of Internal Affairs Arsen Avakov.... Oleg
Petrenko, 45, is a member of parliament. He participated in clashes with police in Cherkasy on March 9. Oleg
Petrenko was born and raised in Cherkasy, where he was elected to the Verkhovnaya Rada in 2014 in a
constituency from the Petr Poroshenko Bloc party...After being elected to parliament, he participated in the work
of the “Azov” Civil Corps and later the “National Corps” party... In an interview with "Censor", Mr. Petrenko
recalled that he had twice wanted to leave the faction before, but was allegedly personally dissuaded by Petr
Poroshenko… Sergey Korotkikh (known in the media as "Boatsman" and "Malyuta") was born in Russia, but later
moved with his parents to Belarus… In April 2014, he moved to Ukraine - "from the first day in Azov”... In late
2014, he received a Ukrainian passport from President Poroshenko”.
988 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), pp. 22-23 (Annex 351)
989 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), pp. 22-23 (Annex 351)
Page 279 out of 541
“The Influence of the National Liberation Struggle of the OUN-UPA on the Militarization
of the Modern Ukrainian Nationalist Movement” admits that modern Ukrainian neo-Nazi
adopted the ideology of “paramilitary nationalist structures”, that is, from Bandera and
Shukhevich.990
750. Mr, Sych explains the genesis of the Ukrainian neo-Nazi movement stressing that
radicalism has always been a distinctive feature of the organizations which consider
themselves heirs of OUN-UPA, such as NPU, Right Sector, Trident and Svoboda:
“The first such paramilitary association was the Varta Rukhu. It was created
to protect the public actions of the People's Movement of Ukraine for
Perestroika (Rukh) during the Soviet regime and was officially registered in
late 1990… In 1991, Varta Rukhu became one of the basic organizations for
the newly formed Social-National Party of Ukraine (SNPU)… After the
formation of the SNPU, it took over the radical methods of the Varta Rukhu.
…
In 1996, the Patriot of Ukraine Society for Assistance to the Armed Forces
and the Navy was created under the NPU. Participants in those events claim
that at its height, the organization consisted of about three thousand organized
and trained young people of military age. At the same time, scholars put the
number at a much more modest level, between 300 and 400 people. Since in
1993 Ukrainian legislation introduced criminal liability for the creation and
activity of illegal paramilitary groups, the constituent documents of this
public organization corresponded to the formal name. However, in reality,
Patriot of Ukraine continued the traditions of using radical methods of Varta
Rukhu and NZ and participated in street clashes with ideological opponents
and law enforcement officials.
…
Another paramilitary association, the S. Bandera Public Sports and Patriotic
Organization “Tryzub” (“Trident”), was created at the initiative of the OUNB.
The date of its creation is considered to be October 14, 1993… Law
enforcement officers often detained members of the “Tryzub” with weapons,
which led to the opening of criminal cases. The story of an attack by several
members of the organization on a military unit in the Kharkiv region to seize
weapons was a resonant one at the time. Its members were detained and
sentenced to various terms of imprisonment. The confrontation between the
organization's members and representatives of criminal structures in
Dniprodzerzhynsk ended in a shootout and a court case for one of its
members”.991
990 A. Sych. The Influence of the National Liberation Struggle of the OUN-UPA on the Militarization of the
Modern Ukrainian Nationalist Movement, p. 117, available at:
http://regionalstudies.uzhnu.uz.ua/archive/16/21.pdf (Annex 295).
991 Ibid., pp. 117-119.
Page 280 out of 541
“In addition to Svoboda, another distinctly nationalist structure in this
revolution was the Right Sector movement. The date of its creation is
considered to be November 28, 2013, and its name comes from its location in
a revolutionary tent camp. It included both well-known nationalist
organizations that were in crisis on the eve of the revolution and no longer
played a significant role in the political process, and those that had a local
impact on social and political processes. For the former, the revolutionary
events of 2013-2014 offered a chance to revive their influence. The initiator
of the Right Sector is considered to be Tryzub. It included representatives of
two other well-known nationalist structures, UNA-UNSO and Patriot of
Ukraine, as well as organizations such as White Hammer, Black Committee,
Committee for the Liberation of Political Prisoners, Carpathian Sich, close to
Svoboda, individual nationalists and football fans.”992
751. Aleksander Sych admits that different Ukrainian Neo-Nazi groups, nurtured on the Nazi
and fascist ideas of the OUN, took the dominant positions in the 2004 and 2014 coup
d'états:
“Nationalist structures became a significant factor in the 2004 Orange
Revolution. The most effective among them were UNA-UNSO, KUN,
Svoboda, and Bandera's Tryzub (Trident). And although V. Yushchenko's
election headquarters, actively using the potential of nationalist structures, for
ideological reasons did not advertise its connection with them, the
revolutionary Maidan itself was largely filled with nationalist content, and for
the first time, topics that had previously been the domain of exclusively
nationalist discourse…”993
“The parliamentary elections of 2012 clearly placed the accents of influence
in the nationalist environment. On the one hand, Svoboda became its
undisputed leader. In these elections, the party received 10.44% of the vote
in the multi-mandate constituency and 13 of its candidates were elected in
single-member districts. Thus, Svoboda managed to form a fairly large
parliamentary faction consisting of 38 MPs”.994
752. According to Aleksander Sych, the far-right Ukrainian neo-Nazis were particularly
deeply involved in organization of Maidan protests, including violent clashes with the
law enforcement formations:
“In particular, Svoboda, along with Batkivshchyna and V. Klitschko's UDAR
(Srike) party, formed the political core of the revolutionary Maidan.”995
992 Ibid., p. 121.
993 National Academy of Sciences of Ukraine. I.F. Kuras Institute of Political and Ethnic Studies. Alexander Sych.
Thesis "Modern Ukrainian nationalism: political science aspects of paradigm transformation". p. 251, available at:
https://ipiend.gov.ua/spetsializovana-vchena-rada-svr/dysertatsii/ (Annex 294).
994 National Academy of Sciences of Ukraine. I.F. Kuras Institute of Political and Ethnic Studies. Alexander Sych.
Thesis "Modern Ukrainian nationalism: political science aspects of paradigm transformation". p.239, available at:
https://ipiend.gov.ua/spetsializovana-vchena-rada-svr/dysertatsii/ (Annex 294).
995 Ibid.
Page 281 out of 541
“Once again, members of Svoboda and the Opposition Platform were equally
involved in them during the most tragic phase of February 18-20, as they had
the most relevant experience, including during their time in paramilitary
structure”.996
753. Mr Sych was aware of this due to his personal presence on the Maidan. It is well known,
that during the Maidan protests he stayed in the hotel “Ukraine” along with his fellow
Svoboda members Igor Yankiv and Oleg Pankovski. The all three occupied rooms exactly
on the 11 flour, where the BBC reporter Gabriel Gatehouse filmed outgoing gunshots
towards the protesters on 20 February 2014.997
754. Ukrainian radicals, which took part in violent overthrowing of the legitimate power in
Ukraine, were well equipped and armed. On 20 February 2014, the Public Relations
Department of the Ministry of Internal Affairs of Ukraine reported a total of 565 law
enforcement officers had sought medical assistance since 18 February, 410 of whom had
been hospitalized. The number of law enforcement officers killed so far was 13, while 30
law enforcement officers had suffered gunshots in Kyiv.998 On 21 February 2014, the
Right Sector leader Dmitriy Yarosh openly declared that:
“Brothers and sisters, the situation is difficult. Once again, as it has been the
case many times before, the authorities have engaged in deception. The
agreements that have been reached do not meet our aspirations. The Right
Sector will not lay down its arms. The Right Sector will not lift the blockade
of any state institutions until our most important demand is fulfilled - the
resignation of Yanukovych.”999
755. Since neo-Nazis played a key role in the overthrow of the legitimate authorities of
Ukraine in 2014, they got a significant share in the new Cabinet of Ministers. Svoboda
party obtained a significant share of high-ranking portfolios:
(a) Andrey Parubiy was appointed to the post of the Secretary of the National Security
and Defense Council of Ukraine;
996 Ibid., p.248.
997 LB.ua. “Svoboda” members suspected of shooting at protesters on Maidan (13 October 2015), available at:
https://lb.ua/news/2015/10/13/318362_svobodovtsev_zapodozrili html (Annex 322).
998 Unian, Ministry of Internal Affairs: 130 law enforcement officers hospitalised with gunshot wounds (20
February 2014), available at: https://www.unian.ua/politics/887357-vje-130-pravoohorontsiv-dostavleni-domedzakladiv-
z-vognepalnimi-poranennyami-mvs html (Annex 323).
999 Ukrainska Pravda, “Right Sector will not lay down arms until Yanukovych resigns” (21 February 2014),
available at: https://www.pravda.com.ua/news/2014/02/21/7015612/ (Annex 333).
Page 282 out of 541
(b) Oleg Makhnitsky became the Prosecutor General of Ukraine;
(c) Igor Tenyukh became the Minister of Defense of Ukraine;
(d) Alexander Sych became the Deputy Chairman of the Cabinet of Ministers of
Ukraine for Economic Affairs;
(e) Sergey Kvit became the Minister of Education of Ukraine;
(f) Igor Shvayka became the Minister of Agriculture of Ukraine.1000
756. At the same time, taking advantage of the victory of Nazi ideology as a result of the
Maidan coup, as well as the presence of their representatives in power, Neo-Nazi groups
created their own full-fledged military units:
“The experience of nationalist paramilitary organizations was very valuable
during the creation of volunteer battalions. The Azov battalion was one of the
first to emerge, consisting of representatives of the Patriot of Ukraine, the
SNA, and Automaidan. Its commander was the leader of the first two
nationalist organizations, A.Biletsky. Then, at the initiative of the Right
Sector, the Volunteer Ukrainian Corps (VUC) was created. It was headed by
A. Stempitsky, who at the same time remained the commander of Tryzub
(Tident). In its turn, VO Svoboda, using its presence in the parliament and the
post-revolutionary government, created the Sich Interior Ministry battalion
under the command of O.Pysarenko and the Carpathian Sich volunteer
battalion led by O.Kutsyn. The latter was later transferred to the 93rd Separate
Mechanized Brigade of the Armed Forces of Ukraine (UAF) as a consolidated
assault company. In the summer of 2014, a volunteer battalion of the OUN
volunteer battalion was formed in the summer of 2014. For some time, it was
part of the DUK, and later it was formed as a separate volunteer battalion led
by a well-known nationalist activist M. Kokhanivsky... At first it was part of
the Azov battalion, then moved to the Shakhtarsk battalion, and eventually a
special purpose company of the Ministry of Internal Affairs "Saint Mary"
under the command of D.Linko, who was later replaced by O.Seredyuk.
There was also information that a separate unit was created by members of
the UNSO.”1001
757. However, the neo-Nazi have not stopped at overthrowing the legitimately elected
government of Ukraine and, establishing a reign of intimidation and terror, began to
1000 Resolution of the Verkhovna Rada of Ukraine No. 802-VII “On Formation of the Cabinet of Ministers of
Ukraine”, 27 February 2014, available at: http://zakon rada.gov.ua/laws/show/802-VII (Annex 346)
1001 National Academy of Sciences of Ukraine. I.F. Kuras Institute of Political and Ethnic Studies. Alexander Sych.
Thesis “Modern Ukrainian nationalism: political science aspects of paradigm transformation”, p. 179, available
at: https://ipiend.gov.ua/spetsializovana-vchena-rada-svr/dysertatsii/ (Annex 294).
Page 283 out of 541
actively pursue and literally exterminate all those who disagreed with their methods and
views on the future of Ukraine. A wave of violence swept across the country.
758. On 2 May 2014 anti-coup protesters constructed a tent camp in front of the building of
the House of Trade Unions in Odessa and were attacked by Right Sector militants and
groups of radical football fans. The radicals forced people to take refuge inside the
building and started shooting at them with semi-auto weapons, Molotov cocktails flew
towards the main entrance. The police did not interfere and did not take measures to
protect the life and health of the people inside. As a result, 48 people died in fire.1002
759. On 7 April 2014, Acting President Turchinov announced the so-called Anti-Terrorist
Measures in Donbass. 1003 On 14 April 2014, the Anti-Terrorist Operation (“ATO”)
against the East was officially started with Acting President Turchinov’s decree.1004 Full
military force was used against communities that resisted rule by unconstitutional
government. On 2 May 2014, the new government announced a continuation of the ATO
which was intensified. Thousands of civilians died in Donbass as a result of aerial
bombings and the use of heavy weapons.
760. Numerous so-called “volunteer battalions” formed of members of right-wing radical
groups who professed Nazi views were fully involved in the ATO. They were imbued
with hatred for Russians, guided by which they murdered and robbed civilians in Donbass
and humiliated their human dignity. This can be seen on the videos they published.1005
1002 See, for example, Channel One, In Odessa, radicals chased protesters into building and set fire to it (3 May
2014), available at: https:/1tv ru/news/2014-05-03/40826-v_odesse_radicaly_zadnali_protestuyuschih_v_zdanie
_i_podozhgli (Annex 334). See also: Youtube, 14.40/02.05.2014.Arrest on Alexandrovsky prospect in Odessa (15
July 2015), available at: https://www.youtube.com/watch?v=mY1LmtSRox4&list=PL1VsJWkUn
2D4c8_U3FffAUJV_XPjPpt4Z&ndex+67 (Annex 347).
1003 Interfax.ua, Anti-Terrorist Measures to be Taken Against Separatists – Turchynov (7 April 2014), available at:
https://en.interfax.com.ua/news/general/199466 html (Annex 249). See also YouTube, Turchinov Announced
Anti-Terrorist Measures Against Armed Separatists (7 April 2014), available at:
https://www.youtube.com/watch?v=myjnfelp_V0.
1004 Decree of the Acting President of Ukraine No. 405/2014 “On the Decision of the National Security and
Defence Council of Ukraine dated 13 April 2014 “On Urgent Measures to Overcome the Terrorist Threat and
Preserve the Territorial Integrity of Ukraine”, 14 April 2014, available at:
https://zakon rada.gov.ua/laws/show/405/2014#text (Annex 483). See also BBC News, Ukraine Crisis: Turchynov
Announces Anti-Terror Operation (13 April 2014), available at: https://www.bbc.com/news/av/world-europe-
27013169 (Annex 250).
1005 Telegram, Denazification of UA. There is no shame in destroying residents of villages near
Artemovsk/Bakhmut because they are all “separatists and katsaps” (13 December 2022), available at:
https://t.me/denazi_UA/30820 (Annex 335).
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761. Since the coup d’etat in 2014, Ukraine has been rapidly acquiring the characteristics of a
lawless state condoning and promoting extreme-right and Nazi ideology. This policy
included advocacy of violence against Russians and national minorities, glorifying Nazi
collaborators involved in horrifying atrocities of the World War II, supporting right-wing
radicals as a matter of daily politics and Nazi ideology-based system of the youth
education.
762. The quantitative presence of members of the neo-Nazi parties and groups in the higher
administrative bodies of Ukraine was not overwhelming, but it was significant. Their
ideology has become entrenched in state policies. The pro-presidential majority parties in
the Parliament (Poroshenko's European Solidarity, Zelensky's Sluha Naroda [Servant of
the People]), do not consider themselves to be Neo-Nazi or radical parties. However, even
they exploit the neo-Nazi ideology and willingly implement it. They steadily and
drastically progress in pursuing a policy of intensified derusification – by elimination of
linguistic, cultural and historical ties between Ukrainians with Russians. In this regard,
the nationalistic policies rooted in Nazi ideology of WWII criminals came in handy.
a. Ukraine’s officials advocate violence against Russians and ethnic minorities
763. Since Nazi ideology is based on the fiction that this or that nation is supposedly
“exceptional”, while other nations are supposedly “inferior”, Ukraine’s officials feel
completely free and immune to make racist public statements and/or directly advocate
Nazi ideology or violence against Russians and ethnic minorities. On 22 June 2022, the
Russian Federation distributed to the UN Security Council and the UN General Assembly
a letter No. 2802/n containing a compilation of hate speech statements by Ukrainian
figures as an official document. The following are only the most egregious examples of
such statements.1006
“You call them human [referring to people subject to Ukraine’s National
Security and Defense Council sanctions]? Not all human representatives are
human. There are species as well, I believe” (Vladimir Zelensky’s marathon
press conference, 29 November 2021);
“I myself am a huge advocate of direct democracy. By the way, so that you
know, Adolf Hitler was the highest person practicing direct democracy in the
1930s” (Andrey Parubiy, Chairman of the Verkhovna Rada of Ukraine, 9
April 2018);
1006 Permanent Representative of the Russian Federation to the United Nations, Letter No. 2802 of 22 June 2022,
available at: https://digitallibrary.un.org/record/3975475?ln=ru.
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“We are ready to destroy russkies wherever possible. They must be killed not
only in Ukraine, but also beyond its borders in Russia” (Alexander Turchinov,
former acting President of Ukraine, 24 February 2022);
“These Russian speakers, they are mentally retarded” (Iryna Farion, member
of the 7th Verkhovna Rada of Ukraine from VO Svoboda, the “Opposite
View” talk show, April 2018);
“It’s okay to grant Russian the status of a state language… We need to make
such promises to this scum, offer any guarantees, make whatever
concessions… Have them hanged afterwards” (Boris Filatov, former deputy
head of the Dnepropetrovsk regional administration, later – the major of
Dnepr, 9 March 2014);
“I feel no pity for them [the people of Donbass]. I feel pity for the soldiers
who were killed for this scum” (Andrey Reva, Minister for Social Policy,
interview to BBC, April 2019).
764. However, since June 2022, the list of Russophobic statements by Ukraine’s officials
continues to grow. Thus:
(a) On 3 April 2022, Ukraine’s President Zelensky admitted that there were neo-Nazi
battalions like “Azov” fighting on the side of Ukraine. He said that “Azov was one
of these many battalions” and justified the Neo-Nazi leanings of those battalions’
fighters, saying “they are what they are”.1007
(b) In August 2022, Ukraine’s Ambassador to the Republic of Kazakhstan Petr
Vrublevsky said that “the more Russians we kill today, the fewer we would have to
kill later”.1008
(c) On 15 December 2022, Valery Zaluzhny, the head of the UAF, said in an interview
to the Economist that “Russians and any other enemies must be killed, just killed,
and, most important of all, we should not be afraid to do it.”1009
(d) In December 2022, Ihor Klymenko, head of the National Police of Ukraine, referred
to Russian-speaking residents of Donbass as “people poisoned by Russian
propaganda”, and called them “the main problem of this region”. He also called the
1007 Fox News, Zelenskyy answers questions on assassination attempts (3 April 2022), available at:
https://www.foxnews.com/video/6302790525001.
1008 Focus.ua, “We are trying to kill more”: Kazakhstan protests Ukraine's ambassador for words about Russians
(video) (23 August 2022), available at: https://focus.ua/uk/ukraine/526392-pytaemsya-ubit-bolshe-kazahstanvyrazil-
protest-poslu-ukrainy-za-slova-o-russkih-video (Annex 336).
1009 The Economist, Ukraine’s top soldier runs a different kind of army from Russia’s (15 December 2022),
available at: https://www.economist.com/zaluzhny-profile (Annex 251).
Page 286 out of 541
residents of Kherson and Kharkov oblasts “fat collaborators” and said that the
police is “working” on those of them who “worked as a teacher” on the territories
under Russian government.1010
(e) On 25 February 2023, Ukraine’s Defense Minister Reznikov said: “I suddenly felt
inside me that I was ready to kill. More than that, I wanted to kill them
[Russians]”.1011
b. Ukraine’s regime unfolded a campaign of commemorating Nazi-related war criminals
765. The both Maidan regimes (the Viktor Yuscshenko’s government established after the so
called 2004 Orange Revolution and the one seized the power in 2014) invested significant
efforts to glorify persons notorious for the most shocking ethnic cleansings and genocide
in the 20th century.
766. First, in 2005 – 2010 and since 2014 Ukrainian regime consistently inculcates admiration
for members and leaders of OUN-UPA, including Stepan Bandera, Andrey Melnik,
Roman Shukhevich, Yaroslav Stetsko and many others, despite the documented facts of
fascist views of the OUN-UPA members:1012
(a) On 12 October 2007, Ukraine’s President Viktor Yuscshenko signed a Decree on
awarding Roman Shukhevych the title of Hero of Ukraine, on 10 January 2010 the
same title was handed to Stepan Bandera.1013
(b) In 2007 Ukraine’s president Viktor Yushenko signed a Decree commemorating
OUN’s leader Yaroslav Stetsko and his wife.1014
1010 RBK-Ukraine. Igor Klymenko: There is more darkness in Ukraine, but also more police on the streets (13
December 2022), available at: https://www.rbc.ua/rus/news/igor-klimenko-zaraz-ukrayini-bilshe-temryavi-
1670509562 html (Annex 337)
1011 Youtube, Year – a author’s documentary project of Dmitry Komarov |Part One (25 February 2023),
available at: https://www.youtube.com/watch?v=rePVm575y5M.
1012 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), pp. 107-129 (Annex 351)
1013 Decree of the President of Ukraine No. 46/2010, “On awarding S.Bandera the title of Hero of Ukraine”, 10
January 2010, available at: https://zakon.rada.gov.ua/laws/show/46/2010#Text (Annex 331); Decree of the
President of Ukraine No. 965/2007 “On awarding R.Shukhevych the title of Hero of Ukraine”, 12 October 2007,
available at: https://zakon rada.gov.ua/laws/show/965/2007#Text (Annex 332).
1014 Decree of the President of Ukraine No 419/2007 “On the commemoration of Yaroslav Stetsko and Yaroslava
Stetsko”, 16 May 2007, available at: https://zakon rada.gov.ua/laws/show/419/2007#Text.
Page 287 out of 541
(c) Since 2007, the so-called “Festival of the Ukrainian Spirit “Bandershtat” (dedicated
to Nazi collaborator Stepan Bandera) has been held annually in the outskirts of
Lutsk, Volyn region (the region where most heinous crimes of OUN-UPA were
committed). The festival is attended en masse by people who profess neo-Nazi
views.1015 Nazi symbols are used in the decorations. Nazi songs are being played
from the stage.1016 At 2021 Bandershtat the brass band of the State Border Guard
Service of Ukraine performed.1017
(d) Since 2014, Ukrainian neo-Nazi movements hold annual torch rallies in various
Ukrainian cities to commemorate Bandera's birthday. Nazi symbols and Nazi
slogans are openly displayed. Not only do the police not prevent the Nazi rally, but,
on the contrary, protect the participants.1018
(e) In May 2015, Ukraine’s president Petr Poroshenko signed a law praising members
of OUN-UPA as freedom fighters and providing a package of social benefits in their
support. 1019 With reference to this law, regional council of Lvov, Volyn, city
councils of Kiev and Ternopol and many others decided to use OUN-UPA flag on
an equal footing with the state flag.1020 The law was criticized by the US Senate and
Congress as “glorifying Nazism”.1021 Further, in December 2018 another law was
1015 Youtube, Meeting with OUN-UPA veterans, Banderstadt, August 2 (6 August 2014), available at:
https://www.youtube.com/watch?v=wdy7sUoXNLk.
1016 Youtube, Skryabin - Banderstatt Kolomyiki (live @ Banderstat'14) (7 August 2014), available at:
https://www.youtube.com/watch?v=vRYtlT5pqTE.
1017 Volynonline.com, Uncensored and "Bez Obmezhen": the third day of "Bandershtat-2021" in photos (9 August
2021), available at: https://volynonline.com/bez-czenzury-ta-bez-obmezhen-tretij-den-bandershtatu-2021-u-foto/
(Annex 338).
1018 Nv.ua. “Bandera is our father”. Torchlight procession to mark 113th anniversary of Ukrainian nationalist
leader held in Kiуv - photos, videos (1 January 2022), available at: https://nv.ua/ukr/kyiv/den-narodzhennyabanderi-
v-kiyevi-vidbulasya-smoloskipna-hoda-video-50206090 html (Annex 317).
1019 RT, Poroshenko Signs Laws Praising Ukraine Nationalists as ‘Freedom Fighters’ (16 May 2015), available
at: https://www rt.com/news/259157-ukraine-nazi-freedom-fighters/ (Annex 252)
1020 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 20 (Annex 351).
1021 The website of R. Khanna, Release: Rep. Khanna Leads Bipartisan Members in Condemning Anti-Semitism
in Europe (25 April 2018), available at: https://webcache.googleusercontent.com/searc
h?q=cache:nl_Euw_bfyYJ:https://khanna.house.gov/media/press-releases/release-rep-khanna-leads-bipartisanmembers-
condemning-anti-semitism-europe&cd=1&hl=ru&ct=clnk&gl=ru (Annex 253).
Page 288 out of 541
adopted that granted all OUN-UPA members a status of “veterans of combat
operations” an provided them with additional social benefits.1022
(f) “Bandera readings” are held annually with direct support of Kiev Major Vladimir
Klitchko. 1023 In 2017, Ukrainian neo-Nazis chanted “Jews Out!” in a march
celebrating the birthday of Nazi collaborator Stepan Bandera. 1024 In 2018, the
Ukrainian Parliament declared 1 January as a national day of commemoration for
Stepan Bandera.1025 In Bandera’s home city Lvov the Regional Council declared
the year of 2019 to be the year of Bandera and the OUN.1026 On 2 January 2019 the
German Bundestag and Czech President Milos Zeman criticized the torchlight
procession held in Kiev on 1 January 2019 in honour of Bandera, considering the
rally as “glorification of Nazism”.1027 On 1 February 2019 the 6th Forum “Bandera
Readings” was held in Kiev in the hall of the Kiev City Council.1028 On 18 February
2019 the right-wing group C14 held a rally “Bandera, get up!” in Kiev. In January
2022, hundreds of neo-Nazis took part in a march annually organized to celebrate
the anniversary of Bandera’s birth.1029
(g) On 5 February 2022 the 9th Forum “Bandera readings” was held in Kiev, organised
by All-Ukrainian Association Svoboda. The forum was devoted to the 80
anniversary of UPA. Leader of the far-right organization “C14” E.Karas’
participated in it. He declared that nationalists find it “enjoying to make war and
1022 Law of Ukraine No. 3551-XII “On the Status of War Veterans and Guarantees of Their Social Protection”, 22
October 1993, Article 6(16), available at: https://zakon.rada.gov.ua/laws/main/3551-12#Text (Annex 344).
1023 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 109 (Annex 352).
1024 The Times of Israel, Ukrainian marchers in Kiev chant ‘Jews out’ (3 January 2017), available at:
https://www.timesofisrael.com/ukrainian-marchers-in-kiev-chant-jews-out/ (Annex 254)
1025 Haaretz, Ukraine Designates National Holiday to Commemorate Nazi Collaborator (27 December 2018),
available at: https://www.haaretz.com/world-news/europe/2018-12-27/ty-article/ukraine-designates-nationalholiday-
to-commemorate-nazi-collaborator/0000017f-f310-d223-a97f-ffdd21e50000 (Annex 255).
1026 Kyiv Post, 2019 Declared Year of Stepan Bandera in Lviv Region (13 December 2018), available at:
https://www.kyivpost.com/ukraine-politics/2019-declared-year-of-stepan-bandera-in-lviv-region html (Annex
256).
1027 Gazeta.ru, “Glorification of Nazism”: Kiev March Criticised by Germany (2 January 2019)
https://www.gazeta.ru/social/2019/01/02/12116881.shtml (Annex 257).
1028 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 8 (Annex 351).
1029 Times of Israel, Hundreds of Ukrainian Nationalists March in Honor of Nazi Collaborator (1 January 2022),
available at: https://www.timesofisrael.com/hundreds-of-ukrainian-nationalists-march-in-in-honor-of-nazicollaborator/
(Annex 258).
Page 289 out of 541
kill”.1030In 2018 Ukraine issued a series of stamps glorifying the personnel of SS
Galichina division (formed in 1943 from the members of the OUN). An exhibition
of the stamps was organized on the premises of Lvov Central Post office in 2020.1031
In February 2019 a memorial plaque in honour of the Hauptssturmfuhrer of SS
Galichina Division of the Third Reich Averky Goncharenko installed in Varva,
Chernihiv Region.1032 On 17 February 2021 a Unterscharfuhrer of Galichina SS
Division Ivan Fialka was solemnly buried in Stryi, Lvov region, with the mayor
attending the burial.1033 On 13 June 2021 the solemn funeral ceremony was held for
Orest Vaskul of Galichina SS Division, being the first ceremony in the history of
Ukraine when the Guard of Honour of the Presidential regiment of the UAF paid
its respects to an SS member.1034 On 28 April 2021, a rally in honor of the Galichina
SS Division was held in Kiev for the first time.1035
(h) On December 6, 2022 the Supreme Court of Ukraine put an end to consideration of
the case on classification of the insignia of the SS Division Galichina as Nazi
symbols. The Supreme Court and the Sixth Administrative Court of Appeal of Kiev
before that took a position that such insignia cannot be classified as Nazi
symbols. 1036 Unveiling of monuments commemorating leaders and activists of
OUN-UPA, as well as other events praising former Nazi collaborators are organized
on a weekly basis.1037
1030 Focus.ua, “We find it funny to kill”: Karas told about threat of Ukraine to the world after the collapse of
Russia, (8 February 2022), available at: https://focus.ua/politics/505794-nam-prikolno-ubivat-karas-rasskazal-obugroze-
ukrainy-dlya-mira-posle-raspada-rf.
1031 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 20 (Annex 351). See also Irina Berezhnaya Institute for Legal Policy and Social
Protection, ONLINE ENVIRONMENT AS A TOOL FOR VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p.
112 (Annex 352).
1032 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 8 (Annex 351).
1033 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 116 (Annex 352).
1034 Ibid.
1035 Ibid., p. 121.
1036 RG, The Supreme Court of Ukraine did not recognize as Nazi the symbols of the SS Division “Galichina” (6
December 2022), available at: https://rg ru/2022/12/06/verhovnyj-sud-ukrainy-ne-priznal-nacistskoj-simvolikudivizii-
ss-galichina html (Annex 453).
1037 To name only a few examples: on 24 February 2019 local authorities of the Volyn region solemnly honored
the memory of UPA officer Grigory Pereginyak. On 18 March 2019 in Bogorodchany, Ivano-Frankovsk region, a
monument to Nahtigall battalion Oleksa Khymency and Ivan Shimansky was unveiled. On 2 April 2019 in the city
Page 290 out of 541
(i) On 28 August 2019 local authorities of the city of Ternopol conducted sports and
patriotic contest for the Shukhevich Cup.1038 On 5 March 2021 the Ternopol City
Council of decided to rename the city stadium after Roman Shukhevich.1039 Polish
and Israeli ambassadors to Ukraine strongly condemned the decision while Polish
city of Zamość suspended its partnership with Ternopol on the EU-funded project
on the cities’ common history
(j) As for Andrey Melnik (one of the OUN-UPA leaders), his monument was installed
in Ivano-Frankovsk, 1040 he also has streets named after him in Chortkiv,
Drohobych, Dubno (Rovno Oblast), Kolomyia, Lvov and Strizhovka.
(k) Further, dozens of streets in various cities of Ukraine were renamed after OUNUPA
and their leaders.1041
(l) On 14 October 2022, Zelenskiy also awarded the title of the Hero of Ukraine to
Miroslav Simchich – the last living OUN-UPA commander.1042
767. Ukraine’s actions did not remain unnoticed. Deputy Minister of Culture of Poland
Jaroslaw Sellin stated that the mass murder of Poles committed by Bandera-led UPA
meets the definition of genocide:
of Truskavets the local authorities erected a monument to OUN activist Roman Riznyak. On 30 April 2019 a
competition in honor of the 76th anniversary of formation of Galichina SS division was conducted in Ivano-
Frankovsk. On 5 March 2019 a monument to an executor of Jewish pogroms Mykola Arsenych was erected in the
village of Nizhny Berezov, Ivano-Frankovsk region. See Iryna Berezhnaya Institute of Legal Policy and Social
Protection, REPORT: INFRINGMENT OF RIGHT AND FREEDOMS IN UKRAINE (2019), pp. 8-9 (Annex 35`).
1038 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), pp. 8-10 (Annex 351). For more information on the monuments of OUN-UPA
supporters, see Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A
TOOL FOR VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 112-116 (Annex 351).
1039 Ternopol City Council, From Now On, the Ternopol City Stadium Will Bear the Name of UPA Commanderin-
Chief Roman Shukhevich (5 March 2021), available at: https://ternopilcity.gov.ua/news/46912 html (Annex
259).
1040 Photograph of the monument is available at: https://www.google.com/maps/uv?pb=!1s0x4730c1424a43d19
9%3A0x425280cc0bf2e3c4!3m1!7e115!4shttps%3A%2F%2Flh5.googleusercontent.com%2Fp%2FAF1QipOC
Y9eKGj1P9v1mHWhBCIfDExtBYuhZbRvjCU9o%3Dw260-h175-n-k-!15sCgIgAQ.
1041Gazeta ru, Kiev Residents Vote to Rename Tulskaya Square in Honour of “UPA Heroes”(21 June 2022),
available at: https://www.gazeta.ru/politics/news/2022/06/21/17974814.shtml (Annex 260); Lenta.ru, Turgenev
Street Renamed in Honour of UPA Fighters in Lvov (17 April 2008), available at:
https://lenta.ru/news/2008/04/17/street/ (Annex 261);
1042 Decree of the President of Ukraine No. 699/2022 “On awarding M.Simchich the title of Hero of Ukraine”, 14
October 2022, available at: https://www.president.gov.ua/documents/6992022-44385 (Annex 342).
Page 291 out of 541
“They have to acknowledge it because it’s a fact. It’s simply a fact. A political
decision was made and implemented for ethnic cleansing, the extermination
of the entire national minority that has lived there for centuries
…
“This is genocide, it fits all the parameters of the definition of genocide, so
there is no discussion here. This is a historical fact. Sooner or later, the
Ukrainians will have to recognize it.”1043
768. A letter from US Senators and Congressmen to the US Department of State dated 25 April
2018 also condemned Ukraine’s consistent policy of glorifying Nazi accomplices:
“It’s particularly troubling that much of the Nazi glorification in Ukraine is
government-supported.”1044
769. Another radical, whose supremacist ideas have elicited admiring response from modern
Ukrainian authorities is Yuri Lipa, an author of a number of chauvinist works, such as:
“Ukrainian Race”, “Division of Russia”, “Geopolitical orienteers of the new Ukraine”,
“Ukrainian Epoch” and others. To provide several excerpts from his works:
“Only Ukrainian uniqueness provides broad opportunities for the expansion
of the Ukrainian race. The uniqueness of the Ukrainians affirms the strength
of their subconscious racial predecessors: Goths and Hellenes. Moscovites as
an admixture of blood is a phenomenon hitherto unknown to the Ukrainian
race.”
“First of all, it is necessary to cleanse Ukraine of six million Moscovites, who
are its parasites, who form almost 10 percent of the population and, as a rule,
live in cities.
…
Free Ukraine will not come after the liberation of Kyiv from the Moscovites,
but after the destruction of Moscow. The destruction of Russia - as the center
of the supranational division of land between the Volga, Pechora and the
White Sea - is the basis of a strong Ukraine.”
1043 RT, Poland Wants Ukraine to Admit Genocide (16 August 2022), available at:
https://www.rt.com/news/560961-poland-ukraine-genocide-bandera/ (Annex 262). See also People’s World,
Ukraine’s Ally Poland Demands It Stop Glorifying Nazi Collaborators (18 August 2022), available at:
https://www.peoplesworld.org/article/ukraines-ally-poland-demands-it-stop-glorifying-nazi-collaborators/
(Annex 263).
1044 The website of R. Khanna, Release: Rep. Khanna Leads Bipartisan Members in Condemning Anti-Semitism
in Europe (25 April 2018), available at: https://webcache.googleusercontent.com/search?q=cache:nl_Euw_bf
yYJ:https://khanna.house.gov/media/press-releases/release-rep-khanna-leads-bipartisan-members-condemninganti-
semitism-europe&cd=1&hl=ru&ct=clnk&gl=ru (Annex 253).
Page 292 out of 541
“Rows march, rows thunder and bathe in blood, tempered in fire. Fire and
blood, life, will or death are burning in their chest... You hear the cry – Sieg
Heil! Heil! Sieg Heil!”1045
770. Yuri Lipa’s memory is preserved in modern Ukraine:
(a) On 19 August 2020, a memorial plate commemorating Yuri Lipa was installed at
the façade of the district library named after Yuri Lipa in settlement Yavorov, Lvov
region.1046
(b) The name of Yuri Lipa is given to streets in Kiev, Lvov, Krapivnitsky,Vinniki,
Konotop, Sumy and other cities and settlements bear.1047
771. Furthermore, Ukrainian government protect the name of Simon Petliura – an early-20th
century nationalist whose troops murdered more than 50 000 Jews in Kiev pogroms
around 1919.1048 In 2009, a street in Kiev was named after Petliura;1049 streets in other
Ukraine’s cities were also assigned Petliura’s name. 1050 On 22 May 2019 a solemn
inauguration in honor of Simon Petliura was held; on 31 July 2019 the mural dedicated
to Petliura was opened in Kamenetz-Podolsky.1051 Ukraine’s authorities censor access to
information regarding atrocities in which Petliura was involved - Ukraine’s State
1045 EurAsia Daily, OUN-UPA “Euthanasiologist” Doctor Honoured in Lvov Region (22 August 2020), available
at: https://eadaily.com/ru/news/2020/08/22/v-lvovskoy-oblasti-chestvuyut-vracha-evtanaziologa-iz-oun-upa
(Annex 265).
1046 See Golos Sokalshchiny, Memorial Plaque Unveiled on the Facade of Yury Lipa District Central Library in
Yavorov (20 August 2020), available at: https://golossokal.com.ua/ru/novyny-kultury/y-misti-iavorovi-vidbylosvidkrittia-
memorialnoi-tablici-na-fasadi-raionnoi-centralnoi-biblioteki-imeni-uriia-lipi html (Annex 264); See
also EurAsia Daily, OUN-UPA “Euthanasiologist” Doctor Honoured in Lvov Region (22 August 2020), available
at: https://eadaily.com/ru/news/2020/08/22/v-lvovskoy-oblasti-chestvuyut-vracha-evtanaziologa-iz-oun-upa
(Annex 265).
1047 Wikipedia, Yury Lipa Street, available at: https://uk.wikipedia.org/wiki/%D0%92%D1%83%D0%BB
%D0%B8%D1%86%D1%8F_%D0%AE%D1%80%D1%96%D1%8F_%D0%9B%D0%B8%D0%BF%D0%B8
(Annex 266)
1048 Kulturologia ru, How Nationalist Symon Petlyura Became a Hero of Ukraine, and Why the Man Who Killed
Him Was Acquitted (11 April 2022), available at: https://kulturologia ru/blogs/110422/53031/ (Annex 267).
1049 Lenta.ru, Comintern Street in Kiev Renamed to Petlyura Street (19 June 2009), available at:
https://lenta.ru/news/2009/06/18/petlura/ (Annex 268).
1050 UKRINFORM, Nationalists Succeed in Protecting Petlyura Street in Poltava Region (28 February 2017),
available at: https://www.ukrinform.ru/rubric-regions/2184660-nacionalisty-otstoali-ulicu-petlury-v-poltavskojoblasti
html (Annex 269).
1051 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), 2019, p. 9 (Annex 351).
Page 293 out of 541
Committee on Television and Radio Broadcasting banned “Book of Thieves” by Swedish
historian Anders Rydell, which includes critical analysis of Petliura’s actions.1052
772. On 14 October 2014, Ukraine’s President Poroshenko with his decree No. 806 introduced
the Day of the Defender of Ukraine appointing it to October 14 – the founding day of the
UPA.1053
773. On 14 February 2022, Ukrainian President Zelensky with his Decree No. 80 named the
10th Mountain Assault Brigade of the UAF "Edelweiss" - after the 1st Mountain Division
of the Nazi German Wehrmacht, which had stormed Lvov and took part in the Kharkov
operation of 1942.1054
c. Ukrainian authorities provide support to formations of extreme-right radicals
774. As stated above, the European Commission against Racism and Intolerance in its Reports
has consistently admonished Ukraine for failure to prevent the growth of extreme-right
sentiment in Ukraine.1055
775. In particular, failure of Ukraine’s authorities to prevent dissemination of antisemitic and
extreme-right ideas resulted in general radicalisation of Ukraine’s society and growing
popularity of neo-Nazi parties and movements in Ukraine.
776. Maidan riots became the minute of fame for such radical groups with no political
experience, but notorious for fierce clashes with the government forces. After Maidan,
the radical forces came out of the shadow, got institutionalized and claimed their rights
to power in Ukraine:
(a) One of such forces movements was “Right Sector” (“Pravy Sector”), whose leader
Dmitry Yarosh described his organisation’s goal as follows:
1052 The Ukrainian News, Expert Council of Ukraine’s State Committee on Television and Radio Broadcasting
Bans Swedish Historian’s World-Famous Book That Mentions Jewish Pogroms of Petlyura Times (26 December
2018), available at: https://ukranews.com/news/603810-ehkspertnyy-sovet-gosteleradyo-zapretyl-v-ukraynevsemyrno-
yzvestnuyu-knygu-shvedskogo-ystoryka-s (Annex 270).
1053 Decree of the President of Ukraine No. №806/2014 “On the Day of the Defendant of Ukraine”, available at:
https://www.president.gov.ua/documents/8062014-17816 (Annex 325).
1054 Decree of the President of Ukraine No. 80\2023 “On awarding the honorary name to the 10th separate
mountain assault brigade of the Land Forces of the Armed Forces of Ukraine”, available at:
https://www.president.gov.ua/documents/802023-45805 (Annex 348).
1055 See above, Chapter II(A).
Page 294 out of 541
“Pravy Sektor has proved its loyalty to the ideals of freedom… Now we
needed to present this movement as a source of leadership.
…
We are not politicians… We are soldiers of the national revolution.”1056
(b) The leader of another political force named “Svoboda” in 2004 declared that
Ukraine was governed by a “Jewish-Russian mafia”,1057 while another “Svoboda”
member Igor Miroshnichenko denied Ukrainian roots of actress Mila Kunis, having
called her “jidovka”.1058 On 4 September 2018 one of the founders of “Svoboda”
Andrey Paruby publicly expressed his admiration for Hitler.1059
777. The popularity of the radicals became apparent. In 2014, 36% of the Verkhovnaya Rada
(Parliament) of Ukraine was presented by far-right parties, including the Narodny Front
party, which won the biggest number of votes out of all the parties (22,1%),1060 and
radical movements “Right Sector” and “Svoboda”, 1061 whose candidates won the
elections in several single-member districts.1062 Resolution of the European Parliament of
13 December 2012 condemned election of “Svoboda” members to Verkhovna Rada of
Ukraine, emphasizing “racist, anti-Semitic and xenophobic views”. 1063 Although
President Petr Poroshenko and several other parties united in the political block managed
to outweigh the right radicals, he undoubtedly was constrained by their opinions.
1056 Time, Exclusive: Leader of Far-Right Ukrainian Militant Group Talks Revolution With TIME (4 February
2014), available at: https://time.com/4493/ukraine-dmitri-yarosh-kiev/ (Annex 271).
1057 Jewish.ru, Anti-Semitism Goes Uphill (9 April 2013), available at: https://jewish.ru/ru/events/world/8343/
(Annex 272).
1058 Gazeta ru, Mila Kunis Called “Zhyd” in Ukraine (24 December 2012), available at:
https://jewish ru/ru/events/russia/8945/ (Annex 273).
1059 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 21 (Annex 351).
1060 Wolfram Nordsieck, Parties and Elections in Europe. Supreme Council of Ukraine Elections, available at:
https://web.archive.org/web/20180612211142/http://parties-and-elections.eu/ukraine.html (Annex 274)
1061 In relation to far-right agenda of Svoboda, see The Guardian, Euro 2012: Ukraine's festering football racism
(1 June 2012), available at https://www.theguardian.com/world/2012/jun/01/euro-2012-ukraine-football-racismsol-
campbell (Annex 217).
1062 Central Election Commission, Extraordinary Parliamentary Election 2014, Data as of 29 October 2014,
available at: https://web.archive.org/web/20141029091159/http:/www.cvk.gov.ua/pls/vnd2014/wp039ept001f0
1=910 html (Annex 275).
1063 European Parliament Resolution on the Situation in Ukraine No. 2012/2889 (RSP), 13 December 2012
https://www.europarl.europa.eu/doceo/document/TA-7-2012-0507_EN.html (Annex 276).
Page 295 out of 541
778. While de jure the Right Sector and other radical organisations had no right to have
personal combat forces, in fact they had a mandate to use force against political rivals and
civilians without any risks of prosecution. The leader of the Right Sector Mr Yarosh
openly admitted that its forces not being a part of the regular army, had access even to S-
300 missiles, “as in any army.”1064 This may be explained by the fact that Kiev officials
often called radicals to resolve their problems, for which official state forces (police and
army) may not be engaged.1065
779. Needless to say, leaders of the Right Sector felt themselves invincible. One of the chilling
episodes reported in media is a speech of Alexander Muzychko (Sashko Byliy) at the
meeting of the Council of Rovno oblast’ of Ukraine. Mr Muzychko, effectively
threatening the Council members with an assault rifle, delivered a number of political
statements, including the promise to ban the Communist Party (which was later banned)
and Party of Regions in the oblast’ and to confiscate property of former executives of the
oblast’. He also stated that “the Right Sector will not lay down its arms unless legitimate
laws are enacted on the State’s territory.”1066 There are no reports as to holding Mr
Muzychko liable for an actual armed seizure of a governmental body.
780. During the post-Maidan years, Ukraine’s authorities concluded public agreements with
neo-Nazi radicals and even integrated them into the enforcement system (police, National
Guard and Armed Forces), legitimizing their activity, while their leaders gained
additional political weight, not abandoning their neo-Nazi views:1067
(a) A special battalion Azov was created under the control of the National Guard of
Ukraine (previously – under the control of the Ministry of Internal Affairs).1068 The
1064 Newsweek, Yarosh: Russians, Rise Up Against Putin! (19 March 2014), available at:
https://web.archive.org/web/20140328092833/http://mag.newsweek.com/2014/03/28/dmitry-yarosh-ukrainerussia-
crimea html (Annex 277).
1065 Pravfond, Why Western Human Rights Activists Paid Attention to Ukrainian Nationalists’ Outages (18 June
2018), available at: https://pravfond.ru/press-tsentr/stati/pochemu_zapadnye_pravozashchitniki_obratili_vnima
nie_na_beschinstva_ukrainskikh_natsionalistov_2423/ (Annex 280).
1066 Youtube, What did “Sashko Byliy” say at the Presidium of the Rivne Regional Council with a weapon in his
hands? (24 February 2014), available at: https://www.youtube.com/watch?v=XtxbGjkpkF8&t=6s.
1067 Reuters, Commentary Ukraine’s neo-Nazi problem (20 March 2018), available at:
https://www.reuters.com/article/us-cohen-ukraine-commentary-idUSKBN1GV2TY (Annex 278).
1068 Azov.org, About Azov, available at: https://azov.org.ua/pro-nas/ (Annex 281). For more information on Azov,
see Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 131-135 (Annex 352).
Page 296 out of 541
servicemen freely use neo-Nazi symbolic and advertise themselves as a neo-Nazi
formation, while one of Azov’s leader Andrey Biletsky (nicknamed “White
Leader”)1069 openly admits his Hitler sympathies:
“A former history student and amateur boxer, Mr Biletsky is also head of an
extremist Ukrainian group called the Social National Assembly. “The historic
mission of our nation in this critical moment is to lead the White Races of the
world in a final crusade for their survival,” he wrote in a recent commentary.
“A crusade against the Semite-led Untermenschen.”
…
Asked about his Nazi sympathies, he said: “After the First World War,
Germany was a total mess and Hitler rebuilt it: he built houses and roads, put
in telephone lines, and created jobs. I respect that.” Homosexuality is a mental
illness and the scale of the Holocaust “is a big question”, he added.”1070
“The reason is a recruitment offensive for a "reconquest of Europe", with
which the regiment is also recruiting young German neo-Nazis. In July, for
example, flyers in German were distributed to visitors at a right-wing rock
festival in Themar, Thuringia, inviting them to "join the ranks of the best" in
order to "save Europe from extinction".
Azov was founded by nationalist politicians in spring 2014 and reports to the
Ukrainian Interior Ministry. The regiment's commander, far-right politician
Andriy Biletsky, was promoted to the rank of lieutenant colonel by Ukraine's
Interior Minister in 2014.
The advertising offensive by the Ukrainian fighters is apparently successful:
as with Jan K., more and more photos of German neo-Nazis are appearing on
social networks, proudly presenting their affiliation with Azov.”1071
1069 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 21 (Annex 351).
1070 The Telegraph, Ukraine crisis: the neo-Nazi brigade fighting pro-Russian separatists (11 August 2014),
available at: https://www.telegraph.co.uk/news/worldnews/europe/ukraine/11025137/Ukraine-crisis-the-neo-
Nazi-brigade-fighting-pro-Russian-separatists html (Annex 279).
1071 SPIEGEL, Ukraine: German mercenaries join far-right volunteer battalion (11 November 2017), available at:
https://www.spiegel.de/panorama/justiz/ukraine-deutsche-soeldner-heuern-bei-rechtsextremem-freiwilligenba
taillon-an-a-1177400.html?utm_campaign=buffer&utm_content=bufferfd37d&utm_medium=social&utm_sourc
e=twitter.com (Annex 282).
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(b) Notorious for its involvement of torture of Ukraine’s civilians, 1072 Azov was
considered a neo-Nazi formation in the US and was prohibited from receiving U.S.
weapons and training by the Consolidated Appropriations Act of 2018.1073
(c) Mr Arsen Avakov, leader of the Narodny Front party, which is reported to have
close ties to Azov’s leader Mr Biletsky the former Azov veterans, acquired control
over the Police and the National Guard and served as a Minister of Internal Affairs
of Ukraine in 2014-2021,1074 despite President Zelensky promises to dismiss all
ministers of the previous government.
(d) In 2016, the decision was made to create a political party “National Corps” on the
basis of Azov formation.1075 The party uses the “Wolfsangel” emblem, which is a
mirror copy of the emblem of Nazi SS Division “Das Reich”.1076
(e) In 2014 members of “Maidan Self-Defence” (Samooborona Maidanu) and Right
Sector instituted volunteer armed formation called Aidar, which became a part of
Ukraine’s regular forces. Aidar members, as many others, used Nazi symbols and
were guilty in numerous episodes of abuses, ill-treatment and unlawful
detention.1077 Aidar’s founder Mr Sergey Melnichuk is now a member of Ukraine’s
Parliament.
1072 For the episodes of torture of civilians by Right Sector and Azov-related militants, see War Crimes of the
Armed Forces and Security Forces of Ukraine: Torture and inhumane treatment, pp. 28, 31, 42 available at:
https://democracyfund ru/userfiles/Second%20report%20-
%20War%20Crimes%20of%20the%20Armed%20Forces%20and%20Security%20Forces%20of%20Ukraine.pdf
1073 The website of R. Khanna, Release: Rep. Khanna Leads Bipartisan Members in Condemning Anti-Semitism
in Europe (25 April 2018), available at: https://webcache.googleusercontent.com/search?q
=cache:nl_Euw_bfyYJ:https://khanna house.gov/media/press-releases/release-rep-khanna-leads-bipartisanmembers-
condemning-anti-semitism-europe&cd=1&hl=ru&ct=clnk&gl=ru (Annex 253).
1074 Reuters, Commentary: Ukraine’s neo-Nazi problem (20 March 2018), available at:
https://www.reuters.com/article/us-cohen-ukraine-commentary-idUSKBN1GV2TY (Annex 278).
1075 Gazeta.ua, Biletskiy: “Azov" will become a party” (28 May 2016), available at:
https://gazeta.ua/articles/politics/_bileckij-azov-stanepartiyeyu/
701012?mobile=falsehttps://en.interfax.com.ua/news/general/376717 html (Annex 283)
1076 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 22 (Annex 351).
1077 Newsweek, Ukrainian Nationalist Volunteers Committing ‘ISIS-Style’ War Crimes (10 September 2014),
available at: https://www.newsweek.com/evidence-war-crimes-committed-ukrainian-nationalist-volunteersgrows-
269604 (Annex 284); Amnesty International Briefing, Ukraine: Abuses and war crimes by the Aidar
Volunteer Battalion in the north Luhansk region (8 September 2014), available at:
https://www.amnesty.org/en/wp-content/uploads/2021/06/eur500402014en.pdf (Annex 285).
Page 298 out of 541
(f) In 2018 a “municipal guard” was formed from members of a right-wing
organization “C14”1078 to patrol the streets of Kiev and several other cities. On 8
June 2018 Ministry of Youth and Sports of Ukraine provided “C14” with 17 000
USD to set up a children’s camp to promote “national projects of patriotic
education”.1079
(g) On 14 October 2021 the Press service of 61st Detached Infantry Ranger Brigade
stationed on the Ukraine-Belarus border published a Facebook post in which stated
that all migrants on the border will be eliminated to prevent their entry into
Ukraine.1080
781. Noteworthy, Nazi views are not shared only among “security and defence” officials
known for their close ties with radical movements, but by “peaceful” state officials as
well.
(a) In May 2018 Consul of Ukraine in Hamburg Mr Vasyl Marushinets published a
photo of himself with the present from colleagues from the Ministry of Foreign
Affairs of Ukraine, resembling a folio of “Mein Kampf”. The photo was also
included in Marushinets’s book distributed among Ministry employees, including
the Minister of Foreign Affairs Mr Pavel Klimkin. As it appears, Mr Marushinets,
whose book criticizes “the Magyars” for takeover of Ukraine’s lands and calls Poles
“historical enemies” of Ukraine, has never received any reprimand neither for the
book, nor for the “Mein Kampf” photo, which received at least 4 “likes” from
Ukrainian diplomats. Another post devoted to Prince Svyatoslav’s fight against
“Jewish yoke” was liked by the ambassador of Ukraine in Portugal Mrs Inna
Ognivets.1081
1078 The “C14” or “Sich” uses Nazi symbols – “Celtic cross”, “Tivaz” runes, known as Hitlerjugend emblems. One
of C14 activists Andrey Medvedko is accused of murdering the opposition journalist Oles Buzina on 16 April
2015.
1079 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHT AND
FREEDOMS IN UKRAINE (2019), p. 28 (Annex 351).
1080 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 110 (Annex 352).
1081 Irina Berezhnaya Institute for Legal Policy and Social Protection, REPORT: INFRINGMENT OF RIGHTS AND
FREEDOMS IN UKRAINE (2018), pp. 10, 108-112 (Annex 350).
Page 299 out of 541
(b) On 3 May 2019 Mr Alexander Nakonechny, the city mayor of Karlovka, Poltava
region, shared his photo in German Nazi uniform in Facebook.1082
(c) On 13 October 2019 Prime Minister of Ukraine Mr Alexey Goncharuk visited a
neo-Nazi concert organized by the “C14” movement.1083
d. Nazi ideology-based system of patriotic education of youth
782. For years, the Ukrainian authorities have been consistently building a system of
"patriotic" education for young people, within the framework of which the younger
generation was inculcated the ideology of Nazism, xenophobia and intolerance. This
system was based on the glorification of Mrs Stepan S. Bandera, Roman R. Shukhevich,
and other Ukrainian Nazi collaborators who fought on the side of Nazi Germany during
World War II. This system finally crystallized in May 2019, when President Poroshenko
signed the decree "On Approval of the Strategy of National Patriotic Education for 2020-
2025" two days before the expiration of his presidential term.
783. A significant part of the above mentioned ‘Strategy’ were the so called ‘children and
youth patriotic summer games’ annually held by the governmental institutions as well as
by ‘patriotic’ NGOs. Thus, Ukraine’s Ministry of Education annually held a youth
"patriotic" game "Sokol" ("Jura"). According to the regulation approved by the Ukrainian
Cabinet of Ministers, children"), in which minors aged 6-17 supposed to take part in the
game. The participants, by analogy with the structure of the “Ukrainian Insurgent Army”,
UPA, shall unite into "swarms" and "kurens”. At the same time, each squad of participants
must choose a name "based on historical struggle for independence of Ukraine"
("Insurgents," "Azov guys," "Aidar guys," "Roman Shukhevich" etc.).1084
784. At another youth “patriotic” game - “Gurby-Antonivtsi” has been held yearly since 2003
by the same time, the All-Ukrainian Youth Nationalist Congress. The game takes place
in a 25-square-kilometer forest near the Gurba area, the site of the largest battle between
1082 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 122 (Annex 352).
1083 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE ENVIRONMENT AS A TOOL FOR
VIOLATION OF RIGHTS AND FREEDOMS IN UKRAINE (2022), p. 118 (Annex 352).
1084 Resolution of the Cabinet of Ministers of Ukraine No. 845 “Some issues of children's and youth militarypatriotic
education” 17 October 2018, available at: https://zakon rada.gov.ua/laws/show/845-2018-
%D0%BF#Text.
Page 300 out of 541
the UPA and the Soviet Army. The game lasts continuously for 60 hours.1085 “The Youth
Nationalist Congress offers residents of the “frontline zone” (Crimea, Kharkov, Lugansk,
Donetsk, Dnepr, Zaporozhye, Kherson) to take part in the game for symbolic
organizational contribution of 50 UAH (about $2). It is also important that participants
from the Eastern and Southern Ukraine are reimbursed for their travel expenses.1086
785. The distribution of budget allocations for the purposes of such “youth education” was
carried out by a competitive commission of the Ministry of Culture, Youth and Sports of
Ukraine. According to the results of its meetings on 26 December 2019 and 28 January
2020 a total of 29 million UAH (1.1 million dollars) was allocated for the ‘nationalpatriotic
education projects’, of which 12 million UAH went to the neo-Nazi.1087 In
March 2021 the Ministry of Culture, Youth and Sports of Ukraine in its order No 829
(17.03.2021) allocated 8 million UAH for such projects, including 350 hundred UAH to
organize in Lvov region all-Ukrainian festival “Zashkiv” devoted to OUN leader E.
Konovalets and 185 hundred UAH to organize in Volyn region all-Ukrainian camp
“Khorunzhiy”1088.
786. The "National Scout Organization of Ukraine - Plast", which declares its succession to
the structure of the same name, the members of which at one time were Mrs Stepan
Bandera and Roman Shukhevich, received more than 5 million UAH. The main part of
the funds should have been spent on the organization of children's and youth summer
camps, as well as on field training for educators, whose organizers actively use Nazi
symbols and OUN-UPA attributes, which are banned in most European countries.1089
787. Thus, the Ukrainian authorities not only inculcated a reverent respect for Nazi ideology
to young people, but also trained them as potential fighters. These brainwashed fighters
1085 Unian, The 4-day sports and patriotic game “Gurby-Antonivtsi” has started in Ternopil region (5 May 2016),
available at: https://www.unian.ua/ternopil/1337687-na-ternopilschini-rozpochalasya-4-denna-sportivnopatriotichna-
gra-gurbi-antonivtsi html (Annex 339).
1086 See: Chas.cv.ua, Ukraine’s largest sports and patriotic game “Gurby-Antonivtsi” will bring together young
people from all regions of Ukraine (2 March 2016), available at: https://chas.cv.ua/inform/31224-nayblsha-vukrayin-
sportivno-patrotichna-gra-gurbi-antonvc-obyednaye-molod-z-ush-regonv-ukrayini html (Annex 340).
1087 Decision No. 1 of 26 December 2019 of the competition committee for reviewing national patriotic education
projects developed by civil society institutions for which funding is to be provided in 2020, available at:
https://www.kmu.gov.ua/storage/app/sites/1/17-civik-2018/rubrik_spryiannia/rish-minmolod-2020-2.pdf.
1088 Iryna Berezhnaya Institute of Legal Policy and Social protection, ONLINE ENVIRONMENT AS A TOOL OF
INFRINGEMENTS OF HUMAN RIGHTS AND FREEDOMS IN UKRAINE, (2022) p. 108 (Annex 352).
1089 Ibid.
Page 301 out of 541
were meant to be sent to Donbass as part of the UAF and other security units to suppress
the Russian population of this region.1090 Those who would not become part of the
security services could always join nationalist and neo -Nazi groups throughout Ukraine.
* * *
788. The above shows that Ukraine:
(a) contrary to the obligation of Article 2(b) of CERD "not to promote, defend or
support racial discrimination by any individuals or organizations", not only does
not suppress the activities of neo-Nazi organizations, but has actually adopted their
ideology itself; promotes it on the governmental level, with further implementation
by armed formations created by former street vandals and neo-Nazi fans;
(b) advocate violence against Russians and ethnic minorities and take restrictive
measures against them;
(c) openly commemorates associates of the most brutal criminals of the twentieth
century Nazi collaborators and criminals.
789. In light of this abhorrent conduct that is contrary to both the principles and values of the
CERD, Ukraine should not have either legal nor moral right to allege racial discrimination
of ethnic minorities in Crimea.
1090 Unian, The 4-day sports and patriotic game “Gurby-Antonivtsi” has started in Ternopil region (5 May 2016),
available at: https://www.unian.ua/ternopil/1337687-na-ternopilschini-rozpochalasya-4-denna-sportivnopatriotichna-
gra-gurbi-antonivtsi html (Annex 339) (“The organizers of the event told UNIAN that the game is
dedicated to the commander of the mortar platoon of the 51st Brigade, Volodymyr Harmatiy, a member of the
Gurb-Antonovtsy who died in July 2014 in the ATO zone in Luhansk region, and Roman Atamaniuk, a longtime
member of the Gurb-Antonovtsy who fought in the 93rd Brigade and died in May 2015 near the Donetsk airport
as a result of mortar fire”).
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III. UKRAINE’S CLAIMS ARE MANIFESTLY OUTSIDE THE SCOPE AND
SUBJECT-MATTER OF THE DISPUTE AS DEFINED BY THE CERD AND THE
COURT
790. Ukraine continues to claim in its Reply that the Russian Federation “has brought the full
weight of its authoritarian security machinery into force in Crimea and has applied it
selectively to crush political dissent from the Crimean Tatar and Ukrainian communities”;
it also maintains that the Russian Federation “has abused its position as an occupying
power to promote its own culture, while choking off the means available to the Crimean
Tatar and Ukrainian communities to preserve their own separate identities, whether
through cultural gatherings, mass media, education or otherwise”1091. These allegations
are not only blatantly false, as was demonstrated in Russia’s Counter-Memorial and will
be further developed in this Rejoinder; they nothing to do with racial discrimination.
Instead, Ukraine seeks a pronouncement by the Court on meritless allegations of
“political dissent” that it ascribes to Tatar and Ukrainian communities in Crimea, and also
to impose on the Russian Federation the status of “occupying power”, thus challenging
the legal status of Crimea as part of the Russian Federation, issues which have no bearing
on the CERD.
791. Because Ukraine’s allegations distort the meaning of ethnicity and racial discrimination
under the CERD, as well as the Court’s judgment on preliminary objections of 8
November 2019, it is first necessary to set the record straight in regard to both these
foundational matters.
792. The present chapter proceeds as follows. Section A recalls that the dispute brought by
Ukraine before the Court, as established in the Court’s 2019 judgment, concerns an
alleged “systematic racial discrimination campaign”, and not individual claims or discrete
unsubstantiated allegations of racial discrimination. Section B addresses the test that
ought to be applied in demonstrating the existence of a “systematic campaign” of the kind
alleged by Ukraine, and points to the fact that Ukraine has not come close to satisfying
that test. Section C deals with Ukraine’s attempt to recast its case as one on “indirect
discrimination”, and shows that “indirect discrimination” as defined by Ukraine is not
only incompatible with its initial claim of a “systematic racial discrimination campaign”
1091 Reply, ¶376. See also Memorial, ¶346.
Page 303 out of 541
and with the 2019 judgment, but also with the Convention itself. Section D addresses
Ukraine’s failure to produce relevant statistical data in support of its claims. Section E
responds to Ukraine’s baseless attempt to read political opinions into the definition of
“ethnicity” in order to characterize as racial discrimination measures based on security
concerns so as to shoehorn them into the provisions of the CERD. Section F explains the
grounds that may justify certain restrictions on human rights and their relationship to the
CERD. Finally, Sections G and H recall that the present dispute is limited to the CERD,
and that Ukraine’s attempt to impose on Russia the status of “occupying power” under
international humanitarian law must be dismissed.
A. THE DISPUTE IS LIMITED TO AN ALLEGED “SYSTEMATIC RACIAL DISCRIMINATION
CAMPAIGN” AND DOES NOT COVER ISOLATED AND UNCONNECTED INSTANCES OF
ALLEGED RACIAL DISCRIMINATION
793. As explained in the Counter-Memorial (CERD), the present case is limited in scope. More
specifically, Ukraine did not bring before the Court a case concerning discrete incidents
by which the Russian Federation allegedly violated the CERD, but rather alleges that the
Russian Federation has engaged in a “systematic campaign of racial discrimination”
against Tatar and Ukrainian communities in Crimea beginning in the spring of 2014.1092
It is precisely because of this particular formulation of Ukraine’s claims that, in its 2019
judgment on preliminary objections, the Court rejected Russia’s admissibility challenge
to Ukraine’s Application on the ground of non-exhaustion of local remedies:
“… according to Ukraine, the Russian Federation has engaged in a sustained
campaign of racial discrimination, carried out through acts repeated over an
appreciable period of time starting in 2014, against the Crimean Tatar and
Ukrainian communities in Crimea. The Court also notes that the individual
instances to which Ukraine refers in its submissions emerge as illustrations of
the acts by which the Russian Federation has allegedly engaged in a campaign
of racial discrimination. It follows, in the view of the Court, that, in filing its
Application under Article 22 of CERD, Ukraine does not adopt the cause of
one or more of its nationals, but challenges, on the basis of CERD, the alleged
pattern of conduct of the Russian Federation with regard to the treatment of
the Crimean Tatar and Ukrainian communities in Crimea. In view of the
above, the Court concludes that the rule of exhaustion of local remedies does
not apply in the circumstances of the present case.
This conclusion by the Court is without prejudice to the question of whether
the Russian Federation has actually engaged in the campaign of racial
1092 Counter-Memorial (CERD), ¶¶89-90.
Page 304 out of 541
discrimination alleged by Ukraine, thus breaching its obligations under
CERD. This is a question which the Court will address at the merits stage of
the proceedings…”1093[Emphasis added]
794. Being well aware that its accusation of a “systematic racial discrimination campaign” is
unfounded and being unable to counter Russia’s arguments in this regard, Ukraine in its
Reply tries to shift the focus of its claim to isolated and unconnected instances of alleged
racial discrimination, seeking even to transform its case into one concerning “indirect
discrimination”1094. While it continues from time to time to refer to a “campaign” against
Tatar and Ukrainian communities1095, it is clear that Ukraine simply cannot prove such a
state of affairs as there was none1096, and in fact uses that term as window-dressing in
order to have the Court pass judgment upon individualized instances of alleged racial
discrimination, without proving the existence of the “campaign” itself.
795. Ukraine’s manipulation of the grave charge it has levelled at the Russian Federation must
fail. As noted above, the Court’s 2019 judgment makes it plain that the sole claim that
Ukraine may advance in this case is one of a “systematic racial discrimination campaign”,
and not allegations of individual instances of alleged racial discrimination that are to be
considered inadmissible since local remedies have not been exhausted before Ukraine
instituted proceedings before the Court1097.
796. In this regard, Ukraine’s Second Expert Report, prepared by Professor Fredman argues
that:
“To the extent that Russia is arguing that Ukraine’s reference to a systematic
campaign requires application of a different evidentiary standard than usual,
I disagree. The CERD does not contain language defining systematic
campaigns of racial discrimination as a distinct breach, or defining
evidentiary standards particular to allegations of systematic discrimination. I
accordingly understand Ukraine’s case to be that Russia has committed
1093 Judgment of 8 November 2019, p. 606, ¶¶130-131.
1094 See below, Section III(C).
1095 Reply, ¶¶376, 380, 383, 384, 399, 400.
1096 It should be noted that the exhaustion of local remedies rule allows the facts of a case to be established with
more certainty and clarity. Since Ukraine rushed into instituting proceedings using an alleged “systematic racial
discrimination campaign” as a vehicle to avoid meeting this admissibility requirement, it is now obliged to rely on
factual allegations based on whimsy evidence that amount to mere conjecture, as will be shown in further chapters.
1097 Nor have local remedies been exhausted to this day. As is shown in the following chapters, the individuals
that, according to Ukraine, have suffered racial discrimination in Crimea did not seek to exhaust the remedies
available to them under Russian law before the competent authorities. The only exception to this state of affairs is
the ban on the Mejlis (see below, Chapter IV).
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multiple violations of the CERD which, viewed in the aggregate, constitute a
systematic campaign of racial discrimination. It follows that the correct
approach is to assess each of Ukraine’s claims under the standards set forth
in the Convention and, if necessary, for the Court to take a view on Ukraine’s
characterization of the aggregate impact of any violations only once it has
ruled on the individual claims”1098.
797. If Ukraine accepts this view, its case under the CERD clearly falls away. Ukraine cannot
allege “multiple violations of CERD” based on “individual claims”: that possibility has
been discarded by the Court, which has expressly limited Ukraine’s case to “whether the
Russian Federation has actually engaged in the campaign of racial discrimination alleged
by Ukraine, thus breaching its obligations under CERD”. This was done in accordance
with Ukraine’s own position, which was summarized by the Court as follows:
“Ukraine contends that the Russian Federation’s objection is not persuasive
because Ukraine did not bring the present case to vindicate individual rights.
On the contrary, Ukraine seeks an end to the Russian Federation’s alleged
‘systematic campaign of racial discrimination’ in violation of CERD”1099.
798. It is not optional for Ukraine to prove the existence of a “systematic campaign of racial
discrimination”; on the contrary, it is the very subject-matter of its case as found by the
Court. Should Ukraine revert to individual claims, it would fail to meet this objective ipso
facto. Furthermore, if Ukraine takes the position that the CERD does not regulate
“systematic campaigns of racial discrimination” as such, its claim against the Russian
Federation also does not fall within the scope of the Convention, the Court having
declared admissible only the allegation of such a campaign, while individual claims were
not admitted due to non-exhaustion of domestic remedies.
799. Ukraine’s blatant attempt to circumvent the Court’s 2019 judgment and revert to the
position that has been firmly rejected by the Court only serves to emphasize Ukraine’s
lack of evidence in support of its implausible and artificially constructed allegations
concerning a “systematic racial discrimination campaign” against Tatar and Ukrainian
communities in the Russian Federation.
1098 Second Expert Report of Professor Sandra Fredman, 21 April 2022, ¶14 (Reply, Annex 5).
1099 Judgment of 8 November 2019, p. 50, ¶126.
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B. UKRAINE HAS NOT MET THE CRITERIA OR BURDEN OF PROOF FOR ESTABLISHING THE
EXISTENCE OF A “SYSTEMATIC RACIAL DISCRIMINATION CAMPAIGN”
800. The Counter-Memorial also explained that in order to establish that the Russian
Federation has engaged in a “systematic racial discrimination campaign”, Ukraine has to
meet the following cumulative criteria:
(a) The alleged acts are attributable to the Russian Federation;
(b) The alleged acts constitute a violation of the CERD, namely that each alleged act
constitutes:
(i) a distinction, exclusion, restriction or preference,
(ii) based on race or ethnic origin within the meaning of the Convention,
(iii) that impairs or nullifies the recognition, enjoyment or exercise,
(iv) on an equal footing, of human rights and fundamental freedoms, and
(v) that has no objective and reasonable justification;
(c) The alleged acts form part of a systematic campaign or policy, which in turn
requires Ukraine to establish that these acts, taken together as a composite whole,
constitute:
(i) a “policy”,” or”, a “campaign” directed against the Crimean Tatar and
Ukrainian ethnic groups in Crimea, targeting them as such; and therefore also
(ii) a discriminatory intent, as evidenced by the consistent use by Ukraine in its
Application and pleadings of terms such as “policy”, “campaign”,
“systematic”.1100
801. Ukraine must meet a standard of proof that is appropriate to this grave allegation. In
particular, Ukraine must demonstrate: (1) that “any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin” based on race or
1100 Counter-Memorial (CERD), Chapter II, Section II, Sub-Sections A to C.
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ethnic origin within the meaning of the Convention1101 has occurred in a systematic
manner (Section A); and (2) the disproportionate effect of any such pattern of conduct
on the Crimean Tatar and Ukrainian communities as compared to other communities
living in the Russian Federation (Section B); and (3) an intent or purpose specifically and
directly to target these communities as such (Section C).1102 Furthermore, the evidence
that Ukraine must produce in support of its claim must be fully conclusive (Section D).
802. Ukraine disagrees that these are the criteria and standard of proof applicable to the present
case. It suggests in the Reply that it has “made out a multitude of Russian CERD
violations” and that “[t]he cumulative conclusion to be drawn from those violations is
that Russia engaged in a systematic campaign of racial discrimination”1103. Ukraine also
states that “Russia’s response – that Ukraine cannot prove any individual violation unless
it proves the violation was part of a systematic campaign – is entirely backwards”1104.
The Reply adds that:
“Ukraine has satisfied the standard of proof under the CERD by
demonstrating that Russia’s conduct had either (or both) the purpose or effect
of racially discriminating against the Crimean Tatar and Ukrainian
communities in Crimea. The Court should not entertain Russia’s attempt to
artificially increase the burden of proof by requiring Ukraine to prove that
Russia acted intentionally and as part of a methodical plan, with respect to
every action or inaction described in the Memorial. The many individual
CERD violations that Ukraine has demonstrated, when viewed as a whole,
easily support the conclusion that Russia has engaged in a systematic
campaign of discrimination”1105.
803. Despite the fact that as shown in the Counter-Memorial and in the following chapters,
Ukraine fails to show the existence of a “systematic racial discrimination campaign” even
applying its own suggested standards, it must be emphasized that Ukraine’s standards is
incorrect. In this regard it is necessary to make additional observations regarding the
proper methodology that the Court ought to apply in inquiring into the existence of the
“systematic campaign” alleged by Ukraine.
1101 CERD, Article 1(1).
1102 Counter-Memorial (CERD), Chapter II, Section II, Sub-Sections A to C. Evidently, Ukraine must also
demonstrate that the acts it complains of are attributable to the Russian Federation (see Counter-Memorial
(CERD), ¶3).
1103 Reply, ¶400.
1104 Ibid.
1105 Ibid., ¶404.
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i. Ukraine Must Demonstrate that the alleged violations amount to a “Systematic
Campaign”
804. It should go without saying that, since Ukraine alleges that the Russian Federation has
engaged in a “systematic campaign of racial discrimination” aimed at the “cultural
erasure” of Tatar and Ukrainian communities in Crimea1106, Ukraine must demonstrate
that Russia’s alleged conduct amounts to a systematic campaign. The Counter-Memorial
explained in this regard that the concept of “systematic campaign” requires, at a
minimum, the showing of a pattern of incidents that repeatedly occur in an organized,
non-accidental manner to achieve a particular goal – in other words, that there must be
identical or analogous breaches of the CERD that are sufficiently interconnected and are
carried out in a planned and deliberate way with the aim of singling out a particular group,
as opposed to isolated incidents or exceptions1107. This interpretation is supported by
Alexey Avtonomov – who served for 17 years (2003-2020) as a member of the CERD
Committee – in his expert report attached to this Rejoinder.1108
805. Ukraine fails to respond to this argument. In fact, it does not even attempt to engage with
Russia’s argumentation on substance, but merely states in the Reply that a “multitude” of
violations of the CERD (or rather allegations), should by itself be enough to draw a
“cumulative conclusion” that a “systematic campaign” took place1109. Ukraine’s expert,
Prof. Fredman, similarly suggests en passant that there is no “need to prove the systematic
nature of a distinction”1110. Nowhere in the Reply does Ukraine address any of the
authorities referred to in the Counter-Memorial in support of the self-evident criteria that
must be met to show the systematic nature of the alleged “systematic campaign”,
including the Court’s 2019 judgment, several decisions of international criminal tribunals,
and the work of the International Law Commission1111.
806. Ukraine’s reluctance to try and prove that a “systematic campaign” exists is remarkable:
it shows once more that Ukraine’s claim under the CERD does not genuinely concern any
1106 Reply, ¶2.
1107 Counter-Memorial (CERD), ¶¶94-96.
1108 Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023, ¶¶22-24 (Annex 18).
1109 Reply, ¶¶400, 404.
1110 Second Fredman Report (Reply, Annex 5), ¶15.
1111 Counter-Memorial (CERD), ¶¶94-96.
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such “systematic campaign”, and that Ukraine artificially constructed its case so as to
overcome the requirement of exhaustion of local remedies concerning alleged individual
instances of racial discrimination that would have been declared inadmissible by the
Court. This attempt to retreat from the original claim (as also defined by the Court in
2019) cannot be accepted. If Ukraine cannot prove the “systematic campaign” it alleges,
then its case cannot stand.
807. Ukraine itself seems to understand the futility of trying to escape the need to prove this
systematic character. Thus, Prof. Fredman, while claiming that Ukraine does not “need
to prove the systematic nature of a distinction”, still admits that the alleged “multiple
violations” must be “viewed in the aggregate” and assessed for an “aggregate impact”1112.
This is, however, merely another attempt to obfuscate the real criteria that must be met in
order to show the existence of a “systematic campaign”.
808. The International Law Commission (ILC) has examined in detail the issue of composite
acts as breaches of international obligations. According to Article 15 of the Articles on
State Responsibility, a breach consisting of a composite act is defined as follows:
“The breach of an international obligation by a State through a series of
actions or omissions defined in aggregate as wrongful occurs when the action
or omission occurs which, taken with the other actions or omissions, is
sufficient to constitute the wrongful act”.
809. Furthermore, according to the ILC’s official commentary to this Article:
“Composite acts covered by article 15 are limited to breaches of obligations
which concern some aggregate of conduct and not individual acts as such. In
other words, their focus is ‘a series of acts or omissions defined in aggregate
as wrongful’. Examples include the obligations concerning genocide,
apartheid or crimes against humanity, systematic acts of racial discrimination,
systematic acts of discrimination prohibited by a trade agreement, etc. …
Only after a series of actions or omissions takes place will the composite act
be revealed, not merely as a succession of isolated acts, but as a composite
act, i.e. an act defined in aggregate as wrongful.”1113
810. This definition of a composite act must be read together with the manner in which
international criminal tribunals have applied and developed the term “systematic” in cases
1112 Second Fredman Report (Reply, Annex 5), ¶¶14-15.
1113 UN International Law Commission, Yearbook of the International Law Commission 2001, vol. II, Part Two,
A/CN.4/SER.A/2001/Add.1 (Part 2), pp. 62-63, ¶¶2, 7.
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concerning crimes against humanity1114. Established jurisprudence leaves no doubt that
“systematic” means: an act that is “massive, frequent, carried out collectively with
considerable seriousness and directed against a large number of civilian victims”1115; “a
widespread attack targeting a large number of victims generally relies on some form of
planning or organization”1116; “[t]he existence of an acknowledged policy targeting a
particular community, the establishment of parallel institutions meant to implement this
policy, the involvement of high-level political or military authorities, the employment of
considerable financial, military or other resources and the scale or the repeated,
unchanging and continuous nature of the violence committed against a particular civilian
population are among the factors which may demonstrate the widespread or systematic
nature of an attack”1117; crimes against humanity “imply crimes of a collective nature and
thus exclude single or isolated acts …” 1118 ; “‘systematic’ emphasizes the organised
character of the acts of violence and the improbability of their random occurrence. Thus,
it is in the ‘patterns’ of the crimes, in the sense of the deliberate, regular repetition of
similar criminal conduct that one discerns their systematic character”1119.
811. All these elements must be taken into account when assessing Ukraine’s claim. Since the
alleged “systematic racial discrimination campaign” would constitute a breach consisting
a composite act in the sense of Article 15 of the ILC Articles on State Responsibility,
Ukraine must show that there is an “aggregate conduct” in breach of the CERD, and not
merely a “succession of isolated acts”. Furthermore, since the present case is limited to
determining whether Russia’s alleged conduct is one of a “systematic campaign”, Ukraine
1114 See also, Counter-Memorial (CERD) ¶94, fn. 183, 185. Although the present case does not concern crimes
against humanity, but an alleged “systematic racial discrimination campaign”, relying on this jurisprudence is
appropriate since tribunals have generally interpreted the term “systematic” following its ordinary, common-sense
meaning. As noted above, the International Law Commission also put crimes against humanity and “systemic acts
of racial discrimination” on the same footing as regards breaches consisting of composite acts.
1115 ICTY, Prosecutor v. Ruto, Koshey and Sang, “Decision on the Confirmation of Charges Pursuant to Article
61(7)(a) and (b)of the Rome Statute”, PTC II, ICC-01/09-01/11, 23 January 2012, ¶176.
1116 ICTY, Prosecutor v. Blaškić, IT-95-14-T, Judgment, 3 March 2000, ¶207.
1117 ICTY, Prosecutor v. Jelisić, IT-95-10-T, Judgment, 14 December 1999, ¶53.
1118 ICTY, Prosecutor v. Tadić, IT-94-1-T, Judgment, 7 May 1999, ¶644.
1119 ICTY, Prosecutor v. Prlić, IT-04-74-T, Judgment, 29 May 2013, ¶41. See also ICTY, Prosecutor v. Jovica
StanišićStanišić and Franko Simatović, IT-03-69-T, Judgment, 30 May 2013, ¶963 (“‘Systematic’ refers to the
‘organized nature of the acts of violence’”); ICTR, Prosecutor v. Augustin Ndindiliyimana, François-Xavier
Nzuwonemeye and Innocent Sagahutu, ICTR-00-56-A, Judgment, 11 February 2014, ¶260 (“…the term
‘systematic’ refers to ‘the organised nature of the acts of violence and the improbability of their random
occurrence”).
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must also demonstrate that such conduct has occurred in a “planned” or “organised”
manner, or that there is a “pattern” in the sense that the conduct is “deliberate” and
“regular”. Since Ukraine does not make the minimum effort to meet these criteria
(unsurprisingly, because its allegations are simply false), its claim under the CERD must
be rejected.
ii. To Prove the Alleged “Systematic Campaign”, and Also to Conform to its Own
Allegations and the 2019 Judgement, Ukraine Must Demonstrate a Purpose or
Intent to Target Crimean Tatar and Ukrainian Communities
812. Ukraine also disagrees that demonstrating a purpose or intent to target or single out
Crimean Tatar and Ukrainian communities is a relevant criterion to prove the existence
of the alleged “systematic racial discrimination campaign”. It refers in this connection to
Article 1 of the CERD, which stipulates that racial discrimination encompasses any
distinction, exclusion, restriction or preference based on a prohibited ground, which has
the “purpose or effect” of impairing or nullifying certain rights1120. Thus, according to
Ukraine, the Court does not need to establish a specific purpose or intent to engage in
racial discrimination, and can rely instead on an alleged effect, even if Ukraine’s claim
concerns a “systematic campaign” in the context of a “regime of racial
discrimination”1121, and even if the case passed the preliminary objections phase in view
of such character of the case.
813. It is clear that Ukraine deliberately misses the point, as it is inconceivable that one may
allege the existence of a “systematic racial discrimination campaign”– as opposed to
isolated and unconnected instances of racial discrimination – without demonstrating a
purpose or intent; precisely this intent is inherent to the notion of a “systematic
campaign”1122. By suggesting that purpose or intent are irrelevant, Ukraine concedes that
it cannot make out its case. In effect it also deprives its original claim of any meaningful
content and seeks considerably to transform it: indeed, to maintain that a “systematic
1120 Reply, ¶¶401-402; Counter-Memorial (CERD), ¶¶99-102.
1121 Reply, ¶2.
1122 Counter-Memorial (CERD), ¶¶99-102. The Cambridge Dictionary defines a “campaign” as “a planned group
of especially political, business or military activities that are intended to achieve a particular aim” (available at:
https://dictionary.cambridge.org/dictionary/english/campaign). Similarly, the Oxford Dictionary defines the term
as "a series of planned activities that are intended to achieve a particular social, commercial or political aim”
(available at: https://www.oxfordlearnersdictionaries.com/definition/english/campaign_1).
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campaign” of racial discrimination may occur without there being an intent to
discriminate systematically, or that such purpose does not need to be proved, amounts to
conflating an actual “systematic racial discrimination campaign” with alleged individual
breaches of the CERD.
814. If, as Ukraine claims, there is no real difference between such a “systematic campaign”
and a collection of isolated incidents, then there would have been no reason to set aside
admissibility requirements, notably the exhaustion of local remedies. As Ukraine has
already benefited from this by not being obligated to prove such exhaustion of remedies
at the jurisdictional phase, its current position is nothing more than a blatant attempt to
“have its cake and eat it too”.
815. In an attempt to reconcile the irreconcilable contradictions of its case, Ukraine suggests
that “the fact that a policy can be shown to have a discriminatory effect does not preclude
the possibility that discrimination was the intent all along … when a multitude of policies
and measures are shown to have a discriminatory effect — as in this case — an inference
of intent becomes more plausible”1123. However, what Ukraine forgets to mention is that
its case is not about a “multitude of policies” that have an unintended discriminatory
effect, but rather about “a systematic policy of racial discrimination” 1124 aimed at
nullifying or impairing the rights of Tatar and Ukrainian communities as such, which
means that racial discrimination must be the goal of such a policy. Ukraine did not even
begin to (and obviously cannot) prove this.
816. To be sure, Ukraine does not seem to argue that purpose or intent are completely
irrelevant in the present case. Having run out of perfunctory arguments, it makes a final
appeal, as noted above, that there was intent behind Russia’s alleged “systematic racial
discrimination campaign”. Once again, however, Ukraine does not produce any tangible
proof – saying instead that it is “plausible” to “infer” intent from discrete, isolated and
unconnected alleged individual violations to which local remedies were not applied.
Following the Court’s standard of proof in cases of extreme accusations like the one
advanced by Ukraine (“fully conclusive” evidence), such “plausible inference” is wholly
improper and must accordingly be rejected.
1123 Reply, ¶403.
1124 See also Memorial, ¶¶27, 341, 347, 388, 389, 392, and 587.
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817. It appears that the main reason why Ukraine seeks to evade the question of purpose or
intent is that it finds it, in its own words, “difficult to prove”1125. In this regard it seeks
support from an article that takes issue with the United States’ system of protection from
discrimination, which requires proof of intent for a case of discrimination to succeed
before its own national courts1126. Another article that Ukraine attempts to rely on in
support of its thesis, however, clearly disagrees with this point and states, with regard to
“purposeful discrimination”, that “[w]hen distinctions are made on the explicit basis of
race, a violation of the Convention can often be established without great difficulty”1127.
Indeed, when a real “systematic racial discrimination campaign” takes place it is rather
easy to distinguish, as can be seen from historical examples of policies of discrimination
such as the apartheid regime in South Africa and the antisemitic and racist regime of Nazi
Germany. Needless to say, the Russian Federation, a strong supporter of the Convention
from its very inception, has never engaged, nor will it ever engage, in such egregious
conduct.
818. It was Ukraine itself that initiated the present proceedings by alleging the existence of a
“systematic campaign of racial discrimination”, which it considered to be “undoubtedly
serious in nature”1128. It must not be allowed then to ask the Court to determine such an
alleged violation of the Convention in the absence of sufficient proof. Quite the opposite,
Ukraine’s attempt unduly to lower the standard of proof that must be met should be
rejected in no uncertain terms.
819. Ukraine’s reliance on the Second Expert Report by Prof. Fredman to avoid proving the
purpose or intent required for a “systematic racial discrimination campaign” is also of no
1125 Reply, ¶403.
1126 A. Daniel, The Intent Doctrine and CERD: How the United States Fails to Meet its International Obligations
in Racial Discrimination Jurisprudence, in DePaul Journal for Social Justice, Vol. 4(2) (2011), pp. 263-312.
1127 T. Meron, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial
Discrimination, in American Journal of International Law, Vol. 72(2) (1985), p. 287. Meron further noted that:
“An authoritative commentator has described purpose as the subjective test, and effect as the objective test of
discrimination, implying perhaps that the latter is more easily applied. Yet, depending upon the quantity and the
quality of the data required, discriminatory effect may be very difficult to establish, e.g., when it is attributed to
the impact of economic policies and practices on ethnic groups that are already economically disadvantaged, or
when the discriminatory aspects of social and cultural practices may be explained by other factors (such as
religion). Information sufficiently detailed to support findings of violations in such cases will not always be
available” (Ibid).
1128 Reply, ¶405.
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avail 1129 . The Report refers to the A.W.R.A.P. v. Denmark Opinion of the CERD
Committee1130, and states that it is irrelevant because it “was a complaint under Article
4(a) of the Convention” and “was therefore not an effects-based claim, but one based on
purpose”1131. The Russian Federation does not put forward the “proposition that in all
cases, the applicant must prove an intent to specifically and directly target a particular
community”1132, as the Report suggests – but it does insist that purpose or intent must be
shown when the allegation is one of a “systematic racial discrimination campaign”. In
fact, A.W.R.A.P. v. Denmark well illustrates the point that “purpose” is a factor that must
be taken into account when the nature of the claim so demands, such as in the present
case 1133 . Crucially, however, the A.W.R.A.P case does not concern a “systematic
campaign of racial discrimination”, and was only submitted to the CERD Committee after
the applicant exhausted domestic remedies, which makes Prof. Fredman’s expostulations
on this case of no help to Ukraine.
820. Furthermore, if Ukraine’s position was correct, the CERD Committee would have
disregarded the fact that the contested statement in that case was against Muslims and
would have found that, despite this fact, the statement produced an unjustifiable
disproportionate effect on Arabs as an ethnic group that constitutes the majority of
Muslims in Denmark. However, the Committee rather paid attention to the fact that Arabs
as an ethnic group were not targeted by the statement as such.
821. The Second Expert Report by Prof. Fredman further states that “[i]n its Opinions in
individual complaints, the CERD Committee has regularly affirmed in particular that
‘presumed victims of racial discrimination are not required to show that there was
1129 Reply, ¶405 and Annex 5.
1130 Counter-Memorial (CERD), ¶93; UN Committee on the Elimination of Racial Discrimination, A.W.R.A.P. v.
Denmark, Communication No. 37/2006, CERD/C/71/D/37/2006, 8 August 2007.
1131 Second Fredman Report (Reply, Annex 5), ¶16.
1132 Ibid., ¶17.
1133 UN Committee on the Elimination of Racial Discrimination, A.W.R.A.P. v. Denmark, Communication No.
37/2006, CERD/C/71/D/37/2006, 8 August 2007, ¶6.2 (The Committee observes … that the impugned statements
specifically refer to the Koran, to Islam and to Muslims in general, without any reference whatsoever to any race,
colour, descent, or national or ethnic origin. While the elements of the case file do not allow the Committee to
analyse and ascertain the intention of the impugned statements, it remains that no specific national or ethnic
groups were directly targeted as such by these oral statements as reported and printed. In fact, the Committee
notes that the Muslims currently living in the State party are of heterogeneous origin. They originate from at least
15 different countries, are of diverse national and ethnic origins, and consist of non-citizens, and Danish citizens,
including Danish converts” [Emphasis added].
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discriminatory intent against them’” 1134 . However, the Report merely refers to two
opinions1135 in that are entirely extraneous to the present proceedings as they concerned
cases that: (a) were brought before the Committee after the exhaustion of local remedies;
(b) dealt with the right to equal access to employment and effective remedies in that
context; and (c) did not allege a “campaign of racial discrimination”, but individual
violations1136 . Thus, these examples are of no aid to Ukraine in demonstrating that
purpose or intent are irrelevant when a claim concerns an alleged “systematic racial
discrimination campaign”.
iii. Ukraine Must Show a Differentiation in Treatment that Creates an Unjustifiable
Disparate Impact
822. The Russian Federation conclusively showed in the Counter-Memorial that a
“differentiation of treatment” must be established alongside an “unjustifiable disparate
impact”. In this regard, a comparability test must be applied to establish that the measures
complained of by Ukraine show a “distinction, exclusion, restriction or preference based
on race, colour, descent, or national or ethnic original” that have had a disproportionate
effect on Tatar and Ukrainian communities when compared with other groups1137. These
criteria must all the more be properly applied in the present case, where Ukraine alleges
the existence of a “systematic racial discrimination campaign”.
823. Ukraine does not contest that it falls upon it to demonstrate the existence of a
disproportionate or disparate impact on Tatar and Ukrainian communities1138. However,
it disagrees with the Russian Federation on two issues: first, the methodology that must
be applied to determine that such disproportionate impact exists (notably by suggesting
that it is not required to produce reliable statistical data); second, and, whether a
differentiation of treatment must be established at all.
1134 Second Fredman Report (Reply, Annex 5), ¶9.
1135 See also Reply, ¶402.
1136 UN Committee on the Elimination of Racial Discrimination, V.S. v. Slovakia, Communication No. 56/2014,
CERD/C/88/D/56/2014, 4 December 2015, ¶7.4; UN Committee on the Elimination of Racial Discrimination,
Gabaroum v. France, Communication No. 52/2012, CERD/C/89/D/52/2012, 10 May 2016, ¶7.2.
1137 Counter-Memorial (CERD), ¶¶97-98.
1138 Second Fredman Report (Reply, Annex 5), ¶8 (“To establish a breach of the CERD therefore requires a
showing either of purpose or of unjustifiable disparate on a protected group”), and ¶19 (“Ukraine is required to
show only the existence of a practice or policy that has a disparate impact on, or disproportionately disadvantages,
a racial group”).
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824. As regards differentiation of treatment, Ukraine suggests that it is not required to prove it
in any manner, 1139 at least “regarding effects-based discrimination claims. 1140 Thus,
according to Ukraine, it would somehow suffice for it to argue that certain measures
adopted by Russian authorities have an unjustifiable disparate impact on Tatar and
Ukrainian communities, without the need to evidence a differentiation of treatment giving
rise to the latter.
825. Ukraine’s continued insistence on an obviously groundless claim challenging this basic
criterion is baffling. Indeed, not only multiple scholars agree that differentiation of
treatment is a necessary condition of racial discrimination under the CERD1141, but it is
evident even from the plain text of the definition in Article 1(1) of the Convention,
according to which “the term ‘racial discrimination’ shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin …”
[Emphasis added]. Differentiation in treatment is not only an integral part of the definition
of discrimination but lies at the heart of the Convention’s object and purpose, reflected at
the very beginning of its preamble by the maxim “that everyone is entitled to all the rights
and freedoms set out therein, without distinction of any kind”. That Ukraine seeks to erase
this fundamental tenet of the Convention speaks volumes about the inability to prove its
claims.
826. The understanding that the Convention covers only acts that constitute difference in
treatment based on national or ethnic origin, race, colour, or descent, is clearly reflected
in doctrine. According to the authoritative commentary of the CERD by Prof. Lerner:
“According to paragraph 1, four kinds of acts are, in given circumstances,
considered discriminatory: any distinction, exclusion, restriction or
preference. There were some doubts with regard to the use of words
indicating discrimination, and there were proposals to include in the
definition words as ‘differentiation,’ ‘limitation’ and ‘ban on access.’ It was
agreed finally that the four mentioned terms would cover all aspects of
discrimination which should be taken into account …
In order that any of those four acts be considered discriminatory, two
conditions are necessary:
1. that they should be based on (a) race, (b) colour, (c) descent, (d) national
1139 Second Fredman Report (Reply, Annex 5), ¶¶18-19.
1140 Ibid., ¶19.
1141 Counter-Memorial (CERD), ¶97.
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origin or (e) ethnic origin;
2. that they should have the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human rights
and fundamental freedoms in the political, economic, social, cultural or any
other field of public life”1142.
827. As has been demonstrated in the Counter-Memorial, Ukraine “must identify an
appropriate comparator” and establish that the Russian Federation has adopted measures
which discriminate against Crimean Tatar and Ukrainian communities as compared to
persons of other ethnic origin that find themselves in a similar situation. Ukraine must
conduct a genuine comparative exercise in respect of each allegation in order to establish
the existence of an unjustified differential treatment in comparison with the rest of the
population or other relevant sections thereof in comparable circumstances1143.
828. It is clear, therefore, that a mere effect or negative impact on human rights, without the
act of distinction based on a prohibited ground, is not sufficient to constitute an act of
discrimination under the Convention. This is further supported by the Court’s decision in
Qatar v. UAE, where the Court emphasized that for discrimination to exist, it must arise
from a “restriction”1144.
829. In a futile effort to shore up Ukraine’s far-fetched claim, Prof. Fredman offers a truncated
quote from General Recommendation 14 of the CERD Committee taken out of
context.1145 The entire relevant part of General Recommendation 14 reads as follows:
“A distinction is contrary to the Convention if it has either the purpose or the
effect of impairing particular rights and freedoms … The Committee observes
that a differentiation of treatment will not constitute discrimination if the
criteria for such differentiation, judged against the objectives and purposes of
the Convention, are legitimate or fall within the scope of article 1, paragraph
4, of the Convention. In considering the criteria that may have been
employed, the Committee will acknowledge that particular actions may have
varied purposes. In seeking to determine whether an action has an effect
contrary to the Convention, it will look to see whether that action has an
1142 N. Lerner, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (Brill,
2015), p. 33.
1143 Counter-Memorial (CERD), ¶97.
1144 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, pp. 108-109,
¶112
1145 Second Fredman Report (Reply, Annex 5), ¶18.
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unjustifiable disparate impact upon a group distinguished by race, colour,
descent, or national or ethnic origin”1146. [Emphasis added]
830. Nothing in this paragraph indicates that differentiation of treatment is not a necessary
condition for establishing racial discrimination. On the contrary, the plain text of General
Recommendation 14 clearly shows that the Committee viewed distinction/differentiation
of treatment as a necessary element of a violation, regardless of whether the
discrimination is based on purpose or effect. The term “action” is likewise used by the
Committee with respect to discrimination based on both purpose and on effect. This
soundly disproves Prof. Fredman’s assertion that the last sentence of the
Recommendation somehow indicates a special rule for effect-based discrimination not
requiring differentiation in treatment.
831. The Russian Federation recalls that the Court itself in its 2019 judgment on jurisdiction
stated that “[i]t is the Applicant’s position that these measures were principally aimed
against the ethnic groups of Crimean Tatar and Ukrainian communities” 1147 . The
existence of differential treatment towards Crimean Tartars and Ukrainians in Crimea was
thus considered to lie at the core of Ukraine’s claim that was deemed admissible.
832. Finally, as regards the criterion of “unjustifiable disparate impact”, Ukraine does not
disagree with, but questions the methodology that must be applied to show that it has been
met as noted above. In this regard Ukraine admits that “statistical data have been
important in the work and practice of the CERD Committee”1148, but at the same time
maintains that it is “entitled to rely on non-statistical evidence to support its claims”1149.
This cannot be right in the present case, where Ukraine’s manifest inability to produce
relevant statistical data speaks volumes1150. The simple truth is that such statistical data
does not exist because there is no “systematic racial discrimination campaign” against
1146 UN Committee on the Elimination of Racial Discrimination, General Recommendation 14, Definition of
Racial Discrimination (Forty-second session, 1993), U.N. Doc. A/48/18 at 114 (1994), ¶2 (Memorial, Annex 788).
1147 Judgment of 8 November 2019, ¶88.
1148 Reply, ¶422.
1149 Ibid., ¶¶420-424.
1150 See also P. Thornberry, “Article 1: Definition of Racial Discrimination”, in P. Thornberry, THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION:ACOMMENTARY
(OUP, 2016), p. 116 (“While the Committee has not provided States parties with elaborate guidance on the
evidence to demonstrate the presence of indirect – or structural – discrimination, general group-based data are
regularly called for, as well as scrutiny of the overall circumstances of particularly vulnerable groups, or in relation
to specific policies”).
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Crimean Tatar and Ukrainian communities in the Russian Federation. In the absence of
any credible evidence that the latter have suffered a disparate or disproportionate impact
by virtue of the measures complained of, Ukraine’s claim must be dismissed.
833. In effect, Ukraine is seeking to prove a case of “a systematic policy of racial
discrimination” in the absence of any solid evidence of such policy whatsoever:
(a) without referring to any legislation that is discriminatory in nature,
(b) without proving any other measurable difference in treatment (and even denying
the need to show differential treatment altogether);
(c) without any evidence of discriminatory intent (and even denying that such intent is
necessary);
(d) without these measures being tested by local remedies (and building its entire case
around denying the need to exhaust such remedies);
(e) without presenting statistical data that show any disproportionate effect of any of
the measures complained (and denying the need for such statistics in order to prove
the systematic character of discrimination);
(f) without proving that isolated incidents form a pattern of conduct or a composite act;
and
(g) by denying the possibility of an objective justification for any incident.
834. It seems Ukraine is convinced that its goal may be achieved by claiming that a few
isolated alleged events that – in Ukraine’s subjective view, not based on any objective
data – disproportionately affect Crimean Tatar and Ukrainian communities are
tantamount to an actual “systematic racial discrimination campaign” designed the Russian
Federation. The Russian Federation, in turn, is convinced that this approach is not
sustainable in fact and in law, and must firmly be rejected by the Court.
iv. Ukraine’s Claims Must be Proved by Evidence That is Fully Conclusive
835. The Russian Federation further noted in the Counter-Memorial that, due to the gravity of
Ukraine’s claim – a “systematic racial discrimination campaign” in violation of the
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CERD, conduct that would indubitably constitute a serious breach – Ukraine has to
provide evidence that is nothing but fully conclusive. As the Court noted in the Bosnia
Genocide case:
“The Court has long recognized that claims against a State involving charges
of exceptional gravity must be proved by evidence that is fully conclusive …
The Court requires that it be fully convinced that allegations made in the
proceedings, that the crime of genocide or the other acts enumerated in Article
III have been committed, have been clearly established. The same standard
applies to the proof of attribution for such acts.”1151
836. The same standard of proof applies in the present case, and it is one that Ukraine has to
meet.
C. UKRAINE’S RECASTING OF THE CASE AS CONCERNING “INDIRECT DISCRIMINATION”
IS INADMISSIBLE AND WITHOUT MERIT
837. The Counter-Memorial thoroughly demonstrated that the measures of which Ukraine
complains cannot constitute racial discrimination, nor evidence a “systematic racial
discrimination campaign”. Having failed to prove otherwise, the Reply appears to attempt
to reformulate Ukraine’s original claim and suggests that the actions of the Russian
Federation are unlawful because they amount to “indirect discrimination” 1152 . This
attempt by Ukraine to recast the implausible case it brought before the Court ought to be
dismissed.
838. At the outset, it must once again be recalled that Ukraine came to the Court with
accusations of extreme gravity. In the Application, Ukraine maintained that, as a
“collective punishment” against “non-Russian communities in the Crimean peninsula”
who refused to “accept the illegal occupation”, the Russian Federation allegedly
“mounted a broad-based campaign of cultural erasure through discrimination”1153. It
argued that the Russian Federation “targeted” these communities as such1154, and that it
“determined” that non-Russian communities “should be considered enemies of the
1151Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007, p. 129, ¶ 209.
1152 Reply, ¶¶401-403, 421, and 619.
1153 Application instituting proceedings, ¶¶13-14.
1154 Ibid., ¶¶13, 133.
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Russian régime” 1155 . Similarly, in the Memorial, Ukraine stated that the Russian
Federation “seeks to entrench Russian dominance [in Crimea] and to erase the competing
cultural claims of the Crimean and Tatar and Ukrainian communities”1156. This “goal”, in
Ukraine’s own words, was pursued in accordance with a “two-part strategy” selectively
targeting such communities1157. The Memorial added that “[t]he desired end result is as
transparent as it is abhorrent to the multi-ethnic heritage of Crimea: the cultural erasure
of the Crimean Tatar and Ukrainian communities on the peninsula”1158. Thus, both in the
Application and the Memorial Ukraine accused the Russian Federation of direct
discrimination, with a specific intent to target Tatar and Ukrainian communities, as part
of a “systematic racial discrimination campaign”.
839. There is no doubt at the present stage of the proceedings that Ukraine has been unable to
establish the facts that could sustain such meritless rhetoric. Yet Ukraine’s recasting of
its case as one concerning indirect discrimination is manifestly at odds with Ukraine’s
original claim of a “systematic racial discrimination campaign”. As explained in Section
II above, such a “systematic campaign” cannot be an accidental occurrence – it
necessarily has to take place with a specific intent or purpose. In trying to justify the
existence of a “systematic campaign” by relying on a small number of alleged instances
of “indirect discrimination”, Ukraine effectively concedes that it cannot prove that there
is any intent or purpose to discriminate against Tatar and Ukrainian communities on the
part of the Russian Federation. This late strategy moreover seeks to circumvent yet again
the Court’s 2019 judgment by putting forward individual claims that are unrelated to the
alleged “campaign” and are inadmissible because of the non-exhaustion of local
remedies1159. Thus, Ukraine arguments must be rejected.
840. However, even if against all odds Ukraine’s démarche were to be allowed, it would not
suffice for Ukraine to insist that a “systematic racial discrimination campaign” occurred
1155 Ibid., ¶81.
1156 Memorial, ¶346.
1157 Ibid.
1158 Ibid.
1159 It ought to be noted that neither indirect discrimination nor direct discrimination were argued by the persons
concerned in any of the procedures initiated at the domestic level in relation to the measures that Ukraine complains
of in the present case.
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merely because some measures allegedly may have “collateral or secondary effects” on
Crimean Tatars and Ukrainians.
a. “Indirect Discrimination” as Defined by Ukraine is Not Covered by the CERD
841. For the purposes of definition, Ukraine relies on the opinion of Prof. Fredman, who
defines “indirect discrimination” as follows:
“Indirect discrimination recognizes that equal treatment which has a
disproportionate effect on a group defined by the enumerated grounds is itself
discriminatory. Indirect discrimination or disparate impact focuses on
inequality of results rather than inequality of treatment” 1160 .[Emphasis
added]
842. Equal treatment, however, does not fall within the Convention’s definition of racial
discrimination, which, as was shown previously, hinges upon differential treatment, i.e.,
a “distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin”1161. In other words, “equal treatment” cannot constitute racial
discrimination. This also transpires from the preamble of the Convention, which focuses
on guaranteeing “equal rights”, “equal protection before the law” and “enjoyment of the
same rights without distinction”. The same approach is enshrined in Article 5 of the
Convention, where the fundamental obligations of States Parties are set out as follows:
“In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before
the law”. [Emphasis added]
843. In contrast to the plain text of the CERD, Ukraine’s notion of “indirect discrimination”
goes as far as to demand unequal treatment in order to achieve “equality of result” –
which is directly opposed to “equality of treatment” or an ordinary reading of “equality
before the law”. As Prof. Fredman has explained elsewhere:
“An alternative conception [sic] of equality, therefore, is based on a more
substantive view of justice, which concentrates on correcting maldistribution.
Such a principle would lead to a focus on equality of results, requiring
unequal treatment if necessary to achieve an equal impact”1162;
1160 Memorial, Annex 22, p. 22, ¶53.
1161 See above, Chapter III(B)(iii).
1162 S. Fredman, DISCRIMINATION LAW, 2nd ed. ((OUP, 2011), p. 2.
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“… formal equality assumes that the aim is identical treatment. Yet, as we
have seen, where there is antecedent inequality, ‘like’ treatment may in
practice entrench difference. Thus unequal treatment may be necessary to
achieve genuine equality”.1163
844. However, the Convention does not demand “unequal treatment”. While it recognizes in
Article 1(4) the possibility of “positive discrimination”, adopting such measures is not an
obligation of States Parties (with the narrow exception set out in Article 2(2), which
Ukraine does not accuse Russia of violating). The Convention envisages that “special
measures” may be undertaken by carving out an exception limited both materially and
temporally. Article 1(4) reads:
“Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall
not be deemed racial discrimination, provided, however, that such measures
do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the objectives
for which they were taken have been achieved”
b. The concept of “indirect discrimination” as advanced by Ukraine, however, implies a
permanent regime of separate rights for different racial groups, as “true equality”
would never be achieved
845. In support of its claims, Ukraine refers to the Permanent Court’s 1935 advisory opinion
on Minority Schools in Albania, claiming that there “[a]n argument based on equality of
treatment, similar to that now advanced by Russia, was rejected”, and that “[t]he PCIJ
recognized… that such formal equality in law could disguise actual discrimination where
the majority and minority were not similarly situated”1164.
846. This reference is mistaken for a range of reasons, which are also examined below.1165 It
is nonetheless necessary to highlight a fatal flaw in Ukraine’s position: the PCIJ did not
recognize that equal treatment constitutes discrimination, as Ukraine suggests. On the
contrary, the Court expressly stated that equal treatment (or “equality in law”) “precludes
discrimination of every kind”. 1166 The relevant equal treatment provision that was
1163 Ibid., p. 13.
1164 Reply, ¶674.
1165 See below, Chapter V(A).
1166 PCIJ, Minority Schools in Albania, Advisory Opinion, 6 April 1935, P.C.I.J. Rep. Series A/B – No. 64, p. 19.
Page 324 out of 541
contained in Article 4 of the 1921 Declaration concerning the protection of minorities in
Albania was moreover drafted in terms similar to those of Article 1(1) of the CERD: “All
Albanian nationals shall be equal before the law, and shall enjoy the same civil and
political rights without distinction as to race, language or religion”.
847. The PCIJ considered Article 4 of the Declaration in question to embody the principle of
equality and equal treatment without distinction:
“Article 4 only relates to Albanian nationals and stipulates on their behalf
equality before the law and the enjoyment of the same civil and political
rights, without distinction as to race, language or religion. It also defines
certain of these rights, with the same object of preventing differences of race,
language or religion from becoming a ground of inferiority in law or an
obstacle in fact to the exercise of the rights in question. In all these cases, the
Declaration provides for a régime of legal equality for all persons mentioned
in the clause; in fact no standard of comparison was indicated, and none was
necessary, for at the same time that it provides for equality of treatment the
Declaration specifies the rights which are to be enjoyed equally by all”1167.
848. This wording strongly coincides with the text of the CERD, which in its Preamble also
proclaims:
“… that all human beings are born free and equal in dignity and rights and
that everyone is entitled to all the rights and freedoms set out therein, without
distinction of any kind, in particular as to race, colour or national origin, [and]
that all human beings are equal before the law and are entitled to equal
protection of the law against any discrimination and against any incitement
to discrimination”.
849. The Court interpreted Article 4 as the “anti-discrimination” norm of the Albanian
Declaration: “All Albanian nationals enjoy the equality in law stipulated in Article 4 …
Equality in law precludes discrimination of any kind”1168. In fact, this is the only instance
where the word “discrimination” appears in the advisory opinion.
850. The passage of the advisory opinion to which Ukraine and its expert allude does not
pertain to the “anti-discrimination” provisions of Article 4. Rather, it refers to Article 5
of the Declaration, which related to a special regime for the protection of minorities, and
which does not have a direct counterpart in the CERD. In the view of the Court:
“All Albanian nationals enjoy the equality in law stipulated in Article 4; on
the other hand, the equality between members of the majority and of the
1167 Ibid.
1168 Ibid.
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minority must, according to the terms of Article 5, be an equality in law and
in fact. It is perhaps not easy to define the distinction between the notions of
equality in fact and equality in law … Equality in law precludes
discrimination of any kind; whereas equality in fact may involve the necessity
of different treatment in order to attain a result which establishes an
equilibrium between different situations”.1169
851. The last part of this passage lies at the core of Ukraine’s argument. However, Ukraine
ignores the fact, as noted above, that the PCIJ did not consider equality in law to be
discrimination, but on the contrary to “preclude discrimination of every kind”. The Court
considered “equality in fact” to be something different – a result of differential treatment
aimed at attaining an “equilibrium between different situations”. This followed from a
separate provision related not to the prohibition of discrimination, but to the establishment
of a special regime for the protection of minorities.
852. In the Court’s view, therefore, the prohibition of discrimination under the 1921
Declaration only entailed guarantee of equal treatment – not a special preferential regime
based on unequal treatment. The argument only arose in respect of a different provision
– Article 5 aimed at the special protection of the Albanian minority with special rights in
education, as opposed to a general non-discrimination clause.
853. This is confirmed by other decisions of PCIJ of the same period and on the same subject.
For instance, in Treatment of Polish nationals and other persons of Polish origin or
speech in the Danzig territory, the Court was called upon to interpret a similar antidiscrimination
provision (Article 104(5) of the Treaty of Versailles, which read: “to
provide against any discrimination within the Free City of Danzig to the detriment of
citizens of Poland and other persons of Polish origin or speech”). The Court held:
“The Polish interpretation would result in granting national and, in certain
respects, also minority treatment. In the Court's opinion, however, the object
of the prohibition [against any discrimination] is to prevent any unfavourable
treatment, and not to grant a special régime of privileged
treatment”1170...[Emphasis added]
854. As a result, the Court concluded that the anti-discrimination rule set out in Article 104(5)
was “purely of negative character” and limited to the prohibition of “differential treatment
1169 Ibid.
1170 PCIJ, Treatment of Polish nationals and other persons of Polish origin or speech in the Danzig territory,
Advisory Opinion, 4 February 1932, PCIJ Series A/B. No 44, p. 29.
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to their detriment on the ground of their Polish allegiance, origin or speech” (as opposed
to “privileged treatment”)1171. In particular, the Court did not support Poland’s claim that
Polish citizens and persons of Polish origin and speech were entitled, on antidiscrimination
grounds, to education in their mother-tongue in Danzig – a special right
provided to Danzig citizens of Polish origin by the Convention of Paris.
855. There is nothing in the CERD’s definition of racial discrimination that indicates a
perception of discrimination different from the view of the PCIJ – namely, an “equality
before the law” “without distinction based on race” which “precludes discrimination of
every kind”. The CERD also reflects the concerns of the minority judges in Albanian
Schools in the sense that it regulates differential treatment – and only differential
treatment – as constitutive of discrimination, without any sweeping obligations to
maintain an “equilibrium”.
856. This is confirmed by the preparatory work of the CERD, ICCPR and Universal
Declaration on Human Rights, where it became apparent that there is a fundamental
difference between non-discrimination (ensured through equal treatment) and special
measures aimed at providing additional support to minorities.
857. At its first session in 1947, the UN Sub-Commission on the Prevention of Discrimination
and the Protection of Minorities discussed the meaning of the terms “prevention of
discrimination” and “protection of minorities” and adopted a decision indicating, for the
benefit of the Commission on Human Rights, the considerations which in its view that
body should take into account in framing provisions to be included either in the Universal
Declaration of Human Rights or in the ICCPR:
“1. Prevention of discrimination is the prevention of any action which denies
to individuals or groups of people equality of treatment which they may wish.
2. Protection of minorities is the protection of non-dominant groups which,
while wishing in general for equality of treatment with the majority, wish for
a measure of differential treatment in order to preserve basic characteristics
which they possess and which distinguish them from the majority of the
population. The protection applies equally to individuals belonging to such
groups and wishing the same protection. It follows that differential treatment
of such groups or individuals belonging to such groups is justified when it is
1171 Ibid., p. 43
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exercised in the interest of their contentment and the welfare of the
community as a whole”1172.
858. The following remarks were contained in a memorandum submitted in 1949 by the UN
Secretary-General, entitled “The Main Types and Causes of Discrimination”:
“The texts adopted by the Sub-Commission indicate the fundamental
difference between the prevention of discrimination and the protection of
minorities. From these texts, it would appear that discrimination implies any
act or conduct which denies to certain individuals equality of treatment with
other individuals because they belong to particular groups in society. To
prevent discrimination, therefore, some means must be found to suppress or
eliminate inequality of treatment which may have harmful results, aiming at
the prevention of any act or conduct which implies that an unfavourable
distinction is made between individuals solely because they belong to certain
categories or groups of society. The aim is to prevent any act which might
imply inequality of treatment on grounds of race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status. Thus the prevention of discrimination means the suppression or
prevention of any conduct which denies or restricts a person’s right to
equality.
The protection of minorities, on the other hand, although similarly inspired
by the principle of equality of treatment of all peoples, requires positive
action: concrete service is rendered to the minority group, such as the
establishment of schools in which education is given in the native tongue of
the members of the group. Such measures are of course also inspired by the
principle of equality: for example, if a child receives its education in a
language which is not its mother tongue, this might imply that the child is not
treated on an equal basis with those children who do receive their education
in their mother tongue. The protection of minorities therefore requires
positive action to safeguard the rights of the minority group, provided of
course that the people concerned (their parents in case of children) wish to
maintain their difference of language and culture”.1173
859. Francesco Capotorti, member of the Sub-Commission who took an active part in
elaboration of the CERD, thus summarized this difference:
“The two concepts are distinct in the sense that the concept of equality and
non-discrimination implies a formal guarantee of uniform treatment for all
individuals — who must be ensured the enjoyment of the same rights and
accept the same obligations” – whereas the concept of protection of minorities
1172 UN Commission on Human Rights, Report submitted to the Commission on Human Rights, 6 December 1947,
E/CN.4/52, sect. V.
1173 UN Secretary-General, The Main Types and Causes of Discrimination, Memorandum, 1949, United Nations
publication, Sales No. 49.XIV.3, ¶¶6-7.
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implies special measures in favour of members of a minority group”1174.
[Emphasis added]
860. This distinction between prohibition of discrimination (by guaranteeing equal treatment)
and protection of minorities (by adopting special measures in their favour which are not
considered discrimination), which follows the spirit of the Albanian Schools case with
regard to Articles 4 and 5 of the Albanian Declaration, is likewise reflected in the CERD.
As already noted, apart from the prohibition of discrimination, the Convention also
contains provisions devoted to special treatment of minorities – in particular, its Article
1(4) (permitting “special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such protection”)
and Article 2(2) (requiring States to undertake, “when the circumstances so warrant”, “in
the social, economic, cultural and other fields, special and concrete measures to ensure
the adequate development and protection of certain racial groups or individuals belonging
to them”).
861. However, as noted above, Article 1(4) does not impose an obligation to adopt such
measures: it rather envisages the possibility of undertaking them without breaching the
CERD. As for Article 2(2), it has a limited and specific scope that is not applicable to the
present case. In any event, Ukraine has never alleged any violation by the Russian
Federation of these particular provisions, and the Russian Federation has incidentally
shown that it takes extensive measures in the economic, social, cultural and other fields
to achieve the above-mentioned aims with regard to its national minorities.
862. Still, in an effort to prop up its unsubstantiated and far-reaching claim, Ukraine attempts
to cast the prohibition of “discrimination in effect” as tantamount to an obligation to
provide “equality in fact” (or “different treatment in order to attain a result which
establishes an equilibrium between different situations”). This has no basis in the CERD.
863. The PCIJ already had taken note, in the very case Ukraine relies on, that Article 4 of the
Albanian Declaration, which provides for “equal treatment” or “equality before the law”,
has the “object of preventing differences of race, language or religion from becoming a
ground of inferiority in law or an obstacle in fact to the exercise of the rights in
1174 F. Capotorti, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC
MINORITIES (United Nations publication, Sales No. E.91.XIV.2, 1979), ¶241.
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question”1175 [Emphasis added]. In other words, equal treatment should not be merely
“platonic”, but have an actual effect. It does not, however, in any way require unequal
treatment or “equal end result”– only that the obligation to provide equal treatment is
implemented in practice.
864. This understanding is also supported by the language of the early treaties on minority
protection reviewed by the PCIJ, which used the wording “in legislation or in the conduct
of the administration”1176 in their anti-discrimination provisions. As noted above, the
PCIJ ruled in respect of such a provision that “the object of the prohibition [of
discrimination] is to prevent any unfavourable treatment, and not to grant a special régime
of privileged treatment”.
865. The words “in effect”, contained in Article 1(1) of the CERD, have the same meaning.
As explained by Prof. Lerner:
“The second condition [the first being racial grounds] for making a
distinction, exclusion, restriction or preference a discriminatory act is that
they must (a) have the purpose of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms or (b) have such an effect. In the first case, a subjective
consideration will define the discriminatory nature of the act; in the second,
the objective consequences of the act will be the decisive element”1177.
866. In other words, a “disparity” of results between ethnic groups does not by itself constitute
racial discrimination, unless it is an “objective consequence” of a “distinction, exclusion,
restriction or preference based on race, colour, descent, national origin or ethnic origin”.
While the concept of “indirect discrimination” as advanced by Ukraine simply presumes
that any such “disparity” would in itself constitute racial discrimination, without
examining its causal link to an act of differential treatment on racial grounds.
867. This approach has been confirmed in Qatar v. UAE, where the Court highlighted the
causal link between an act of restriction and an effect of nullifying or impairing human
rights:
1175 PCIJ, Minority Schools in Albania, Advisory Opinion, 6 April 1935, P.C.I.J. Rep. Series A/B No. 64, ¶54.
1176 See, e.g., Article 104, paragraph 1 of the Treaty of Versailles, examined in PCIJ, Treatment of Polish nationals
and other persons of Polish origin or speech in the Danzig territory, Advisory Opinion, 4 February 1932, PCIJ
Series A/B. No 44.
1177 N. Lerner, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (Brill,
2015), p. 35.
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“The Court first observes that, according to the definition of racial
discrimination in Article 1, paragraph 1, of CERD, a restriction may
constitute racial discrimination if it “has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of
human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life”. Thus, the Convention prohibits all
forms and manifestations of racial discrimination, whether arising from the
purpose of a given restriction or from its effect”1178.
868. The Court then held that, because the restrictions in question were not based on Qatari
national origin, but on Qatari nationality, any “collateral or secondary effects” they might
have on “persons born in Qatar or of Qatari parents” do not constitute racial
discrimination under CERD:
“In the present case, while the measures based on current Qatari nationality
may have collateral or secondary effects on persons born in Qatar or of Qatari
parents, or on family members of Qatari citizens residing in the UAE, this
does not constitute racial discrimination within the meaning of the
Convention. In the Court’s view, the various measures of which Qatar
complains do not, either by their purpose or by their effect, give rise to racial
discrimination against Qataris as a distinct social group on the basis of their
national origin”1179.
869. This judgment was rightfully perceived as a rebuff of the far-reaching notion of “indirect
discrimination”, where any disparity between racial groups is considered racial
discrimination by default, without any consideration of whether the disparity was caused
by a distinction, exclusion, restriction or preference on racial grounds.1180
870. As shown in Section II above, General Recommendation 14 of the CERD Committee
further confirms that difference in treatment (or “distinction”) is a necessary element of
the definition of racial discrimination. Without actual differential treatment,
discrimination in contravention of the CERD cannot exist1181.
871. In truth, Ukraine seeks to conflate discrimination “in effect”, arising from the effect of
laws rather than the purpose behind these laws, with a situation when no actual difference
1178 Application Of The International Convention On The Elimination Of All Forms Of Racial Discrimination
(Qatar V. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, pp.
108-109, ¶112.
1179 Ibid.
1180 See, e.g., Application Of The International Convention On The Elimination Of All Forms Of Racial
Discrimination (Qatar V. United Arab Emirates), Preliminary Objections, Separate Opinion of Judge Iwasawa, 4
February 2021, I.C.J. Reports 2021, p. 157.
1181 See above, Chapter III(B)(iii).
Page 331 out of 541
in treatment exists, i.e. everyone is treated equally, but – for some other reason than a
difference in treatment – a disparity nevertheless arises. Without going into the depths of
various concepts of “social justice”, it suffices to say that the CERD does not cover these
eventualities, for the simple reason that it only concerns situations when there is a
“distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin”.
872. Even if indirect discrimination was applicable to the present case (quod non), Ukraine
would still need to demonstrate that the measures it complains constitute a differential
treatment directly targeted or singled out Tatar and Ukrainian communities as such, as
made clear by the CERD Committee in previous decisions1182. In Qatar v. UAE, which
Ukraine quotes only partially1183, the Court similarly found that:
“The Court first observes that, according to the definition of racial
discrimination in Article 1, paragraph 1, of CERD, a restriction may
constitute racial discrimination if it ‘has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of
human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life’. Thus, the Convention prohibits all
forms and manifestations of racial discrimination, whether arising from the
purpose of a given restriction or from its effect. In the present case, while the
measures based on current Qatari nationality may have collateral or secondary
effects on persons born in Qatar or of Qatari parents, or on family members
of Qatari citizens residing in the UAE, this does not constitute racial
discrimination within the meaning of the Convention. In the Court’s view, the
various measures of which Qatar complains do not, either by their purpose or
by their effect, give rise to racial discrimination against Qataris as a distinct
social group on the basis of their national origin. The Court further observes
that declarations criticizing a State or its policies cannot be characterized as
1182 See, for example, UN Committee on the Elimination of Racial Discrimination, A.W.R.A.P. v. Denmark,
Communication No. 37/2006, CERD/C/71/D/37/2006, 8 August 2007, ¶6.2 (“… it remains that no specific
national or ethnic groups were directly targeted as such by these oral statements …”), and ¶6.4 (“… the general
references to Muslims, do not single out a particular group of persons, contrary to Article 1 of the Convention”).
See also UN Committee on the Elimination of Racial Discrimination Quereshi v. Denmark, Communication No.
33/2003, CERD/C/66/D/33/2003, 9 March 2005, ¶7.3 (“… a general reference to foreigners does not at present
single out a group of persons, contrary to Article 1 of the Convention …”). These Committee decisions are
particularly relevant, because they deal with allegations of discrimination against a particular group and not
individual instances employment discrimination that Ukraine seeks to rely on. See further P. Thornberry, “Article
1: Definition of Racial Discrimination”, in P. Thornberry, THE INTERNATIONAL CONVENTION ON THE ELIMINATION
OF ALL FORMS OF RACIAL DISCRIMINATION: A COMMENTARY (OUP, 2016), pp. 111-112; Application of the
International Convention of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional
Measures, Order of 23 July 2018, I.C.J. Reports 2018, p. 437, Joint Declaration of Judges Tomka, Gaja and
Gevorgian, ¶6 (“Differences of treatment of persons of a specific nationality may target persons who also have a
certain ethnic origin and therefore would come under the purview of CERD, but this possibility has not been
suggested by Qatar”).
1183 Second Fredman Report (Reply, Annex 5), ¶7.
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racial discrimination within the meaning of CERD. Thus, the Court concludes
that, even if the measures of which Qatar complains in support of its “indirect
discrimination” claim were to be proven on the facts, they are not capable of
constituting racial discrimination within the meaning of the Convention”1184.
873. The Court thus dismissed Qatar’s arguments on “indirect discrimination” and agreed with
the UAE’s position that the statements made by its Attorney-General were in the context
of existing legislation on combating cyber-crimes, and that there was no criminalizing of
sympathy for Qatar1185. Similarly, in the present case, even if Ukraine was able (which it
is not) to prove that certain measures taken by Russian authorities had “secondary or
collateral effects” on Tatar and Ukrainian communities, its claims must be dismissed:
Ukraine fails to demonstrate that those measures, “either by their purpose or by their
effect”, give rise to racial discrimination against those communities, and a fortiori to a
“systematic racial discrimination campaign”. Furthermore, all the measures adopted by
the Russian Federation, as explained in further detail in later chapters, had perfectly
legitimate objectives which were unrelated to racial considerations of any kind.
874. What is more, Ukraine’s notion of “indirect discrimination” goes even further than the
position of Qatar dismissed by the Court. While Qatar did refer to “indirect
discrimination”, the core of its complaint constituted an allegation of “differential
treatment on the basis of national origin that is not applied pursuant to a legitimate aim,
and proportional to the achievement of that aim”1186 through acts such as the collective
expulsion of “Qatari residents and visitors” from Qatar, the “Absolute and Modified
Travel Bans” on “Qatari nationals,” and the UAE’s “Anti-Sympathy Law and Qatari
Media Block” 1187 . Conversely, Ukraine, while putting forward its “indirect
discrimination” claim, is forced to attack the very notion of “differential treatment” for
lack of evidence regarding such restrictions on a ground prohibited by the Convention1188.
1184 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, pp. 108-109,
¶112.
1185 Ibid., ¶¶ 109-110.
1186 Memorial of Qatar, ¶3.20.
1187 Ibid., ¶3.5.
1188 Qatar’s complaint was dismissed primarily due to the alleged difference in treatment being based on the criteria
of nationality, which lies outside the scope of the Convention. As noted above, Ukraine’s complaint not only
grounds itself in criteria that are outside the Convention’s subject-matter (political convictions), but also fails to
show actual difference in treatment (which would be separate from the alleged “effect” of impacting or nullifying
human rights of certain groups).
Page 333 out of 541
D. UKRAINE FAILS TO PROVIDE CRUCIAL STATISTICAL DATA
875. Ukraine’s refusal to provide statistical evidence of so-called “disparate impact” would
preclude any finding of “indirect discrimination” even on Ukraine’s own terms.
876. As already mentioned, being unable to supply such statistical evidence (for the simple
reason of its absence in reality), Ukraine attempts to argue against the very necessity of
this evidence. Here, however, Ukraine manifestly contradicts the position of its own
expert, Prof. Fredman, who goes far beyond the CERD in the definition of discrimination
but nevertheless considers statistical evidence to be an indispensable tool in establishing
the existence of “indirect discrimination”.1189
877. Entirely contrary to the position taken up by Ukraine in the present case, Prof. Fredman
specifically highlights that where “facially neutral” measures are in question, “indirect
discrimination” cannot be proven without statistical evidence, and absent such evidence,
proof of direct discrimination would have to be submitted instead:
“However, the notion of ‘particular disadvantage’, while useful in situations
of obvious disparate impact, would not be sufficient to flush out measures
which appear wholly neutral and are not in any way suspect. If not confronted
with actual evidence of a disproportionate impact, courts are tempted to view
such measures as non-discriminatory unless they can find an express link with
the protected characteristic. This simply reverts to a direct discrimination
approach.”1190
878. Ukraine, of course, fails to provide both statistical evidence of a “disproportionate
impact” and evidence of an “express link with the protected characteristic”. In short,
1189 “Indirect discrimination, like its direct counterpart, is based on a comparison. However, because it is concerned
with impact, rather than treatment, the role of the comparator is complex. Both in US and UK law, the comparison
is group-based: equal treatment can be unlawful because of its disproportionate exclusionary impact on a group
sharing a protected characteristic. But how should the group dimension be established? What proportion of the
group should be excluded and relative to whom? The use of statistics is clearly a potent tool to determine such
questions. As noted by a recent study, the indirect discrimination concept ... ‘[is] intrinsically linked to statistics
by their logic and objectives. The definition of indirect discrimination is based on quantitative concepts: significant
effects and comparisons between groups. The cognitive tools used to capture indirect discrimination, which is the
reasoning on which legal and political developments are based, are statistical. The group concept is the focus:
treatment is no longer personalised, it is collective and only relates to individuals in terms of their real or assumed
affiliation to a protected group. This shift from the individual to a group is strictly analogous to the operations
carried out by statistics: impersonal aggregates that highlight a collective situation.’
The importance of statistics is vividly demonstrated in the ECtHR case of DH… when the case was re-heard by
the Grand Chamber, statistical evidence was accepted, enabling the Court to uphold the claim of indirect
discrimination. This follows the pattern set by the early conceptions of indirect discrimination, which reflected the
centrality of statistics to a group-based view of discrimination.” S. Fredman, DISCRIMINATION LAW, 2nd ed. (OUP,
2011), pp. 183-184.
1190 Ibid., p. 189.
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Ukraine alleges discrimination without any proof whatsoever, even according to its own
unsubstantiated made-up terms.
879. Moreover, Ukraine does not even begin to tackle the issue of what exactly constitutes
statistical evidence – for example, what would constitute the appropriate comparator
groups, what is the threshold or selection rate for disparate impact to occur, etc. All of
those are questions which confound practitioners, and where, according to Prof. Fredman,
no uniform approach exists. An example rule suggested by Prof. Fredman is the “fourfifths
rule” used by US courts:
“in the US… the Equal Employment Opportunity Commission has developed
a rule of thumb, known as the ‘four-fifths’ rule. On this approach, a selection
rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or
eighty percent) of the rate for the group with the highest rate will generally
be regarded by the Federal enforcement agencies as evidence of adverse
impact. For example, if the hiring rate for whites is 60 per cent and that for
American Indians is 45 per cent, then the ratio for American Indians is 45:60,
or 75 per cent, which is less than four-fifths. In the same example, if the hiring
rate for Hispanics is 48 per cent, then the ratio for Hispanics is 48:60 or 80
per cent. The result is that there is a prima facie case of disparate impact in
relation to American Indians but not Hispanics.”1191
880. The Russian Federation does not agree with the application of the concept of “indirect
discrimination” as proposed by Ukraine, which is inconsistent with the CERD. But the
Russian Federation has produced relevant statistical data in its Counter-Memorial
showing that no racial discrimination targeted against Tatar and Ukrainian communities
has taken place in Crimea. Still further statistical evidence is presented in later chapters
of this Rejoinder.1192
E. POLITICAL VIEWS HAVE NO BEARING ON THE DEFINITION OF “ETHNIC ORIGIN”
UNDER THE CERD
881. It was further shown in the Counter-Memorial that Ukraine seeks wrongly to broaden the
notion of “racial discrimination” under the CERD by defining the Ukrainian community
in Crimea1193 as an ethnic group in the light of political views or opposition, and in
1191 Ibid., p. 187; referring to US Equal Employment Opportunity Commission, Questions and Answers to Clarify
and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, Title VII, 29
CFR Part 1607, available at: http://www.eeoc.gov/policy/docs/qanda_clarify_procedures.html.
1192 See in particular Chapters VI (disappearances), IX (public events) and X (media) below.
1193 The Memorial also referred to the Crimean Tatar community, but Ukraine does not appear to insist on their
political views in the Reply.
Page 335 out of 541
particular an alleged “loyalty to the principle that Crimea is part of Ukraine’s sovereign
territory and that Russia’s purported annexation of the peninsula is therefore
illegitimate”1194. Political opinion, however, is not consonant with “ethnic origin” or
“ethnicity”, and allegations of discrimination on the basis of political convictions (which
cannot be further from the truth in this case) are not regulated by the CERD. Wedding
one to the other constitutes an artificial and unjustified expansion of the scope of the
Convention that must accordingly be rejected by the Court1195. In the words of Prof.
Lerner:
“[t[he Convention on Racial Discrimination… only deals with racial
discrimination. Any discrimination on grounds of … political opinion… is
obviously outside its scope”1196.
882. In its Reply, Ukraine states that “[w]hile Russia takes issue with aspects of Ukraine’s
definition of the Ukrainian community, it does not suggest that any difference of view
between the Parties over the precise boundaries of that ethnic group affects the validity
of any of Ukraine’s claims” 1197 ; it is moreover argued that “Russia’s criticism of
Ukraine’s definition is legally irrelevant”1198. These arguments are dealt with in detail in
Section H below. Nonetheless, two general observations are warranted at this stage.
883. First, the disagreement between the Parties regarding the proper identification of an
“ethnic group” is significant and has a direct impact on the type of measures that may
constitute racial discrimination in contravention of the CERD. By arguing that political
views can define ethnicity, Ukraine seeks to overturn the universal understanding of
ethnic origin and essentially asks the Court to determine that actions taken by Russian
authorities against certain individuals on grounds of their extremist criminal behaviour in
support of their political views should be seen as “racial discrimination”. Adopting
Ukraine’s position would have enormous repercussions; in particular, it would open the
door to ascribing certain patterns of behaviour – including criminal behaviour– to certain
1194 Counter-Memorial (CERD), ¶114.
1195 Counter-Memorial (CERD), ¶¶115-126. Similarly, Ukraine’s broadening of the definition of “racial
discrimination” to include discrimination on religious grounds is unfounded (Counter-Memorial (CERD), ¶¶127
ff). Ukraine, however, does not insist on this matter in the Reply.
1196 N. Lerner, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (Brill,
2015), p. 36.
1197 Reply, ¶407.
1198 Ibid.
Page 336 out of 541
ethnicities, something the Convention itself was originally designed to guard against.
Such an approach would also lead to denying an ethnic Ukrainian or Crimean Tatar a
place in their ethnic communities if their political views are not the one consonant with
Ukraine’s position. Needless to say, this approach cannot be sustained in law. In fact, it
serves to confirm that Ukraine seeks to present as racial discrimination actions that are
nothing of the sort.
884. Second, Ukraine’s reading of the Court’s judgment in Qatar v. UAE is misleading1199.
The relevant part of the judgment, in its entirety, reads:
“As the Court has recalled on many occasions, ‘[i]nterpretation must be based
above all upon the text of the treaty’ … The Court observes that the definition
of racial discrimination in the Convention includes ‘national or ethnic
origin’. These references to ‘origin’ denote, respectively, a person’s bond to
a national or ethnic group at birth, whereas nationality is a legal attribute
which is within the discretionary power of the State and can change during a
person’s lifetime … The Court notes that the other elements of the definition
of racial discrimination, as set out in Article 1, paragraph 1, of the
Convention, namely race, colour and descent, are also characteristics that are
inherent at birth”1200. [Emphasis added]
885. Thus, even if the issue before the Court in that case concerned the definition of “national
origin”, it is clear that in this passage the Court was interpreting Article 1 of the
Convention as a whole. It is, in the Court’s own view, the reference to “origin” (both with
respect to nationality and ethnicity) what denotes a bond to a “national or ethnic group”
at birth. Ukraine’s suggestion that “ethnicity” can be defined in a broad and ever-changing
manner, by reference to political opinions that obviously are something that is not
inherent at birth, must accordingly be rejected. This is also supported by the Court’s clear
indication that “declarations criticizing a State or its policies cannot be characterized as
racial discrimination within the meaning of CERD”1201, thus putting political differences
squarely outside the subject-matter of the Convention.
1199 Reply, ¶¶412-414.
1200 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, p. 98, ¶81.
1201 Ibid., p. 109, ¶112.
Page 337 out of 541
F. MEASURES TAKEN ON JUSTIFIABLE GROUNDS DO NOT CONSTITUTE RACIAL
DISCRIMINATION
886. The Counter-Memorial showed that, inasmuch as a given measure can be reasonably
justified or deemed legitimate, it does not qualify as racial discrimination under the
CERD. Justifications may include, inter alia, reasonable limitations on human and/or
civil rights as may be necessary in a democratic society, provided for under applicable
law and subject to due process, in order to protect public order from acts such as terrorism
and extremism1202. In the present case, several of the measures complained of by Ukraine,
notably the ban on the Mejlis, the detentions and searches of certain individuals, and the
limitations imposed on the organization of certain public rallies and protests, were in fact
based on such justifiable grounds, and more specifically on the need to address unlawful
extremist behaviour that undermines national security and public order.
887. In the Reply, Ukraine attempts to dismiss these arguments by claiming that “the CERD
contains no limitations or derogations clause that would permit noncompliance on the
basis of national security, public order, or any other justification” 1203 , and that its
“prohibition against racial discrimination is absolute”. 1204 Ukraine’s expert, Prof.
Scheinin, adds that the Convention establishes “an absolute and unconditional prohibition
against any differentiations that would have the purpose or effect of nullifying or
impairing the enjoyment of human rights based on any of the characteristics of an
individual or a group as listed in the provision”.1205
888. Prof. Scheinin’s claim is manifestly false, so much so that it contradicts even Ukraine’s
own views, as well as those of Prof. Scheinin. The question is not whether “racial
discrimination” is prohibited; it is what constitutes “racial discrimination” in the first
place. The Convention, of course, contains substantial exceptions to the general definition
of racial discrimination, such as those in paragraphs 2, 3 and 4 of Article 2. Prof. Scheinin
in fact admits this shortly after stating that the prohibition is “absolute and
unconditional”1206. The Counter-Memorial presented examples of recommendations and
1202 Counter-Memorial (CERD), ¶98.
1203 Reply, ¶428.
1204 Ibid.
1205 Expert Report of Martin Scheinin, 14 April 2022, ¶9 (Reply, Annex 7).
1206 Ibid., ¶12.
Page 338 out of 541
decisions of the CERD Committee which show that legitimate restrictions on rights, in
accordance with the relevant human rights instruments, do not constitute CERD
violations1207. This interpretation is approved by Prof. Alexey Avtonomov – a former
member of the CERD Committee – in his expert report.1208 Ukraine has not been able to
rebut these authorities. Moreover, Ukraine has itself admitted in the Memorial that
differential treatment is not considered discrimination if there is an “objective and
reasonable justification”1209.
889. Neither did Ukraine deny in the Memorial the possibility of using national security and
public order legislation to justify restrictions – even quoting its own legislation, which
allowed such restrictions “in the interests of national security and public order, for the
purpose of prevention of disturbances or crimes, protection of the health of the population,
or protection of the rights and freedoms of other persons.”1210
890. The possibility of such limitations is generally accepted among practitioners and scholars.
As noted by Prof. Lerner with regard to freedom of speech:
“[I]t would not be the first time that States have limited that freedom, which,
like any other freedom, is not absolute. State Members will have to deal with
this problem in their domestic legislation, and will solve it according to their
respective political philosophy and orientation in the question of preeminence
of rights. Similar discussions have arisen more than once in connection with
legislation on pornography and obscenity, national security, blasphemous
utterances which offend basic religious beliefs, libelous and defamatory
statements against individuals, and other instances of cases when the
legislator considered that absolute freedom of speech and expression could
not prevail over conditions of public order.”1211
891. Prof. Fredman, an expert Ukraine relies on, in her writings confirms that there could be
justifications for measures that could otherwise constitute “direct” and “indirect
discrimination”:
“Where equal treatment disproportionately disadvantages a group which
already suffers from a history of discrimination, then it too can be unlawful,
unless there is a good reason. This concept was imported into UK law and
1207 Counter-Memorial (CERD), ¶98.
1208 Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023, ¶¶7, 29-31 (Annex 18).
1209 See Memorial ¶574.
1210 Memorial, ¶482
1211 N. Lerner, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (Brill,
2015), p. 15.
Page 339 out of 541
gradually made its way into EU law. Known as indirect discrimination, it is
formulated in different ways, but broadly speaking has three elements: equal
treatment; a disproportionately exclusionary impact on those sharing a
protected characteristic; and the absence of an acceptable justification”;1212
“Indirect discrimination can be justified if it is a proportionate means of
achieving a legitimate aim”;1213
“Indirect discrimination has always been structured in such a way as to permit
a prima facie case of discrimination to be justified if the exclusionary practice
is required for the job or other legitimate aim”;1214
“[I]n practice there are a growing number of ways in which direct
discrimination can indeed be justified… it has always been possible to justify
direct race and sex discrimination where sex or race is a genuine occupational
qualification. This has now been extended to most of the protected
characteristics, subject to a proportionality requirement.”1215
892. Prof. Fredman particularly stresses that justification should be possible if discrimination
was “unintentional”: “if intention and motive are excluded from the original decision, a
defence of justification should be permitted”.1216 Therefore, even in the opinion of its own
expert, Ukraine cannot allege “discrimination without intent” while at the same time
denying the possibility for an objective justification.
893. Having failed to substantiate its untenable claim of impossibility of any justification (for
any restrictive measures), Ukraine next attempts to have the Court pass judgment on
Russian law in general by alleging that it is “entirely out of line with international
standards”. However, Ukraine’s criticism of the Russian Federation’s legislation is based
on a non-binding recommendation by the Venice Commission, which, firstly, did not
make any pronouncement close to the above-mentioned preposterous allegation of
Ukraine, and secondly, as the commission itself admitted, its recommendation was not
based on fully conclusive evidence. 1217 Ukraine adds that, even if Russian law was
1212 S. Fredman, DISCRIMINATION LAW, 2nd ed. ((OUP, 2011), p. 154.
1213 Ibid., p. 190 (quoting The United Kingdom Supreme Court, R (on the application of E) (Respondent) v
Governing Body of JFS and the Admissions Appeal Panel of JFS (Appellants) and others, UKSC 2009/0105,
Judgment, 16 Dec 2009 & 14 Oct 2009, ¶57, available at: https://www.supremecourt.uk/cases/uksc-2009-
0105 html).
1214 Ibid., p. 191.
1215 Ibid., pp. 197-198.
1216 Ibid., p. 207.
1217 Council of Europe, European Commission for Democracy Through Law (Venice Commission), Opinion No.
660/2011 on the Federal Law on Combating Extremist Activity of the Russian Federation, CDL-AD(2012)016,
20 June 2012, (Memorial, Annex 817), ¶32; see also Expert Reports addressing the erroneous interpretation and
Page 340 out of 541
compatible with those standards and Russia’s security concerns were legitimate, “the
CERD does not permit Russia to racially discriminate on that basis”1218. Here, a general
observation is once again warranted.
894. Prof. Scheinin’s suggestion, made without any supporting authority, that “there is no
requirement that ‘racial discrimination’ could only occur where there is a violation of
another (so-called substantive) human right”1219 is incorrect. Prof. Scheinin bases this
proposition on a truncated reading of Article 1 of the CERD, indicating that “it is
sufficient that the ‘enjoyment or exercise’ of another human right is subject to being
impaired.”1220 But this is not what Article 1 says: the provision refers to any distinction,
exclusion, restriction or preference based on a prohibited ground which has the purpose
or effect of “nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms …”. This wording makes it plain that
there must be an actual nullification or impairment (i.e., a violation) of an existing right,
and not a mere possibility thereof or, as Ukraine obscurely advances at several places in
its Reply in an attempt to escape the language of this provision, an alleged “burdening”
or “disparate impact”1221. The CERD Committee itself similarly determined that the
Convention “does not itself create civil, political, economic social or cultural rights, but
assumes the existence and recognition of these rights. The Convention obliges States to
prohibit and eliminate racial discrimination in the enjoyment of such human rights”1222.
Therefore, Ukraine’s suggestion that there may be a violation of the CERD without an
underlying violation of a human right protected under international law (taking into
account, inter alia, the legitimate restrictions that may be imposed upon the latter) is
simply untenable, and would in fact expand the scope of application of the CERD to
situations going well beyond what States have agreed to.
representation of the Venice Commission’s Report: Expert Report of Viktor Merkuryev, 1 March 2023, ¶¶86-104
(Annex 20); Second Expert Report of Valery Viktorovich Engel, 28 February 2023 ¶¶13-48 (Annex 19).
1218 Reply, ¶425.
1219 Scheinin Report (Reply, Annex 7), ¶10.
1220 Ibid.
1221 See, for example, Reply, ¶¶27, 440, 441, 613, 672, 673, 678.
1222 Counter-Memorial (CERD), ¶107.
Page 341 out of 541
G. UKRAINE’S ALLEGATIONS UNDER INTERNATIONAL HUMANITARIAN LAW ARE OUTSIDE
THE COURT’S JURISDICTION
895. As noted above, in its 2019 judgment the Court established that “Ukraine’s claims are
based solely upon CERD” 1223 . As the Counter-Memorial explained, the obvious
conclusion to be drawn from this is that Ukraine cannot base its claims on rules of
international law enshrined in treaties other than the CERD or in customary or other
general international law1224.
896. In its Reply, Ukraine states that:
“… Ukraine’s claims in no way require a finding that Russia is an occupying
power that is violating international humanitarian law (“IHL”). Ukraine was
entitled to observe that certain laws have been introduced by Russia in
violation of IHL when describing the context for its claims in its Memorial.
But those claims are based solely on the discriminatory purpose or effect of
those laws with respect to the Crimean Tatar and Ukrainian communities, not
the circumstances of their imposition. The Court can accordingly rule on them
without regard to whether IHL applies in Crimea or not.”1225
Moreover, if Russia is unwilling to have the Court address the issue of
sovereignty over Crimea, then its own pleadings should similarly avoid
reliance on assumptions concerning its own sovereign rights in that territory.
With respect to citizenship issues, the Court should not credit Russia’s
position that it enjoyed a sovereign right to impose Russian nationality on
Crimeans. Nor should Russia be permitted to rely on defenses that assume the
existence of such rights, as with its argument that Ukraine’s citizenship claims
are barred under Articles 1(2) and 1(3) of CERD based on a distinction
between citizens and non-citizens that Russia has itself created under the
pretense of exercising sovereignty in Crimea”1226.
897. Ukraine thus agrees that its claims cannot be based on international humanitarian law, but
exclusively on the CERD. At the same time, it confusingly suggests that it was “entitled
to observe that certain laws have been introduced in violation of IHL”, and that “Russia
should avoid reliance on assumptions concerning its own sovereign rights in that
territory”. These statements once again show that Ukraine’s real goal in the present
proceedings is not to demonstrate the existence of a “systematic racial discrimination
campaign” conducted by the Russian Federation against Tatar and Ukrainian
1223 Judgment of 8 November 2019, ¶23.
1224 Counter-Memorial (CERD), ¶89.
1225 Reply, ¶397
1226 Reply, ¶¶397-398.
Page 342 out of 541
communities in violation of the CERD, but to challenge the status of Crimea and have the
Court make a pronouncement on this matter, notably by imposing on the Russian
Federation the status of “occupying power”. This attempt by Ukraine to circumvent the
2019 judgment and expand the Court’s jurisdiction beyond the limits of the CERD must
of course be rejected. In the end, as Ukraine itself is forced to admit, the present case must
be decided “without regard to whether IHL applies in Crimea or not”.
H. UKRAINE’S MISCONCEIVED INTERPRETATION OF “ETHNIC ORIGIN” (“ETHNICITY”)
REVEALS THAT ITS REAL GOAL IS CHALLENGING THE STATUS OF CRIMEA
898. As explained in the previous chapter, Ukraine’s attempt to read political opinions into the
definition of “ethnic origin” (“ethnicity”) under the CERD has no basis in international
law. The correct position is that ethnicity is obtained at birth, as the Court made clear in
its 2021 judgment in Qatar v. UAE, and that consequently political views have no role to
play in this context.1227 In light of Ukraine’s misplaced insistence on this matter, however,
some additional observations are required.
899. Although, as noted above, Ukraine brought this case under the CERD against the Russian
Federation, ostensibly claiming the existence of a “systematic racial discrimination
campaign”, in reality it is clear that its real goal is to challenge the status of Crimea. To
do this in a discrete manner, Ukraine seeks to shoehorn political views and the alleged
political identification of certain Ukrainians and Crimean Tatars as “defining” criteria
into the concept of “ethnic origin”.
900. This is confirmed by the Memorial, where Ukraine as that “[t]he very act of annexation
placed the Russian authorities on a collision course with the Crimean Tatar and Ukrainian
communities”,1228 “and that [t]he Crimean Tatar and Ukrainian communities are, in part,
defined by their loyalty to the principle that Crimea is part of Ukraine’s sovereign territory
and that Russia’s purported annexation of the peninsula is therefore illegitimate.”1229
901. The attempt to put before the Court the question of the status of Crimea was rejected in
the Court’s 2019 judgment:
1227 See above, Chapter III(E).
1228 Memorial, ¶382.
1229 Ibid., ¶596.
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“In the present case, the Court notes that Ukraine is not requesting that it rule
on issues concerning the Russian Federation’s purported “aggression” or its
alleged “unlawful occupation” of Ukrainian territory. Nor is the Applicant
seeking a pronouncement from the Court on the status of Crimea or on any
violations of rules of international law other than those contained in the
ICSFT and CERD. These matters therefore do not constitute the subjectmatter
of the dispute before the Court.”1230
902. Thus, the question of the status of Crimea is outside the Court’s jurisdiction and no
pronouncement on this matter ought to be made.
903. Initially it may be recalled that, Ukraine asserted that ““[a] defining characteristic of both
communities at this time was their loyalty to the principle of Crimea as part of
independent Ukraine.” 1231 The Russian Federation showed in its Preliminary
Objections1232 and Counter-Memorial1233 that, properly interpreted, there is no room in
the CERD for importing political views or identification into the concept of “ethnic
origin”. Allowing that would stretch this term to an unrecognizable state, which in turn
may diminish the effectiveness of the Convention as a “non-political and universal
Convention”,1234 as the drafters envisioned.
904. Yet Ukraine does not rest its efforts. In its Reply, although admitting that political views
and political identification are not to be treated as “defining” criteria or characteristics for
ethnicity, Ukraine does insist that political opinion are to be treated as a “relevant factor
in assigning ethnicity”.1235 In Ukraine’s view, “ethnicity” under the CERD should be
interpreted as “embrac[ing] a notion of ethnicity as a dynamic and evolutive concept”.1236
Apart from being inconsistent with the Court’s judgment in Qatar v. UAE, Ukraine’s
suggestion is wrong for several other reasons.
905. There is no textual basis in CERD itself for including political opinion/affiliation as a
factor for identifying “ethnic origin”. According to the survey by experts produced with
1230 Judgment of 8 November 2019, ¶29.
144 Memorial, ¶382.
1232 Preliminary Objections, ¶¶305-320.
1233 Counter-Memorial (CERD), ¶¶109-130.
1234 UN General Assembly, 20th session, official records, 3rd Committee, 1374th meeting (closing meeting), 15
December 1965, A/C.3/SR.1374, ¶25.
1235 Reply, ¶411.
1236 Ibid., ¶414.
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the Counter-Memorial, “the political factor is not included in most definitions and models
of ethnicity in existing scientific literature on the subject of definitions of ethnicity…
which indicates that specialists reached a consensus in this matter”.1237
906. The drafting history confirms this reading. During the debates on the Declaration on the
Elimination of all Forms of Racial Discrimination (“DERD”) proposals were made to
include religion and other grounds as prohibited bases for discrimination. For example, a
representative suggested that if a proposed amendment concerning religion was accepted,
“he himself would be compelled to submit a sub-amendment to replace the words ‘all
forms of racial and religious discrimination’ by the words ‘all forms of racial
discrimination and of any discrimination based on religion, belief, political opinion or
any other status’”.1238 This, however, was thoroughly resisted by the delegations. Various
statements were made to the effect that matters of a political nature were for other
committees,1239 and that it was improper to introduce a “bitter political note” into the
discussion or to use the DERD as a “political weapon”. 1240 The United States
representative summarised the debate as follows:
“the Committee’s task was to construct a document of enduring value which
would be a guide to the ages. Consequently, its provisions must be addressed
to fundamentals and not to temporary phenomena, and the inclusion of
statements intended to promote particular political opinions must be
avoided.”1241
907. This was the consensus. There is no hint of any attempt to revisit this issue and to reintroduce
political opinions as a relevant factor in the definition of racial discrimination
in the subsequent debates in the Human Rights Commission, 1242 or in the Third
1237 Expert Report of Dmitry Anatolievich Funk, Roman Alexandrovich Starchenko, Valery Vladimirovich
Stepanov and Sergey Valeryevich Sokolovsky (Counter-Memorial (CERD), Annex 21), p.3.
1238 UN General Assembly, 17th session, official records, 3rd Committee, 1171st meeting, 2 November 1962,
A/C.3/SR.1171, ¶17.
1239 E.g., UN General Assembly, 18th session, 3rd Committee, 1213th meeting, 26 September 1963,
A/C.3/SR.1213, ¶30; UN General Assembly, 18th session, 3rd Committee, 1220th meeting, 3 October 1963,
A/C.3/SR.1220, ¶6; UN General Assembly, 18th session, 3rd Committee, 1232nd meeting, 15 October 1963,
A/C.3/SR.1232, ¶26.
1240 E.g., UN General Assembly, 18th session, 3rd Committee, 1218th meeting, 2 October 1963, A/C.3/SR.1218,
¶¶20, 21.
1241 UN General Assembly, 18th session, 3rd Committee, 1220th meeting, 3 October 1963, A/C.3/SR.1220, ¶22.
1242 See UN Commission on Human Rights, Report of the 20th session, 17 February-18 March 1964., E/3873,
Chapter II, 9-86.
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Committee of the General Assembly.1243 Unsurprisingly, there is also no indication that
political opinion may play a role in the definition of “racial discrimination” in the final
text of the CERD.1244
908. Given the text, object and purpose, and the drafting history of the CERD, Ukraine’s
attempt to incorporate political views into the Convention would turn the latter on its
head.1245
909. Thus, it is no wonder that the Court affirmed that political views have no place in the
definition of racial discrimination in Qatar v. UAE. The Court noted that:
“As further support for its claim of indirect discrimination, Qatar maintains
that a number of measures imposed by the UAE encourage anti-Qatari
propaganda and suppress speech deemed to be in support of Qatar. It refers
to the ban on Qatari media corporations as well as a 6 June 2017
announcement of the Attorney General of the UAE which stated that persons
“expressing sympathy, bias or affection for” the State of Qatar or “objecting
to the . . . measures . . . taken [by the UAE] against the Qatari [G]overnment”
are considered to have committed crimes punishable by imprisonment and a
fine……”1246
and then concluded that:
“The Court further observes that declarations criticizing a State or its policies
cannot be characterized as racial discrimination within the meaning of
CERD.”1247
910. This interpretation is further corroborated by two expert reports submitted in support of
this Rejoinder, where both experts Avtonomov (a former long-time member of the CERD
Committee) and Engel confirm that political beliefs are irrelevant to determining an
ethnicity.1248 Ukraine is thus wrong in finding fault with the Russian Federation’s reading
of the Court’s judgment in Qatar v. UAE and in arguing for treating “ethnic origin” as
1243 See UN General Assembly, 20th session, 3rd Committee, Report of the Third Committee, A/6181, 18
December 1965.
1244 This is recognized by scholars. See e.g., W. Schabas, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF
CRIMES (2d ed. 2009), p. 133 (“discrimination on the basic of political opinion, or belonging to a political group,
was not included”).
1245 UN General Assembly, 18th session, 3rd Committee: 1220th meeting, 3 October 1963, A/C.3/SR.1220, ¶22.
1246 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, p. 89, ¶49.
1247 Ibid., ¶112.
1248 Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023, Section B (Annex 18); Second Expert
Report of Valery Viktorovich Engel, 28 February 2023 ¶¶78-81 (Annex 19).
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ever-changing concept.1249 As noted earlier, the judgment stated in no unclear terms that
“references to ‘origin’ denote, respectively, a person’s bond to a national or ethnic group
at birth”.1250 [Emphasis added]
911. An analogy may be drawn with religious discrimination. Like nationality and political
opinion, religion can be changed during one’s lifetime. As Professor Lerner, explains, it
is generally accepted that religious intolerance does not fall within the CERD. As he
described, various UN Special Rapporteurs have cautioned
“against… [a] confusion between a racist statement and an act of ‘defamation
of religion.’’ Any doctrine of superiority based on racial differentiation is
condemnable and dangerous, but ‘invoking a direct analogy between
concepts of race or ethnicity, on the one hand, and religion or belief, on the
other hand, may lead to problematic consequences.’’ Religious adherence,
membership or identity can be the result of personal choices, the possibility
of which constitutes an essential component of the human rights to freedom
of religion or belief.”1251
912. This understanding is confirmed by Ukraine’s own expert, Professor Fredman, when
commenting on the CERD Committee’s decision on a complaint regarding hate speech
against Muslims and Muslim culture, already addressed in the previous sections.1252
913. The analogy with political beliefs is indeed quite apparent: like religion, they may be
shared by persons of diverse ethnic, national and cultural backgrounds, and change over
time.
914. Ukraine further argues that if Russia’s (and the Court’s) interpretation of “ethnic origin”
was correct, “the term would be entirely redundant with ‘descent’”.1253 This argument is
without merit. While the word “origin” may be synonymous with “descent” in the sense
of “ancestry”,1254 the term “ethnic origin” is different from “descent” as used in the
Convention because the former denotes ethnic ancestry, while the latter refers to other
1249 Reply, ¶414
1250 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, p. 98, ¶81.
1251 N. Lerner, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (Brill,
2015), p. XV.
1252 See above, ¶821.
1253 Reply, ¶413.
1254 Merriam-Webster Dictionary, available at: https://www merriam-webster.com/thesaurus/origin.
Page 347 out of 541
forms of ancestry, such as the Indian caste system or the European blood aristocracy
system.
915. It is widely recognized that descent applies across all races, any nationality or ethnicity,
and there is no redundancy. 1255 In its General Recommendation XXIX, the CERD
Committee affirmed “the consistent view of the Committee that the term ‘descent’ in
article 1, paragraph 1, the Convention does not solely refer to ‘race’ and has a meaning
and application which complement the other prohibited grounds of discrimination” and
that “discrimination based on ‘descent’ includes discrimination against members of
communities based on forms of social stratification such as caste and analogous systems
of inherited status which nullify or impair their equal enjoyment of human rights”.1256
916. Ukraine seeks further support for position by reference to international criminal law and
to certain views of the CERD Committee. These, however, are of no assistance.
917. An international law scholar has surveyed the use of “ethnic origin” or “ethnic group” in
a variety of international law contexts in law-making and adjudication, and reveals no
practice of factoring political opinion or belonging to a political group into the definition
of ethnic origin or ethnic group.1257
918. As regards the CERD Committee, the Russian Federation recalls that in Qatar v UAE the
Court already defined the meaning of “ethnic origin” as referring to a bond obtained at
birth, having given due consideration1258 to the views of the CERD Committee.
919. Furthermore, Ukraine does not present any interpretation by the CERD Committee on
“ethnic origin”, contenting itself with resorting to paraphrasing its expert’s conclusory
statement that “this interpretation accords not only with the CERD Committee’s
1255 See generally P. Thornberry, THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION: A COMMENTARY (OUP, 2016), pp.119-125.
1256 UN Committee on the Elimination of Racial Discrimination, General Recommendation 29, Discrimination
Based on Descent (Sixty-first session, 2002), U.N. Doc. A/57/18 at 111 (2002), ¶1, available at:
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fGEC
%2f7501.
1257 W. Schabas, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES (2d ed. 2009), pp. 143-147 (section
on “Ethnic groups”).
1258 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, p. 104, ¶101.
Page 348 out of 541
interpretation of ethnicity”.1259 The Russian Federation has reviewed that expert’s second
report, and found it reveals no instance of the CERD Committee’s interpretation of
“ethnic origin” as encompassing political opinion as a relevant factor. In fact, Ukraine’s
expert plainly admits that “the meaning of ‘ethnic’ has not been elaborated by the CERD
Committee”.1260 Thus, even if one were to borrow from the interpretation of “ethnic
origin” by the Committee, there is none to follow.
920. Professor Avtonomov – a former long-time member of the CERD Committee – notes that
he is “not aware of any case in CERD practice of an individual or a group of individuals
claiming certain ethnicity on the basis of his/her or their common political goals or
common political views. There is no case of CERD’s recommendations recognizing any
group as an ethnic one in accordance with this group’s common political goals.”1261
Members of an ethnic group may join political parties, be apolitical or live in different
countries showing different political loyalties without their ethnic belonging being
affected.1262 His conclusion based on these data is that “the position of CERD is that a
common political purpose is not a characteristic of an ethnic group, and political loyalty
as well as a common political purpose does not serve as a ground for an ethnicity. This
position is clear and generally accepted.”1263
921. As regards Ukraine’s reference to international criminal law, the Russian Federation first
observes that neither the ICTY, the ICTR, nor the Darfur Commission were set up for the
purpose of interpreting or applying the CERD, a task that the Court is asked to perform
in this case. Ukraine does not identify any of the cases or the Darfur Commission Report
as in fact applying the CERD, interpreting the term “ethnic origin”, or having interpreted
the latter as covering political opinion as a relevant factor. They clearly do none of these
things.
922. In fact, the Darfur Commission seemed to show a tendency that would interpret “ethnical
groups” as wider than “ethnic origin”, judged by how it defined “national groups” as
encompassing both nationality and national origin:
1259 Memorial, ¶414.
1260 Second Fredman Report (Reply, Annex 5), ¶33.
1261 Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023, ¶9 (Annex 18).
1262 Ibid., ¶¶14-16.
1263 Ibid., ¶17.
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“…by “national groups”, one should mean those sets of individuals which
have a distinctive identity in terms of nationality or of national origin. On
the other hand, “racial groups” comprise those sets of individuals sharing
some hereditary physical traits or characteristics. “Ethnical groups” may be
taken to refer to sets of individuals sharing a common language, as well as
common traditions or cultural heritage”.1264 [Emphasis added]
923. Ukraine’s expert referred to the judgments in a number of the international criminal cases,
which features language that she took as indicating a flexible approach to assessing
ethnicity in the light of a particular political, social and cultural context, on a case-bycase
basis, in the light of objective and subjective criteria.1265 She also quoted language
from an ECtHR case indicating that “ethnicity has its origin in the idea of societal groups
marked by common nationality, tribal affiliation, religious faith, shared language, or
cultural and traditional origins and backgrounds”.1266 But the expert never showed that
any of these decisions specifically factored political opinion into their definition or
application of ethnicity, not to mention “ethnic origin”.
924. In light of this, the Russian Federation submits that the Court need not go into these cases.
But if we were to review these cases, closer scrutiny will reveal that these cases, instead
of supporting Ukraine’s argument, go against it in important respects. The decisions in
these cases, despite sometimes their flexible language, consider that in the context of
genocide law, the ethnic group is to be perceived as “stable”.1267 Of course, this view
enjoys substantial scholarly support.1268 As to the debate regarding objective-subjective
1264 International Commission of Inquiry on Darfur, Report to the United Nations Secretary-General, 25 January
2005, ¶494, available at: https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/F87E244D-B27C-4A0A-BE1BD27CECB5649E/
278008/Report_to_UN_on_Darfur.pdf.
1265 Second Fredman Report (Reply, Annex 5), ¶35.
1266 Ibid., ¶41.
1267 ICTY, Prosecutor v. Jelisic. IT-95-10-T, Trial Chamber, Judgment, 14 December 1999, ¶69 (When analyzing
the notion of a group targeted by genocide, the ICTY Trial Chamber stated that the preparatory work of the
Genocide Convention demonstrated that a wish had been expressed to limit the field of application of the
Convention to protecting ‘stable’ groups objectively defined, to which individuals belonged regardless of
their own desires); ICTR, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber, Judgment, 2
September 1998, ¶511 (On reading through the travaux préparatoires of the Genocide Convention, it appears that
the crime of genocide was allegedly perceived as targeting only “stable” groups, constituted in a permanent fashion
and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one
joins through individual voluntary commitment, such as political and economic groups) [Emphasis added].
1268 See, e.g., Agnieszka Szpak, National, Ethnic, Racial, and Religious Groups Protected against Genocide in the
Jurisprudence of the ad hoc International Criminal Tribunals, European Journal of International Law, Volume 23,
2012, pp. 155–173; N. Lerner, GROUP RIGHTS AND DISCRIMINATION IN INTERNATIONAL LAW (Brill, 2022), pp.
30-31 ("(“In international law, the notion of group requires the presence of those already mentioned unifying,
spontaneous (as opposed to artificial or planned) and permanent factors that are, as a rule, beyond the control of
the members of the group”).
Page 350 out of 541
criteria, whatever the tribunal chambers had said, the subject-matter of the Court’s
attention was first and foremost whether a group maybe defined in a negative way as
“non-Serbs”, which is irrelevant to the present case and in any event the ICTY Appeals
Chamber insisted in Stakić that subjective criteria alone is not acceptable.1269 And the
Court in Bosnia Genocide noted this issue, but did not find it profitable to take it
further.1270
925. Even if Ukraine position was correct (quod non), Ukraine provides no proof that ethnic
Ukrainians and Crimean Tatars self-identify on the basis of political views as a matter of
fact. The expert report by Paul Magocsi is completely irrelevant to this issue because it
concerns mostly the views of the author on the origins of the Ukrainian State. In any
event, the Russian Federation has submitted the Expert Report of Sergey Markedonov,
who considers the views of Prof Magocsi’s on “historical foundations of Ukrainian selfidentity”
to be “simplifications and distortions, which in the end give a wrong image of
the historical process in Ukraine”.1271
926. Furthermore, the Russian Federation’s Counter-Memorial pointed this out, with support
from a substantial and detailed report of ethnology experts, who concluded that, ““[a]s
can be seen from results of the 2014 State Crimean population census and the following
opinion polls, … it is evident that Crimean Tatars and local Ukrainians have varying
political loyalties and share plural political views”.1272 The report further noted that “[i]n
aggregate, people with dual citizenship together with Russian citizenship, as well as
foreign nationals and people who did not specify their citizenship, accounted for around
5.3% of the entire Crimean population. This is five times lower than the number of ethnic
Ukrainians and Tatars living in Crimea.”1273 Ukraine has not contested any of this.
1269 ICTY, Prosecutor v. Milomir Stakic, IT-97-24-A, the Appeals Chamber, Judgment, 22 March 2006, ¶25.
1270 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007, p. 124, ¶191 (“the
Parties also discussed the choice between subjective and objective approaches to the definition. The Parties
essentially agree that international jurisprudence accepts a combined subjective-objective approach. The issue is
not in any event significant on the facts of this case and the Court takes it no further.”).
1271 Expert Report of Sergey Miroslavovich Markedonov, 8 March 2023 (Annex 21).
1272 Expert Report of Dmitry Anatolievich Funk, Roman Alexandrovich Starchenko, Valery Vladimirovich
Stepanov and Sergey Valeryevich Sokolovsky (Counter-Memorial (CERD), Annex 21), p.3.
1273 Ibid., ¶18.
Page 351 out of 541
IV. THE BAN ON THE MEJLIS DOES NOT CONSTITUTE RACIAL
DISCRIMINATION
927. In the Counter-Memorial, the Russian Federation demonstrated that: (1) the CERD does
not include a right of minority groups to establish and maintain their own representative
institutions; (2) the ban on the Mejlis did not violate any rights protected by the CERD;
and (3) the ban was introduced by the decision of the Supreme Court of the Republic of
Crimea and approved by the Supreme Court of the Russian Federation on the basis of a
thorough and detailed reasoning that confirmed the lawful nature of the ban, which had
nothing to do with racial discrimination. On the contrary, the ban on the Mejlis was
justified by the need to counter extremist activities posing serious threat to national
security, public order, citizen’s rights and safety. The ban therefore does not constitute
racial discrimination within the meaning of the CERD, and a fortiori does form part of
an alleged “systematic racial discrimination campaign” targeting the Crimean Tatar
community.
928. The Russian Federation notes that while in its Memorial, Ukraine claimed that the ban on
the Mejlis allegedly “burdens” several provisions of the CERD, in its Reply Ukraine
claims a violation of Article (5)(a) (the right to equal treatment before the tribunals and
all other organs administering justice). Thus, a vague and unsubstantiated claim with
respect to the ban on the Mejlis remains at issue before the Court.
929. The present chapter responds to Ukraine’s arguments on these remaining issues in the
Reply. It shows that, contrary to what Ukraine claims, the Mejlis has never been the
representative body of the Crimean Tatars in Crimea (Section A); that Ukraine fails to
identify concrete rights under the CERD that may have been violated by the ban on the
Mejlis (Section B); and that the ban on the Mejlis was lawful and legitimate and,
consequently, cannot violate Article (5)(a) of the CERD (Section C).
A. THE MEJLIS HAS NEVER BEEN AREPRESENTATIVE INSTITUTION OF CRIMEAN TATARS
930. Contrary to what Ukraine asserts, the Mejlis has never been, de jure or de facto, the
representative body of the Crimean Tatars in Crimea. Notably, Ukraine refrained from
registering it officially in the past and did so due to obvious political reasons after 2014,
when Crimea became a part of the Russian Federation. Various prominent members of
the Crimean Tatar community, including current members of the Council of Crimean
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Tatars and some former members of the Mejlis, concur that the Mejlis never represented
all or even a majority of Crimean Tatars.1274 In fact, as of 2014, the Mejlis was supported
by less than a fifth of the Crimean Tatars.1275
931. Even if one were erroneously to view the Mejlis as a sort of public organ, its role
according to its own documents was akin to that of an executive body as opposed to a
representative one. The Mejlis’ function was only to implement the decisions adopted by
the Qurultay.
confirms this organizational structure in his witness statement, specifically
pointing out that all bodies formed and appointed by the Qurultay, which includes the
Mejlis, are responsible to it and must follow its decisions.1276 No restrictions or bans have
been imposed against the Qurultay in the Russian Federation.
932. The Mejlis has consistently neglected to support the Crimean Tatar community.1277, As
noted above, it has never been registered in Crimea, and had no official status in Ukraine.
Mustafa Djemilev intentionally avoided any formal registration of Mejlis. The informal
status of the Mejlis helped Mr Djemilev to escape responsibility when he and his allies
received funds from businessmen in Crimea and abroad supposedly to support Crimean
Tatars, but later inappropriately used these funds for their personal benefit.1278 As
explains in his witness statement, due to this lack of registration and formal
procedures, the Mejlis operated “informally”, which often resulted in political strife, with
Mr Djemilev and Mr Chubarov engaging in attempts to eliminate any opposition within
the Mejlis.1279
1274 Second Witness Statement of , ¶8 (Annex 15); Witness Statement of
¶¶6-7 (Annex 33); Witness Statement of ¶21 (Annex 11);
Statement of the Council of Crimean Tatars under the auspices of the Head of the Republic of Crimea, 6 March
2023 (Annex 403); Witness Statement of , ¶22 (Annex 27).
1275 Second Witness Statement of , ¶8 (Annex 15); Witness Statement of
, ¶7 (Annex 33); Ukraina ru, Dzhemilev and Western countries try to prevent Crimea from
joining Russia (28 November 2014), available at: https://ukraina.ru/20141128/1011319376.html (Annex 99).
1276 Witness Statement of , ¶¶7-10 (Annex 17).
1277 Witness Statement of , ¶¶5-6 (Annex 11).
1278 Witness Statement of ¶¶17-20 (Annex 17); Witness Statement of
, ¶¶10-11 (Annex 11); Witness Statement of , ¶¶10-12 (Counter-
Memorial (CERD), Annex 19).
1279 Witness Statement of , ¶¶21-22, 34-36 (Annex 17).
Page 353 out of 541
933. Lack of actual interest in improvement of living conditions of Crimean Tatar is evident
from the fact that for more than 20 years, the Mejlis failed to develop a constructive
dialogue with the Crimean authorities. ,
explains that the Mejlis’ relationship with the Ukrainian authorities was “very tense and
periodically turned into a state of open confrontation and hostility”. 1280 The Mejlis
resorted to ultimatums against the local authorities and threatened to use violence and
provoke civil unrest.1281
934. Ukraine only began showing some kind of support to Messrs Djemilev and Chubarov,
and to their Mejlis, after 2014. The reason for this apparent change of attitude cannot be
a concern for the well-being of Crimean Tatars (which, as previously noted, has
significantly improved since 2014), but rather a willingness to use radical members of the
Mejlis to aggravate the situation in Crimea.1282 It is worth mentioning that at the time
when Crimea was part of Ukraine, the Crimean authorities declared the Qurultay that
appointed members of Mejlis to be unconstitutional.1283
935. In 2014, the Qurultay decided that the Mejlis should cooperate with the Russian
Federation authorities in Crimea to ensure the development and progress of the Crimean
Tatar community. 1284 In blatant disregard of the Qurultay’s resolution, Djemilev,
Chubarov and their allies opposed any relationships with the Russian Government and
excluded those Mejlis members that adhered to the Qurultay’s decision.1285 Mejlis bosses
Mustafa Djemilev, Refat Chubarov and Lenur Islyamov, supported by the Ukrainian
Government and neo-Nazi Ukrainian organizations, organized the blockade of Crimea,
which caused disruption of electric power and water supply to the peninsula.1286 That
1280 Witness Statement of , ¶9 (Counter-Memorial (CERD), Annex 19).
1281 Witness Statement of ¶¶13-14 (Annex 17); Witness Statement of
, ¶9 (Annex 11).
1282 Witness Statement of , ¶40 (Annex 17).
1283 Verbatim Record of the Public sitting held on Tuesday 7 March 2017, at 10 a.m., at the Peace Palace,
President Abraham presiding, in the case concerning 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), CR 2017/2, 7 March 2017, p. 60, ¶¶32-33
(Lukiyantsev).
1284 Witness Statement of , ¶14 (Counter-Memorial (CERD), Annex 19).
1285 Witness Statement of , ¶34 (Annex 17).
1286 Witness Statement of , ¶¶40-48 (Annex 17); Witness Statement of
, ¶¶16-20 (Annex 11); Witness Statement of ¶16 (Counter-
Memorial (CERD), Annex 19); Witness Statement of , ¶9-13 (Annex 33).
Page 354 out of 541
attack targeted the entire population of Crimea and can hardly be described as ensuring
the development of Crimean Tatars. Crimean Tatars continuously attempted to raise the
profile of the Crimean blockade’s detrimental effect at international level, including at
the UN and OSCE.1287 As the former bosses of the Mejlis left Crimea, and chose to work
against the interests of Crimean Tatars living in Crimea, they cannot be considered as
representing Crimean Tatars living in Crimea.1288
936. It is telling that the former leaders of the Mejlis tried to convene a Qurultay in Ukraine in
order to re-elect themselves a new Mejlis thus extending their mandate and functions.1289
However, such an attempt failed, due to a manifest lack of support for it. Mr Dzhemilev,
Mr Chubarov and other persons associated with them had to try and rectify this situation
by declaring themselves as a kind of Committee of Mejlis, which somehow performs it
duties. This itself shows that this group of people does not represent Crimean Tatars
living in Crimea, which has been further confirmed by the statement of the Council of
Crimean Tatars consisting of prominent members of Crimean Tatar community. More
specifically, the Council declared:
“Former members of the Mejlis (the organisation banned in the Russian
Federation) R. Chubarov, M. Dzhemilev, L. Islyamov, E. Bariev and other
betrayers of the interests of the Crimean Tatar people, who are in Ukraine,
Turkey and some other European countries now, act in the interests and under
direction of Kiev, actively disseminate false information about the situation
of Crimean Tatars in Crimea.
Those individuals do not live in Crimea and do not represent interests of
Crimean Tatars, so their unilateral declarations, statements and sayings about
the situation in Crimea cannot be considered true and reflecting the real
situation of the Crimean Tatar people living in Crimea.
Those functionaries mislead the international community with their untrue
words in relation to the rights and interests of Crimean Tatars and the status
of the Crimean Tatar historical heritage in Crimea. They are not authorized
to make any statements and speak on international platforms and at
organizations on behalf of the Crimean Tatar people.
The said persons try to continue their extremist activities in Crimea: they
threaten physical reprisals against representatives of the Crimean Tatar
community, and perform actions aimed at the creation of an atmosphere of
1287 Witness Statement of , ¶13 (Annex 33); Witness Statement of
, ¶29 (Annex 27).
1288 Second Witness Statement of , ¶¶6-7 (Annex 15); Witness Statement of
¶15 (Annex 33).
1289 Witness Statement of , ¶20 (Counter-Memorial (CERD), Annex 19).
Page 355 out of 541
enmity and interethnic discord between the Crimean Tatar people and other
ethnicities”.1290
937. The facts also show that the Mejlis and its former leaders hardly represented any of the
Crimean Tatars even de facto even when Crimea was part of Ukraine. According to a
statement by Mustafa Dzhemilev himself, the Mejlis was only supported by not more than
20% of the Crimean Tatars.1291 Even when the Mejlis was still operating in Crimea, half
of its members (16 people) did not support Dzhemilev and his actions consistently faced
opposition from the Crimean Tatar community.1292 Although the Mejlis went as far as
murdering its opponents and leaders of other Crimean Tatar organizations,1293 it never
acquired monopoly over Crimean Tatar agenda s. It is no surprise that given how the
former leaders of the Mejlis have treated the Crimean Tatar population, especially since
their relocation to Kiev, including by organizing trade and energy blockades of the
peninsula, the perception in Crimea of the individuals associated with it has become even
more negative.1294
938. It is worth noting that the Mejlis and its bosses themselves seem to not want to represent
all Crimean Tatars. Mr Chubarov, for example, has described the Crimean Tatars who
supported the Russian Federation as “traitors”.1295 He has also called for prosecution and
punishment of those cooperating with the Russian authorities, which would include most
Crimean Tatars who do not support the Mejlis.1296
1290 Statement of the Council of Crimean Tatars under the auspices of the Head of the Republic of Crimea, 6 March
2023, p. 2 (Annex 403).
1291 Second Witness Statement of , ¶8 (Annex 15).
1292 Ibid.
1293 Witness Statement of , ¶¶12-15 (Annex 11).
1294 See above, ¶935.
1295 Sprotyv.info, Traitors will flee Crimea even sooner than Russian soldiers Chubarov (8 May 2017), available
at: https://sprotyv.info/news/predateli-sbegut-iz-kryma-eshhe-bystree-chem-rossijskie-soldaty-chubarov/ (Annex
100).
1296 Bigmir net, Chubarov: It is necessary to establish criminal liability for collaborators (10 April 2016),
available at: https://news.bigmir net/ukraine/4699499-cubarov-nuzno-vvesti-ugolovnuyu-otvetstvennost-dlyakollaborantov
(Annex 101).
Page 356 out of 541
939. As multiple Crimean Tatar witnesses note, it is indeed impossible to talk about the Mejlis
as a representative of Crimean Tatars.1297 Currently, the representation of Crimean Tatars
is exercised on all levels:
(a) At the local level Crimean Tatars are successfully elected by the population as
deputies;1298 moreover, in every municipality of the Republic of Crimea, a council
on interethnic relations is created.
(b) At the level of the Republic of Crimea, first, the Council of Crimean Tatars and the
Council on interethnic and interconfessional relations, under the Head of the
Republic, are empowered to inform the republican authorities of issues that concern
the Crimean Tatar population. Second, Crimean Tatars are vastly represented at
the executive bodies of the Republic as 6 out of 20 ministries and 5 out of 8 state
committees have a Crimean Tatar as a deputy minister/head of committee while a
Crimean Tatar also presides over the state committee on interethnic relations.
940. At the federal level, a council on interethnic relations under the President of the Russian
Federation performs this function. A Crimean Tatar, Mr Chingiz Yakubov, is a member
of this Council and is able to bring any concerns that Crimean Tatars may have to the
attention of the highest authorities in the Russian Federation.1299
941. Ukraine criticises the Russian Federation’s decision to create a Council of Crimean Tatars
under the Head of the Republic of Crimea, branding it as “a transparent attempt by Russia
to replace the Mejlis with a body that is under its control”. It is difficult to understand
why Ukraine, which is currently sponsoring and controlling the former bosses of the
Mejlis, takes any issue with the Council of the Crimean Tatars. It may be recalled that a
Council of Representatives of the Crimean Tatar People existed under the President of
Ukraine since 1999, members of which were appointed by the President, rather than
1297 Statement of the Council of Crimean Tatars under the auspices of the Head of the Republic of Crimea, 6 March
2023, p. 2 (Annex 403).
1298 Witness Statement of , ¶16-17 (Annex 33).
1299 Witness Statement of , ¶16(b) (Annex 33).
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delegated by the Crimean Tatars, and included many more representatives than those
affiliated with the Mejlis.1300
942. However, for the completeness it must also be recalled that as explained in the Counter-
Memorial the extended Qurultay of the Muslims of Crimea elected members of the Shura
that subsequently were integrated to the Council of Crimean Tatars. Thus, the Council
members represent the Crimean Tatar community.1301
943. In conclusion, the Mejlis has never been the body representing the Crimean Tatars, nor
has it enjoyed any overwhelming support from or exclusive powers to represent that
community. As the Russian Federation explained in the Counter-Memorial, Crimean
Tatars are in fact represented by over 30 organisations.1302
B. THE BAN OF THE MEJLIS DOES NOT CONSTITUTE A VIOLATION OF THE CERD
944. In its Memorial, Ukraine claimed that the ban on the Mejlis and on the activities of its
members affected the ability of the Crimean Tatar community to conserve its
representative institutions and thus constitutes a breach of the rights protected by CERD,
including under Article. 5(c) and 5(d). During the hearings on preliminary objections,
however, Ukraine no longer claimed that such a special right exists.1303 The Russian
Federation established in the Counter-Memorial that neither the CERD nor other human
rights instruments include a right of ethnic minority groups to establish and maintain their
own representative institutions.1304
945. As regards Article 5(c) of the CERD, it provides for the prohibition and elimination of
racial discrimination in the enjoyment of “political rights, in particular the right to
participate in elections — to vote and to stand for election — on the basis of universal
1300 Avdet, Appeal to the President of Ukraine on the Council of Representatives (11 February 2013), available at:
https://avdet.org/2013/02/11/obrashhenie-k-prezidentu-ukrainy-o-sovete-predstavitelej/ (Annex 487). See also
Witness Statement of ¶8 (Annex 33), Second Witness Statement of
¶10 (Annex 15).
1301 Counter-Memorial (CERD), ¶¶232, 233.
1302 Counter-Memorial (CERD), ¶226.
1303 Verbatim Record of the Public sitting held on Tuesday 4 June 2019, at 10 a.m., at the Peace Palace, President
Yusuf presiding in the case concerning 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), CR 2019/10, 4 June 2019, p. 62, ¶24 (Koh).
1304 Counter-Memorial (CERD), ¶¶35, 138, 40.
Page 358 out of 541
and equal suffrage, to take part in the Government as well as in the conduct of public
affairs at any level and to have equal access to public service”. As Judge ad hoc
Skotnikov observed in the Separate Opinion he appended to the 2019 judgement, “this
provision is not relevant to an organization which claims to represent a certain ethnic
group as a self-government body with quasi executive functions.”1305
946. As already explained, the Mejlis is not and has never been the representative body of the
Crimean Tatar community. Moreover, currently the functions of the Qurultay of the
Crimean Tatar people are performed by the Qurultay of Muslims of Crimea that has
delegated representatives of the Crimean Tatar community to the Council of Crimean
Tatars as will be shown below.1306
947. Therefore, since the Mejlis cannot be considered as a representative body, nor have
Crimean Tatars more generally been prevented from participating in government or in the
public affairs on the basis of their ethnicity, the Russian Federation has not violated
Article 5(c) of the CERD.
948. Article 5(d)) (xi) of the CERD deals with “the right to peaceful assembly and association”.
This right, however, is not intended to cover organizations similar to the Mejlis.
According to General Comment No. 37 of the Human Rights Committee (“HRC”),
concerning the right of peaceful assembly under Article 21 of the Covenant, the latter
“protects peaceful assemblies wherever they take place […] Such assemblies may take
many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins,
candlelit vigils and flash mobs”.1307 It is clear that, due to its nature (being an executive
body attached to the Qurultay), the Mejlis cannot fall into the categories of assemblies
contemplated by the HRC. The CERD Committee’s opinion that demonstrations ought
to be “peaceful” and “respect […] the human rights of others”,1308 further confirms this
interpretation. It shows that the protection of Article 5(d)(ix) does not extend to
1305 Judgment of 8 November 2019, Separate Opinion of Judge Ad Hoc Skotnikov, ¶2.
1306 See above, Chapter IV(A).
1307 General comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37, 17 September
2020, ¶6.
1308 CERD Committee, 75th session, Concluding observations of the Committee on the 14th to 17th periodic
reports of Peru, UN Doc. CERD/C/PER/CO/14-17, 24 August 2009, ¶15.
Page 359 out of 541
assemblies, associations or other groupings like the Mejlis which, as shown in the
Counter-Memorial, carry out violent and extremist activities.1309
949. These arguments remain unanswered in the Reply. Instead, Ukraine makes the following
allegation:
“The Memorial showed that, beginning in the weeks after its illegal
occupation of Crimea, Russia took a series of actions that deprived the
Crimean Tatar people of its political leadership. At the heart of these
measures was a sustained campaign aimed at dismantling the Crimean Tatar
community’s central political and cultural institution, the Mejlis, beginning
in 2014 with the exclusion from Crimea of its top leadership, followed by the
serial harassment of Mejlis members and interference with the institution’s
assets, and culminating in 2016 in an outright ban on the Mejlis as a
supposedly extremist organization. Ukraine claims, in particular, that these
arbitrary measures were carried out with the purpose or effect of restricting
core civil rights in violation of CERD articles 2(1), 4, and 5(a)”.1310
950. It thus appears that Ukraine’s claim regarding the ban on the Mejlis is now reduced to the
alleged violation of CERD Articles 2(1), 4, and 5(a)”. Here again, Ukraine has not
substantiated this position, which accordingly must be rejected by Court.
951. Regarding Article 2(1), Ukraine failed to explain how the ban on the Mejlis violates this
provision that encompasses several obligations enumerated in no less than 5 subparagraphs,
satisfying itself by referring to its Memorial, 1311 to which the Russian
Federation has replied in detail in its Counter-Memorial.1312 The Ukraine’s Reply adds
nothing to those unfounded allegations.
952. Article 2(1)(a) stipulates that “[e]ach State Party undertakes to engage in no act or practice
of racial discrimination against persons, groups of persons or institutions and to ensure
that all public authorities and public institutions, national and local, shall act in
conformity with this obligation.”
953. As the Court held in Qatar v. UAE, “[r]ead in its context and in the light of the object and
purpose of the Convention, the term “institutions” refers to collective bodies or
1309 See, for example, Counter-Memorial (CERD)¶ 246.
1310 Reply, ¶469.
1311 Reply, p. 241, fn no 869.
1312 Counter-Memorial (CERD), ¶¶51-99.
Page 360 out of 541
associations, which represent individuals or groups of individuals”.1313 In other words, a
body that is not representative cannot be considered as an “institution” under the
CERD.1314 Professor Lerner also notes in this regard that “an institution has no race, but
an organization which is discriminated against because of colour, descent or national or
ethnic origin of its members could therefore invoke the provisions of the Convention”.1315
However, as shown above, the Mejlis is not an institution within the meaning of the
Convention for it has never represented the Crimean Tatar community.
954. The fact that among all existing institutions, organizations, and associations that purport
to defend the interests of the Crimean Tatar community, including the Qurultay, the
Mejlis was the only one to be banned confirms that the ban did not target the Crimean
Tatar community as such, and was not part of any alleged campaign designed, as Ukraine
contends, to eradicate the said community because of the ethnicity of its members.
955. To the contrary, there are a number of other organizations that continue to represent the
Crimean Tatars, some of them enjoying very high degrees of representativeness and
legitimacy, such as, for example, Qirim, Crimea in Religion, the Inkishaf Crimean Tatar
Society, the Committee of Crimean Tatar Mothers, a number of youth organisations,
etc.1316 The Russian Federation does not impede the activities of these organizations,
which continue to operate freely, and which may at any time voice their concerns about
the needs of the Crimean Tatar community with the Russian authorities.
956. The absence of any racial discrimination contrary to the CERD is further confirmed by
the fact that the ban of the Mejlis had to be implemented for the sole and specific purpose
of combating the extremist activities in which its former leaders were involved, which
posed a serious risk to national security, public order, and the well-being of the inhabitants
of Crimea. Section III below addresses this in more detail.
1313 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, ¶1v08.
1314 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, ¶1v08.
1315 N. Lerner, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (BRILL,
2014), p. 41. ¶4(a).
1316 Witness Statement of , ¶¶55, fn 41 (Annex 17).
Page 361 out of 541
957. Article 4 of the CERD obligates States Parties to “condemn all propaganda and all
organizations which are based on ideas or theories of superiority of one race or group of
persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred
and discrimination in any form, and undertake to adopt immediate and positive measures
designed to eradicate all incitement to, or acts of, such discrimination …” As it is clear
from the text of the provision, this obligation has no relation whatsoever with the question
of the Mejlis, which concerns the ban of an organization due to the extremist activities of
its members. Ukraine has not explained how in its view Article 4 could possibly be
relevant in this context.
958. Article 5(a) of the CERD, for its part, guarantees “the right of everyone, without
distinction as to race, colour or national or ethnic origin, to equality before the law” in the
enjoyment of “[t]he right to equal treatment before the tribunals and all other organs
administrating justice”. Ukraine claims that “[t]he Russian Federation’s judicial assault
on the Mejlis and its leadership violates this provision. The Russian courts have banned
the Mejlis as an extremist organization, frozen the assets of the NGO that funds it, and
convicted top the Mejlis leaders on trumped-up and, in Mr. Chiygoz’s case, blatantly
discriminatory charges. No other ethnic group in Crimea has faced similar repression.”1317
959. Ukraine’s understanding of Article 5(a) is erroneous and its allegation is unfounded. The
right to equal treatment is a well-established and fundamental principle of international
law enshrined in almost all human rights instruments, including Article 14 of the
Covenant. It is also established that this right cannot be understood to grant a substantive
right, including that of authorizing, banning, or not banning, an institution or an activity
- something that obviously depends on the circumstances of each case. This is confirmed
by General Comment No. 32 of the HRC concerning Article 14 of the Covenant, which
explains that “[t]he right to equality before the courts and tribunals and to a fair trial is a
key element of human rights protection and serves as a procedural means to safeguard
the rule of law. Article 14 of the Covenant is aimed at ensuring the proper administration
of justice, and to this end guarantees a series of specific rights”.1318
1317 Memorial, ¶606.
1318 UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts
and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, 23 August 2007, ¶2. Emphasis added.
Page 362 out of 541
960. As explained above and in the Counter-Memorial, the Mejlis was banned in 2016 by
decision of the Supreme Court of Crimea, reviewed and upheld by the Supreme Court of
the Russian Federation, duly respecting due process. That Court upheld decisions of
lower instances courts by analysing and revising them. 1319 Moreover, the Russian
Federation provided representatives of the Mejlis with the procedural means to appeal the
decision on the ban, heard their positions and allowed their attorneys to present their
position in full, as reflected in the text of the judgments.1320
961. Furthermore, numerous members of the Crimean Tatar community supported the
Prosecution in this case.1321 For example, a
states that the Crimean Tatar community were overwhelmingly in favour of the
restrictions against the Mejlis due to the latter’s role in the blockade against the peninsula
and its inhabitants.1322 Crimean Tatar organizations have expressed support for the ban
as well and made their position known to the Court.1323
962. Ukraine has not referred to any facts that may put in question any procedural orders, nor
has it demonstrated any deficiencies in them that would be contrary to Russian procedural
law. Therefore, Ukraine’s invocation of Article 5(a) of the CERD is baseless and should
be rejected.
963. Ukraine also invokes the Order on Provisional Measures of 19 April 2017, in which the
Court indicated that “it is plausible that the acts complained of constitute acts of racial
discrimination under the Convention”, as well as the Judgement on Preliminary
Objections in which the Court found that the measures which Ukraine complains of,
including the ban on the Mejlis, “fall within the provisions of the Convention”.1324 But
these findings of the Court do not support Ukraine’s case. Regarding the plausibility of
1319 The Russian Federation explained this in detail in its Counter-Memorial (CERD), at ¶226.
1320 Memorial, Annexes 913, 915.
1321 Counter-Memorial (CERD), ¶181.
1322 Witness Statement of ¶49-51 (Annex 17).
1323 Supreme Court of the Republic of Crimea, Case No. 2A-3/2016, Decision, 26 April 2016 (Memorial, Annex
913); Supreme Court of the Russian Federation, Case No. 127-APG16-4, Decision, 29 September 2016
(Memorial, Annex 915).
1324 Reply, ¶472.
Page 363 out of 541
rights at the provisional measures stage, it is plain that this test in no way can be taken as
prejudging the merits of the claim raised by Ukraine as noted by the Court itself.1325
964. As for the Judgement of 8 November 2019, Ukraine conveniently did not quote another
relevant part that contradicts its allegation:
“In order to determine whether it has jurisdiction ratione materiae under
CERD, the Court does not need to satisfy itself that the measures of which
Ukraine complains actually constitute “racial discrimination” within the
meaning of Article 1, paragraph 1, of CERD. Nor does the Court need to
establish whether, and, if so, to what extent, certain acts may be covered by
Article 1, paragraphs 2 and 3, of CERD. Both determinations concern issues
of fact, largely depending on evidence regarding the purpose or effect of the
measures alleged by Ukraine, and are thus properly a matter for the merits,
should the case proceed to that stage”.1326
965. Unable to establish that its individual claim on the ban violates the CERD, Ukraine seeks
in its Reply to put it in a broader context. It alleges that “the political suppression of the
Crimean Tatar community burdens numerous human rights, the existence of which is not
disputed, including, without limitation, the rights to equal treatment before tribunals,
freedom of opinion and expression, and freedom of association and of peaceful assembly.
Moreover, the ban on the Mejlis and other measures targeting leaders of the Crimean
Tatar community is an unmistakable indicator that the community itself is being singled
out for discriminatory treatment. Together, those two things — a distinction targeting a
particular group and a consequent burden on the human rights of that group — constitute
the essence of a CERD violation”.1327
966. A few remarks are called for in reply:
(a) As explained above, these rights (rights to equal treatment before tribunals, freedom
of opinion and expression, and freedom of association and of peaceful assembly)
are included in Article 5 of the CERD, and this provision does not support the case
of Ukraine concerning the Mejlis.
(b) The repeated references by Ukraine to “political suppression of the Crimean Tatar
community”, are worth highlighting. Such an accusation, on its own terms (which
1325 Order of 19 April 2017, ¶105.
1326 Judgment of 8 November 2019, ¶94.
1327 Reply, ¶474.
Page 364 out of 541
is rigorously rejected by the Russian Federation), does not relate to racial
discrimination. This demonstrates that the acts which Ukraine complains of, even
if taken at face value, do not fall within the scope of the CERD.
(c) The allegation that “community itself is being singled out for discriminatory
treatment” is completely unfounded. The Russian Federation has conclusively
demonstrated that the Crimean Tatar community has never been targeted as such,
for its ethnic origin or otherwise; the ban of the Mejlis was based on the extremist
activities of its members, as will be further explained below.
967. The reference to “numerous human rights (…) including, without limitation, the rights to
(…)”, shows that Ukraine’s case on the Mejlis is marred by a striking ambiguity. Ukraine
fails to pin down its claim. In addition, as the Russian Federation demonstrated in its
Counter-Memorial, the CERD does not protect human rights in general. As explained
above, Article 5, invoked by Ukraine, protects the equality before the law in the exercise
of human rights protected under other instruments. No such instruments provide for the
right to representative institutions for ethnic groups that Ukraine alleges in these
proceedings, including in particular the 1966 International Covenants on Civil and
Political Rights and on Economic, Social and Cultural Rights, the 1992 United Nations
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, or the European Convention on Human Rights, despite most of
these instruments having been adopted after CERD and having a broader subject-matter
in many respects.
C. THE BAN OF THE MEJLIS WAS LAWFUL AND LEGITIMATE
968. The Counter-Memorial showed that even if Ukraine’s claims in relation to the measures
taken against the Mejlis could qualify as falling under the scope of CERD, quod non,
those measures do not evidence racial discrimination contrary to the CERD, nor a fortiori
do they form part of a “systematic racial discrimination campaign”. To the contrary, the
measures are based on objective and reasonable grounds.1328
969. Ukraine maintains that “[e]ven assuming that Russia’s use of its anti-extremism laws was
genuinely directed at a national security or extremist threat, or a risk to public order, such
1328 Counter-Memorial (CERD), ¶150.
Page 365 out of 541
alleged threats do not authorize Russia to discriminate against the Crimean Tatar
community in breach of its CERD obligations”.1329 Ukraine relies in this regard on
Professor Scheinin’s expert report to suggest that the CERD’s “prohibition against racial
discrimination is absolute”.
970. However, the position of Ukraine and report of Professor Scheinin misses the point. As
explained in Chapter III above, it is well-established that one crucial element for an act
to constitute discrimination contrary to CERD is the absence of the legitimate purpose or
reasonable justification 1330 of a measure complained about, which is not the case
regarding Ukraine’s accusations. Indeed, Ukraine has no choice but to concede this when
it states that “the extent to which human rights may be curtailed for national security
reasons is strictly limited, and specific, rigorous procedures must be followed by States
that believe that such curtailments are necessary”.1331
971. This has been confirmed by Judge Crawford, who has explained that “nothing in CERD
prevents a State party from regulating an organization that represents an ethnic group or
even from banning it in the most serious cases. But such measures must be carefully
justified”.1332 Similarly, Judge Tomka also recalled that “[w]hatever is the legal basis for
the exercise of control and jurisdiction in the territory of Crimea by the Russian
Federation and the applicability of the International Convention on the Elimination of All
Forms of Racial Discrimination, the Russian Federation must be able to take measures
necessary to ensure public order and safety”.1333 In the same vein, the CERD Committee
has noted that “a differentiation of treatment will not constitute discrimination if the
criteria for such differentiation, judged against the objectives and purposes of the
Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the
Convention”.1334
1329 Reply, ¶486.
1330 See above, Chapter III(F).
1331 Reply ¶487, emphasis added.
1332 Order of 19 April 2017, declaration of Judge Crawford, I.C.J. Reports 2017, ¶8.
1333 Order of 19 April 2017, declaration of Judge Peter Tomka, I.C.J. Reports 2017, ¶7.
1334 UN Committee on the Elimination of Racial Discrimination, General Recommendation 14, Definition of
Racial Discrimination (Forty-second session, 1993), U.N. Doc. A/48/18 at 114 (1994), ¶2 (Memorial, Annex 788).
Page 366 out of 541
972. The Russian Federation has demonstrated that the ban on the Mejlis was vitally necessary
to safeguard national security and public order against a grave and imminent peril.
Several actions undertaken by members of the Mejlis such as wide-spread blockades,
illegal rallies, violent protests and riotous statements created a serious threat against
national security and public order and put the safety and well-being of the Crimean
population in danger. It is explained in particular in the expert report of Valery
Viktorovich Engel. 1335 No State that takes its obligations to protect its population
seriously would turn a blind eye to such a situation because the persons involved in such
illegal behaviour happen to belong to a particular ethnic group. Yet this is exactly what
Ukraine appears to suggest in the present case: if an extremist group is composed of
individuals belonging to a particular ethnicity, no measures can be taken to counter their
unlawful acts, lest there be a violation of the CERD. This position is untenable as it is
unreasonable. This is in particular confirmed by the expert opinion of Mr Engel.1336
973. In banning the Mejlis, the Russian Federation did not treat it differently as compared to
other extremist organizations. The Government list of extremist organizations currently
contains 101 entities. The listed therein are composed of individuals belonging to
different ethnicities, including primarily pseudo-Russian nationalists. As explained in the
expert report of Prof Merkuryev, “analysing the list, one can see that ethnic or religious
orientation of such organizations is different…, out of all organizations included in the
above list, an overwhelming majority (77) belong to the organizations of pseudo-religious
and pseudo-Russian nationalist nature”.1337
974. Inclusion of these entities on the list is not based on grounds of race or ethnicity, but on
the nature of their activities, which pose a danger to society and public order. Ukraine has
been unable to show any differential treatment with respect to the Mejlis.1338 In fact, the
Mejlis is the only Crimean Tatar organization on the list, despite there being over 30
Crimean Tatar organizations in general. 1339 This further proves lack of any
1335 Second Expert Report of Valery Viktorovich Engel ¶¶64 – 77 (Annex 19).
1336 Ibid.
1337 Expert Report of Viktor Viktorovich Merkuryev, ¶34 (Annex 20).
1338 Official website of the Ministry of Justice of the Russian Federation, List of Public Associations and Religious
Organizations Entitled to Liquidation or Prohibition of Activities by the Court on Grounds Provided by Federal
Law No. 114-FZ of 25 July 2002 “On Counteracting Extremist Activity”, 25 November 2022, available at:
https://minjust.gov.ru/ru/documents/7822.
1339 Counter-Memorial (CERD), ¶66.
Page 367 out of 541
discriminatory campaign against Crimean Tatars and confirms that the ban of the Mejlis
was motivated solely by its extremist activities.1340
975. Moreover, as explained in Section I above, it was only the Mejlis that was subjected to a
ban flatly disproves Ukraine’s alleged “systematic racial discrimination campaign” on
serious. The precise reasons for which the ban on the Mejlis was deemed necessary have
already been explained in the Counter-Memorial: the decision was taken on grounds of
national security and public order that bore no relation to the ethnicity of the members of
the organization. After leaving for Kiev, the former bosses of the Mejlis set up trade and
transport blockades of Crimea. The effect of these blockades was gravely felt internally,
including by the Crimean Tatar community.1341 Mr Chubarov, who purports to act for
the benefit of Crimean Tatars yet was behind these extreme actions, himself
acknowledged that the blockade worsened the life of Crimeans and deteriorated the
environmental situation in the peninsula.1342 The population of Crimea at large suffered
from severe shortages in water and electricity.1343
976. The OHCHR, on whose reports Ukraine itself extensively relies, did not visit Crimea, but
paid in-persons visited to the sites of the blockade, and documented the way that it was
conducted. A 2015 OHCHR Report on the human rights situation in Ukraine notes
that:1344
“On 20 September, upon the initiative of the Crimean Tatar leadership, a trade
blockade of Crimea from mainland Ukraine started … From its observations
at the three checkpoints on the administrative boundary line in mid-
November, HRMMU noted actions to enforce the blockade by Ukrainian
activists in uniforms illegally performing law enforcement functions. The
activists reportedly have an unofficial list of “traitors”, which serves as a basis
to illegally arrest and detain people. The law enforcement officers present at
1340 Official website of the Ministry of Justice of the Russian Federation, Ibid.; see also Expert Report of Viktor
Viktorovich Merkuryev, ¶34 (Annex 20).
1341 Witness Statement of , ¶¶16-19 (Annex 11).
1342 RIA Novosti Crimea, The Head of the Mejlis named the condition for the resumption of water supply to Crimea
(30 June 2019), available at: https://crimea ria ru/20190630/1116932081.html (Annex 102).
1343 BBC News, Crimea hit by power blackout and Ukraine trade boycott (23 November 2015), available at:
https://www.bbc.com/news/world-europe-34899491 (Annex 129); Financial Times, Ukraine Imposes Economic
Blockade on a Blacked-Out Crimea (23 November 2015) https://www ft.com/content/d5487eaa-9203-11e5-bd82-
c1fb87bef7af (Annex 225).
1344 OHCHR, Report on the human rights situation in Ukraine 16 August to 15 November 2015.
Page 368 out of 541
the checkpoints were often or generally passive, merely observing the
situation”.1345
“A trade blockade of Crimea … has been in place since 20 September.
HRMMU is concerned about the legality of this action and human rights
abuses that have accompanied it, including illegal identity checks, vehicle
searches, confiscation of goods, and arrests”.1346
“Since 20 September, hundreds of Ukrainian activists, including Crimean
Tatars and members of nationalist battalions, have been blocking the flow of
goods between mainland Ukraine and Crimea in both directions. The trade
blockade was initiated by the former and current heads of the Crimean Tatar
Mejlis, Mustafa Dzhemiliev and Refat Chubarov, and has been conducted
simultaneously at all three crossing points on the Ukrainian-controlled side
of the administrative boundary line (ABL): in Chaplynka, Chongar and
Kalanchak … The organizers also … demanded that the next step should be
to halt energy supplies to Crimea”.1347
“HRMMU travelled to the area of the blockade on 12-13 November… The
volunteers enforcing the blockade – uniformed men sometimes wearing
masks and balaclavas – have been systematically stopping private vehicles.
They reportedly have lists of people considered to be ‘traitors’ due to their
alleged support to the de facto authorities in Crimea or to the armed groups
in the east… In [an] incident, a Crimean resident with a Russian passport
issued in Crimea was beaten up… Their behaviour has in some cases been
threatening when drivers refuse to show their identification or allow their
vehicles to be searched. HRMMU is aware of the case of a driver who had
his windows smashed for refusing to unload vegetables”.1348
“The activists have been enforcing the blockade in the presence of the police
and border guards who observed the situation without intervening. HRMMU
is concerned about instances of human rights abuses near the ABL”.1349
977. The people of Crimea felt the severe consequences of the blockades organized by the
leadership of the Mejlis. Numerous, witnesses attest to this. In particular, As
notes:1350
“[t]he most severe of these was the energy blockade, which lasted about six
months since November 2015. It occurred as a result of the bombing of power
plant towers and high-voltage lines in Ukraine, from which electricity was
supplied to Crimea. The Mejlis and Ukrainian neo-Nazi organisations
initiated the blockade and prevented repair of the damage.
1345Ibid., ¶16.
1346 Ibid., ¶143.
1347 Ibid.144.
1348 Ibid.145.
1349 Ibid.146.
1350 Witness Statement of , ¶¶17-18 (Annex 11).
Page 369 out of 541
To say that it was difficult for Crimeans during the energy blockade would
be an understatement: for a long time, people were without electricity and
heat in winter, there was a shortage of petrol, which was purchased in large
quantities to fuel generators, and internet and phone communications worked
irregularly”.1351 [Emphasis added]
978. Similarly, Crimeans were deprived of water and electricity for about from two to three
hours per day. As a result, the agriculture of Crimea suffered immense losses, as the area
of irrigated land was reduced substantively, and the cultivation of some plots had to be
abandoned. According to the information of the State Enterprise of the Republic of
Crimea “Krymenergo”, as of 15 January 2016, the amount of losses caused to the
Republic of Crimea due to the disconnection of vital facilities from the power supply was
1,123,971,317 rubbles.1352
979. It must be noted that Ukraine condoned the blockades organized by the Mejlis. As noted
by international observers, Ukrainian border guards refused to intervene into the illegal
actions of the blockades’ organizers. It is difficult to imagine that persons represent
genuinely an ethnic community would resort to depriving that community of access to
resources to meet basic needs in order to achieve a political goal. It is equally difficult to
accept that a State that backed such actions could credibly bring a claim before the Court
invoking the CERD with the purpose of protecting those same communities.
980. As the decision of the Russian Federation Supreme Court1353 explained: “The decision of
the court of first instance that there are legitimate grounds to recognize the Mejlis as
extremist organization and ban its activities is correct and justified, since the court
confirmed the arguments of the Prosecutor that his association carried out extremist
actions representing a real threat to the foundations of the constitutional order of the
Russian Federation, its territorial integrity, security of the state and society, violation of
the rights and freedoms of people and citizens, harming the personality and health of
citizens”.1354 At the same time, the court of first instance, on legal grounds, referred as
evidence to the information posted on the Internet about the holding of a press conference
on 8 September 2015 in Kiev “Civil Blockade of Crimea”, at which the Chairman of the
1351 Ibid.
1352 Supreme Court of the Russian Federation, Case No. 127-APG16-4, Decision, 29 September 2016 (Memorial,
Annex 915).
1353 Ibid.
1354 Memorial, Annex 915.
Page 370 out of 541
Mejlis R. Chubarov announced the start of actions of direct blocking of the administrative
border with Crimea by blocking roads for cargo transportation, about a press conference
on the same topic in the Ukrainian Crisis Medical Center with the participation of
members of the public association R. Chubarov, M. Dzhemilev, L. Islyamov, on a video
recording of repeated public speeches by the chairman of the Mejlis R.A. Chubarov,
during which he stated that the action organized by them, called the “Civil blockade of
Crimea”, is the first stage in the de-occupation of Crimea, the return of Crimea to Ukraine,
as well as a video confirming the implementation of the blockade by members of the
Mejlis with the fighters of the “Right Sector”.1355
981. Notably, Judge Tomka mentioned:
“The activities of the Mejlis, the 33-member representative and executive
body of the Crimean Tatar people elected by the Kurultai, the congress of that
people, were banned by the Supreme Court of Crimea on 26 April 2016, on
the proposal of the Prosecutor of Crimea, having been found to be an
“extremist organization” that was supporting “extremist activities”. That
decision was appealed to the Supreme Court of the Russian Federation which,
by a judgment dated 29 September 2016, confirmed the ban. These judgments
were brought to the attention of this Court which, however, remains silent
about their content, thus raising a question whether it paid any attention to
these judicial decisions. The measure now indicated by this Court under point
1 of the operative clause can be read as requiring the Russian Federation to
lift or at least suspend the existing ban on the activities of the Mejlis. This
raises some concern.”1356
982. Ukraine submits that the blockade was individual decision of Messrs Chubarov,
Dzhemilev and Islyamov, the Mejlis did not take any collective decision on the initiation
or organization of, participation in, the blockade. 1357 In accordance with the Mejlis
Regulation1358, President of the Mejlis represents it in domestic and international affairs.
Thus, being former and current heads of the Mejlis and initiating numerous blockades in
Crimea, Dzhemilev and Chubarov did so in their capacity of the Mejlis heads. Moreover,
according to law an organization that disagrees with an extremist statement of its leaders
1355 RIA Novosti Crimea, “Right Sector” reported that “Azov” had joined the blockade of Crimea (1 October
2015), available at: https://crimea.ria.ru/20151001/1101141850 html (Annex 103).
1356 Order of 19 April 2017, Declaration of Judge Tomka, I.C.J. Reports 2017, p. 150, ¶2.
1357 Reply, ¶492.
1358 Regulations on the Mejlis of the Crimean Tatar People, June 1990, available at:
http://old.iea ras ru/books/09_KRIM2/120220041253 htm.
Page 371 out of 541
can make a statement dissociating itself from such a statement.1359 However, the Mejlis
did not do so, which evidences its support for such statements, according to the law,1360
that was also comprehensively addressed and upheld by the Russian Federation Supreme
Court while adopting decision on the Mejlis ban.
983. In the end, Ukraine itself admits the ban has nothing to do with CERD, when it states in
the Reply that “[t]he real reason for the ban is the opposition of the Crimean Tatar people,
voiced by the Mejlis, to Russia’s illegal act of aggression.”1361 Although this statement
is false on substance, it clearly shows that Ukraine does not really believe that the ban on
the Mejlis was based on racial grounds.
984. As the Russian Federation pointed out in the Counter-Memorial (and Ukraine has not
disproved it), there are currently around thirty Crimean Tatar organizations representing
more than 20,000 members, the banning of the Mejlis cannot be considered to be a
discriminatory measure against this ethnic group. 1362 A number of witnesses have
likewise confirmed the lack of the Mejlis’ legitimacy as a representative body.1363 The
statement adopted by the Crimean Tatars Council1364 also shows that the Mejlis has
nothing in common with Crimean Tatars, promotion and advocacy of their rights.
* * *
985. In conclusion, the ban on the Mejlis was exclusively based on the legitimate and justified
aim of countering extremist activities. No violation of the CERD can be established in
these circumstances, not least the existence of a “systematic racial discrimination
campaign”.
1359 Supreme Court of the Republic of Crimea, Case No. 2A-3/2016, Decision, 26 April 2016 (Memorial, Annex
913).
1360 Federal Law No. 114 FZ dated 25 July 2002 “On combating extremist activity”, Article 15.
1361 Reply, ¶491.
1362 See Counter-Memorial (CERD), ¶226.
1363 See, for example, Second Witness Statement of , ¶8 (Annex 15), Witness Statement
of , ¶¶6-7 (Annex 33), Witness Statement of , ¶21 (Annex
11), etc.
1364 Statement of the Council of Crimean Tatars under the auspices of the Head of the Republic of Crimea, 6 March
2023 (Annex 403).
Page 372 out of 541
V. THERE IS NO RACIAL DISCRIMINATION WITH RESPECT TO EDUCATION
986. Ukraine’s case on educational rights in Crimea is flawed both in fact and in law. Section
A below shows that Article 5(e)(v) of the CERD does not support Ukraine’s claims in the
present case since it does not provide for a right to education in minority languages.
Section B then demonstrates that, even if such a right existed, it has in any event not been
violated by the Russian Federation given that education in both Ukrainian and Crimean
Tatar languages is available in Crimea. None of Ukraine’s allegations, therefore,
evidence racial discrimination against Crimean Tatar and Ukrainian communities, not
least do they evidence the existence of a “systematic racial discrimination campaign”
targeted against them.
A. ARTICLE 5(E)(V) OF THE CERD DOES NOT INCLUDE A RIGHT TO EDUCATION IN
MINORITY LANGUAGES
987. In the Memorial, Ukraine built up its claim of an alleged “[s]uppression” of minorities
education rights” and “program of cultural erasure” on the allegation that the Russian
Federation’s educational policy in Crimea since 2014 hinders the right to education in
Crimean Tatar and Ukrainian languages in violation of Article 5(e)(v) of CERD.1365 The
Russian Federation showed in response that the right to education and training protected
from discrimination under Article 5(e)(v) of CERD does not encompass a right to
education in minority languages.
988. According to Article 5(e)(v):
“[…] States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before
the law, notably in the enjoyment of the following rights:
(…)
(e)(v) The right to education and training”.
989. Instruments that specifically address the rights of minorities in relation to education,
including the Convention against Discrimination in Education (the “CADE”) and
International Covenant on Economic, Social and Cultural Rights (the “ICESCR”),
indicate that this right includes both a right of minorities to create their own private
1365 Memorial, ¶¶533-539.
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educational and training establishments, and the right to access, and profit from,
mainstream education on the basis of equality.1366 In other words, the prohibition of
discrimination in relation to education refers to “the right of everyone regardless of ethnic
origin to have access to a national educational system without discrimination”1367. There
is no multilateral instrument containing an obligation for States to provide minorities with
their own educational system.
990. General Comment No. 13 of the Committee on Economic, Social and Cultural Rights (the
“CESCR”), concerning Article 13 of the ICESCR, confirms this interpretation. The
CESCR observes, with respect to the right to receive education under Article 13(2), that:
“While the precise and appropriate application of the terms will depend upon
the conditions prevailing in a particular State party, education in all its forms
and at all levels shall exhibit the following interrelated and essential features:
…
(b) Accessibility. Educational institutions and programmes have to be
accessible to everyone, without discrimination, within the jurisdiction of the
State party. Accessibility has three overlapping dimensions:
…
Non-discrimination - education must be accessible to all, especially the most
vulnerable groups, in law and fact, without discrimination on any of the
prohibited grounds…”1368 [Emphasis added]
991. As further shown in Section B below, the Russian Federation’s educational system is
consistent with these criteria.
992. Unable to rebut this, Ukraine now claims in a vague and unclear manner that “Russia uses
its educational system “to promote the Russian language and culture at the expense of
Ukrainian and Crimean Tatar language and culture”.1369 Ukraine further asserts that “[its]
claim does not require the existence of such a specific right [a right to education in
minority language], but rather only that the Ukrainian and Crimean Tatar communities
receive less favourable treatment than the ethnic Russian community in Crimea and that
1366 See Counter-Memorial (CERD), ¶¶263-282.
1367 Ibid., ¶278.
1368 CESCR General Comment No. 13: The Right to Education (Art. 13) Adopted at the Twenty-first Session of
the Committee on Economic, Social and Cultural Rights, on 8 December 1999, Document E/C.12/1999/10, ¶6,
available at: https://www.refworld.org/pdfid/4538838c22.pdf. .
1369 Reply, ¶669.
Page 374 out of 541
this adversely affects their access to education and training”. 1370 To substantiate its
allegation, Ukraine adds, without producing any evidence, that the changes “that the
Russian Federation has introduced to the status quo in Crimean education — favouring
Russian-language education at the expense of education in minority languages — have
had a disparate impact on access to education and training in general across ethnic
lines”.1371
993. Ukraine does not explain how this position can stand if, as it appears to be the case,
Ukraine does not claim a specific right of education in a minority language. In any event,
this argument is misleading. First, it raises the issue of the change in the situation of
Crimea since its reunification with the Russian Federation in 2014, a matter the Court
cannot rule upon as established in the Judgment of 8 November 2019.1372 Second, it
disregards the fact that Crimean Tatars and Ukrainians have enjoyed a particularly
favourable treatment since 2014 because, among other things, their languages, along with
the Russian language, have been recognized as State languages in Crimea and have been
also incorporated into the educational system, as will be further shown below.
994. Ukraine also invokes the theory of formal equality versus true equality (equality of result)
in support of its claim. It argues that “since occupying Crimea in 2014, Russia has altered
the pre-existing status quo, taking away resources previously devoted to education in the
Ukrainian and Crimean Tatar languages, and generally “russifying” 1373 the Crimean
educational system. Those measures have a disparate adverse impact on the right to
access education enjoyed by the Ukrainian and Crimean Tatar communities in Crimea, as
compared to the ethnic Russian community and therefore constitute a violation of CERD
Articles 2(1)(a) and 5(e)(v)”.1374
995. In support of this allegation, Ukraine merely relies on the Permanent Court’s Advisory
Opinion concerning Minority Schools in Albania, where the Court, while interpreting a
specific treaty concluded by Albania for the protection of minorities, observed that “[i]t
1370 Reply, ¶670.
1371 Reply, ¶672.
1372 Judgment of 8 November 2019, ¶29.
1373 The meaning of which is defined neither in the Reply nor earlier in the Memorial, thus it can mean anything.
1374 Reply, ¶678.
Page 375 out of 541
is easy to imagine cases in which equality of treatment of the majority and of the minority,
whose situation and requirements are different, would result in inequality in fact”.1375
996. Ukraine maintains that “[a]s in Minority Schools in Albania, where the PCIJ rejected
Greece’s contention that Albania was bound to respect historical community rights and
applied instead general principles of minority protection, no specific right to education in
one’s own language is needed to reach the conclusion above. That conclusion rests
instead on an understanding of Article 5 of the CERD as guaranteeing practical and not
just formal equality before the law (…)”.1376
997. This is of no assistance for Ukraine’s case. The PCIJ came to the conclusion that the right
of the Greek minority was violated by virtue of the abolition of private schools by Albania
because the treaty in question contained a specific right for minorities “to maintain,
manage and control at their own expense or to establish in the future, charitable, religious
and social institutions, schools and other educational establishments, with the right to use
their own language and to exercise their religion freely therein”. (Emphasis added).
998. The PCIJ also affirmed that providing the right of minorities to maintain at their own
expense private schools offering education in their own language was sufficient to
guarantee equality:
“The right provided by the Declaration is in fact the minimum necessary to
guarantee effective and genuine equality as between the majority and the
minority”.1377
999. This is different from Article 5(e)(v) of the CERD, which contains a reference to a general
“right to education and training” that, as has been shown, does not contain a right to
education in minority languages even if it is interpreted in light of other relevant
international instruments.
1000.Moreover, Ukraine did not explain the context of the request for the advisory opinion,
that is, the abolition by the Albanian Government of private schools that deprived the
religious community of its only educational system. The Permanent Court was requested
1375Minority Schools in Albania, Advisory Opinion, 6 April 1935, P.C.I.J. Rep. Series A/B – No. 64, p. 19 (Cited
by Ukraine in the Reply, ¶674, fn 1322).
1376 Reply, ¶677.
1377Minority Schools in Albania, Advisory Opinion, 6 April 1935, P.C.I.J. Rep. Series A/B – No. 64, p. 20.
Page 376 out of 541
to express its opinion on the conformity of that measure with Article 5(1) of the Albanian
Declaration. 1378 Certainly, neither public, nor private schools are prohibited in the
Russian Federation, including those tutoring in minority languages.
1001.As for public education, which Ukraine makes the focus of its complaint, the Albanian
Declaration only required that provision be made:
“in towns and districts in which are resident a considerable proportion of
Albanian nationals whose mother-tongue is not the official language… for
adequate facilities for ensuring that in the primary schools instruction shall
be given to the children of such nationals through the medium of their own
language, it being understood that this provision does not prevent teaching of
the official language being made obligatory in the said schools”.1379
1002.However, Crimean Tatars and Ukrainians in Crimea have full access to free public
education, including the possibility to receive it in their native language in accordance
with the national legislation.
1003.This reality does not fit into the Ukrainian narrative, forcing its expert, Professor
Fredman, to disregard simple facts in order to defend Ukraine’s position:
“Like Russia in the current case [sic], the Albanian government submitted
that all children were treated equally under this new measure since it was of
general applicability, ending all private schools for students learning in the
majority language, as well as the minority. The Court recognized, however,
that this impacted minority communities far more heavily, as the majority
would continue to have their needs supplied by public institutions created by
the State, whereas in effect the minority groups were deprived of institutions
which were indispensable to their special requirements”.1380
1004.This statement is wrong because:
(a) The Russian Federation, unlike Albania, does not prohibit private schools,
regardless of the language they use; and
1378 Ibid., p. 5.: “Albanian nationals who belong to racial, religious or linguistic minorities will enjoy the same
treatment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to
maintain, manage and control at their own expense or to establish in the future, charitable, religious and social
institutions, schools and other educational establishments, with the right to use their own language and to exercise
their religion freely therein. Within six months from the date of the present Declaration, detailed information will
be presented to the Council of the League of Nations with regard to the legal status of the religious communities,
Churches, Convents, schools, voluntary establishments, and associations of racial, religious and linguistic
minorities. The Albanian Government will take into consideration any advice it might receive from the League of
Nations with regard to this question”.
1379 Ibid., p. 21.
1380 Second Expert Report of Professor Sandra Fredman, 21 April 2022, ¶52 (Reply, Annex 5).
Page 377 out of 541
(b) The Russian Federation, unlike Albania, provides minorities with access to free
public education in their minority languages.
1005.In short, the situation in Crimea is the opposite of the situation in 1935 Albania, and the
parallels that Ukraine seeks to draw between the two cases are unfounded. On the
contrary, the key right that the PCIJ considered the “minimum necessary to guarantee
effective equality” (for minorities to be able to maintain private schools in their own
language) has always been preserved in the Russian Federation, which even went beyond
by providing free public education in minority languages.
1006.In addition, Crimean Tatars and Ukrainians as minorities do enjoy full, effective and
genuine equality in Crimea as was shown in the Counter-Memorial and is supported
further in this Rejoinder. Generally, Ukrainian and Crimean Tatar languages, as well as
Russian, are State languages of Crimea and may be freely chosen upon request as a
language of education. Greek minorities, on the contrary, were factually deprived of
possibility to study in their minority language, while Crimean Tatars and Ukrainians were
given even more opportunities to study their minority language as Crimean Tatar
language was declared as a State language, and Ukrainian schools were given due
attention in order to maintain number of students studying Ukrainian. Thus, the Minority
Schools in Albania case is inapplicable to the case at hand.
1007.Ukraine also relies on some “recommendations” of the CERD Committee1381 and on the
Cyprus v. Turkey case before the ECtHR,1382 but they do not support its position.
Regarding the “recommendations” of the CERD Committee, Ukraine itself recognizes
that they are the expression of a “concern over the lack of education in minority
languages”,1383 but it overlooks important aspect that the CERD recommendations to each
mentioned State aim to provide assistance to resolve their problems resulted from
different political, social and economic orders of those States, and thus were related to
the particular problems and cannot be generalized.1384 This does not correspond to the
situation in Crimea where education in native languages, including Crimean Tatar and
Ukrainian, is available for members of these communities.
1381 Reply, ¶¶681-683.
1382 Ibid., ¶688.
1383 Ibid., ¶681.
1384 See Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023, ¶14 (Annex 18).
Page 378 out of 541
1008.As regards the Cyprus v. Turkey case, Ukraine maintains that “the Court found that the
substance of the right to education was violated where the occupation authorities in
Northern Cyprus, having assumed responsibility for the pre-existing infrastructure for
Greek-language education, failed to make continuing provision for it”.1385 However, that
decision is of no relevance for the present case for a number of reasons, in particular (1)
this case does not concern the CERD or the right of everyone without distinction as to
race, colour or ethnic origin to education and training; (2) the ECtHR was dealing with a
special “right of parents to ensure such education and teaching in conformity with their
own religious and philosophical convictions” under Article 2 of Protocol No. 1 to the
ECHR.1386 Furthermore, the ECtHR did not find a violation of Article 14 of the ECHR
(prohibiting discrimination on, inter alia, grounds of race or association with a national
minority), so even if the analogy drawn by Ukraine was valid (and it is not), then still no
racial discrimination took place In any case unlike in the “TRNC”, education in the
Ukrainian language is available for those who opt for it, as further explained in the next
section.
B. CRIMEAN TATARS AND UKRAINIANS HAVE ACCESS TO EDUCATION IN THEIR OWN
LANGUAGES IN CRIMEA
1009.The Counter-Memorial showed that, even if Ukraine was right in asserting that States
have an obligation to provide full education in minority languages (quod non), the
Russian Federation ensures that all people living in Crimea have access to education in
languages of their own choice, including in Crimean Tatar and Ukrainian.1387 Therefore,
no violation of the CERD can be established.
1010.As Ukraine’s Reply shows, the Parties continue to disagree on three points regarding the
educational system in Crimea, each of which is addressed separately below:
1385 Reply, ¶688.
1386 Cyprus v. Turkey, ECtHR, Application No .25781/94, Grand Chamber, Judgment, 10 May 2001, ¶277. With
respect to the right to education as such, the judgment noted that: “Admittedly, it is open to children, on reaching
the age of 12, to continue their education at a Turkish or English-language school in the north. In the strict sense,
accordingly, there is no denial of the right to education, which is the primary obligation devolving on a Contracting
Party under the first sentence of Article 2 of Protocol No. 1 … Moreover, this provision does not specify the
language in which education must be conducted in order that the right to education be respected …”.
1387 Counter-Memorial (CERD), ¶¶288-323.
Page 379 out of 541
(a) whether the Russian Federation’s legal framework provides adequate access for
ethnic minorities to education in native languages (i);
(b) what are the reasons for fluctuations in the number of students in Ukrainian
language in Crimea (ii); and
(c) whether the Russian Federation’s support for ethnic minorities’ educational rights
is sufficient (iii).
i. Russian Law Affords Appropriate Access to Education in Native Languages
1011.Ukraine portrays the Russian educational system as discriminatory, suggesting that
Ukrainians and Crimean Tatars are entitled to have their native languages as a language
of education only until the ninth grade of middle school,1388 whereas Ukraine’s laws
allegedly “protect students’ right to a complete school education in a minority language,
protection that Crimean Tatar and ethnic Ukrainian children are currently being denied in
Crimea.”1389 The Russian Federation’s system of mandatory education in Russian, in
Ukraine’s view, “stifl[es] education in regional language”.1390
1012.As noted above, Ukraine’s entire case on education is based on the false premise that
there is a “systematic racial discrimination campaign” simply because the Russian
Federation’s educational system is not identical to the Ukrainian one and because the
former applies in Crimea since 2014. All States, however, must naturally ensure
compliance with their own laws and regulations on education, and the many differences
that may exist in educational systems across countries cannot suffice to establish a
violation of the CERD. Crucially, what Ukraine fails to demonstrate is that there is any
differential treatment in the Russian Federation that nullifies or impairs the right to
education of Crimean Tatars and Ukrainians because of their ethnicity as part of a
deliberate “systematic campaign” targeting and singling them out. It is evident that
Ukraine cannot prove such a state of affairs because the Russian educational system
applies throughout Russian territory in an equal manner, regardless of race, colour,
descent or national or ethnic origin.
1388 Reply, ¶691.
1389 Ibid., ¶695.
1390 Ibid., ¶¶693-694.
Page 380 out of 541
1013.Furthermore, Ukraine seeks to mislead the Court regarding its law “On Complete General
Secondary Education”.1391 Article 5(4) of the law declares the right only of “indigenous
peoples” to receive complete general secondary education in their own language. The
notion of “indigenous peoples” in Ukraine is limited and includes only Crimean Tatars,
Crimean Karaites, and Krymchaks.1392 Moreover, these ethnicities, the majority of which
live in Crimea, were recognized by Ukraine as indigenous peoples only after Crimea
ceased to be part of Ukraine, and Ukraine initiated the present proceedings.1393
1014.In respect of other minorities, including Russians, which constitute a considerable part of
the population of Ukraine and for whom the Russian language is not only native but also
their language of day to day use, Article 5(5) of the law applies, which provides only for
the possibility to receive “primary education” in their own language, which lasts for four
years.1394
1015.Article 14(4) of the Russian Federal Law “On education in the Russian Federation” gives
all Russian citizens the right to receive basic general education, which lasts for nine years,
in one of the languages of the peoples of the Russian Federation, which includes
Ukrainian and Crimean Tatar languages.1395 Ukraine’s complaint that basic complete
general education in the Russian Federation does not last as long as the secondary
education Ukraine decided to afford to indigenous peoples (11 years) is simply irrelevant
in this context. The length of general education in the Russian Federation does not show
any trace of racial discrimination; it simply reflects a policy choice of what the Russian
Federation considers most appropriate for students’ development and it is applied
uniformly throughout the country.
1391 Law of Ukraine No. 463-IX “On Complete General Secondary Education”, 16 January 2020 (Reply, Annex
92).
1392 Law of Ukraine No. 1616-IX “On Indigenous Peoples”, 1 July 2021, Article 1(2), available at:
https://ips.ligazakon net/document/view/T211616?an=2. (Annex 446).
1393 Reply, ¶695; see also Chapter II.
1394 Law of Ukraine No. 463-IX “On Complete General Secondary Education”, 16 January 2020, Article 5(5)
(Reply, Annex 92).
1395 Federal Law “On Education in the Russian Federation”, 29 December 2012, Article 14(4), available at:
http://www.consultant.ru/document/cons_doc_LAW_140174/bf7fadb3532c712ccd28cc2599243fb8018ed869/
(Annex 401); see also All-Russian Population Information Classifier, available at:
http://www.consultant.ru/document/cons_doc_LAW_181559/4bde797bdcec1c751aa426f4facc10f19143eed5/
(Annex 60).
Page 381 out of 541
1016.Because it is impossible to challenge the Russian Federation’s statutory guarantees of
equality in the use of native languages, Ukraine attempts to portray them as “a mere
façade” that does not apply in reality. However, Ukraine’s arguments in this respect are
both inapposite and false:
(a) Ukraine relies on one case where a judge refused to fully conduct the proceedings
in Crimean Tatar.1396 At the outset, this is irrelevant for Ukraine’s claim because it
does not concern the right to education at all. Furthermore, it must be noted that
the judge’s actions were in accordance with the Russian Code of Administrative
Proceedings. Judges “may” direct that proceedings be conducted in a State
language other than Russian if the circumstances so require. In all cases, the right
of a person to use their own language in court is ensured by providing an
interpreter,1397 which was exactly what happened in Ukraine’s example.1398
(b) Ukraine also relies on a pro-Ukrainian “Crimean Tatar public figure” who suggests
that “in reality, it [the Crimean Tatar language] remains only the language of
everyday communication within families, and in the social and political life of
Crimea you will not see its use”.1399 Again, while of no relevance to the issue of
racial discrimination in the context of education as the statement is extremely broad,
this allegation is easily dispelled by evidence.1400
1396 Reply, ¶691, fn 1343.
1397 Code of Administrative Proceedings of the Russian Federation, 8 March 2015, Article 12(2), available at:
http://www.consultant.ru/document/cons_doc_LAW_176147/d53b6fc612510def4b17535a00dd5314b0c50d93/
(Annex 61).
1398 Krym Realii, This Is Linguocide”: How Crimean Tatar and Ukrainian Languages Disappear in Crimea (22
June 2021) (Reply, Annex 168).
1399 Krym Realii, “State Crimean Tatar Language in Crimea – Imitation”: Problems of the Language of the
Indigenous People on the Peninsula and the Mainland (19 January 2020) (Reply, Annex 158).
1400 See e.g. Millet, Ayder Ismailov, Deputy Mufti of Crimea and Sevastopol, speaking on the TV program “Hyzmet
ve Berket” (18 November 2022), available at: https://trkmillet ru/program-episode/khizmet-ve-bereket-vipusk-ot-
18-11-22-ayder/ (Annex 113); Millet, Eldar Seitbekirov, editor-in-chief of the newspaper Golos Kryma, speaking
on the TV program “Prime Time” (24 November 2022), available at: https://trkmillet.ru/program-episode/praymtaym-
vipusk-ot-24-11-22-yeldar-seitbek/ (Annex 114); Millet, Remzi Devletov, Head of Literature and
Dramaturgy at the Crimean Tatar Academic Theatre, speaking on the TV program “Ana Yurtun - Altyn Beshik”
(21 November 2022), available at: https://trkmillet.ru/program-episode/ana-yurtun-altin-beshik-28-vipusk-rem/
(Annex 115); Millet, Eskender Tarakchiyev, member of the Nizhnegorsk District Council, speaking on the TV
program “Tek arzum Vatan!” (21 November 2022), available at: https://trkmillet.ru/program-episode/tek-arzumvatan-
vipusk-ot-17-11-2022-yeskende/ (Annex 116); Millet, Ruslan Yakubov, Deputy Chairman of the State
Committee on Inter-Ethnic Relations of the Republic of Crimea (22 September 2022), available at:
https://trkmillet.ru/program-episode/praym-taym-vipusk-ot-22-09-2022-ruslan-yakubov/ (Annex 117).
Page 382 out of 541
1017.To conclude, the Russian Federation’s legislation on education provides all ethnic groups,
including Crimean Tatars and Ukrainians, with access to education in their native
languages. Ukraine’s arguments suggesting otherwise must be dismissed. Moreover, as
has been shown above,1401 Ukraine’s own policy regarding Russian language precludes
any claims it may have to other States’ systems of education.
ii. Crimean Tatars and Ukrainians Continue to Receive Education in Their Native
Languages
1018.The Russian Federation has presented ample data regarding its system of education that
shows that no racial discrimination based on any ground prohibited by the CERD exists,
and that Crimean Tatars and Ukrainians continue to receive education in their native
languages when they so desire.1402 In light of Ukraine’s insistence on arguing otherwise,
however, some additional observations are warranted.
a. Education in the Crimean Tatar language
1019.While Ukraine refers to the number of Crimean Tatars receiving education in the language
of their preference as “overly-rosy”,1403 the reality is that Ukraine cannot counter the
evidence produced in the Counter-Memorial. The plain facts show that this number is
growing.
1020.With respect to school education, the Russian Federation has significantly improved the
conditions for those wishing to study in Crimean Tatar. As of today, 16 schools continue
to offer full education in Crimean Tatar until the ninth grade.1404 As regards high school,
(10th and 11th grade), Crimean Tatar is taught as a separate subject.1405 One example is
school No. 42, whose principal provides information that a large
1401 See above in Chapter II(A).
1402 Counter-Memorial (CERD), ¶¶288-323.
1403 Ukraine’s Reply, ¶706.
1404 Ministry of Education, Science and Youth of the Republic of Crimea, Information on students studying in the
state languages of the Republic of Crimea (Russian, Ukrainian, Crimean Tatar) in general education institutions
of the Republic of Crimea in the academic year 2022/2023, available at:
https://monm.rk.gov ru/uploads/txteditor/monm/attachments//d4/1d/8c/d98f00b204e9800998ecf8427e/phpzVO5
bi_%D0%9D%D0%B0%20%D1%81%D0%B0%D0%B9%D1%82%20%D0%B2%20%D1%80%D0%B0%D0
%B7%D0%B4%D0%B5%D0%BB%20%D0%93%D0%BE%D1%81%D1%8F%D0%B7%D1%8B%D0%BA%
D0%B8%20%D0%BA%D1%80%D0%B0%D1%82%D0%BA%D0%BE.doc (Annex 63).;
1405 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶18(с) (Annex 13).
Page 383 out of 541
number of students at her school study Crimean Tatar language, as well as participate in
extracurricular activities related to the Crimean Tatar language, and the school receives
substantial support from local and federal authorities to this end.1406 Additionally, the
Russian Federation’s funding helped build numerous kindergartens in areas inhabited by
Crimean Tatars.1407
1021.Moreover, before 2014, Ukraine refused to form a class of students in Crimean Tatar,
unless there were at least 8-10 people in it.1408 The Russian Federation has no such
restrictions. Thus, in Krasnoperekopsky District of Crimea, a “class” educated in
Crimean Tatar was organized just for one student.1409
1022.Thus, more and more people choose Crimean Tatar as their language of education.
Whereas in 2021/2022 around 7,000 students were instructed fully in Crimean Tatar (with
31,000 students taking the language as a separate subject),1410 in 2022/2023 that number
grew to 7,300.1411
1023.With respect to higher education, two Crimean universities teach programs in Crimean
Tatar language (philology, history and journalism). Additionally, the Russian Federation
sponsors budgetary1412 university places for those students who want to specialize in the
1406 , Informational Note (Annex 35).
1407 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶7. (Annex 13).
1408 Ibid., ¶12 (Annex 13); UNIAN, In Crimea all Conditions Have Been Created to Teach Children in their Native
Languages (11 October 2006), available at: https://www.unian.net/society/19145-v-kryimu-sozdanyi-vseusloviya-
dlya-obucheniya-shkolnikov-na-rodnyih-yazyikah.html.
1409 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶13 (Annex 13).
1410See Ministry of Education, Science and Youth of the Republic of Crimea, On the state of education in the state
languages of the Republic of Crimea (Russian, Ukrainian, Crimean Tatar) and the study of native languages of the
peoples of the Russian Federation living in the Republic of Crimea in general education institutions of the Republic
of Crimea in the academic year 2021/2022, available at:
https://monm.rk.gov ru/uploads/txteditor/monm/attachments//d4/1d/8c/d98f00b204e9800998ecf8427e/phpllaB0
O_%D0%9D%D0%B0%20%D1%81%D0%B0%D0%B9%D1%82%20%D0%B2%20%D1%80%D0%B0%D0
%B7%D0%B4%D0%B5%D0%BB%20%D0%93%D0%BE%D1%81%D1%8F%D0%B7%D1%8B%D0%BA%
D0%B8.doc (Annex 62).
1411See Ministry of Education, Science and Youth of the Republic of Crimea, Information on students studying in
the state languages of the Republic of Crimea (Russian, Ukrainian, Crimean Tatar) in general education institutions
of the Republic of Crimea in the academic year 2022/2023, available at:
https://monm.rk.gov ru/uploads/txteditor/monm/attachments//d4/1d/8c/d98f00b204e9800998ecf8427e/phpzVO5
bi_%D0%9D%D0%B0%20%D1%81%D0%B0%D0%B9%D1%82%20%D0%B2%20%D1%80%D0%B0%D0
%B7%D0%B4%D0%B5%D0%BB%20%D0%93%D0%BE%D1%81%D1%8F%D0%B7%D1%8B%D0%BA%
D0%B8%20%D0%BA%D1%80%D0%B0%D1%82%D0%BA%D0%BE.doc (Annex 63).; see also Witness
Statement of Valentina Vasilyevna Lavrik, 7 March 2023, ¶7 (Annex 25).
1412 “Budgetary place” means that all costs of education are covered by the government, and the student does not
have to incur the costs of the education.
Page 384 out of 541
teaching of Crimean Tatar. In particular, during the 2022/23 academic year, the Russian
Federation allocated 13 budgetary places for the Crimean Federal University’s bachelor’s
degree program on Crimean Tatar language and literature.1413 Ten additional budgetary
places were allocated for extramural program “Philology: the Crimean Tatar language
and literature”.1414 Similarly, the Russian Federation allocated 40 budgetary places for
programs aimed at teaching the Crimean Tatar language and literature at the Crimean
Engineering and Pedagogical University.1415
1024.Mr Ervin Musaev, currently professor at the Chair of Media and Public Relations at the
Crimean Federal University, highlights in his witness statement the increase in the level
of quality of university education due to the Russian Federation’s efforts in this
context.1416 It goes without saying that none of this would have been done if the Russian
Federation had been conducting a “systematic racial discrimination campaign” targeting
Crimean Tatars, as Ukraine claims.
1025.It should be noted that, in addition to the above, several events and programs exist to
promote Crimean Tatar language and culture, with governmental support. Aider
Ablyatipov, former deputy minister of education of Crimea, names just a few in his
witness statement:
(a) For 15 years, an annual festival of student creativity has been held in the Crimean
Tatar language, called “Native Language is Priceless, Spiritual Wealth of the People
is Inexhaustible”. The festival includes the literary creative works competition
“Qirim – Menim Vatanym” (“Crimea is my homeland”) named after Yunus
Kandym; contest of theatre groups “Theatre – ayat kuzgyusi” (“Theater is a mirror
of life”), KVN (humour/talent competitions “the Wits and Comedy Club”); and
multimedia presentations on the subject “Aile degerlikleri” (Family Relics).1417
1413See Crimean Federal University, Allocation of budgetary places in the bachelor's and specialist's program in
2023 (full-time programs), available at: https://priem.cfuv ru/bachelor/direction/cfu (Annex 64).
1414See Crimean Federal University, Allocation of budgetary places in the bachelor's and specialist's program in
2023 (extramural programs), available at: https://priem.cfuv ru/bachelor/direction/cfu (Annex 65).
1415 See Crimean Engineering and Pedagogical University, Number of places for admission for the 2023/2024
academic year, available at: https://kipu-rc.ru/downloads/2022/priem/11.pdf (Annex 66).
1416Witness Statement of Ervin Kyazimovich Musaev, 7 March 2023, ¶¶29-31 (Annex 33).
1417Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶32 (Annex 13).
Page 385 out of 541
(b) The competition of literary creative works “Qirim – menim Vatanym” (“Crimea is
my Homeland”) named after Yunus Kandym is held in two stages in a remote
format on the topics “Qirimtatar Halk’nyn Jenk Q’aramanlary” (“Heroes of war
from among the Crimean Tatars”), “Menim Q’artbabam (Q’artanam)) - Jenk
Ishtirakchisi” (“My grandfather (grandmother) is a participant of the war”).
Students between 5th and 11th grades took part in the first stage of the competition,
and in the second stage the winners of stage 1 were divided into two age categories:
5th to 8th grades, 9th to 11th grades. The winners of the republican stage are awarded
not only with diplomas, valuable prizes, but also receive the right to be published
in the literary and artistic almanac “Yildiz” (“Star”).1418
(c) In the competition of school theatre groups uses excerpts from the works of
Crimean Tatar writers and poets of various genres, as well as self-authored works.
In 20 minutes, a team of young actors (no more than 10 people) must show the level
of knowledge of the native language, directorial concept and its stage
implementation, relevance and artistic merit of the work, the level of performance
skills and repertoire suitability to the age of the performer During the KVN
competition, the stages are followed that have already become traditional for this
international game: “Team Presentation Card”, “Warm-Up”, “Musical Contest”,
“Homework”.1419
(d) The competition of multimedia presentations “Aile degerlikleri” (“Family Relics”)
is held in two stages (remote and in person) and involves the presentation of a
valuable family heirloom (photos, letters, household items, clothes, etc.). It is held
in three categories: Report (an essay plus CD copy); multimedia (presentation,
website, etc.); video. The works of the winners of this competition are published
in the republican newspaper “Yanyy Dunya” (“New World”).1420
(e) Students also participate in events dedicated to the memorable dates of the peoples
of Crimea: the Crimean-Tatar national holidays “Khydyrlez” (1st decade of May),
“Derviza” (21 September); etc.1421
1418Ibid., ¶33.
1419Ibid., ¶34.
1420Ibid., ¶35.
1421Ibid., ¶37.
Page 386 out of 541
(f) Every year between May and August, students of educational institutions
participate in organizing and holding events dedicated to the Day of Remembrance
of the Victims of Deportation from Crimea. These include the “Light a Fire in Your
Heart” campaign, laying flowers at monuments and memorial signs, class hours,
thematic exhibitions, meetings with people who survived deportation, and much
more.1422
1026.In a last attempt to bolster its clearly untenable position, Ukraine goes as far as to suggest
that “in Crimea students are forced to refuse to study in the Crimean Tatar language at
school”.1423 This serious accusation is based on a single photograph produced by the
Crimean Tatar Resource Centre, which is incorporated in Kiev and collaborates both with
the Mejlis and the Ukrainian Foreign Ministry.1424 Nothing, however, could be further
from the truth. As abundantly demonstrated above, Crimean Tatars are free to choose the
language of their education, and many of them opt for Crimean Tatar.
b. Education in Ukrainian
1027.Ukraine and the Russian Federation continue to differ in assessing the reasons for the
decrease in the number of students receiving education in Ukrainian. In the Reply,
Ukraine attributes this to “reductions in provision combined with Russian efforts to
artificially suppress demand”.1425
1028.Ukraine also attempts to portray the statistics presented by the Russian Federation in its
previous pleadings as “questionable” and “inflated”.1426 Nevertheless, while making
these allegations Ukraine fails to produce any reliable evidence of its own which would
prove a plausible claim under the CERD.1427
1422 Ibid., ¶38.
1423 Reply, ¶702, fn 1362.
1424 See Ministry of Information Policy of Ukraine, MIP, MFA and Crimean Tatar Resource Center provide the
world with information about human rights in Crimea, available at: http://mkip.gov.ua/news/2062 html (Annex
488).
1425 Reply, ¶¶696-705.
1426 Ibid., ¶699.
1427 For instance, Ukraine relies on a manifestly pro-Ukrainian sources, whose line of argumentation is
predominantly built upon hearsay: “CHRU has information”, “the information which CHRG has” etc. As regards
the OHCHR Reports quoted by Ukraine, as the Russian Federation explained in ¶674 above, the OHCHR missions
operated within Ukraine, without visiting Crimea. The OHCHR did not consider the position of Crimeans actually
residing in Crimea with respect to the reasons of the decline of people studying Ukrainian.
Page 387 out of 541
1029.Contrary to what Ukraine asserts,1428 the drop in demand for education in Ukrainian was
the reason that caused the decline in the number of students. Ukraine does not provide
any explanation as to why there would be a need for as many students to continue studying
in Ukrainian after 2014, given that the Russian educational system began to be applied in
Crimea, thereby providing different opportunities to students. Before 2014, it was natural
that parents wanted that their children continue education in Ukrainian universities and
potentially start working in State institutions of Ukraine. It should be noted that even at
that time the number of students receiving education in Ukrainian was rather low in
Crimea – at around seven percent.1429 It should also be noted that Ukrainian was not used
in day-to-day life in Crimea even among students studying Ukrainian. According to a
study in the early 2010s, only 3,7% of Crimean internet users used Ukrainians to browse
the web.1430
1030.The practical necessity to study Ukrainian for a lot of the students was no longer there
after 2014. As explained in the witness statement of Crimean Minister of Education
Valentina Lavrik, students needed Ukrainian in order to pursue careers notably in civil
service, military and linguistics.1431 With the exception of linguistics, it was the more
logical and pragmatic choice to continue education in the Russian language for the same
reasons that those students took up education in Ukrainian before 2014. Some students
opted to continue studying in Ukrainian (as Ukraine itself acknowledges),1432 and there
have never been any obstacles for them to do so, as the evidence produced in the Counter-
Memorial shows.1433
1031.It is worth noting that, as Aider Ablyatipov indicates in his Second Witness Statement, if
parents of Crimean students feel that their application to have their child taught in the
language of their choice has been ignored or mishandled, they have the right to submit a
complaint to competent authorities. However, during his time at the Ministry of
1428 Reply, ¶701.
1429 Witness Statement of Valentina Vasilyevna Lavrik, 7 March 2023, ¶8 (Annex 25).
1430 A. Arefyev, Russian language in the Ukrainian Republic, in RUSSIAN LANGUAGE IN THE FORMER SOVIET
REPUBLICS. RUSSIAN LANGUAGE AT THE TURN OF THE 20TH - 21ST CENTURIES (Center of Social Forecasting and
Marketing, 2012), available at: http://www.demoscope ru/weekly/2013/0571/analit03.php (Annex 489).
1431 Witness Statement of Valentina Vasilyevna Lavrik, 7 March 2023, ¶10 (Annex 25).
1432 Reply, ¶699.
1433 Counter-Memorial (CERD), ¶¶290-323.
Page 389 out of 541
low demand.1441 is also one of the organizers of conferences and public events
in commemoration of Ukrainian poets, as well as supports extracurricular activities
promoting Ukrainian language.1442
1036.Another university where students may study Ukrainian with support by the Russian
Federation is the Crimean Engineering and Pedagogical University. The Russian
Federation allocated 10 budgetary places for a program aimed at teaching the Ukrainian
language and literature.1443
1037.In total, in 2021/2022, 212 students studied fully in Ukrainian, whereas 3,780 students
studied Ukrainian as a separate subject and 93 children were engaged in preschool studies
in Ukrainian. 1444 During the 2022/2023 school year, 190 students studied fully in
Ukrainian.1445 It should also be pointed out that the Simferopol Academic Gymnasium
has also opened a class with Ukrainian as the language of instruction.1446
1038.Finally, contrary to Ukraine’s allegations1447 with respect to extracurricular teaching of
Ukrainian, the Russian Federation does not limit such opportunities, but, on the contrary,
provides students with numerous chances to use Ukrainian in that context and enhance
their knowledge and skills. For example, every year a competition called “Language is
the soul of the people” takes place, where students compete in oral and written events in
1441 Witness Statement of 3 March 2023, ¶7 (Annex 31).
1442 Ibid., ¶¶11-19.
1443 See Crimean Engineering and Pedagogical University, Number of places for admission for the 2023/2024
academic year, available at: https://kipu-rc.ru/downloads/2022/priem/11.pdf (Annex 66).
1444 See Ministry of Education, Science and Youth of the Republic of Crimea, On the state of education in the state
languages of the Republic of Crimea (Russian, Ukrainian, Crimean Tatar) and the study of native languages of the
peoples of the Russian Federation living in the Republic of Crimea in general education institutions of the Republic
of Crimea in the academic year 2021/2022, available at:
https://monm.rk.gov ru/uploads/txteditor/monm/attachments//d4/1d/8c/d98f00b204e9800998ecf8427e/phpllaB0
O_%D0%9D%D0%B0%20%D1%81%D0%B0%D0%B9%D1%82%20%D0%B2%20%D1%80%D0%B0%D0
%B7%D0%B4%D0%B5%D0%BB%20%D0%93%D0%BE%D1%81%D1%8F%D0%B7%D1%8B%D0%BA%
D0%B8.doc (Annex 62).
1445 See Ministry of Education, Science and Youth of the Republic of Crimea, Information on students studying in
the state languages of the Republic of Crimea (Russian, Ukrainian, Crimean Tatar) in general education institutions
of the Republic of Crimea in the academic year 2022/2023, available at:
https://monm.rk.gov ru/uploads/txteditor/monm/attachments//d4/1d/8c/d98f00b204e9800998ecf8427e/phpzVO5
bi_%D0%9D%D0%B0%20%D1%81%D0%B0%D0%B9%D1%82%20%D0%B2%20%D1%80%D0%B0%D0
%B7%D0%B4%D0%B5%D0%BB%20%D0%93%D0%BE%D1%81%D1%8F%D0%B7%D1%8B%D0%BA%
D0%B8%20%D0%BA%D1%80%D0%B0%D1%82%D0%BA%D0%BE.doc (Annex 63).
1446 Ibid.
1447 Reply, ¶700.
Page 390 out of 541
their native languages, including Ukrainian.1448 Moreover, students regularly participate
in student competitions (Olympiads) in Ukrainian. In 2016, a republican Olympiad was
held in all State languages and literatures of Crimea, with 252 students competing in
Crimean Tatar, 375 in Russian, and 112 in Ukrainian.1449
1039.Moreover, children in Crimea regularly participate in further extracurricular activities in
Ukrainian (including those organized by the State), and show outstanding results. To
exemplify, in 2016, the Ministry of Education, Science and Youth of the Republic of
Crimea organized the annual music festival “Crimean Terem” dedicated to the cultures
of the peoples of the Russian Federation, including Ukrainian culture.
(a) In 2018, the winner of the festival was the ensemble “Ulybka” (Smile) of the Center
for Children's Creativity in Alushta, which performed the Ukrainian “Hutsul
dance”.1450
(b) In 2019, the winner of the festival was the ensemble “Pearl of Crimea” at the Kerch
complex-boarding school-lyceum of arts, which performed the Ukrainian dance
“Veselka”.1451
(c) At the international competition “Hopes of Europe” in 2020, the folk dance
ensemble “Vesnyanka” (under the aforementioned House of Children's Creativity),
which performed the Ukrainian “Transcarpathian dance”, became a 2nd degree
diploma winner.1452
1448 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶30 (Annex 13).
1449 Ibid., ¶36.
1450 News feed of Crimea, III Open festival-competition of children's folklore groups "Crimean Terem" took place
in Crimea (3 December 2018), available at: https://crimea-news.com/society/2018/12/03/465715 html (Annex
118).
1451 The website of the SBEI of the Republic of Crimea “Kerch educational complex-boarding school-lyceum of
arts”, the Dance Ensemble “Pearl of Crimea” is the Winner of the Republican competition “Crimean Terem” (6
December 2019), available at: http://licey-iskusstv ru
/news/ansambl_tanca_zhemchuzhina_kryma_pobeditel_respublikanskogo_konkursa_krymskij_terem/2019-12-
06-1123 (Annex 25, Exhibit F). Ukrainian dances are the visiting card of the “Pearl of Crimea” – See the
performance of the “Pleskach” Ukrainian dance by the “Pearl of Crimea” – Youtube, Ukrainian dance “Pleskach”
(17 June 2018), available at: https://www.youtube.com/watch ?v=s58n97jdJ-k&ab_channel=ValeraMouzyka
(Annex 25, Exhibit G).
1452Youtube, Transcarpathian dance. The folk dance ensemble “Vesnyanka” from Simferopol performs at the
competition in Sochi (20 January 2020) available at: https://www.youtube.com/watch?v=XVlSJf-SafQ (Annex 25,
Exhibit H).
Page 391 out of 541
(d) In 2018, at the dance festival in Sevastopol, several groups performed Ukrainian
dances: the Sudarushka Ensemble of the Sevastopolsky Palace of Culture
performed the Ukrainian Round Dance,1453 the Sevastopol Ensemble performed the
Hutsul Dance, and the Crimean Pearls Ensemble from Sak performed the dance
composition “The Call of Spring” based on Ukrainian folk motives.1454
(e) In 2017, at the Choreographic Recognition of Crimea festival, the Mozaika
Ensemble of the Children's Choreographic School of Simferopol performed the
Ukrainian dance Pleskach.1455
1040.The described trend is maintained until today. While Ukrainian is not a very popular
choice of language of education, some students continue to opt for it, and education is
provided to them in accordance with their choice.
iii. The Russian Federation’s support for ethnic minorities’ educational rights is
sufficient
1041.Finally, being unable to demonstrate that Crimean Tatar and Ukrainian communities do
not have access to education in their native language, Ukraine attempts to show that there
is a “systematic racial discrimination campaign” against them by alleging that the quality
of the education they receive in their native languages is subpar.1456 Although Ukraine
provides no comparator whatsoever that could hint to an actual violation of the CERD,
this accusation can in any event be easily dismissed by looking at the plain facts.
1042.As a preliminary remark, it should be noted that, before 2014, the educational system in
Crimea was severely underfunded. This led to schools having no access to relevant
literature in Crimean Tatar, and having to conduct lessons in facilities of low quality,
sometimes not in compliance even with the most basic sanitary norms.1457
1453 Youtube, “Ukrainian round dance” was performed at the Sevastopol Dance Festival (28 March 2018),
available at: https://www.youtube.com/watch?v=xIMw-tYXcfU (Annex 25, Exhibit I).
1454 Krym.Realii, Ukrainian and European dances were performed in Sevastopol (+ video) (24 March 2018),
available at: https://ru.krymr.com/a/news/29121649 html (Annex 25, Exhibit J).
1455 Youtube, Ensemble "Crimean Mosaic" (Simferopol) Ukrainian dance "Pleskach" (28 May 2017), available at:
https://www.youtube.com/watch?v=reg0-suYQi8 (Annex 25, Exhibit K).
1456 Reply, ¶¶707-713.
1457 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶14 (Annex 13).
Page 392 out of 541
1043.Textbooks in Crimean Tatar were likewise of unsatisfactory quality, with Ukraine
allocating not providing schools with sufficient quantity of textbooks.1458 In 2006, only
44% of students were equipped with textbooks on Crimean Tatar language and literature.
In junior school, only 35.5% of students were provided with textbooks in Crimean Tatar,
and 70% in the subject of Crimean Tatar as a language. Those numbers dropped with
respect to older students. Thus, only 20% of middle-schoolers and 3% of high-schoolers
had access to textbooks in Crimean Tatar, with 40% and 3% respectively having access
to textbooks in the subject of Crimean Tatar language. Thus, given the unsatisfactory
provision of textbooks in Crimean Tatar by Ukraine, most education was conducted in
Russian.1459
1044.It was noted in the media that the Crimean Tatar language was not widely used in Crimean
schools by 2013, particularly as there were no textbooks, no qualified specialists who
could teach in the Crimean Tatar language, and no appropriate salaries for them.1460 The
Ukrainian State did little to nothing to solve the issue. As a result of this substandard
education, no student in 2013 opted to take their exams in Crimean Tatar.1461
1045.Contrary to Ukraine’s allegations, since 2014, the Russian Federation has made important
efforts to support and improve minorities’ rights on all levels of education.
1046.First, the Russian Federation has allocated significant investments into improving the
conditions in schools, including those teaching in Crimean Tatar. Just to name a few
examples1462:
(a) In Vilina School No. 2, the necessary conditions were created to ensure high-quality
education. The school was equipped with interactive complexes, didactic and
visual aids in 9 classrooms: 4 primary school classrooms, biology, chemistry,
physics, and mathematics classrooms.
1458 Ibid., ¶17.
1459Ibid., ¶18(c).
1460Avdet, Crimean Tatars protect their language so much that they don't even speak it, 24 June 2013, available at
https://avdet.org/2013/06/24/krymskie-tatary-nastolko-beregut-svoj-yazyk-chto-dazhe-ne-razgovarivayut-nanem/
{Annex 121)
1461 Ibid.
1462 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶15 (Annex 13).
Page 393 out of 541
(b) In Belogorsk school No. 4, with the Crimean Tatar language of instruction, in 2018,
all window blocks were replaced with modern plastic ones, so optimal air-thermal
conditions would be maintained in all rooms. During 2015-2018, 6 additional
classrooms and a library with a total library fund of 8265 copies were equipped.
(c) In the academic year 2015/2016, the catering unit in Sudak School No. 3, with the
Crimean Tatar language of instruction, was modernized. Regular medical
examinations are now carried out and vaccinations are given to students. Once a
year, medical specialists conduct a medical examination of students. The school is
now equipped with a computer room. 9 classrooms were equipped in the school: 4
primary school classrooms, biology, chemistry, physics, and mathematics
classrooms.
(d) Since 2015, Yevpatoriya School No. 18 began to function as a base center. 10
classrooms were equipped with modern projectors, interactive whiteboards,
multifunctional devices, and personal computers with Internet access. The
informatics room is equipped with a projector, a TV, and 25 laptops for students.
(e) Simferopol School No. 44, which opened in 2017, has 6 classes instructed in the
Crimean Tatar language and 28 classes learning Crimean Tatar language. 430
million roubles were allocated from the federal and regional budgets for the
construction of the school, which is considered to be one of the best technically
equipped schools. The school consists of 5 three-story blocks. The school has 33
spacious, bright classrooms with high ceilings, an assembly hall and two sports
halls, laboratories, and a library. For elementary school students there is a separate
annex. In addition to the football field with artificial turf and running tracks
bordering it, volleyball and basketball courts, gymnastic courts are at the service of
schoolchildren. Primary school classrooms, biology, chemistry, physics,
mathematics, history and music classrooms are equipped with the latest
technologies. Computer science rooms, a sewing room, language laboratories for
learning foreign languages are equipped, as well as cooking and technology classes,
metal and wood workshops.. The catering unit was modernly equipped . The school
has a canteen that provides hot meals to all students. At the same time, grades 1-4
receive free hot breakfasts, children from low-income families, or otherwise
entitled to social security benefits, receive breakfasts and lunches. Regularly and
Page 394 out of 541
according to the schedule, medical examinations are carried out and vaccinations
are given to students.
1047.Second, the Russian Federation has increased the number of textbooks available to
students. The Russian Federation has facilitated the publication and supply of tens of
thousands of books in Crimean Tatar on subjects such as geography, art, mathematics,
history, music, social sciences, life safety fundamentals, physical education, technology,
fundamentals of Islamic culture, Crimean Tatar language, biology and more.1463
1048.By 2018/2019, the students were almost fully provided with textbooks in Crimean Tatar.
All junior students and high-schoolers, as well as 70% of middle-schoolers, now have
access to books in Crimean Tatar. This demonstrates that Ukraine’s allegations of
pressure by the Russian authorities on Crimean Tatars to drop studies in their language
are entirely unfounded, and a cynical attempt to cover up for Ukraine’s own
mismanagement of the Crimean Tatars’ education in the past.
1049.Ukraine’s allegations with respect to educational materials in Crimean Tatar are likewise
misplaced. In its Reply, Ukraine falsely contends that “textbooks [for Crimean Tatars
provided by Russia] perpetuate Russian propaganda and hateful narratives, instead of
historical fact”.1464 In support of this allegation Ukraine relies on just one situation:
“[O]ne tenth-grade history textbook depicted Crimean Tatars as Nazi
collaborators in World War II, rehabilitating the stereotype propounded by
Stalin as an excuse to deport Crimean Tatars from the Crimean peninsula in
1944”.1465
1050.However, all Ukraine seeks to do is to diminish the Russian Federation’s efforts to
rehabilitate Crimean Tatars after the unfortunate events suffered by that community, and
does by disingenuously relying on a single book without more. Yet once more Ukraine
conveniently omits a number of facts.
1051.The book referred to did not depict “Crimean Tatars as Nazi collaborators in World War
II”, but mentioned that there were collaborators among Crimean Tatars at the time of the
1463 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶18(b) (Annex 13);
Bezformata ru, Crimean Schools Have Received over 80 Thousand Textbooks in Crimean Tatar (11 January 2019),
available at: https://simferopol.bezformata.com/listnews/uchebnikov-na-krimsko-tatarskom-yazike/64134790/.
1464 Reply, ¶714.
1465 Ibid.
Page 395 out of 541
World War II. It also mentioned that there were collaborators among other ethnicities,
including Russians. However, since this statement in the book was not welcomed by
representatives of Crimean Tatar community, the Council of Crimean Tatars appealed to
the Head of the Republic of Crimea to withdraw the relevant part of the said textbook
from schools due to it containing such content. The appeal succeeded and the excerpts in
question were removed from the book.1466
1052.Finally, the Russian Federation has made attempts to make teaching Crimean Tatar
language and literature a more attractive career opportunity. Despite Ukraine’s
suggestions of understaffing among Crimean Tatar teachers,1467 the Russian Federation
has in fact opened new opportunities for people wishing to teach Crimean Tatar. Thus,
Resolution No. 658 of the Council of Ministers of Crimea, dated 30 December 2014,
provided for additional remuneration for teaching Crimean Tatar and Ukrainian language
and literature in the amount of ten percent, and for correcting students’ written
assignments in the amount of 0.5%.1468 As of 2019/2020, over 400 teachers were teaching
Crimean Tatar, and 320 were teaching Ukrainian in schools, with the authorities reporting
no shortages in staff.1469
* * *
1053.Consequently, contrary to Ukraine’s blatant accusations, the Russian Federation has not
worsened the lives of ethnic Ukrainians and Crimean Tatars in the peninsula and it has
not deprived them of or impeded their enjoyment of any educational rights and
opportunities. To the contrary, via its consistent efforts, it has enabled ethnic minorities
in Crimea to receive education in their own language. Accordingly, the facts of the case
demonstrate that there is no violation of the CERD by the Russian Federation, not least a
“systematic racial discrimination campaign” targeted against those communities.
1466 Interfax, A chapter insulting Crimean Tatars will be removed from a Crimea history textbook (6 May 2019),
available at: https://www.interfax ru/russia/660292 (Annex 122); Second Witness Statement of Aider Serverovich
Ablyatipov, 22 February 2023, ¶20 (Annex 13).
1467 Reply, ¶713.
1468 Decree of the Council of Ministers of the Republic of Crimea No. 658 “On Approval of the Regulations on
the Remuneration System for Employees of State Budgetary and Autonomous Educational Organizations of the
Republic of Crimea”, 30 December 2014, available at: https://rk.gov.ru/ru/document/show/736 (Annex 67) Second
Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023, ¶24 (Annex 13).
1469 International Affairs, Republic of Crimea: Education in Native Languages (12 November 2019), available at
https://interaffairs ru/jauthor/material/2290 (Annex 68)
Page 396 out of 541
VI. NO ENFORCED DISAPPEARANCES, MURDERS, ABDUCTIONS AND
TORTURE DIRECTED AT THE CRIMEAN TATARS AND UKRAINIANS ON
RACIAL GROUNDS
1054.The Russian Federation has demonstrated in its Counter-Memorial that none of the
unconnected allegations of disappearance, murder, abduction and torture alleged by
Ukraine constitute racial discrimination in violation of the CERD, let alone form part of
any “systematic racial discrimination campaign”.1470 Put simply, even if the alleged acts
had actually occurred, none were committed on racial grounds, nor can they validly be
said to have disproportionally affected any ethnic group.1471
1055.The Russian Federation has also demonstrated that the acts alleged by Ukraine anyway
cannot be attributed to the Russian Federation.1472 Ukraine itself failed to show that they
could, and therefore presented in its Memorial an alternative argument according to which
the Russian Federation rather “encouraged and tolerated” the alleged acts. 1473 No
credible evidence was put forward in support of either claim.
1056.In its Reply, Ukraine concedes that it has not produced authoritative statistical data to
support its allegation that Crimean Tatars and Ukrainians were in fact violently singled
out.1474 More generally, it still has not established the existence of any such pattern or
campaign of racial discrimination against Crimean Tatars and Ukrainians (Section A).
Moreover, Ukraine fails to show that any of those alleged instances can at all be attributed
to the Russian Federation (Section B). For the sake of good order, the Russian Federation
will additionally address in Appendix 3 to this Rejoinder each individual case that
Ukraine attempts to portray in the Reply as discrimination of the Crimean Tatars or
Ukrainians on the merits.
1470 Counter-Memorial (CERD), ¶¶339-344; see also Counter-Memorial (CERD), Appendix A.
1471 Ibid., Appendix A, ¶11.
1472 Ibid., ¶¶345-347; see also ibid., Appendix A, ¶¶43-57.
1473Memorial, ¶393.
1474 Reply, ¶442.
Page 397 out of 541
A. THE ALLEGED INSTANCES RELIED ON BY UKRAINE DO NOT AMOUNT TO A PATTERN
OR CAMPAIGN OF RACIAL DISCRIMINATION AGAINST CRIMEAN TATARS AND
UKRAINIANS
1057.The Russian Federation has shown in its Counter-Memorial that Ukraine seeks in the
present case to rely on isolated and unsubstantiated incidents involving Crimean Tatar
and Ukrainian political activists. 1475 The Reply has done nothing to disprove that.
Despite its assertion to the contrary, Ukraine has still not provided any “extensive
evidence of a pattern of enforced disappearances, murders, abductions, and torture
directed against members of these communities, along with Russia’s failure to investigate
these crimes”1476.
1058.In essence, Ukraine points to a number of alleged incidents involving Crimean Tatars and
Ukrainians, but cannot show that ethnicity had anything to do with those incidents. It is
hardly surprising, therefore, that Ukraine is likewise unable to show that these incidents
may be said to constitute any “systematic racial discrimination campaign”. Ukraine’s
resort in this connection to the broader language of acts “burdening the human rights of
the Crimean Tatar or Ukrainian communities in Crimea”,1477 is revealing.
1059.Ukraine cannot disprove, but just criticizes the statistical information provided by the
Russian Federation, which shows that Crimean Tatars and Ukrainians were not
disproportionately affected by disappearances. It claims that this compelling evidence,
which originates in the Office of Russia’s Prosecutor General,1478 “[n]ot only …. [lacks]
evidentiary value, it also omits critical details, including whether the cases it cites fall
within the definition of enforced disappearances, and to what extent “opened” cases were
successfully closed”1479. This frivolous assertion may easily be countered.
1060.First, it is not clear on what basis the evidence put forward by the Russian Federation,
coming as it does from its competent authorities may be put in question without any
1475 Counter-Memorial (CERD), Appendix A, ¶11.
1476 Reply, ¶439.
1477 Ibid., ¶441.
1478 Main Directorate of International and Legal Cooperation of the Prosecutor General’s Office of the Russian
Federation, Note on missing person cases opened by the internal affairs bodies in 2014-first half of 2020, 9
September 2020, Counter-Memorial (CERD), Annex 636.
1479 Reply, ¶444.
Page 398 out of 541
evidence rebutting their content. Ukraine itself does not contest the accuracy of the data
that is provided, but merely considers it to be incomplete.
1061.Second, Ukraine continues to use the term “enforced disappearance” as if it does not have
a defined meaning in international law. The Russian Federation has already drawn
attention to the fact that this term, as also terms such as “torture”, cannot simply be
asserted;1480 it also explained that the distinction between disappearances and enforced
disappearances is of significance in the present case.1481 Ukraine neglects to address any
of this, as it also does in regard to the constituent elements of each crime it alleges.
1062.Third, information as to whether cases concerning missing persons were “successfully
closed” is simply irrelevant. Not only has the Russian Federation already explained that
“opening” a case of itself implies the suspicion that a crime has been committed;1482 but
Ukraine fails to explain what “successfully closed” would even mean. To the extent that
Ukraine refers in this regard to judicial convictions, that information is of course publicly
available.
1063.All that is to say that the evidence supplied by the Russian Federation concerning
disappearances in Crimea confirms therefore that Crimean Tatars and Ukrainians were
not disproportionately affected. It is actually Russians that disappear more often than
representatives of other ethnicities. Moreover, most of the disappeared persons for which
criminal proceedings have been initiated are ethnic Russians, and they amount to almost
80%.1483 Thus, any claim of a pattern or campaign against Crimean Tatars and Ukrainians
in this regard is untenable.
1064.The data which Ukraine seeks to rely on cannot alter this conclusion. For a start, none of
the reports cited by Ukraine have concluded that there had been a pattern or campaign of
racial discrimination against Crimean Tatars or Ukrainians. Moreover, reports such as
the one by the OHCHR make it clear that they are “primarily based on direct interviews
1480 Counter-Memorial (CERD), ¶342.
1481 Ibid., Appendix A, ¶43.
1482 Ibid., Appendix A, ¶15.
1483 Ministry of Internal Affairs, Information on the number of missing persons in the Republic of Crimea and the
City of Sevastopol between 2014 and 2022, No. 3466/dp, 22 February 2023 (Annex 35).
Page 399 out of 541
with victims of alleged human rights violations and abuses in Crimea”1484. In other
words, such reports have not sought to examine all cases of disappearances in Crimea and
information contained in the report cannot be considered complete. It is also noteworthy
that the OHCHR did not itself visit Crimea despite numerous invitations extended to it
by the Russian Federation.1485 Its reports rely instead on information relayed to it by
Ukraine, and some biased NGO’s.
1065.One OHCHR report cited by Ukraine in its Reply,1486 a Briefing Paper dated 31 March
2021, says of disappearances in Crimea as follows:
“Among the 43 cases, 39 victims are men and four are women. All female
victims have been released. In terms of ethnicity, the victims include 28
persons of Ukrainian and/or Russian origin, 9 Crimean Tatars, 4 Tajiks, 1
person of Tatar origin, and 1 Uzbek.1487” (Emphasis added)
1066.Clearly, the report itself did not distinguish between Ukrainian and Russian origin, and
therefore cannot evidence that Crimean Ukrainians were disproportionately affected. In
any event the OHCHR report itself suggests that the alleged disappearances had to do
with the “political affiliation or position” of persons concerned and not with their ethnical
origin.1488
1067.Being aware that it cannot show that ethnicity was a reason for any of the afore-mentioned
allegations, Ukraine in its Reply makes a bold statement without bringing any support
whatsoever that “[w]hatever the motivation for the violence or the occupation of the
victims, the Ukrainian and Crimean Tatar communities were targeted and their human
1484 UN General Assembly, Situation of human rights in the Autonomous Republic of Crimea and the city of
Sevastopol, Ukraine, Report of the Secretary-General, A/75/334, 1 September 2020, ¶5; available at:
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/226/11/PDF/N2022611.pdf?OpenElement; OHCHR,
Report on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city
of Sevastopol, Ukraine 13 September 2017 to 30 June 2018, 21 September 2018, ¶17, available at:
https://digitallibrary.un.org/record/1643722.
1485 See above in ¶674.
1486 See, e.g., Reply, fns. 806, 807.
1487 OHCHR, U.N. Human Rights Monitoring Mission in Ukraine Briefing Paper: Enforced Disappearances in the
Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, Temporarily Occupied by Russian
Federation, 31 March 2021, p. 4, available at https://ukraine.un.org/sites/default/files/2021-
03/BN%20Enforced%20dis%20Crimea%20ENG.pdf.
1488 Ibid., p.1, ¶6.
Page 400 out of 541
rights — including the right to life — were disproportionately affected”.1489 As shown
above, however, neither such targeting nor an effect of this kind have been proved.
B. NONE OF THE ALLEGED ACTS CAN BE ATTRIBUTED TO THE RUSSIAN FEDERATION
1068.As the Russian Federation has shown in its Counter-Memorial, none of the alleged
disappearances, murders, abductions, or torture are in any case attributable to it.1490
Ukraine continues to argue otherwise by reference to Articles 4 and 8 of the International
Law Commission’s Articles on State Responsibility,1491 but fails to meet the thresholds
for attribution enshrined in these very Articles. It is indeed telling that Ukraine envisages
that the Court may well be unable to find that the Russian Federation is directly
responsible for the acts described in the Memorial, and therefore claims that the Russian
Federation is otherwise “indirectly responsible” for “facilitating and tolerating the
violence inflicted on Crimean Tatar and Ukrainian community members by the SDF and
others”.1492 This argument, too, cannot be sustained in fact or in law.
1069.Ukraine’s claims can be dealt with briefly. Article 4 of the ILC Articles on State
Responsibility, as the Court has had occasion to explain, reflects:
“the well-established rule, one of the cornerstones of the law of State
responsibility, that the conduct of any State organ is to be considered an act
of the State under international law, and therefore gives rise to the
responsibility of the State if it constitutes a breach of an international
obligation of the State.”1493
1070.Ukraine, however, has not shown that the alleged acts which it complains of were in fact
the conduct of organs of the Russian Federation. The Russian Federation, for its part, has
confirmed following internal investigations that it has no links whatsoever to those
alleged acts.1494
1489 Reply, ¶445.
1490Counter-Memorial (CERD), ¶¶345-347; see also Counter-Memorial (CERD), Appendix A, ¶¶43-57.
1491Reply, ¶¶463-465.
1492Ibid., ¶¶466-467.
1493Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 202, ¶385.
1494 See e.g., Counter-Memorial (CERD), Appendix A, ¶¶37, 49;
Page 401 out of 541
1071.Ukraine’s suggestion that individuals said to be wearing Saint George’s ribbons may pass
for organs of the Russian Federation clearly cannot be right. It is unnecessary to multiply
authorities because the Court itself has explained that:
“according to the Court’s jurisprudence, persons, groups of persons or entities
may, for purposes of international responsibility, be equated with State organs
even if that status does not follow from internal law, provided that in fact the
persons, groups or entities act in “complete dependence” on the State, of
which they are ultimately merely the instrument.
[…]
However, so to equate persons or entities with State organs when they do not
have that status under internal law must be exceptional, for it requires proof
of a particularly great degree of State control over them, a relationship which
the Court’s Judgment quoted above expressly described as “complete
dependence”.”1495
1072.Needless to add, Ukraine did not present the Court with proof of Russian State control
over the persons it points to – most certainly not any “proof of a particularly great degree
of State control over them”.1496 The threshold of “complete dependence” is clearly not
met.
1073.In the same vein, the suggestion that “individuals in police uniform” implicate the Russian
Federation and can without more engage its responsibility, ought to be rejected.1497
1074.Nor can the alleged acts be attributed to the Russian Federation on the basis of direction
or control in accordance with the rule laid down in Article 8 of the ILC Articles on State
Responsibility. As the Court has consistently held, including by reference to Article 8,
for attribution on this basis:
“it has to be proved that [the persons in question] acted in accordance with
that State’s instructions or under its “effective control”. It must however be
shown that this “effective control” was exercised, or that the State’s
instructions were given, in respect of each operation in which the alleged
violations occurred, not generally in respect of the overall actions taken by
the persons or groups of persons having committed the violations.”1498
1495Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 205, ¶¶392-393.
1496 Ibid., ¶393.
1497 ECtHR, Case of Khadija Ismayilova v. Azerbaijan (Applications nos. 65286/13 and 57270/14), Judgment of
10 January 2019, ¶¶86, 110-111.
1498Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 208, ¶400.
Page 402 out of 541
1075.Significantly, the Court has also explained in this connection that even a “general control
by the respondent State over a force with a high degree of dependency on it” would not
imply, without further evidence, that the State directed or enforced the perpetration of the
acts concerned.1499
1076.Ukraine has not begun to establish that the test of “effective control” has been met in
regard to the alleged acts. There is indeed no basis upon which the Russian Federation
may validly be said to have incurred responsibility for these acts under the rule of
customary international law set out in Article 8 of the ILC Articles on State
Responsibility.
1077.As the Russian Federation explained in its Counter-Memorial Ukraine cannot rely on
incidents that allegedly occurred prior to the reunification of Crimea with the Russian
Federation on 18 March 2014, since they are not within the Court’s jurisdiction ratione
temporis as defined in the Court’s Judgment of 8 November 2019.1500
* * *
1078.It follows that Ukraine has not shown — indeed it cannot show — any violation of CERD
by the Russian Federation on account of alleged acts of disappearance, murder, abduction
and torture involving Crimean Tatars and Ukrainians. Ukraine’s claims in this regard are
without basis, and ought to be rejected.
1499Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 64, ¶115.
1500 Counter-Memorial (CERD) ¶344; See also Counter-Memorial (CERD), Appendix A, ¶¶3-4; See also Judgment
of 8 November 2019, ¶23.
Page 403 out of 541
VII. NO RACIAL DISCRIMINATION IN REGARD TO LAW ENFORCEMENT
MEASURES
1079.In its Memorial, Ukraine alleged that the Russian Federation resorted to arbitrary searches
and detentions as part of a policy of racial discrimination in Crimea1501. Ukraine continues
to pursue this unfounded claim in its Reply, but refers in this connection only to Crimean
Tatars, notably making no allegation of arbitrary searches and detentions relating to
members of the Ukrainian community1502. This is telling: if Ukraine insists that the
Russian Federation’s alleged “discrimination policy” targets both Crimean Tatars and
Ukrainians, it begs the question of why allegations of “pretextual enforcement measures”
pertain to Crimean Tatars alone. Ukraine offers no answer, but the reason is a simple one:
The Russian Federation has been fighting extremism in Crimea with no unlawful
distinctions based on ethnicity and in accordance with the law1503, as any State has both
the right and the obligation to do.
1080.The Russian Federation demonstrated in its Counter-Memorial that Ukraine has indeed
failed to show any difference or distinction in law enforcement efforts involving Crimean
Tatars as compared to persons of other ethnic origins1504. Nothing in Ukraine’s Reply has
shown otherwise.
1081.More specifically, Ukraine has still not shown—indeed it cannot show—that law
enforcement measures applied to Crimean Tatars were based on any impermissible
distinction, or had the purpose or effect of violating their human rights and freedoms. As
with other of Ukraine’s claims, allegations made in reference to discrete incidents anyway
do not amount to any “pattern” or “campaign” of discrimination.
1082.The present Chapter recalls briefly the lawful and legitimate basis of enforcement
measures undertaken by the Russian Federation in its fight against extremism in Crimea
(Section A). It then reiterates that Ukraine’s allegation of enforcement measures
undertaken as part of a systematic campaign or policy of racial discrimination is not
supported by facts or the evidence (Section B). For the sake of good order, the Russian
1501 Memorial, ¶¶442-454.
1502 Reply, Chapter 12.
1503 Second Expert Report of Valery Viktorovich Engel, 28 February 2023, Section VI (Annex 19).
1504 Counter-Memorial (CERD), ¶¶352-354; Appendix B.
Page 404 out of 541
Federation will additionally address in the Appendix 4 to this Rejoinder each individual
case that Ukraine attempts to portray in the Reply as targeting Crimean Tatars on grounds
of their ethnicity.
A. THE LAWFUL AND LEGITIMATE BASIS OF LAW ENFORCEMENT MEASURES
UNDERTAKEN BY THE RUSSIAN FEDERATION IN CRIMEA
1083.The Russian Federation demonstrated in its Counter-Memorial that law enforcement
measures to which Ukraine refers were taken in accordance with applicable law, and on
the basis of objective and reasonable grounds, in order to safeguard national security and
protect public order from extremist activity and terrorism1505. Such measures concerned
persons associated with extremist organizations that have been banned throughout the
Russian Federation (i.e., not only in Crimea), just like various other extremist
organizations and regardless of the particular identity of their members. In other words,
these law enforcement measures had nothing to do with racial discrimination, which has
no room in Russian law and practice.
1084.Ukraine once again attempts in its Reply to paint a different — and distorted — picture
by alleging that the applicable Russian law is inconsistent with international human rights
standards or has been enforced in a discriminatory manner 1506. Once again, this is
blatantly untrue.
1085.As further elaborated in the Witness Statement of Mr Alexei Gayarovich Zhafyarov, the
Deputy Head of the department for supervising the implementation of the law on federal
security, inter-ethnic relations and combating extremism and terrorism of the General
Prosecutor’s Office of the Russian Federation, and further confirmed by expert reports of
Mr Engel and Prof Merkuryev:
(a) Russian legislation had outlawed extremist activity, which includes separatist acts
prior to, and without any connection to, the reunification of Crimea with Russia.
Law enforcement activities throughout the Russian Federation have been focused
on prevention and suppression of the spread of radical ideas (for instance, by
searches and detentions), precisely in order to reduce both criminal activity and to
1505 Counter-Memorial (CERD), Chapters IV, VI (sections I, II).
1506 Reply, ¶518.
Page 405 out of 541
ensure criminal prosecution and the imposition of penalties where applicable. Such
measures are subject to review by the Russian courts, including the Supreme Court
of the Russian Federation. No accusations of discriminatory nature of the legislation
of its application has been voiced in intergovernmental fora concerning
international cooperation on countering extremism, including in the OSCE. The
model of anti-extremist legislation adopted by the Russian Federation is indeed
similar to that of other States, including European ones and is based on the Shanghai
Convention on Combating Terrorism, Separatism and Extremism.
(b) The Supreme Court of the Russian Federation has itself had occasion to explain that
the exercise of human and civil rights and freedoms in the Russian Federation must
not violate the rights and freedoms of other people. In this vein, legislation that
provides for the possibility of restricting rights and freedoms may only do so to the
extent necessary to protect the foundation of the constitutional order, morality,
health, the rights and lawful interests of others, as well as national defence and State
security. The obligation of the State to ensure national security and public order
forms a part of the Russian constitutional order just as it does elsewhere.
(c) It follows that if a citizen, whilst exercising his or her constitutional rights and
freedoms, violates the rights and freedoms of others, the offender may be held liable
under public law (including criminal law), which has as its aim the protection of
public interests. To argue that Russian anti-extremist legislation is inherently
discriminatory for targeting ethnic and religious minorities and prioritizing national
security over the rights of ethnic minorities, simply does not correspond to reality.
(d) The legal position adopted in the Russian Federation is fully consistent with the
standards enshrined in multiple international legal instruments, which, while
recognizing and promoting the right of every person to freedom of thought,
conscience and religion, the right to hold opinions without interference and the right
to freedom of expression (including the freedom to seek, receive, and impart
information and ideas of all kinds through any media and regardless of frontiers),
also provide that the exercise of these rights and freedoms may be subject to certain
legitimate restrictions provided for by law. Needless to say, States would not have
agreed otherwise. Ukraine itself appears to accept that.
Page 406 out of 541
(e) Combating extremism and terrorism, including by investigating extremist crimes,
is a high priority of the Russian Federation. Such law enforcement action does not
seek any exceptions from the absolute prohibition of racial discrimination: indeed,
it applies equally to all who are suspected of extremist activities, with racial or
ethnic grounds playing no role at all. Russian criminal law itself penalizes any
offence motivated by racial, ethnic, political, ideological, or religious hatred, and
the commission of any crime motivated by racial, ethnic, or religious hatred or
enmity constitutes an aggravating circumstance.1507
1086.Thus, law enforcement measures adopted by the Russian Federation and complained of
by Ukraine were based on objective and reasonable grounds and taken in accordance with
applicable domestic law, excluding any possibility of racial discrimination under CERD.
They were not arbitrary. They served a clearly legitimate aim and were proportionate, so
much so that even if they were to be viewed as suggesting a differentiated treatment
(which they are not1508), they would not constitute racial discrimination1509. Moreover, as
already noted, a possibility always existed for challenging them before the Russian courts.
Contrary to what Ukraine argues1510, the Russian Federation does not claim that the fight
against extremism justifies restrictions on the right to equal treatment before “tribunals
and other organs administering justice”.
1087.The Russian Federation continues to maintain, therefore, that the law enforcement
measures of which Ukraine complains were lawfully undertaken and had nothing
whatsoever to do with racial discrimination. Ukraine has not been able to prove otherwise.
B. UKRAINE’S ALLEGATION OF “PRETEXTUAL ENFORCEMENT MEASURES”
UNDERTAKEN AS PART OF A SYSTEMATIC CAMPAIGN OR POLICY OF RACIAL
DISCRIMINATION IS NOT SUPPORTED BY ANY EVIDENCE
1088.The Russian Federation has already pointed out that Ukraine’s allegations concerning
“pretextual enforcement measures” are unsubstantiated, not least for being “almost
1507 Witness Statement of Alexei Gayarovich Zhafyarov, 28 February 2023, ¶8 (Annex 22); Expert Report of
Vladimir Viktorovich Merkuryev, 1 March 2023, ¶¶5-15 (Annex 20).
1508 See also Counter-Memorial (CERD), ¶¶375-377.
1509 See Chapter III; Counter-Memorial (CERD), ¶368.
1510 Reply, ¶519.
Page 407 out of 541
entirely bereft of primary evidence and built on hearsay”1511. Ukraine’s Reply did nothing
to show otherwise. Indeed, it continues to refer to uninformed, and in some cases partisan,
reports whose authors for the most part have not themselves set foot in Crimea1512. The
OHCHR, as explained above, turned down Russian invitations to visit Crimea and assess
the situation first-hand1513. Much like other NGO documents or news reports previously
put forward by Ukraine and often based on second-hand accounts, these materials cannot
be said to afford weighty and convincing evidence1514.
1089.What is more, the reports relied on by Ukraine do not at all support its case. In fact, the
OHCHR reports say nothing about racial discrimination. Even if there was any truth —
quod non — in their claim that Crimean Tatars were “disproportionately” subjected to
certain law enforcement measures1515, nothing in such statements inevitably or even
logically suggests necessarily any racial discrimination.
1090.In reference to one OHCHR report, moreover, concerning the period between 1 July 2020
and 30 June 2021, Ukraine itself suggests that “OHCHR documented 61 house searches
and raids in Crimea, most of which ‘concerned homes, meeting places or business
premises belonging to Crimean Tatars or Jehovah’s Witnesses’” (emphasis added)1516.
This remarkable statement itself suggests to any impartial reader that Ukraine’s claim of
disproportionate treatment of Crimean Tatars based on racial discrimination simply
cannot be taken seriously.
1091.What Ukraine does consistently fail to mention is that even the reports to which it refers
indicate repeatedly that the reason and context of law enforcement activities undertaken
by the Russian Federation are preventive actions to combat religious extremism. This is
the crucial element to consider in connection with Ukraine’s allegation, as members of
the Crimean Tatar community who were detained or searched were not subjected to these
measures by reason of their ethnicity, but rather because of their involvement in extremist
activity. It would be equally ridiculous — and indeed dangerous — to suggest that
1511 Counter-Memorial (CERD), ¶351.
1512 Reply, ¶¶512-515.
1513 Counter-Memorial (CERD), ¶16.
1514 See also Counter-Memorial (CERD), ¶¶358-362.
1515 Reply, ¶512.
1516 Reply, ¶513.
Page 408 out of 541
measures undertaken around the world against members of other extremist and violent
organizations can so easily be characterized as racial discrimination only because they
happen to involve persons of certain ethnic origin.
1092.Ukraine fails to counter this truth. Its false claim that religious extremism is “a
phenomenon that had never been part of the history of the Crimean peninsula” 1517
illustrates just that, for it is undeniable that Ukraine itself faced the threat of the
radicalisation of Muslim Crimean Tatars as far back as 20041518. For example, Ukrainian
authorities themselves fought actively against Hizb ut-Tahrir. In May 2009, the Security
Service of Ukraine reported that it prevented the creation of a Hizb ut-Tahrir cell in
Ukraine, explaining that “documentary materials were obtained showing that the Hizb ut-
Tahrir group was trying to create a terrorist structure with a clear hierarchy and
distribution of functions among its members on a deep conspiratorial basis” 1519 . In
September 2009, Ukraine’s Deputy Minister of Interior and Crimean Police Chief called
for the ban of Hizb ut-Tahrir in Ukraine due to its “destabilizing role” in the Crimean
Peninsula1520. Ukraine even informed the UN Security Council on the “terrorist plans” of
Hizb ut-Tahrir1521. The organization is banned in Bangladesh, Germany, Indonesia and a
number of Arab States1522.
1517 Reply, ¶521.
1518 See Counter-Memorial (CERD), Appendix B, ¶¶5-6.
1519 On 12 May 2009, the head of the SSU press center, Maryna Ostapenko, said that the SSU had prevented an
attempt to set up a Hizbut-Tahrir cell in Ukraine. She said that “as a result of operative actions, documentary
materials were obtained showing that the Hizb ut-Tahrir group was trying to create a terrorist structure with a clear
hierarchy and distribution of functions among its members on a deep conspiratorial basis”. She added that “the
activities of this unit must have been aimed at creating primary terrorist organizations, propaganda and
dissemination of Hizb ut-Tahrir ideology, recruitment and training of potential terrorists. At the same time, all
members of the organization were clearly aware that they could be held criminally liable for their activities.” See
‘Security Service of Ukraine Uncovered Terrorists Organizers of Hizb ut-Tahrir Cell’, available at:
https://www.unian.net/society/220077-sbu-nakryila-terroristov-organizatorov-yacheyki-hizb-ut-tahrir.html.
1520 On 23 September 2009, Mr G.Moscal asked Acting Foreign Minister Vladimir Khandogiy “to collect
documents showing that Hizb ut-Tahrir was banned from the territory of other countries”. In his opinion, Hizb ut-
Tahrir activity “may cause destabilization of interethnic relations in the south of Ukraine”. Earlier, on 16
September 2009 the Crimean police press-service reported that the Crimean Police Chief, Mr Moscal, directly
asked SSU to ban Hizb ut-Tahrir. See ‘LB.ua. Moskal is concerned about the activities of the Islamic organization
Hizb ut-Tahrir in Crimea’, available at:
https://lb.ua/news/2009/09/23/9076_moskal_obespokoen_deyatelnostyu html.
See also ‘Deputy Minister of Internal Affairs of Ukraine - Head of the Crimean Police Gennadiy MOSKAL asks
the Security Service to ban the party "Hizbut-Tahrir" on the territory of the state’, available at:
https://www.unian.net/society/266416-moskal-trebuet-ot-sbu-zapretit-partiyu-hizb-ut-tahrir html.
1521 See ‘Security Service of Ukraine Uncovered Terrorists Organizers of Hizbut-Tahrir Cell’, available at:
https://www.unian.net/society/220077-sbu-nakryila-terroristov-organizatorov-yacheyki-hizb-ut-tahrir.html.
1522 Zhafyarov Witness Statement (Annex 22), ¶42.
Page 409 out of 541
1093.Ukraine still fails, moreover, to offer any evidence that the individuals involved in the
incidents it refers to even identified themselves as Crimean Tatars. As previously
explained, it is not without significance that it is Ukraine itself that classifies them in such
terms1523.
1094.It remains the case that Ukraine has not shown that law enforcement measures adopted in
connection with individual members of the Crimean Tatar community differed in any way
from those adopted by the Russian Federation more broadly in its combat against threats
to national security and public order. Nor has Ukraine shown a purpose or intent on the
part of the Russian Federation to target Crimean Tatars as such, or that such has been the
effect. It has not been able to refute the fact, to which the Russian Federation has drawn
attention in its Counter-Memorial, that “the proportion between the annual numbers of
crimes that were considered committed in Crimea by individuals from various ethnic
group … reflects the general proportion between these ethnic groups among the Crimean
population”1524.
1095.Thus, Ukraine may speak of “the sheer frequency and the manifestly disproportionate
nature of the Russian authorities’ enforcement measures against the Crimean Tatar
community”1525, but it has not pointed to any credible evidence that might establish such
a grave allegation. The fact that some of those individuals who were searched or detained
in Crimea for engaging in extremist activities were Crimean Tatars does not in any way
imply, let alone establish, any racial discrimination—and certainly not a pattern thereof.
To be clear, and despite Ukraine’s false statement to the contrary 1526 , the Russian
Federation does not accept the disproportionate impact that Ukraine alleges.
1096.It will be recalled that any claims Ukraine might have against specific incidents anyway
fall outside the scope of the present case, which it has brought before the Court in regard
to a “systematic campaign”1527. Again, Ukraine has not demonstrated that recourse to
local remedies has proven futile – and it admits as much in its Reply1528.
1523 See Counter-Memorial (CERD), ¶355.
1524 Counter-Memorial (CERD), ¶366.
1525 Reply, ¶509.
1526 Reply, ¶521.
1527 See also Chapter III.
1528 Reply, ¶517.
Page 410 out of 541
VIII. THERE IS NO VIOLATION OF THE CERD WITH RESPECT TO
CITIZENSHIP
1097.In Chapter 13 of the Reply, labelled “Forced Citizenship”, Ukraine argues that “Russia’s
Imposition of Its Citizenship Regime Violates the CERD”; that “The Citizenship Status
of Residents of Crimea Resulting from the Law on Admission Does Not Reflect Free and
Informed Choice”; and that “The Imposition of Russia’s Citizenship Law Has Fostered
Various Downstream Discriminatory Effects on the Crimean Tatar and Ukrainian
Communities in Crimea”. Ukraine’s claims have thus several components, each relating
to, first, the Russian Federation’s grant of citizenship; second, certain restrictions based
on citizenships or the lack thereof; and, third, the alleged “downstream” effects of the
grant of citizenship or restrictions based on citizenship.
1098.This chapter first points out that Ukraine fails to discharge its burden of proving a
“systematic campaign” of discrimination in matters of citizenship (Section A). Without
prejudice to this stance, this chapter reviews the CERD’s framework on the issues of
nationality and citizenship (Section B). It then reiterates that distinctions, restrictions or
preferences based on citizenship are not within the scope of the CERD (Section C);
demonstrates that Ukraine’s claims about the grant of citizenship and the relevant legal
framework are not envisaged by the CERD, and the Russian Federation’s grant of
citizenship and the associated regime are not discriminatory against any particular
nationality or group (Section D); and shows that the so-called “downstream” effect or
more accurately “collateral or secondary effects” resulting from the grant of citizenship
and the associated regime are not capable of falling within the scope of racial
discrimination under the CERD and are outside the Court’s jurisdiction (Section E). In
the present chapter the Russian Federation moreover demonstrates that its grant of
citizenship is anyway consistent with longstanding international practice and does not
constitute a violation of international human rights law (Section F). Finally, the Russian
Federation reiterates that Ukraine’s claims regarding international humanitarian law are
beyond the scope of the CERD and the Court’s jurisdiction (Section G).
Page 411 out of 541
A. UKRAINE HAS FAILED TO DISCHARGE ITS BURDEN OF PROVING A SYSTEMATIC
CAMPAIGN OF DISCRIMINATION IN MATTERS OF CITIZENS
1099.In its Reply, Ukraine asserts that the Russian Federation’s grant of citizenship in Crimea
and the relevant legal framework laid the foundation for “systematic racial
discrimination”, 1529 and that the Russian Federation “has actively weaponized its
nationality provisions against Crimean Tatars and ethnic Ukrainians as part of its systemic
and ongoing policy of discrimination against these communities”.1530 In response to the
Russian Federation’s argument that alleged harms complained of are in fact the
consequences of citizenship-based measures that fall outside the scope of CERD and that
the grant of citizenship does not discriminate against Crimean Tatars and Ukrainians,
Ukraine does not attempt to show otherwise; rather, it turns to what it claims as
discriminatory impact or disproportionate burden on Crimean Tatars and Ukrainians. In
this vein, Ukraine argues that “the fact that discrimination was facilitated by operation of
a facially neutral citizenship law does not shield Russia from its CERD violations, where
the purpose or effect of that law was to significantly and disproportionately burden the
numerous treaty-protected rights to be free of racial discrimination held by members of
the Crimean Tatar and Ukrainian communities.”1531
1100.Ukraine’s words show clearly that Ukraine has either abandoned claims regarding direct
discrimination against the Crimean Tatar and Ukrainian communities in the grant of
citizenship and its relevant legal framework or completely failed to discharge its burden
to prove any such discrimination. Its claims in this regard now are called
“disproportionate or disparate impact” claims or “indirect discrimination” claims.
1101.As the Russian Federation explained above, failure to prove direct discrimination
necessitates the finding that there was no campaign of racial discrimination within the
meaning of the CERD, whatever bald assertions Ukraine may be making. This is because
indirect discrimination claims cannot be considered part of any “systematic campaign” or
as falling within the ambit of the CERD.1532 Ukraine’s claims concerning the grant of
citizenship and the relevant legal framework must be dismissed in their entirety for this
1529 Reply, ¶542.
1530 Reply, ¶570.
1531 Reply, ¶543.
1532 See Chapter III(B).
Page 412 out of 541
reason alone. The Russian Federation will nevertheless show that these claims are
without merit in any case.
B. NATIONALITY AND CITIZENSHIP UNDER THE CERD
1102.As shown in the Counter-Memorial,1533 the CERD’s position on nationality or citizenship
is clear: citizenship is synonymous with nationality, and Article 1(1) of the Convention
does not include distinctions based on nationality or citizenship within the scope of
prohibited “racial discrimination”. By using phrases such as “the introduction by Russia
of its own nationality and immigration framework”, “automatically assumed Russian
nationality”, Ukraine is also using “nationality” and “citizenship” in this sense.1534 It was
defined in Nottebohm as “a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties”.1535
1103.This was confirmed by the Court in Qatar v. UAE, which held that the term “national
origin” under Article 1(1) does not encompass current nationality (or citizenship). There,
the Court conducted a thorough interpretation exercise by reading the term “national
origin” in accordance with its ordinary meaning, in its context and in the light of the object
and purpose of CERD, as well as in the light of the travaux préparatoires as a
supplementary means of interpretation, and by reviewing the practice of the CERD
Committee and the jurisprudence of regional human rights courts.1536 There is no reason
for the Court to depart from that decision in this case.
1104.Article 1(2) further provides that the CERD does not apply to “distinctions, exclusions,
restrictions or preferences made by a State Party to this Convention between citizens and
non-citizens”, while Article 1(3) stipulates that “[n]othing in this Convention may be
interpreted as affecting in any way the legal provisions of States Parties concerning
nationality, citizenship or naturalization, provided that such provisions do not
discriminate against any particular nationality”. Furthermore, under Article 5(d)(iii),
1533 Counter-Memorial (CERD), ¶¶380-382.
1534 Reply, ¶542.
1535 Nottebohm (Liechtenstein v. Guatemala), Judgment, 6 April 1955, I.C.J. Reports 1955, p. 23.
1536 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, ¶¶74-105.
Page 413 out of 541
States undertake to prohibit and eliminate racial discrimination and to guarantee, “the
right of everyone, without distinction as to race, colour, or national or ethnic origin, to
equality before the law, notably in the enjoyment of the following rights: … the right to
nationality”.
1105.Together, these provisions demonstrate that the CERD excludes distinctions based on
nationality/citizenship from the definition of racial discrimination, affirms the prerogative
of the sovereign State to regulate matters of nationality/citizenship, and provides for the
obligation to guarantee, without discrimination based on prohibited grounds, the right to
nationality. Citing to its early case Nottebohm, the Court thus pointed out in Qatar v.
UAE that “nationality is a legal attribute which is within the discretionary power of the
State and can change during a person’s lifetime”,1537 and read the express exclusion under
Article 1(2) from the scope of CERD of differentiation between citizens and non-citizens
as indication that CERD does not prevent adoption of restrictive measures against noncitizens
“on the basis of their current nationality”.1538 Ukraine does not dispute this.1539
1106.The understanding that nationality/citizenship is separate from race or ethnic origin is in
line with long-standing views regarding nationality prevalent in the field of international
law. For example, the 1997 European Convention on Nationality, which was drafted in
part to address issues of nationality after dissolution of the USSR and to which Ukraine
is a Party, expressly states in Article 1:
“‘nationality’ means the legal bond between a person and a State and does not
indicate the person’s ethnic origin.”
C. DISTINCTIONS AND RESTRICTIONS OR PREFERENCES BASED ON CITIZENS AND NONCITIZENS
ARE NOT WITHIN THE SCOPE OF THE CERD
1107.The CERD excludes nationality/citizenship as a prohibited ground for distinction or
discrimination and keeps citizenship-based restrictions and consequences of citizenshipbased
measures, such as naturalisation, outside the scope of the Convention.
1108.Ukraine, however, complains about various alleged distinctions, restrictions, exclusions
or preferences made between citizens and non-citizens. These concern the prospect of
1537 Ibid., ¶81.
1538 Ibid., ¶83.
1539 Reply, ¶549.
Page 414 out of 541
being banned from re-entering Crimea for an extended period of time,1540 the prohibition
of foreigners owning land in “border areas”1541, the absence of the possibility to obtain
State pensions, free health insurance, and social allowances, the absence of the possibility
of taking on employment in being elected to government or municipal jobs, to apply to
hold a public gathering, or to own a media entity. 1542 Ukraine claims that such
distinctions, restrictions, exclusions or preferences violate these various provisions of the
CERD, that is, the right to stand for election under Article 5(c), the right to freedom of
movement and residence within the border under Article 5(d)(i), the right to leave any
country under Article 5(d)(ii), the right to nationality under Article 5(d)(iii), the rights to
work under Article 5(e)(i), and the right to public health, medical care, social security and
social services under Article 5(e)(iv) of the CERD.1543
1109.These allegations fall clearly outside the scope of the definition of racial discrimination
under Article 1(1), and squarely within the scope of the matters excluded by virtue of
Article 1(2) from the application of the Convention. There is no need to go into the details
to reach this conclusion, and Ukraine’s claims regarding these allegations must be
dismissed.
D. UKRAINE’S CLAIMS ABOUT THE RUSSIAN FEDERATION’S GRANT OF CITIZENSHIP AND
THE RELEVANT LEGAL FRAMEWORK ARE NOT ENVISAGED BY THE CERD, AND THAT
REGIME IS NOT DISCRIMINATORY AGAINST ANY PARTICULAR NATIONALITY OR
GROUP ENUMERATED IN ARTICLE 1(1)
1110.The granting of citizenship has long been considered to fall within the discretionary power
of the sovereign State, with international law placing little limits in this regard. In the
present case, contrary to the complaints sometimes found about the restrictive grant of
citizenship, Ukraine seems to claim that the Russian Federation’s grant of citizenship as
part of the process of admission of Crimea was, in a way, too generous, even if Ukraine
labels it as “forced”. In any event, this complaint of Ukraine’s does not fall within the
ambit of the CERD at all.
1540 Reply, ¶567.
1541 Reply, ¶569.
1542 Memorial, ¶471.
1543 Reply, ¶542.
Page 415 out of 541
1111.The position in regard to the CERD is clear: how citizenship is granted is not of concern
to the Convention; it is only whether the grant is tainted by racial discrimination that is.
Accordingly, if, arguendo, Ukraine’s complaint was covered by the CERD (quod non),
it could only concern whether the grant of citizenship and the associated regime were
discriminatory against any particular nationality, or any particular group as enumerated
in Article 1(1) of the Convention, by some kind of combined reading of Article 1(3) and
Article 5(d)(iii). That is to say, a particular nationality or group within the meaning of
Article 1(1) must be singled out for discrimination under the citizenship regime for it to
be in violation of the CERD.
1112.In this regard, the Russian Federation’s grant of citizenship and the relevant legal
framework are not discriminatory against any particular nationality or ethnic group,
including Crimean Tatars and Ukrainians.
(a) Firstly, the Law on Admission was applied to all residents of Crimea without
exceptions; persons could also freely and without restrictions reject Russian
citizenship if they desired to remain Ukrainian citizens.
(b) Secondly, the prohibition for foreigners to own land in “border areas” applies to
everyone throughout the Russian Federation regardless of their nationality.
However, the Russian Federation met halfway and allowed foreigners to lease lands
in such areas in Crimea.
(c) Thirdly, Ukraine argues that Ukrainian individuals who became Russian citizens
would be exposed to potential criminal liability under Russian anti-extremism laws,
high treason laws, and other laws, including for actions that are not illegal under
Ukrainian law. As the Russian Federation has demonstrated earlier, the application
of all of these laws does not depend on the ethnicity or nationality of perpetrators.
Under Article 4 of the Russian Criminal Code, persons who have committed crimes
are equal before the law and are subject to criminal liability irrespective of sex, race,
nationality, residence, religion, or origin.
(d) Finally, Ukraine has not proven that compulsory conscription into the Russian
armed forces discriminates against Crimean Tatars and Ukrainians since the
conscription is universal and does not apply to any particular group of persons or
group.
Page 416 out of 541
1113.In addition to other practice evidencing that the Russian Citizenship Law and its practice
in the Republic of Crimea is not discriminatory, it may be mentioned that the same
position was consistently presented by the Russian Federation to the CERD Committee:
“By its article 6, the Constitution stipulates that citizenship of the Russian
Federation is acquired and revoked in accordance with federal law; it is the
same and equal for all, irrespective of the grounds for acquisition. The same
article establishes absolute protection of this right by stipulating that citizens
of the Russian Federation may not be stripped of their citizenship or denied
the right to change it at will. In accordance with article 4 of Federal Act No.
62 of 31 May 2002, on citizenship of the Russian Federation, the principles
and regulations governing the acquisition of citizenship may not contain
provisions that restrict the rights of citizens on social, racial, ethnic, linguistic
or religious grounds.”1544
1114.In light of the above, the only conclusion one can draw is that even if the grant of
citizenship and the relevant legal framework fall within the scope of the CERD (quod
non), the Russian Federation’s grant of citizenship and the relevant legal framework are
not discriminatory against any particular nationality or ethnic group and do not run afoul
of the Convention.
E. THE ALLEGED “DOWNSTREAM” EFFECTS OF THE RELEVANT LEGAL FRAMEWORK DO
NOT FALL WITHIN THE SCOPE OF THE CERD
1115.Ukraine’s main claims regarding citizenship is that the “imposition of the Russian
Federation’s citizenship law has fostered various downstream discriminatory effects on
the Crimean Tatar and Ukrainian communities in Crimea”.1545 Ukraine seeks to show
these alleged effects by referring to alleged “harms specifically suffered by ethnic
Ukrainians and Crimean Tatars who became Russian nationals”,1546 and those who did
not become Russian nationals.1547 This is an attempt to rewrite the CERD and its position
in regard to issues of nationality/citizenship, as explained above, and must be rejected.
1544 CERD Committee, Consideration of reports submitted by States parties under article 9 of the Convention,
Russian Federation, 1 July 2016, CER/C/RUS/23-24. Available at:
https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsnLht97JCs%2Fg
tYiPXQ%2F%2B4iHVXBEflgkO8JjgS%2FMNpgTT7w88ipmy9%2BhetmwDhoz%2B68S7I%2FkNy7pZpA%
2B64Z8cqP968YSOP9ZmewZuhxsGnnTl
1545 Reply, ¶544 et seq.
1546 Ibid., ¶558 et seq.
1547 Ibid., ¶565 et seq.
Page 417 out of 541
1116.A similar attempt was made by Qatar in its case against the UAE, where Qatar argued
that certain measures taken by the UAE targeting nationals of Qatar had disparate impacts
on the enjoyment of rights by Qataris living in the UAE who were relatives or somehow
associated with Qatar nationals. The Court characterized such effects as “collateral and
secondary effects” and rejected Qatar’s claims:
“The Court first observes that, according to the definition of racial
discrimination in Article 1, paragraph 1, of CERD, a restriction may
constitute racial discrimination if it “has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of
human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life”. Thus, the Convention prohibits all
forms and manifestations of racial discrimination, whether arising from the
purpose of a given restriction or from its effect. In the present case, while the
measures based on current Qatari nationality may have collateral or secondary
effects on persons born in Qatar or of Qatari parents, or on family members
of Qatari citizens residing in the UAE, this does not constitute racial
discrimination within the meaning of the Convention. In the Court’s view, the
various measures of which Qatar complains do not, either by their purpose or
by their effect, give rise to racial discrimination against Qataris as a distinct
social group on the basis of their national origin. The Court further observes
that declarations criticizing a State or its policies cannot be characterized as
racial discrimination within the meaning of CERD. Thus, the Court concludes
that, even if the measures of which Qatar complains in support of its “indirect
discrimination” claim were to be proven on the facts, they are not capable of
constituting racial discrimination within the meaning of the Convention.”1548
1117.The Court thus considered that the collateral or secondary effects flowing from a
distinction made on the basis of nationality/citizenship, do not constitute racial
discrimination within the meaning of the CERD. The Court did not even find it necessary
to analyse whether the alleged distinction pursued a legitimate aim and whether there is
a reasonable relationship of proportionality between the means employed and the aim
sought to be achieved — most probably because such analysis does not apply to a
distinction based on nationality/citizenship, notwithstanding the possible collateral or
secondary effects of the particular measure.
1118.There are no reasons for the Court to depart from its approach in the present one. In this
case the grant of citizenship and the relevant legal framework of the Russian Federation
are similarly measures based on nationality, that is, citizenship. Any collateral or
1548 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, I.C.J. Reports 2021, ¶112.
Page 418 out of 541
secondary effects of the latter are not covered by the CERD and, in any event, Ukraine
has not shown that Ukrainians or Crimean Tatars were treated differently because of their
ethnic origin in comparison to other communities living in the Russian Federation.
Therefore, these measures do not give rise to any form of racial discrimination contrary
to the CERD.
1119.If Ukraine’s position were accepted, this would artificially add nationality/citizenship as
a prohibited ground for distinction under Article 1(1), unduly remove the exclusion of
nationality/citizenship from the scope of the CERD under Article 1(2) and eliminate the
saving clause under Article 1(3) by disregarding the States’ sovereign power to regulate
nationality, citizenship, or naturalisation. This would clearly be contrary to all tenets of
treaty interpretation.
F. THE GRANT OF CITIZENSHIP IS CONSISTENT WITH LONGSTANDING INTERNATIONAL
PRACTICE AND DOES NOT CONSTITUTE A VIOLATION OF INTERNATIONAL HUMAN
RIGHTS LAW
1120. As demonstrated in previous Sections, there is no discrimination involved in the Russian
Federation’s grant of citizenship and its associated framework adopted upon Crimea’s
reunification with the Russian Federation; the acts alleged by Ukraine simply do not fall
within the provisions of that CERD. In regard to this issue as with others upon which
Ukraine bases its claims, the Russian Federation agrees with Judge Yusuf that
“transforming the Convention into a ‘fourre-tout’; a receptacle in which all
sorts of asserted rights may be stuffed” risks “turn[ing] the Convention into
an all-encompassing instrument for those trying to establish the jurisdiction
of the Court whenever other legal grounds cannot be found for that
purpose”,1549
and that
“[i]t is high time that the Court put an end to the attempts by States to use
CERD as a jurisdictional basis for all kinds of claims which do not fall within
its ambit. Acceding to such requests undermines the credibility of a very
important multilateral convention and the reliance on its compromissory
clause (Article 22) for genuine claims relating to racial discrimination.”1550
1549 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Armenia v. Azerbaijan), Provisional Measures, Order of 7 December 2021, Dissenting Opinion of Judge Yusuf,
I.C.J. Reports 2021, p. 395, ¶1.
1550 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Armenia v. Azerbaijan), Order on Provisional Measures, Declaration of Judge Yusuf, 22 February 2023, ¶10.
Page 419 out of 541
1121.Nevertheless, as Ukraine has made serious charges in this regard, and although the Court
should reject them for falling outside the scope of the CERD, the Russian Federation
herein shows that the grant of citizenship is consistent with longstanding international
practice and does not constitute a violation of international human rights law. The grant
is not a “forced citizenship” regime. Options and choices are made available. Indeed,
this regime is similar to what the ILC proposed, and the UNGA recommended to States,
in the context of State succession.
1122.The granting of nationality is commonly considered a sovereign right of the State
concerned. In 1923, the PCIJ held that questions of nationality in principle fall within
exclusive domain of the State.1551 The classic 1930 Convention on certain questions
relating to the conflict of nationality laws stipulates this very clearly:
“Any question as to whether a person possesses the nationality of a particular
State shall be determined in accordance with the law of that State”.
1123.The same view is echoed by the 1997 European Convention on nationality, to which
Ukraine is a Party:
“Each State shall determine under its own law who are its nationals … This
law shall be accepted by other States in so far as it is consistent with
applicable international conventions, customary international law and the
principles of law generally recognized with regard to nationality.”
1124.According to the Explanatory Report to this Convention, “Matters of nationality are
generally considered to be within the domestic jurisdiction of each State; this is the
guiding principle of public international law”.1552
1125.Article 4 of the European Convention on Nationality sets out the following principles on
which to base rules on nationality: everyone has the right to a nationality; statelessness
shall be avoided; no one shall be arbitrarily deprived of his or her nationality; neither
marriage nor the dissolution of a marriage between a national of a State Party and an
alien, nor the change of nationality by one of the spouses during marriage, shall
automatically affect the nationality of the other spouse. It also stipulated that rules of a
State Party on nationality shall not contain distinctions or include any practice which
1551 PCIJ Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 7 February 1923, PCIJ
Reports (1923), Series B. No. 4.
1552 Explanatory Report to European Convention on Nationality, ETS No. 166, p. 6, ¶28.
Page 420 out of 541
amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic
origin.
1126.Since the World War II, there has been a concern with restrictive grant of citizenship and
arbitrary deprivation of citizenship. The emergence of this concern as well as the new
wave of international law instruments, 1553 which were spearheaded by the Universal
Declaration on Human Rights (specifically in Article 15), came as part of the reaction to
Nazi policy that stripped Jewish People of their citizenship, which was the most important
factor in sealing their fate, and informed by the recognition that
“to be without a nationality or not to be a citizen of any country at all is to
stand naked in the world of international affairs. It is to be alone as a person,
without protection against the aggression of States […] As [the] Nazi
practices show, the right to a nationality is not the luxury some people think
it is.”1554
1127.In the context of State succession, the European Convention addresses this concern in
several provisions. Article 18(1) provides that “each State Party concerned shall respect
the principles of the rule of law, the rules concerning human rights and the principles
contained in Articles 4 and 5 of this Convention and in paragraph 2 of this article, in
particular in order to avoid statelessness.” In deciding on the granting or the retention of
nationality in cases of State succession, each State Party concerned shall take account in
particular of: “the genuine and effective link of the person concerned with the State; the
habitual residence of the person concerned at the time of State succession; the will of the
person concerned; the territorial origin of the person concerned.”1555 The Council of
Europe’s Explanatory Report to this provision of the European Convention:
“This article needs to be seen in the light of the presumption under
international law that the population follows the change of sovereignty over
the territory in matters of nationality.”1556
1553 For a summary of these instruments, see Patrick Thornberry, THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION: A COMMENTARY (2016), p. 341.
1554J. Morsink, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING AND INTENT (University
of Pennsylvania Press, 1999), p. 80, also citing R.E. Conot, JUSTICE AT NUREMBURG (Harper and Row, 1983),
169.
1555 Article 18(2) of the European Convention on Nationality.
1556 Explanatory Report to European Convention on Nationality, ETS No. 166, p. 17, ¶108.
Page 421 out of 541
1128.The Explanatory Report further clarifies that “taking into account the will of the person
concerned” “might entail, for example, giving persons a right of option or avoiding the
imposition of nationality against the wishes of a person.”
1129.The solution provided for in the above-mentioned 1997 European Convention on
Nationality was proposed by the ILC in its 1999 draft articles on nationality of natural
persons in relation to the Succession of States and taken of note and recommended to
States by the UN General Assembly. Specifically, the ILC suggested that
“Subject to the provisions of the present articles, persons concerned having
their habitual residence in the territory affected by the succession of States
are presumed to acquire the nationality of the successor State on the date of
such succession…”
“Each State concerned should, without undue delay, enact legislation on
nationality and other connected issues arising in relation to the succession of
States consistent with the provisions of the present articles. It should take all
appropriate measures to ensure that persons concerned will be apprised,
within a reasonable time period, of the effect of its legislation on their
nationality, of any choices they may have thereunder, as well as of the
consequences that the exercise of such choices will have on their status.”1557
1130.According to the ILC, the term “option” used in the present draft articles does not only
mean a choice between nationalities, but is used in a broader sense, covering also the
procedures of “opting in”, i.e. the voluntary acquisition of nationality by declaration, and
“opting out”, i.e. the renunciation of a nationality acquired ex lege. Such right of option
may be provided under national legislation even without agreement between States
concerned.1558
1131.With regard to the time limit, the ILC provided in its Articles that “States concerned
should provide a reasonable time limit for the exercise of the right of option”, noting in
its commentaries that “State practice shows that the length of the period during which
persons concerned were granted the right of option varied considerably”, giving examples
of three-month and six-month option periods.1559 In the view of the ILC, a “reasonable
time limit” is a time limit necessary to ensure an effective exercise of the right of option.
1557 UN General Assembly, Resolution 55/153, A/RES/55/153, 12 December 2000, Annex, Articles 5 and 6.
1558 ILC, Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries,
Article 11, commentary (7), p. 34.
1559 Ibid., pp. 34-35.
Page 422 out of 541
In this sense, the period of one month set by Russian legislation was an entirely reasonable
time limit.
1132.An earlier convention between Romania and Yugoslavia provided for a period of six
months from the ratification of the agreement for the exercise of this option.1560 That
convention also provided for a three-month period for the ratification of the Convention
for those who lost their nationality to become nationals of Yugoslavia.1561 This approach
was affirmed by a subsequent “Additional Agreement” to that convention. 1562
Furthermore, the European Commission for Democracy through Law (Venice
Commission) adopted in 1996 a Declaration on the Consequences of State Succession for
the Nationality of Natural Persons. In that declaration, the Venice Commission endorses
the need of the option, and states in paragraph 15 that “The right of option should be
exercised by all adults within a reasonable time from the date of succession.”1563 The
comment to this paragraph observes that
“[t]his provision is aimed at avoiding potentially damaging uncertainty as to
the nationality of persons affected by State succession (for example in respect
of enjoyment of diplomatic protection). The Commission did not consider it
appropriate to establish a precise time limit. However, the time limit should
be reasonable in the light of the circumstances of each individual case.”1564
1133.Indeed, these conditions have been met with regard to acquisition of Russian nationality
by Crimeans upon Crimea’s reunification with the Russian Federation, which
implemented the above-mentioned basic principle of population following the change of
sovereignty over the territory in matters of nationality, while basing it on the criteria of
habitual residence. To be more concrete, the Russian Federation has enacted legislation
on nationality and other connected issues by signing the Law of Admission and the other
laws regarding property, social insurance, pensions, etc. These guaranteed the rights of
Crimeans. Under the Law of Admission, the permanent residents of Crimea
1560Convention between Romania and Yugoslavia between the Two Countries regulating the Question of
Nationality and that of the Citizenship of Persons who, in consequence of the Frontier Delimitation, have lost their
Original Nationality, 3 January 1933, Articles 1, 3.
1561 Ibid., Article 1, last clause.
1562 Additional Agreement to the Convention between Romania and Yugoslavia between the Two Countries
regulating the Question of Nationality and that of the Citizenship of Persons who, in consequence of the Frontier
Delimitation, have lost their Original Nationality, 13 March 1935, Article 1.
1563 Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural
Persons, 10 February 1997, CDL-STD(1997)023, ¶15.
1564 Ibid., Comments on the Provisions of the Declaration, ¶15.
Page 423 out of 541
automatically received Russian nationality on 18 March 2014 when Crimea became the
territory of the Russian Federation. But, apart from that, Crimean residents have the
freedom of choice to save or reject Ukrainian citizenship and nobody imposed Russian
citizenship. It was important that persons were not forcefully deprived of their
citizenship, but instead could obtain dual citizenship.1565
1134.Furthermore, Crimeans who rejected Russian citizenship in 2014 or were not eligible in
the first place under the 2014 special regime could apply for Russian citizenship at any
time afterwards. This was also simplified for other groups of persons, for example, those
who left the peninsula before 18 March 2014, but were born and permanently resided in
the territory of the Republic of Crimea or Sevastopol. In addition to the above, the
Russian authorities provided measures of “positive discrimination” or of “affirmative
action” for previously deported Crimean Tatars in Soviet times who as of 18 March 2014
did not have a permanent residence or Ukrainian citizenship.1566 They could also acquire
Russian citizenship later under the simplified procedure.
1135.The persons who declined Russian citizenship could continue to reside in Crimea based
on Russian permanent residence permits which could be obtained in a simplified
manner.1567 Permanent residence also provides the right to pension, free health insurance,
social allowances, and the right to exercise professions.1568 Both permanent and temporal
residence exclude immigration barriers.1569 Additional potential difficulties for Crimeans
were handled as well: for example, Crimeans who completed their military service in
Ukraine are exempted from the duty to perform this duty in the Russian Federation.1570
1136.All these abovementioned provisions, which were described in detail in Appendix C to
the Counter-Memorial (CERD), have confirmed that the Russian Federation guaranteed
the rights of Crimeans, provided a lot of additional opportunities and special facilitated
procedures for them, and, therefore, performed the necessary requirements as
recommended by the ILC and UN General Assembly.
1565 Counter-Memorial (CERD), Appendix C, ¶¶12-18.
1566 Counter-Memorial (CERD), Appendix C, ¶11.
1567 Counter-Memorial (CERD), Appendix C, ¶9.
1568 Counter-Memorial (CERD), Appendix C, ¶63.
1569 Counter-Memorial (CERD), Appendix C, ¶76.
1570 Counter-Memorial (CERD), Appendix C, ¶¶49-51.
Page 424 out of 541
1137.As can be seen from the above summary, this acquisition of nationality was equal and
universal, but not “forced”, as every person so entitled to receive Russian nationality had
the opportunity to reject it within one month, which corresponded to the classic principle
of option.
1138.Notably, the Russian Federation also did not require the loss of Ukrainian nationality for
acquisition of Russian nationality, and Russian law provided for the possibility of
renouncing Russian nationality later on, if another nationality (in this case Ukrainian)
existed for the person concerned.
1139.Finally, before application to Crimea, this precise approach was followed pursuant to the
dissolution of the USSR by its continuator State (the Russian Federation) and successor
States (including Ukraine). Ukraine’s own national legislation reflects this, as its law on
citizenship is founded on the criterion of permanent residence, granting Ukrainian
citizenship to:
(a) all citizens of the former USSR permanently residing in the territory of Ukraine at
the moment of declaration of the independence of Ukraine (24 August 1991);
(b) all persons residing in Ukraine and not being Ukrainian citizens or citizens of other
states at the moment of entry into force of the Law of Ukraine On Citizenship of
Ukraine (1636-12) (13 November 1991), regardless of their race, skin colour,
political, religious and other beliefs, sex, ethnic and social origin, property status,
place of residence, linguistic or other features.1571
G. UKRAINE’S CLAIMS REGARDING INTERNATIONAL HUMANITARIAN LAW ARE BEYOND
THE SCOPE OF THE CERD AND OUTSIDE THE COURT’S JURISDICTION
1140.Before leaving the issue of citizenship, the Russian Federation would like yet again to
make it clear that the Court has no jurisdiction over any claims regarding the granting of
Russian citizenship by references to international humanitarian law. As the Russian
Federation explained in its Counter-Memorial, such claims are beyond the scope of the
CERD.1572 Earlier in its Judgment of 8 November 2019, the Court found that “[w]ith
1571 Law of Ukraine On Citizenship of Ukraine (1636-12) (13 November 1991), Article 3. Available at:
https://www.refworld.org/pdfid/44a280fa4.pdf
1572 Counter-Memorial (CERD), ¶387.
Page 425 out of 541
regard to the situation in Crimea, Ukraine’s claims are based solely upon CERD”.1573
That decision is res judicata now. Ukraine confirmed in its Reply that “Ukraine’s claims
are based solely on the CERD.”1574 Any claims relating to IHL are therefore undoubtedly
outside the Court’s jurisdiction.
1573 Judgment of 8 November 2019, ¶¶23 and 29.
1574 Reply, ¶550.
Page 426 out of 541
IX. THE RUSSIAN FEDERATION DID NOT BREACH CERD WITH RESPECT TO
PUBLIC EVENTS
1141.Ukraine’s claims of an alleged “racial discrimination campaign” targeting the Crimean
Tatar and Ukrainian communities in regard to certain decisions to postpone or relocate
what it describes as “culturally significant gatherings” are entirely unfounded.
1142.As the Court found in the 2019 judgment on the Russian Federation’s preliminary
objections, Ukraine’s claim in this case, as far as the CERD is concerned, is that “the
Russian Federation has engaged in a sustained campaign of racial discrimination, carried
out through acts repeated over an appreciable period of time starting in 2014, against the
Crimean Tatar and Ukrainian communities in Crimea.”1575 After the Russian Federation
showed in its Counter-Memorial that there was no racial discrimination, let alone such a
discrimination campaign, Ukraine in its Reply does not use the word “campaign” in the
chapter on what it labelled as “culturally significant gatherings”. Rather it uses the word
“pattern” to describe a few isolated incidents. As elaborated earlier in this Rejoinder, the
isolated incidents complained about by Ukraine are not sufficient to prove a “systematic
campaign”. 1576 Nor are these isolated incidents sufficient to prove a pattern of
discriminatory acts, if, for purposes of argument, such a pattern is taken to be the same as
a campaign.1577 These isolated incidents are thus beyond the scope of the present case
and are inadmissible. In any event, none of these incidents constitute racial discrimination
within the meaning of CERD because the decision in each of them was made on the basis
of a legitimate reason that had nothing to do with ethnic origin.
1143.As the Russian Federation showed in its Counter-Memorial, Ukraine failed to
demonstrate that any of the decisions or measures concerning public events were
discriminatory against the Crimean Tatars or Ukrainians because of their ethnic origin.
Ukraine’s own arguments and evidence in the Memorial and the Reply show that all of
the measures of which Ukraine complains were taken because the applicants failed to
comply with the clear requirements of Russian law for the holding of such events.
Whether or not these requirements are too strict in light of international standards (what
1575 Judgment of 8 November 2019, p.606, ¶130.
1576 See above, Chapter III.
1577 See above, Chapter III.
Page 427 out of 541
Ukraine’s arguments boil down to) is beyond the scope of the Court’s jurisdiction under
the CERD, and Ukraine’s unwarranted general criticism of the Russian legal
framework1578 is therefore irrelevant to this case.1579 What is crucial is that this legal
framework applies uniformly throughout the entire territory of the Russian Federation
and without any discrimination on the basis of race, colour, descent or national or ethnic
origin. In light of this, there was no racial discrimination involved in any of the decisions
complained about by Ukraine, and there could not have been any pattern or campaign of
such discrimination built upon such non-discriminatory decisions.
1144.In this Chapter of the Rejoinder, the Russian Federation will highlight the deficiencies in
Ukraine’s arguments concerning alleged racial discrimination concerning “culturally
significant gatherings” (Section A), and then provide additional evidence to refute
Ukraine’s allegations of different treatment in this area of the Crimean Tatar and
Ukrainians in general (Section B). For the sake of good order, the Russian Federation
will additionally address in the Appendix 5 to this Rejoinder each individual case that
Ukraine attempts to portray in the Reply as discrimination of the Crimean Tatars or
Ukrainians on the merits.
A. UKRAINE’S ALLEGATIONS OF DISCRIMINATION CAMPAIGN WITH RESPECT TO PUBLIC
GATHERINGS ARE BASED ON THE ERRONEOUS AND MISLEADING REPRESENTATION OF
LAW AND FACT
1145.As a preliminary remark, the Russian Federation notes that the CERD provides no
specific right to “culturally significant gatherings”, as Ukraine appears to suggest in the
Reply.1580 The CERD only prohibits ethnicity-based restrictions on the already existing
rights and, more particularly, the rights to freedom of expression and peaceful assembly,
which are also invoked by Ukraine.
1146.It should also be noted at the outset that the public events1581 that Ukraine tries to present
as “culturally significant” were in fact of a political nature. As opposed to
1578 Reply, ¶¶574-581.
1579 See above, Chapter III.
1580 Reply, ¶571.
1581 For instance, the Sürgün Commemorations, celebrations of Crimean Tatar Flag Day, Human Rights Day,
Shevchenko’s Birthday.
Page 428 out of 541
commemorating a cultural aspect unique to Crimean Tatars/Ukrainians, events were used
in order to present a certain political position. As the Russian Federation has demonstrated
in the Counter-Memorial, and again in this Rejoinder, political opinion is no part of
“ethnic origin”.1582 It is particularly telling that Ukraine focuses on events organized by
members of the Mejlis, which as evidence shows were in fact used to put pressure on
authorities and stage provocations.1583 At the same time, Ukraine conveniently overlooks
events organized by Crimean Tatars that were actually aimed at promoting the Tatar
culture, 1584 and which constitute clear proof that there is no racial discrimination
targeting this community, certainly not any “systematic racial discrimination campaign”.
1147.It is but no less true that the right to freedom of assembly and the freedom of expression
are not absolute. Ukraine failed to show that regulatory measures taken with respect to a
small number of events, based on Russian legislation that is applicable throughout the
Russian Federation, had anything to do with discrimination. Those measures were indeed
based on lawful and legitimate grounds.
i. Freedom of assembly
1148.As regards freedom of assembly, for example, the Universal Declaration of Human Rights
in Article 20(1) provides for freedom of assembly and association, and then in Article
29(2) provides that “In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.”
The scope of this freedom has been defined by human rights treaties, in particular by
Article 21 of the International Covenant on Civil and Political Rights:
“The right of peaceful assembly shall be recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity
with the law and which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre public), the protection
of public health or morals or the protection of the rights and freedoms of
others.”
1582 See above, Chapter III; Counter-Memorial (CERD), ¶¶114-122.
1583 Witness Statement of , Annex 17, ¶¶10-20; Second Witness Statement of
, Annex 15, ¶¶5-10.
1584 Counter-Memorial (CERD), Annex 498. See also Witness Statement of , Annex
29, ¶¶5-7; Witness Statement of , Annex 33, ¶¶19-26.
Page 429 out of 541
1149.A State has the right to regulate such assemblies in accordance with the law: it may
require notifications, demand modifications, and, when the circumstances so require, ban
public events. Where a State’s measure pursues the legitimate aim of, for instance,
suppressing violence, that measure is not contrary to the right to peaceful assembly; nor
is it discriminatory,1585 even if this limits a specific event organised by members of an
ethnic group.
1150.With respect to notifications, the State must be aware of planned events, at least in order
to protect and guarantee the rights and freedoms of all other persons under its
jurisdiction.1586
1151.States routinely set different requirements which event organizers have to comply with in
order to hold public events.1587 For example, in Germany, applicants must obtain permits,
and state and local officials may deny permits when public safety concerns arise or when
the applicant is from a prohibited organization, mainly right-wing extremist groups1588.
In the United Kingdom, organizers must inform the police in writing six days before a
public march stating its exact route, names and addresses of organizers, and police have
the power to limit or change the route of a march, and set any other condition of a
march.1589 In France, a notification of an assembly must be made at least 48 hours in
advance; the organizers are required to give their names, addresses, the aim of the
assembly, the date, the place and the route of any demonstration, and the authorities have
the right to ban demonstrations for national security reasons.1590 In Spain, an applicant
will be fined if they fail to notify authorities about peaceful demonstrations in public
areas, especially near governmental buildings or “key infrastructure”. 1591 In Latvia,
1585 William A. Schabas, THE EUROPEAN CONVENTION ON HUMAN RIGHTS: A COMMENTARY, (OUP, 2015), pp.
511-513,523-524.
1586 N. Weiß, Assembly, Freedom of, International Protection in MAX PLANCK ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW (OUP, 2021), ¶13.
1587 US Department of State, Custom Report Excerpts, available at:
https://www.state.gov/report/custom/256f0dd74a/ (Annex 286).
1588 Ibid., p.78.
1589 UK Government Official Site, Protests and marches: letting the police know, available at:
https://www.gov.uk/protests-and-marches-letting-the-police-know (Annex 287).
1590 Right to Assembly, The right of peaceful assemble in France, available at:
https://www.rightofassembly.info/country/france (Annex 288).
1591 US Department of State, Custom Report Excerpts, p.167, available at:
https://www.state.gov/report/custom/256f0dd74a/ (Annex 286).
Page 430 out of 541
organizers of demonstrations typically must notify authorities 10 days in advance, and
officials may deny or modify permits to prevent public disorder. 1592 Corresponding
requirements and restrictions also exist and apply in other States, including, according to
the US State Department, Morocco, Somalia, People’s Republic of China, India, and
others.1593
1152.In certain circumstances, the authorities may indeed ban such public events. States
routinely prohibit certain events and including those organized by certain groups by
invoking security reasons. For example, the Czech Republic banned marches organized
by Neo-Nazi groups.1594 In another example, Germany banned a pro-Palestine rally on
security grounds.1595 France likewise banned such a rally, citing expected unrest and
disturbances.1596
ii. Freedom of expression
1153.Freedom of expression is no different in this respect. It can likewise be subject to lawful
limitations.1597 Specifically, a request to change venue is in line with what human rights
treaty bodies and national courts consider to be a legitimate limitation of the right to
freedom of expression. Thus in Ernst Zundel v. Canada before the HRC, the applicant
claimed that “he was discriminatorily denied his right to freedom of expression” because
he was prohibited from holding a press conference in the premises of the Canadian
1592 Ibid., p.111.
1593 US Department of State, Custom Report Excerpts, pp. 46, 88, 127, 164, available at:
https://www.state.gov/report/custom/256f0dd74a/(Annex 286).
1594 Zpravy, Law on rallies flawed, Prague officials plan amends (29 April 2008), available at:
https://zpravy.aktualne.cz/law-on-rallies-flawed-prague-officials-plan-amends/r~i:article:603786/ (Annex 289).
1595 AA, German court upholds ban on pro-Palestine protest in Berlin (30 April 2022), available at:
https://www.aa.com.tr/en/europe/german-court-upholds-ban-on-pro-palestine-protest-in-berlin/2576991 (Annex
290).
1596 France 24, Pro-Palestinian rally in Paris banned amid rising Israel-Gaza tensions (13 May 2021), available
at: https://www.france24.com/en/france/20210513-pro-palestinian-rally-in-paris-banned-amid-escalating-israelgaza-
tensions (Annex 291).
1597 See for example Human Rights Committee, General Comment No. 34, 12 September 2011, ¶21, available at:
https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.
Page 431 out of 541
Parliament.1598 The HRC found no discrimination in this case, noting inter alia that the
applicant remained at liberty to hold a press conference elsewhere.1599
1154.An important conclusion to be drawn from this is that a State can and indeed must regulate
public events, as expressly recognized and provided for in relevant human rights
instruments. Such regulation clearly does not constitute as such any racial discrimination.
B. NO RACIAL DISCRIMINATION IN CRIMEA AGAINST CRIMEAN TATARS AND
UKRAINIANS WITH RESPECT TO PUBLIC GATHERINGS, AS UKRAINE DID NOT SHOW
THAT CRIMEAN TATARS OR UKRAINIANS WERE TREATED DIFFERENTLY THAN
OTHERS
1155.As the Russian Federation has shown in Chapter 3 of this Rejoinder, racial discrimination
can only be established if there is a difference or distinction as compared with others.1600
Thus, even if the freedom of assembly (or freedom of expression) was restricted or even
violated with respect to the cases relied on by Ukraine (quod non), this does not evidence
racial discrimination, since Ukraine does not show that the measures were taken based on
ethnicity, and not for other reasons, namely security considerations. Nor does Ukraine
respond to the Russian Federation’s arguments in the Counter-Memorial and provide
comparative statistics that would actually prove that the events of Crimean Tatars and
Ukrainians were specifically targeted, or were treated differently when compared to those
organized by Russians.
1156.In the Reply, Ukraine makes repeated attempts to present standalone cases of the Russian
authorities’ legitimate decisions to postpone, relocate or cancel public events in the
1598 Human Rights Committee, Communication No. 953/2000, Zundel v Canada, Decision on Admissibility,29
July 2003, ¶4.1, available at: http://hrlibrary.umn.edu/undocs/953-2000 html.
1599 Ibid., ¶8.5: “However, and despite the State party’s willingness to address the merits of the communication,
the Committee considers that the author’s claim is incompatible with article 19 of the Covenant and therefore
inadmissible ratione materiae under article 3 of the Optional Protocol. Although the right to freedom of expression,
as enshrined in article 19, paragraph 2, of the Covenant, extends to the choice of medium, it does not amount to
an unfettered right of any individual or group to hold press conferences within the Parliamentary precincts, or to
have such press conferences broadcast by others. While it is true that the author had obtained a booking with the
Press Gallery for the Charles Lynch Press Conference Room and that this booking was made inapplicable through
the motion passed unanimously by Parliament to exclude the author’s access to the Parliamentary precincts, the
Committee notes that the author remained at liberty to hold a press conference elsewhere. The Committee therefore
takes the position, after a careful examination of the material before it, that the author’s claim, based on the inability
to hold a press conference in the Charles Lynch press Conference Room, falls outside the scope of the right to
freedom of expression, as protected under article 19, paragraph 2, of the Covenant”. [Emphasis added]
1600 See above, Chapter III.
Page 432 out of 541
Crimean Peninsula as if they had to do with ethnic discrimination, arguing, inter alia, that
there was a disproportionate effect on Crimean Tatars.1601 This is a mischaracterisation
of the events, and yet another attempt by Ukraine to mislead the Court.
1157.Ukraine’s own references show that there have never been any measures targeting the
Crimean Tatar or ethnic Ukrainian communities as such. In order to portray the Russian
Federation as an unfavourable jurisdiction to hold social gatherings, Ukraine cites ECtHR
cases such as Lashmankin v. Russia and Navalny v. Russia. 1602 While the Russian
Federation does not agree with the ECtHR’s conclusions in these cases and does not
consider its findings under a different treaty to be relevant to this case, it is worth noting
that Ukraine itself states with respect to the Lashmankin case that “the ECtHR considered
applications from 23 applicants from all over Russia” [emphasis added]. This indicates
that the regulation of public gatherings, of which the ECtHR was critical, applies to every
event organiser or participant regardless of where they are located in the Russian
Federation (in Crimea or in other Russian regions), or of their ethnic background. The
ECtHR’s findings show nothing to the contrary. The quoted provision from the Navalny
v. Russia judgment merely refers to the broad language of the Public Events Act, which
cannot itself lead to any conclusion that the Act is discriminatory or will be used to
discriminate based on ethnicity. Importantly, the judgments of the ECtHR never
concluded that there was racial (or any discrimination) , when such decisions were made
by competent authorities. Nor have any such determinations been reached by the HRC
with regard to the Russian Federation.
1158.Statistical data from Crimea on public events also shows no abnormalities and is in line
with the statistics concerning the rest of the Russian Federation and other States. In fact,
as the Russian Federation has already shown in the Counter-Memorial, hundreds of
events organized by Crimean Tatars and Ukrainians have been organized and successfully
conducted since 2014,1603 and this continues to be the case. Ukraine did not address or
disprove this overwhelming evidence. The numbers of events in Crimea that have been
in any way modified or cancelled by authorities is lower than in other Russian regions,
1601 Reply, ¶584.
1602 Reply, ¶¶576, 579.
1603 Counter-Memorial (CERD), Annex 498; Witness Statement of , Annex 29, ¶¶5-
7.
Page 433 out of 541
and the number of complaints submitted to the High Commissioner on Human Rights of
the Russian Federation emanating from the Crimean Federal District is only at around
4%.1604 If one compares to other States then, for example, in South Korea up to 11% of
requested public events were banned.1605 It is clear that in the present case Ukraine claims
there is a “systematic campaign” of racial discrimination based on only a few unconnected
cases, which are in fact a drop in the ocean of all events peacefully and successfully
organized by the Crimean Tatar community.
1159.Ukraine cannot accuse Crimean Tatars that cooperate with the Russian authorities1606 of
being “proxies” of the Russian State in order to try and diminish the relevance of their
events. It is entirely unclear why being “pro-Russian” undermines these peoples’ status
as Crimean Tatars, makes them “the wrong kind of Crimean Tatars”, or makes their public
events not count as celebrating Crimean Tatar cultural heritage. Even if Crimean Tatars
that organized events in Crimea supported the Russian Federation, this does not
undermine their legitimacy as ethnic minorities or their events as evidence that there is
no racial discrimination.
1160.Ukraine also misleads the Court by implying that ethnic Russian applicants who apply
for permission to conduct public rallies in Crimea had preferable conditions as compared
to the applicants of the Crimean Tatar or ethnic Ukrainian background.1607 In the Counter-
Memorial, the Russian Federation demonstrated to the Court that many events planned
by “ethnic Russians” were also denied permission on the same ground that the
applications did not conform to Russian law.1608 Ukraine tries to downplay this evidence
by stating that “two of the applicants were ultimately able to hold their gatherings”;1609
however, Ukraine does not even comment on many other cases to which the Russian
Federation refers in the Counter-Memorial.1610 Clearly, the fact that two applicants were
1604 High Commissioner for Human Rights in the Russian Federation, Annual Report, 2014, Annex 293, p.35,
Figure 19.
1605 Yonhap News Agency, 11 pct of assemblies banned in Seoul last year due to pandemic: activists (12 August
2021), available at: https://en.yna.co.kr/view/AEN20210812012000315 (Annex 292).
1606 Reply, ¶587.
1607 Ibid., ¶587.
1608 Counter-Memorial (CERD), Appendix D, ¶62.
1609 Reply, ¶586.
1610 Counter-Memorial (CERD), Appendix D, ¶62 (e.g. the events in support of the Russian President, as well as
dedicated to celebrating Unity Day on 4 November, National Flag Day on 22 August and Russia Day on 12 June).
Page 434 out of 541
eventually allowed to hold a public rally does not show any pattern of differential
treatment between Russian communities and other ethnic groups in this respect.
1161.As regards the two public events, which were organised by ethnic Russians and which
Ukraine attempts to use as a comparator, Ukraine fails to disclose to the Court that the
events that it refers to have gone ahead, but not in the original form requested by the
applicants. As regards the event on 23 February 2018, it was initially planned as a “rallymarch”.
1611 What then happened, as Ukraine’s own evidence confirms, was a Litia
(worship service).1612 A worship service and a rally march are completely different in
nature, since they suppose different kinds of activities, require different kinds of venues,
and imply different kinds of security risks. As regards the 9 May 2018 march, it should
be noted that the organisers had to alter their route, and had to start from the Chekhova
street1613 instead of the Lenin Square as they originally requested.1614
1162.The fact that the organisers of these events were ultimately able to hold the gatherings in
a different form does not prove any discrimination against any other persons. What it does
show is that the organizers were able to fix any deficiencies in their applications on time,
be flexible in order to find equally acceptable solutions for themselves and for the
authorities, and complied with the relevant requirements of the legislation of the Russian
Federation. If the applicants failed to do so – regardless of their ethnicity – their
applications were dismissed, and the gatherings could not go ahead.
1163.Therefore, Ukraine failed to show that the Russian Federation acted in violation of Article
5 of the CERD, when it lawfully regulated public events in its territory, as there has been
no difference in treatment of different ethnic groups either de jure or de facto. The
evidence clearly shows that the Russian Federation treated every ethnic group equally:
where the applicants, Russian, Ukrainian or Crimean Tatar complied with the lawful
requirements, their public events were approved and successfully carried out, and where
1611 Counter-Memorial (CERD), Annex 536.
1612 Reply, Annex 132.
1613 Komsomolskaya Pravda, “Immortal Regiment 2018” in Crimea: Route and Time (3 May 2018), available at:
https://www.crimea kp ru/daily/26825.4/3863926/ (Annex 104).
1614 Counter-Memorial (CERD), Annex 595. This also confirms that the Lenina Square was also refused to Russian
applicants, and not to Mejlis only.
Page 435 out of 541
the opposite was true – the applications were modified or dismissed regardless of the
ethnic origin of those putting them in.
* * *
1164.As the above account shows, the Russian authorities never imposed any restrictions on
the public events organised by the Crimean Tatars and Ukrainians based on the ethnic
origin of their organizers or participants. Accordingly, Ukraine completely failed to
substantiate its allegations of racial discrimination in this regard. As a result, there cannot
be any pattern of discriminatory conduct, much less any sustained systematic campaign
of racial discrimination with respect to these “culturally significant gatherings”.
Page 436 out of 541
X. THE RUSSIAN FEDERATION DID NOT BREACH THE CERD WITH REGARD
TO CRIMEAN TATAR AND ETHNIC UKRAINIAN MEDIA IN CRIMEA
1165.In the Counter-Memorial, the Russian Federation explained that Ukraine’s allegations
with respect to the treatment of Crimean Tatar and Ukrainian media are unfounded.1615
It showed that the Russian Federation’s legislative framework is similar to that of
Ukraine,1616 and that the re-registration requirement was a regular formality.1617 The
Russian Federation also demonstrated that its legislation has not been applied in an
arbitrary manner, and that Ukrainian and Crimean Tatar media outlets and journalists
were not targeted – either directly or indirectly.1618 The media outlets that failed to reregister
did not receive licence for legitimate reasons that bear no relation to racial
discrimination, and certainly cannot show any systematic campaign thereof.
1166.This chapter addresses the surviving parts of Ukraine’s allegations concerning media
corporations’ discrimination. First, the Russian Federation will show that Ukraine’s
claims involving media corporations are beyond the Court’s jurisdiction in the present
case, as corporations are not protected under the CERD (Section A). Second, the Russian
Federation will show that Ukraine’s claims are in essence claims of discrimination based
not on ethnic origin but on political opinion, which does not constitute an element in racial
discrimination under the CERD (Section B). Third, the Russian Federation will show
that Ukraine’s new claims regarding indirect discrimination are inadmissible for going
beyond the scope of the case determined by the Court in the Judgment of 8 November
2019 (Section C). Finally, it will be explained that Ukraine failed to prove any campaign
of racial discrimination against Crimean Tatar and Ukrainian media (Section D). For the
sake of good order, the Russian Federation will additionally address in Appendix 6 to
this Rejoinder each individual case that Ukraine attempts to portray in the Reply as
discrimination of the Crimean Tatar or Ukrainian media on the merits.
1615 Counter-Memorial (CERD), ¶¶398-412; see also Counter-Memorial (CERD), Appendix E.
1616 Ibid., Appendix E, ¶¶15-17.
1617 Ibid. Appendix E, ¶¶10-11.
1618 Ibid., Appendix E, Sections II and III.
Page 437 out of 541
A. UKRAINE’S CLAIMS CONCERNING TREATMENT OF MEDIA CORPORATIONS AND ANY
COLLATERAL EFFECTS THEREOF ARE BEYOND THE COURT’S JURISDICTION BECAUSE
CORPORATIONS ARE NOT PROTECTED UNDER THE CERD
1167.At the outset, some observations are warranted with respect to the Court’s findings in its
judgment on preliminary objections in Qatar v. UAE. There, the Court pointed out that
because the CERD concerns only individuals or groups of individuals, any claims arising
out of measures imposed on or taken in regard to media corporations or companies are,
as such, outside the scope of the CERD and therefore of the Court’s jurisdiction.1619
Furthermore, the Court found that the term “institutions” in Article 2(1)(a) of the
Convention refers to “collective bodies or associations, which represent individuals or
groups of individuals”, to the exclusion of media corporations.1620
1168.In its Memorial, submitted before this 2021 judgment of the Court, Ukraine essentially
argued a case of rights of media outlets (media corporations)1621 being subjected to an
allegedly unfair application of the re-registration requirement. Thus, Ukraine considered
media outlets as individual right-holders that allegedly suffered as a result of the
application of Russian legislation.
1169.In the Reply, Ukraine claims that the Court “proceeded to analyse Qatar’s claims
concerning the effect of the media blockade on persons of Qatari national origin as claims
of indirect discrimination”.1622 It conveniently forgets to mention another important
finding in the Qatar v. UAE Judgment:
“The Court first observes that, according to the definition of racial
discrimination in Article 1, paragraph 1, of CERD, a restriction may
constitute racial discrimination if it “has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of
human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life”. Thus, the Convention prohibits all
forms and manifestations of racial discrimination, whether arising from the
purpose of a given restriction or from its effect. In the present case, while the
measures based on current Qatari nationality may have collateral or secondary
effects on persons born in Qatar or of Qatari parents, or on family members
1619 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 106-107, ¶108.
1620 Ibid.
1621 Memorial, ¶¶511-513; see also Counter-Memorial (CERD), ¶399.
1622 Reply, ¶619.
Page 438 out of 541
of Qatari citizens residing in the UAE, this does not constitute racial
discrimination within the meaning of the Convention. In the Court’s view, the
various measures of which Qatar complains do not, either by their purpose or
by their effect, give rise to racial discrimination against Qataris as a distinct
social group on the basis of their national origin. The Court further observes
that declarations criticizing a State or its policies cannot be characterized as
racial discrimination within the meaning of CERD. Thus, the Court concludes
that, even if the measures of which Qatar complains in support of its “indirect
discrimination” claim were to be proven on the facts, they are not capable of
constituting racial discrimination within the meaning of the Convention.”1623
[Emphasis added]
1170.Ukraine’s analysis is misleading. In reality, the Court, while treating Qatar’s claims as
claims of “indirect discrimination”, held that such indirect or collateral effects claims did
not constitute racial discrimination within the meaning of the CERD, and dismissed them
at the Preliminary Objections stage.
1171.As the Russian Federation explained above,1624 the important implication of the Qatar v.
UAE judgment on this case is that even if Ukraine were able to prove that the measures
taken by Russian authorities had any collateral effects on Ukrainian or Crimean Tatar
communities, such claims would still have to be dismissed. Since media corporations are
not covered under the CERD, any measures taken against them as such do not fall within
the CERD, and neither do any collateral effects, which may have occurred as a result of
such measures.
B. UKRAINE’S CLAIMS ARE IN ESSENCE CLAIMS OF DISCRIMINATION BASED ON
POLITICAL OPINION,WITH NO CONNECTION TO ETHNIC ORIGIN, AND THUS BEYOND
THE COURT’S JURISDICTION BECAUSE SUCH DISTINCTION DOES NOT CONSTITUTE
RACIAL DISCRIMINATION UNDER THE CERD
1172.As the Russian Federation has demonstrated above,1625 political views have nothing to do
with ethnicity. Thus, any allegations based on political views are not regulated by the
CERD. Yet Ukraine’s case concerns precisely unsubstantiated allegations of political
oppression. In its Memorial, Ukraine accused the Russian Federation of a politically-
1623 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, ¶112.
1624 See above in ¶1116.
1625 See above in Chapter III(E); see also Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023,
Section B (Annex 18).
Page 439 out of 541
based limitation of freedom of expression. Specifically, Ukraine alleged that “a
registration requirement [was] enforced as a means of excluding potentially critical voices
in Crimean Tatar and Ukrainian media”1626 and that “the Russian authorities used this
requirement as a pretext to ban disfavored Crimean Tatar media entities”.1627 Ukraine
likewise referred to an alleged “interference with freedom of expression” 1628 and
“harassment that Crimean Tatar and Ukrainian journalists and media organizations have
faced and continue to face in Crimea”.1629
1173.Thus, Ukraine did not truly center its case around racial discrimination – it accused the
Russian Federation of silencing media outlets that opposed the change of status of
Crimea. In the Reply, Ukraine attempts to save its case by quoting a sentence from the
Memorial, which states:
“Russia has unlawfully introduced measures that significantly restrict
freedom of opinion and expression in Crimea. The apparent purpose and
unquestionable effect of these measures has been to burden the free speech
rights of the Crimean Tatar and Ukrainian communities in particular”.1630
[Emphasis added]
1174.Despite the rather short length of the paragraph, important conclusions can be drawn from
it. Ukraine itself confirms that its case concerned the freedom of opinion and freedom of
expression for those opposing the Russian Federation in Crimea generally.
1175.By using the qualifier “in particular”, which ordinarily means “specifically”, or “one of”,
but not “exclusively”, Ukraine argues and indeed concedes that Crimean Tatars and
Ukrainians were in fact part of a larger group of inhabitants of Crimea whose rights were
allegedly “burdened”. Needless to add, this statement in no way shows that these two
groups were affected disproportionately, or any differently than any other ethnic group in
Crimea that stood in political opposition to the Russian Federation’s authorities.
1626 Memorial, ¶505.
1627 Ibid., ¶511.
1628 Ibid., ¶510.
1629 Ibid., ¶521.
1630 Reply, ¶620.
Page 440 out of 541
1176.This is similar to the UAE’s argument in Qatar v. UAE, where the latter argued that “there
cannot be racial discrimination within the meaning of the CERD, as the effects of the
blocking of transmissions are felt by all individuals within the UAE”.1631
1177.Since Ukraine’s position is that some media outlets were closed because of what they
were saying, and not because of who they were ethnically, such claims are outside the
scope of the CERD.
C. UKRAINE’S NEW CLAIMS REGARDING “INDIRECT DISCRIMINATION” ARE
INADMISSIBLE FOR GOING BEYOND THE SCOPE OF THE CASE DETERMINED BY THE
COURT
1178.As the Russian Federation explained above in Chapter III, Ukraine’s “new claims” that
go beyond the scope of the case determined by the Court in the Judgment of 8 November
2019, are inadmissible.1632 Perhaps aware of this, Ukraine attempts to modify its case in
the Reply. Now, it presents its claims not as based on media corporations or legal entities
as right-holders, 1633 but alleges a discriminatory impact of the restrictions on media
activities on the Crimean Tatar and Ukrainian communities in Crimea.1634
1179.First of all, as explained in Chapter III above, Ukraine’s reformulation of its claims as
“indirect discrimination” is wholly incompatible with the notion of a “systematic racial
discrimination campaign”, to which the scope of the present dispute is limited. Ukraine’s
manipulation of the subject-matter of the case and attempt to circumvent the Court’s
Judgment of 8 November 2019 must accordingly be rejected.
1180.In any event, as the Russian Federation has demonstrated in the Counter-Memorial, and
will further elaborate on below, Ukraine has not proven that any of the decisions or
measures imposed on the media in Crimea is discriminatory against Crimean Tatars or
Ukrainians on the basis of their ethnic origin.
1631 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Preliminary Objections of the United Arab Emirates, ¶136.
1632 See above in Chapter III(C).
1633 See Memorial, ¶¶511-513; Application instituting proceedings, ¶¶109-110.
1634 Reply, ¶621.
Page 441 out of 541
D. UKRAINE FAILED TO PROVE ANY SYSTEMATIC CAMPAIGN OF RACIAL
DISCRIMINATION AGAINST CRIMEAN TATAR AND UKRAINIAN MEDIA
1181.Importantly, Ukraine’s case fails to show any systematic campaign or policy framework
authorized or directed by the Russian Federation,1635 directed against Crimean Tatar and
Ukrainian media. There is simply no such policy framework. At no point in Ukraine’s
submissions does it provide evidence that there has been any differential treatment of
Crimean Tatar and Ukrainian media when compared to other, Russian media, or that any
measures have been taken based on the ethnic background of such media.
1182.The facts presented below in Appendix 6 show that there has been no mistreatment with
respect to the individual media outlets. It should be noted that Ukraine failed to disprove
the Russian Federation’s account on the existence of a vibrant and diverse media
landscape in Crimea.1636 Ukraine also cannot disagree with the fact that over 200 media
organizations that had been created under Ukrainian law, were re-registered in
Crimea.1637
1183.In reality, the vast majority of Crimean Tatar and Ukrainian media continue to freely
operate under the same conditions and regulations as the Russian media.1638 Nothing in
Ukraine’s case shows any differential treatment, which is essential for a finding of
discrimination. As elaborated below in Appendix 6, individual instances that Ukraine
refers to are incapable of constituting racial discrimination on their own, let alone
evidence “a systematic campaign of racial discrimination”.
1184.In an attempt to disprove the Russian Federation’s description of the broad and diverse
media landscape in Crimea, where 65 Ukrainian and Crimean Tatar media operate,1639
Ukraine refers to the closure of some (38 out of 105) media outlets previously registered
in the Russian Federation and concludes that “the Russian Federation cannot claim that
media organizations are serving the Crimean Tatar and Ukrainian communities when
1635 See above in Chapter III(B).
1636 Counter-Memorial (CERD), Appendix E, ¶¶21-26.
1637 Roskomnadzor, 232 Media Outlets Registered in Crimea (2 April 2015), available at:
https://rk.gov ru/ru/article/show/1502. (Annex 128)
1638 Witness Statement of , 18 February 2023, ¶6 (Annex 27).
1639 Roskomnadzor, List of existing media outlets operating in the territory of the Republic of Crimea and/or
Sevastopol fully or primarily in Ukrainian and/or Crimean Tatar from 18.03.2014 until present time (Annex 482).
Page 442 out of 541
those organizations are no longer in operation.” 1640 Even taken at face value, this
allegation only confirms that the majority of these outlets continue operating.
Nonetheless, Ukraine’s allegation is baseless and is found on the distortion of statistics.
As Ukraine’s evidence shows, the vast majority of the media (33 out of 38) were
liquidated by the owners’ own decision1641 and Ukraine does not argue otherwise. As for
the media outlets closed by judicial decisions (of which there were only six in total, which
estimates at roughly 5% of all open outlets and 14% of all closures), all such outlets were
closed due to the fact that they did not publish any materials for one year – which is a
mandatory ground for closure under Article 15 of the Russian media law.1642 Besides,
the media outlets were closed in different periods of time from 2015 to 2022, with most
closures happening from 2018 onwards. Therefore, it is implausible for Ukraine to state
that the closed media never served the Crimean Tatar and Ukrainian communities or had
not served the communities at the time Ukraine filed its Application with the Court. Given
these low numbers of closing media outlets, it is not possible to speak of a systematic
campaign .of racial discrimination.
1185.To make further comparisons, in the year 2015, in the entirety of the Russian Federation,
territorial departments of Roskomnadzor have liquidated 4,825 media outlets, the vast
majority of which in this year as well as in following years were Russian media resources
that have nothing to do with ethnic minorities, and of which 2,440 (over 50%) were
liquidated by judicial decision, and 2,385 by their owners’ decision.1643 In 2016, that
number dropped to 4,028, of which 1,583 (approximately 37%) were closed by judicial
1640 Reply, ¶627.
1641 Reply, Annex 98.
1642 Dzerzhinsky District Court of St Petersburg, Case No. 2a-863/22, Decision, 15 March 2022 (Annex 447);
Yevpatoria City Court of the Republic of Crimea, Case No. 2a-1433/2021, Decision, 22 September 2021 (Annex
448); Topchikhinsky District Court of the Altai Krai, Case No. 2a-161/2021, Decision, 4 June 2021 (Annex 449);
Central District Court of the City of Simferopol of the Republic of Crimea, Case No. 2a-1105/2022, Decision, 21
February 2022 (Annex 450); Central District Court of the City of Simferopol of the Republic of Crimea, Case No.
2a-4159/16, Decision, 30 September 2016 (Annex 451); Yalta City Court of the Republic of Crimea, Case No. 2a-
2964/2022, Decision, 29 July 2022 (Annex 452).
1643 Roskomnadzor, Report on Registration of Media Outlets, 2016, available at https://rkn.gov ru/masscommunications/
smi-registation/p885/ (Annex 406).
Page 443 out of 541
decision, and 2,445 by owners’ decision. 1644 In 2017, 4,167 media outlets were
liquidated, of which 2,135 by judicial decision, and 2,032 by owners’ decision.1645
1186.More than anything, the data confirms that far fewer Crimean Tatar media were closed
by judicial decisions in Crimea as compared to the rest of the Russian Federation. If
compared to other regions of the Russian Federation,1646 the numbers of closed media
outlets in Crimea likewise shows no abnormalities. For instance, in the year of 2016, the
Crimean territorial department of Roskomnadzor has annulled only 12 media licences, as
opposed to over 100 such cases in Chelyabinsk Region, or over 170 cases in the Samara
Region. Therefore, Ukraine’s arguments of racial discrimination are not supported by the
evidence.
1187.Ukraine’s complaints about the content and character of the registered media outlets are
baseless and misleading. Ukraine attempts to argue that “a majority of [these] outlets …
are print magazines”, and that they do not reach the broader population.1647 However, in
the list provided by the Russian Federation, from which Ukraine selectively picks print
magazines, there are at least 30 newspapers, 9 radio channels, 10 TV Channels and 6
online media. Moreover, the fact that most outlets are printed media is in line with the
general trend in the Russian Federation, as more than half of registered media between
2014 and 2016 were print media.1648
1188.As for Ukraine’s allegations that these media do not use Crimean Tatar as their language,
again those are factually incorrect. Ukraine’s arguments can easily be refuted by
accessing the TV Programme of the Millet Channel, which contains various broadcasts
in Crimean Tatar.1649 Moreover, according to Roskomnadzor’s statistical information, in
2017, as many as 56 media outlets were operating in Crimea in Crimean-Tatar
1644 Ibid.
1645 Roskomnadzor, Report on Registration of Media Outlets, 3rd Quarter of 2017, available at:
https://rkn.gov ru/mass-communications/smi-registation/p885/ (Annex 125); Roskomnadzor, on Registration of
Media Outlets, 4th Quarter of 2017, available at: https://rkn.gov ru/mass-communications/smi-registation/p885/
(Annex 127).
1646 Roskomnadzor, Data on media outlets registration between 01 January 2016 and 31 December 2016, available
at: https://rkn.gov.ru/mass-communications/smi-registation/p885/ (Annex 172).
1647 Ibid., ¶628.
1648 Roskomnadzor, Report on Registration of Media Outlets, 2016, available at: https://rkn.gov.ru/masscommunications/
smi-registation/p885/ (Annex 406).
1649 Witness Statement of Ervin Kyazimovich Musaev, ¶21 (Annex 33); ANO OKTRK, Letter, 8 February 2023
(Annex 173).
Page 444 out of 541
language.1650 With respect to Ukrainian language, it is worth noting multiple resources
continue their work in Ukrainian with no harassment or pressure from the authorities,
such as “Krym Sjogodni” magazine, “Krymskiy Visnyk” and Pereyaslavska Rada 2.0
Internet-resource1651
1189.Again, currently over 60 media continue operating in Crimean Tatar and Ukrainian
languages, their content aimed at different audiences and issued in different forms. The
corresponding list, which dispels Ukraine’s unfounded accusations, is annexed to this
Rejoinder.1652
1190.Ukraine also tries to blame the Russian Federation for the “mass exodus” of Crimean
Tatar and Ukrainian media organizations,1653 and the alleged difficulty of reaching them
online. However, it fails to prove if there was in fact any such “exodus” and that it were
the Russian Federation’s actions (as opposed to commercial/business considerations) that
inspired the media organizations to move to Ukraine. Ukraine also accuses the Russian
Federation of blocking “popular websites”. However, according to Ukraine’s own
source, 1654 those include the websites of Mejlis, Jehovah’s Witnesses (extremist
organizations) and the Ministry of Reintegration of the “Temporarily Occupied
Territories of Ukraine”. Thus, such data disproves any notion of racial discrimination yet
again. It is also ironic how Ukraine accuses the Russian Federation of blocking access to
some Ukrainian websites, considering that Ukraine itself closes access to Russian
websites1655 and mass media1656 to people in its territory, and denies access to its own
websites from the territory of the Russian Federation.
1650 Roskomnadzor, 483 Media Outlets Operate in Crimea (18 March 2017), available at:
https://rkn.gov ru/news/rsoc/news43573.htm (Annex 130).
1651 Second Witness Statement of , 22 February 2023, ¶15 (Annex 10).
1652 Roskomnadzor, List of existing media outlets operating in the territory of the Republic of Crimea and/or
Sevastopol fully or primarily in Ukrainian and/or Crimean Tatar from 18 March 2014 until present time (Annex
482).
1653 Reply, ¶631.
1654 Ibid., Annex 103 (cited by Ukraine at fn 1238).
1655 Ria.ru, In Ukraine An Almost Complete Blocking of Access to Russian Websites Was Announced (20 April
2022), available at: https://ria ru/20220420/sayty-1784463195 html (Annex 464).
1656 TASS, Re-Broadcasting of 15 Russian Channels Was Banned in Ukraine (9 September 2014), available at:
https://tass ru/mezhdunarodnaya-panorama/1430068 (Annex 465).
Page 445 out of 541
1191.Further, Ukraine’s contentions that “not all of [media organizations catering to the
Crimean Tatar and Ukrainian communities] are independent” is to no avail.1657 First of
all, this accusation has nothing to do with the Russian Federation’s obligations under the
CERD. The characterization of Millet and Vatan Sedasy as “sort of Russian state
propaganda” is not supported by any evidence. The activities of these outlets are overseen
by a community council on the contrary shows that they are closely linked to the Crimean
Tatar community and represents its interests. In fact, any accusations of “propaganda”
can be dispelled by looking at the programme of the these channels, which consists of
politically neutral broadcasts. Mr Ervin Musaev, formerly head of Millet channel, also
denied any kind of involvement by the State during his tenure at Millet.1658 He confirms
that the broadcasting programmes were defined by the interest of the viewers, not by any
directives from above. The only piece of evidence Ukraine cites in this regard is some
speculative comments of the former boss of the Mejlis, Mr Refat Chubarov, which, as
shown in multiple parts of the Counter-Memorial and the Rejoinder, has engaged in
several extremist activities. Mr Chubarov is obviously biased and represents the opinion
of the Ukrainian Government; he also supports and promotes the interests of another
media company, ATR, which belongs to his supporter and partner in extremist activities
Mr Islyamov, and is obviously unhappy about the popularity of Millet. Thus, Ukraine’s
assertions that the media landscape in Crimea is not diverse are entirely unsubstantiated.
1192.Millet broadcasts around 50% and produces over 80% of its own content in Crimean-
Tatar;1659 its primary aim is to promote and preserve Crimean Tatar culture and language.
This is further evidenced by the fact that out of 22 programs broadcast at Millet, 14 are
fully in Crimean Tatar, 6 are bilingual, and only 2 are broadcast fully in Russian.1660
Examples of its programs broadcast in recent times are:
(a) “Vatan Khatyrasy” is a program that provides the audience with information about
the great figures among the Crimean Tatar people and preserves the memory of
them. This program airs every week on Saturdays;1661
1657 Reply, ¶630.
1658 Witness Statement of Ervin Kyazimovich Musaev, ¶25 (Annex 33).
1659 ANO OKTRK, Letter, 8 February 2023, p. 2 (Annex 173).
1660 Ibid.
1661 Millet, Vatan Khatirasi (17 February 2023), available at: https://trkmillet ru/programs/vatan-khatirasi/ (Annex
132).
Page 446 out of 541
(b) “History of the Crimean Tatars” is a program about the life of the Crimean Tatar
people during the time of the Crimean Khanate, about the monuments and objects
of cultural heritage that have survived from those times until now. This program
airs three times a week - on Monday, Wednesday, and Friday;1662
(c) “Crimean Family” is a program talking about representatives of various ethnic
groups living in Crimea and their traditions.1663
(d) “Kyrymda Bayram” is a program in the Crimean Tatar language about the culture
and traditions of the Crimean Tatar people;1664
(e) “Millet Bereketi” is a culinary program about the national dishes of various ethnic
groups living in Crimea;1665
(f) “Peoples of Crimea” is a program about the culture and traditions of the peoples of
Crimea telling the audience about the centuries-old history and modern way of
life;1666
(g) “Prime Time” is a daily information and news program airing at 18:45. It is usually
in Russian, but once a week (on Thursdays) it is broadcast in the Crimean Tatar
language.1667 Also, the Haberler news program is aired several times a day in
Russian and Crimean Tatar languages;
(h) “Seyaat” is a program about travel in the Crimean Tatar language. Aimed at the
promotion of domestic tourism, it concerns interesting places in Crimea, which may
be unknown to its residents;1668
1662 Millet, History of the Crimean Tatars Programme (17 February 2023), available at:
https://trkmillet.ru/programs/istoriya-krimskikh-tatar/ (Annex 133).
1663 Millet, Crimean family (17 February 2023), available at: https://trkmillet ru/programs/krimskaya-semya/
(Annex 134).
1664 Millet, Kirimda Bayram (17 February 2023), available at: https://trkmillet.ru/programs/kirimda-bayram/
(Annex 135).
1665 Millet, Millet Bereketi (17 February 2023), available at: https://trkmillet ru/programs/millet-bereketi/(Annex
136).
1666 Millet, The Peoples of Crimea: Diversity of Unity (17 February 2023), available at:
https://trkmillet.ru/programs/narodi-krima-raznoobrazie-edinstva/ (Annex 137).
1667 Millet, Prime Time (17 February 2023), available at: https://trkmillet.ru/programs/praym-taym/ (Annex 138).
1668 Millet, Seyaat (17 February 2023), available at: https://trkmillet ru/programs/instaseyaat/ (Annex 139).
Page 447 out of 541
(i) “Tarikh Izleri” is a program about the old Crimean Tatar villages and settlements,
which tells about the life and traditions of local residents. The show comes out
every two weeks;1669
(j) “Tek Arzum Vatan” is a program in the Crimean Tatar language about the culture,
customs and traditions of the Crimean Tatars, aired weekly;1670
(k) “Yurt Nefesi” is a program in the Crimean Tatar language, which gives its viewers
the opportunity to watch interviews with cultural, religious and public figures. The
show comes out weekly;1671
(l) “Yayla Boyu” 1672 and “Chalgydzhi Live” 1673 are programs dedicated to the
popularization of music, folk songs and dances of the Crimean Tatar people;
(m) “Ana Yurtun - Altyn Beshik” is a program in the format of short instructional
videos, in which prominent social and religious figures state their position in the
Crimean Tatar language and give instructions on a number of issues;1674
(n) “Diniy Subet”,1675 “World of Islam”,1676 “Khyzmet Ve Bereket”1677 are religious
and educational information programs in the Crimean Tatar and Russian languages,
dedicated to Islam and its impact on modern society. Within the framework of these
broadcasts, the Crimean Tatar population, predominantly professing Islam, can get
to know the traditions of their religion more closely and find the answers to their
questions;
1669 Millet, Tarikh Izleri (17 February 2023), available at: https://trkmillet ru/programs/tarikh-izleri/ (Annex 140).
1670 Millet, Tek Arzum Vatan (17 February 2023), available at; https://trkmillet.ru/programs/tek-arzum-vatan/
(Annex 141).
1671 Millet, Yurt Nefesi (17 February 2023), available at: https://trkmillet.ru/programs/yurt-nefesi/ (Annex 142).
1672 Millet, Yaylya Boyu (17 February 2023), available at: https://trkmillet.ru/programs/yaylya-boyu/ (Annex 143).
1673 Millet, Chalgidzhi Live (17 February 2023), available at: https://trkmillet.ru/programs/chalgidzhi-live/ (Annex
144).
1674 Millet, Ana Yurtun - Altin Beshik (17 February 2023), available at: https://trkmillet ru/programs/ana-yurtunaltin-
beshik/ (Annex 145).
1675 Millet, Diniy Subet (17 February 2023), available at: https://trkmillet.ru/programs/diniy-subet/ (Annex 146).
1676 Millet, The World of Islam (17 February 2023), available at: https://trkmillet ru/programs/mir-islama/ (Annex
147).
1677 Millet, Khizmet ve Bereket (17 February 2023), available at: https://trkmillet ru/programs/khizmet-ve-bereket/
(Annex 148).
Page 448 out of 541
(o) “Millet Khatyrlai” is a program in the format of short clips dedicated to the most
tragic event in the history of the Crimean Tatar people – the deportation of Crimean
Tatars in 1944. The program tells the stories of people who suffered from it and is
aimed at preserving the historical memory of the Crimean Tatar people;1678
(p) “Miras” is an educational program in the Crimean Tatar language about the history,
traditions and culture of the Crimean Tatars. The show comes out daily.1679
(q) “Erketai” is a children's entertainment program through which children, among
other things, can learn the Crimean Tatar language. The show airs weekly;1680
(r) “Yukyu TIME” is a children's program in which children are told fairy tales in the
Crimean Tatar language. Thanks to this program, children from a very early age
have the opportunity to listen to their native language and learn it through fairy
tales.1681
1193.It should also be noted that Ukraine did not disprove the Russian Federation’s evidence
on numerous films, cartoons and shows broadcast at Millet in Crimean Tatar.1682 In 2022,
this was no different, as 141 films and cartoons with the overall length of 65 hours and
36 minutes were broadcast at Millet.1683 Moreover, in 2022 Millet filmed and broadcast
programs featuring performances of Crimean Tatar pop stars and folk song and dance
groups, as well as those of the Crimean Tatar Academic Music and Drama Theater in the
Crimean Tatar language.1684
1194.In 2022, numerous documentaries were filmed on significant events and important people
in Crimean Tatar culture, i.e. on the deportation of Crimean Tatars (“Long Road
1678 Millet, Millet Khatirlay (17 February 2023), available at: https://trkmillet.ru/programs/millet-khatirlay/
(Annex 149).
1679 Millet, Miras (17 February 2023), available at: https://trkmillet.ru/programs/miras/ (Annex 150).
1680 Millet, Yerketay (17 February 2023), available at: https://trkmillet.ru/programs/yerketay/ (Annex 151).
1681 Millet, Yuku Time (17 February 2023), available at: https://trkmillet.ru/programs/yukutime/ (Annex 152).
1682 Council of Ministers of the Republic of Crimea, Information note on measures taken to implement the Decree
No. 268 of the President of the Russian Federation and other activities aimed at promoting cultures of the Ukrainian
and Crimean Tatar peoples, as attached to Letter No. 1/01-46/8775/3/1, 5 June 2020 (excerpts), see Counter-
Memorial (CERD), Annex 498.
1683 ANO OKTRK, Letter, 8 February 2023, p. 3 (Annex 173).
1684 Ibid., p. 5.
Page 449 out of 541
Home”) 1685 and on persons that contributed to the promotion of the Crimean Tatar
language. Namely, films were produced on Fevzi Bilyalov (the author of the only opera
in Crimean Tatar),1686 Asan Refatov (composer),1687 Abduraim Reshidov (Hero of the
Great Patriotic War).1688 Now, Millet is shooting two further documentaries on Crimean
Tatars – one of them is dedicated to the composer Ilyas Bakhshish, while the other is
about gunsmith, artist and jeweller Amet Kalafatov.1689
1195.Ervin Musaev, the former head of Millet, also notes in his witness statement that the
Millet Channel takes part in the organization and coverage of major events aimed at
promoting the Crimean Tatar culture, such as competitions in the traditional Crimean
Tatar wrestling kuresh, the festival of the Crimean Tatar culture Hydyrlez, events
dedicated to Islamic holidays, such as Eid al-Fitr.1690
1196.Therefore, contrary to Ukraine’s allegations, the media landscape in Crimea does not
show any sign of discrimination. On the contrary, it allows each culture, including
Crimean Tatars and ethnic Ukrainians, to preserve and promote their history, language
and culture.
***
1197.It follows that the Russian Federation did not breach the CERD in dealing with Crimean
Tatar and ethnic Ukrainian media organizations. Once again, Ukraine’s arguments cannot
be sustained in fact or in law.
1685 Millet, Documentary "The Long Way Home" (18 May 2022), available at: https://trkmillet ru/programepisode/
dokumentalniy-film-dolgaya-doroga/ (Annex 153).
1686 Millet, Documentary "Fevzi Bilyalov: Singer for All Times…" (5 November 2022), available at:
https://trkmillet.ru/program-episode/dokumentalniy-film-fevzi-bilyalov/ (Annex 154).
1687 ANO OKTRK, Letter, 8 February 2023, p. 5 (Annex 173).
1688 Ibid.
1689 Ibid.
1690 Witness Statement of Ervin Kyazimovich Musaev, ¶23 (Annex 33).
Page 450 out of 541
XI. THERE IS NO RACIAL DISCRIMINATION WITH RESPECT TO
PRESERVATION OF CULTURAL HERITAGE
1198.As explained in the Counter-Memorial, 1691 Ukraine’s claims concerning an alleged
degradation of cultural heritage as evidence of a planned “systematic racial discrimination
campaign” by the Russian Federation targeted against the Crimean Tatar and Ukrainian
communities is a clear illustration of Ukraine’s unsubstantiated and bad faith position.
More specifically, the Russian Federation showed that the works related to the Khan’s
Palace have been carried out for much needed restoration purposes because of the dire
conditions in which Ukraine itself left the site, and that the Russian Federation’s efforts
in this regard evidence no racial discrimination of any sort, but on the contrary support
for the Crimean Tatar community. Similarly, it was shown that Ukraine’s claim regarding
an alleged “harassment and closure of Ukrainian cultural institutions” does not withstand
scrutiny as the factual allegations made by Ukraine are incorrect, selective, distorted, and
taken out of context.
1199.Ukraine’ Reply has been unable to disprove any of the evidence produced in the Counter-
Memorial, yet Ukraine continues to make unfounded accusations, arguing that the
Russian Federation has acted in breach of Articles 2(1), 5(e)(vi) and 6 of the CERD, and
even levelling the extremely serious charge that the Russian Federation’s plan is to carry
out a “full-scale cultural erasure”1692. This chapter responds to the Reply as regards the
alleged degradation of the cultural heritage of Crimean Tatar communities (Section A)
and of Ukrainian communities (Section B), reaffirming that none of the measures adopted
by Russian authorities that Ukraine complains of amount to racial discrimination, nor do
they evidence the existence of any “systematic racial discrimination campaign”.
A. THE RUSSIAN FEDERATION PRESERVES THE CULTURAL HERITAGE OF CRIMEAN
TATAR COMMUNITIES
1200.The Reply continues to make the restoration of the Khan’s Palace the center piece of
Ukraine’s allegations on degradation of Crimean Tatar cultural heritage.1693 In addition,
Ukraine mentions in passing two new “facts”, namely, the alleged demolition of Muslim
1691 Counter-Memorial (CERD), Chapter VI, Section VI and Appendix F.
1692 Reply, ¶645.
1693 Reply, ¶¶647-655.
Page 451 out of 541
burial grounds to build the “Tavrida” Highway1694 and the alleged destruction of the
remains of the Palace of Kalga-Sultan Akmejitsaray and the cultural layer of the ancient
city of Akmejit.1695 As shown below, all these claims are unfounded and ought to be
dismissed.
1201.Three general remarks are warranted. First, citing the Court’s order on provisional
measures in Armenia v. Azerbaijan,1696 Ukraine states that “a State’s vandalization of
cultural heritage sites can constitute a violation of the CERD”.1697 The position of the
Russian Federation in this issue is misrepresented by Ukraine.1698 The question at issue
in the present case is whether the restoration works of the Khan’s Palace undertaken by
Russian authorities constitute a violation of the CERD for being part of a “systematic
racial discrimination campaign” targeting the Crimean Tatar communities. The plain
facts show that this is not the case.
1202.Second, Ukraine concedes that it “cannot itself conduct a thorough investigation of the
harm being done to the Khan’s Palace” since it does not have access to first-hand or
confirmed information allowing a proper appreciation of the restoration works.1699 While
this confirms that Ukraine’s factual allegations are indeed insufficient to establish a
violation of the CERD, Ukraine also suggests that this is “a problem of [Russia’s] own
making” because the latter allegedly refuses independent monitors access to Crimea.1700
This is yet another manipulation of the facts by Ukraine. In reality, the Russian
Federation has on multiple occasions invited organizations such as the OSCE, the
UNESCO, and the OHCHR to visit Crimea and observe the measures adopted by local
1694 Reply, ¶657.
1695 Reply, ¶¶658-659.
1696 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Armenia v. Azerbaijan), Provisional Measures, Order, 7 December 2021, I.C.J. Reports 2021, p. 383, ¶61 (“The
Court also considers plausible the rights allegedly violated through incitement and promotion of racial hatred and
discrimination against persons of Armenian national or ethnic origin by high-ranking officials of Azerbaijan and
through vandalism and desecration affecting Armenian cultural heritage”).
1697 Reply, ¶647.
1698 At fn 1272, the Reply refers to Appendix F of the Counter-Memorial (CERD), ¶8, fn. 19, but it nowhere states
that the Russian Federation considers that a State vandalism of cultural heritage would not be contrary to the CERD
if established.
1699 Reply, ¶648.
1700 Ibid.
Page 452 out of 541
and federal authorities to preserve cultural heritage in Crimea.1701 Regardless of this,
Appendix F of the Counter-Memorial and this Chapter provide a full account of all the
relevant facts based on first-hand evidence.
1203.Third, Ukraine fails to take into account the numerous measures adopted by Russian
authorities with a view to maintaining and promoting the cultural heritage of Crimean
Tatar communities. For example:
(a) the Russian authorities funded the construction of the Cathedral Mosque in
Simferopol, a site of overwhelming importance for Crimean Tatars and
Muslims;1702
(b) the Russian authorities have transferred all cultural sites that bear significance to
the Crimean Tatars into the ownership of the local Muslim communities
(ummahs);1703 and
(c) the Russian authorities began assisting and sponsoring the Crimean Tatars’
pilgrimage trips to Mecca (hajj).1704
1204.The correctness of the Russian Federation’s approach to Crimean Tatar culture is also
confirmed by the testimonies of people from the sphere of culture:
1701 See, e.g., Statement by Mr. Dmitry Balakin, Deputy Permanent Representative of the Russian Federation at
the 1177th Meeting of the OSCE Permanent Council, 1 March 2018, PC.DEL/209/19, available at:
https://www.osce.org/files/f/documents/b/b/381229.pdf; Statement by Mr. Alexander Lukashevich, Permanent
Representative of the Russian Federation at the 1220th Meeting of the OSCE Permanent Council, 14 March 2019,
PC.DEL/209/19, available at: https://www.osce.org/files/f/documents/5/c/414629.pdf; Statement by Mr.
Alexander Lukashevich, Permanent Representative of the Russian Federation at the 1306th Meeting of the OSCE
Permanent Council via Video Teleconference, 18 March 2021, PC.DEL/360/21/Rev.1, available at:
https://www.osce.org/files/f/documents/3/3/483326.pdf; Commentary of the Russian Federation’s Permanent
Representatives at the OSCE, 18 March 2020 (Annex 441). See also Second Witness Statement of
, 7 March 2023, ¶¶4-6 (Annex 23). All organisations refused the invitation to visit Crimea.
1702 See Witness Statement of , 22 February 2023, ¶29 (Annex 11); First Witness
Statement of , 9 June 2021, ¶¶35-38 (Counter-Memorial (CERD), Annex 19). As Mr
notes, Ukraine in contrast always put obstacles to the construction of the Cathedral Mosque.
1703 Tatar-inform.ru, Mufti of Crimea: “We cannot repeat the mistake we made in 1783” (13 August 2022) (Annex
160), available at: https://www.tatar-inform ru/news/muftii-kryma-my-ne-mozem-povtorit-osibku-kotoruyusoversili-
v-1783-godu-5872339; TASS, Head of the Council of Muftis of the Russian Federation: Crimean Tatars
will be able to regain ownership of their mosques (1 April 2014), available at: https://tass ru/obschestvo/1090066
(Annex 161).
1704 See First Witness Statement of , 9 June 2021, ¶¶32-34 (Counter-Memorial (CERD),
Annex 19), and sources referenced there.
Page 453 out of 541
(a) In 2019-2021 Crimean authorities conducted repairs of the Crimean Tatar
Academic Music and Drama Theatre (the one and only Crimean Tatar theatre in the
world), which were required well before 2014. According to the theatre’s director
the Crimean Tatar community freely promotes its culture and
language, major part of the plays in the theatre being conducted in Crimean Tatar
and Russian. State financing covers all necessary expenditures and the revenue
from the ticket sell is distributed among the theatre staff.1705
(b) The Russian Federation’s financing was vital for the continuance of the Crimean
Tatar dance ensemble “Haytarma”. The Crimean state philharmonic which hosts
the ensemble receives over 200 million roubles each year. Apart from Crimean
Tatar dances, the ensemble “Haytarma” also performs traditional Ukrainian
dances.1706 There are, naturally, many other local Crimean Tatar ensembles active
all over the peninsula.
(c) The Russian Federation spent almost half a billion roubles on a Memorial complex,
the “Suren”, devoted to the victims of deportation. The complex is currently
assigned to the Crimean Tatar Museum, 1707 which in addition regularly hosts
various events devoted to the Crimean Tatar language and culture.1708
(d) The Crimean Minister of Culture Tatiana Manezhina describes many more cultural
events aimed at the promotion of the Crimean Tatar culture in her witness
statement.1709
1205.The adoption of these measures flatly disproves Ukraine’s claim that the Russian
Federation seeks to “erase” the cultural heritage of Tatar communities as part of a
“systematic racial discrimination campaign”. To the contrary, they show that the Russian
1705 Witness Statement of , 2 March 2023, ¶¶5-9 (Annex 14).
1706 Witness Statement of , 7 March 2023, ¶¶6, 11-13 (Annex 28).
1707 Witness Statement of , 7 March 2023, ¶¶4-5 (Annex 29).
1708 Witness Statement of , 7 March 2023, ¶7 (Annex 29).
1709 Witness Statement of , 7 March 2023, ¶7 (Annex 16).
Page 454 out of 541
Federation, as a multi-ethnic State, actively supports Crimean Tatars by promoting their
important cultural legacy.1710
i. The Restoration of the Khan’s Palace
1206.In the Reply, which for the most part reproduces the factual allegations made in the
Memorial without presenting any new substantial evidence,1711 Ukraine claims that the
restoration works at the Khan’s Palace amount to a “cultural dismantling”. 1712 It is
remarkable, to say the least, that after neglecting this important cultural site for years and
allowing it to crumble, Ukraine now takes issue with the significant efforts undertaken
by the Russian Federation to restore it to its original splendour.
1207.Ukraine’s case on the Khan’s Palace rests essentially on certain damages that were
allegedly suffered by the complex during the restoration works.1713 The few press reports
and the Chatham House blogpost that Ukraine relies on to make this claim, however, were
disproven by the documented witness statement (including photographs) of
1714 as
well as by the witness statement of
.1715 Ukraine did not engage with this evidence in
1710 This is confirmed by the Crimean Tatars themselves, who are generally of the view that the situation regarding
cultural heritage in Crimea has improved since 2014. See, for example, Witness Statement of
¶¶29-30 (Annex 11); Witness Statement of , 6 March 2023, ¶¶54-56 (Annex
17).
1711 Memorial, ¶523-526.
1712 Reply, ¶649.
1713 More particularly, Ukraine alleges that there was (1) interior damage due to flooding and snow; (2) destruction
of historical handcrafted tiles (“Tatarka”) from the roof of the mosque, replaced by modern Spanish tiles; (3)
damage to 18th-century paintings and original roof beams; (4) cracks on the façade of the building (see Reply,
¶649) and (5) complete replacement of the original oak anti-seismic belt (Memorial, ¶524).
1714 Witness Statement of , 9 June 2021 (Counter-Memorial (CERD), Annex 20).
Ukraine seeks to swiftly dismiss the witness statement as a whole, arguing that the qualifications of
are insufficient (Reply, ¶649). This, however, shows Ukraine’s clear discomfort with the statement, which
constitutes first-hand evidence provided by a person closely involved in the restoration of the Khan’s Palace. The
account of is further supported by the Witness Expert Statement of Ms
6 March 2023 (Annex 24), who also possess factual knowledge and expertise on the matter.
1715 Counter-Memorial (CERD), Appendix F, ¶¶2-20; Witness Statement of Yulia Alexandrovna Ivanishkina, 19
March 2021 (Counter-Memorial (CERD), Annex 15), ¶¶26-27.
Page 455 out of 541
any detail in the Reply, which cannot but confirm the falsity of its allegations. Notably,
Ukraine has not challenged that:
(a) The historical hand-made roof tiles (“Tatarka”) in the Khan’s Mosque were in fact
missing due to several replacements throughout the history of the Khan’s Palace;1716
(b) The wood flooding that took place in December 2017 due to heavy rain was quickly
fixed, and the waterproofing layer was restored;1717 and
(c) The replacement of wooden roof beams was carried out due to the critical stage in
which they were found, notably due to fungal and entomological damage.1718
1208.More generally, Ukraine conveniently ignores basic material facts, including the reasons
for the restoration project initiated by the Russian authorities; the funds provided by the
Russian Federation for the restoration works; and the results of the restoration to date.
1209.As to the reasons for the restoration works, Ukraine has not denied that such works were
urgently required because of the poor conditions in which the Khan’s Palace was
found.1719 Indeed, Ukraine only appears to dispute the number of roof beams that were
in critical need of repair. 1720 Ukraine is noticeably hesitant in contesting that the
conditions of the Palace were due to its own failure to take appropriate measures in the
past.1721 To deny this, it merely indicates that the Ukrainian Restoration Research and
Design Institute conducted “regular scientific studies” (not actual restoration work) of the
Khan’s Palace complex. 1722 Ukraine further argues that the Institute “was actively
working on restoring the Khan’s Palace prior to Russian occupation in 2014”, but
1716 Counter-Memorial (CERD), Appendix F, ¶¶12.
1717 Counter-Memorial (CERD), ¶43.
1718 Counter-Memorial (CERD), ¶¶32-35, 40. See also Second Witness Statement of Vadim Leonidovich
Martynuk, 7 March 2023, ¶13 (Annex 23).
1719 Counter-Memorial (CERD), Appendix F, ¶6.
1720 Reply, ¶654.
1721 Ibid., ¶653.
1722 Ibid.
Page 456 out of 541
provides no evidence of such restoration work.1723 In fact, these claims are false because
Ukraine never invested into proper research or archaeological works.1724
1210.Ukraine further overlooks the fact that, to date, the Russian Federation provided the sum
of RUB 3.6 billion (circa USD 50 mln) to restore the Khan’s Palace.1725 These funds
have been used to ensure proper repair of the Palace’s infrastructure, which confirms the
Russian Federation’s commitment to maintaining and promoting the cultural heritage of
the Crimean Tatar community. Needless to say, if Ukraine’s accusation that the Russian
plan is to carry out a “full-scale cultural erasure” were true, such a significant amount of
resources would have never been allocated to the restoration of the Palace in the first
place.
1211.With respect to the results of the restoration works to date, they are still ongoing and it is
expected that they will be finalised by 2024, thereby allowing Crimean Tatars to benefit
once more from the Palace in its original splendour and promoting their cultural legacy.
It is noteworthy that, during the restoration process, archaeologists have discovered new
cultural objects and sites within the complex, which will allow the study and
understanding of new aspects of the Crimean Tatar culture.1726
1212.In light of the above, there is no doubt that restoring the Khan’s Palace was an utmost
necessity and that Russian authorities have taken their obligations in this regard seriously.
Given that in its Reply Ukraine continues to misrepresent certain facts, however, some
additional details concerning the restoration work are warranted:
(a) At the preliminary stage of the restoration process, all necessary studies were
carried out, including archaeological ones. This was done in compliance with the
1723 Ibid. Fn. 1296 in the Reply merely provides a link to a Ukrainian governmental website called “Virtual
Museum of Russian Aggression”, created after Ukraine instituted the present proceedings, which contains no
evidence of restoration work carried out before 2014.
1724 Witness Statement of Tatiana Anatolyevna Manezhina, 7 March 2023, ¶26 (Annex 16).
1725 Witness Statement of Tatiana Anatolyevna Manezhina, 7 March 2023, ¶28 (Annex 16); RIA, Mufti Speaks
about Restoration of Khan’s Palace in Crimea (17 February 2022) (Annex 162), available at:
https://ria.ru/20220217/dvorets-1773343741.html
1726 Witness Statement of Tatiana Anatolyevna Manezhina, 7 March 2023, ¶27(b) (Annex 16).
Page 457 out of 541
applicable legislation of the Russian Federation, which is applied throughout its
territory without distinctions of any sort.1727
(b) With respect to the wall paintings, their handling was executed in accordance with
the approved restoration plan and the established practices for the protection of
culturally significant objects.1728 Notably, the murals were not damaged after 2014
– if any damage has been inflicted on the murals, this was before 2014.1729
(c) As to the alleged crack on a side wall of the tombstone, photographs show the
absence of any significant alterations to its structure. This is clear from the
comparison of photographs of the same tomb made prior and after the restoration
works began. 1730 During the restoration works, all the tombs adjacent to the
buildings under restoration have been protected from possible damage by wooden
planks.1731
(d) Regarding the cracks in the façade, allegedly caused by washing works, Ukraine’s
case is once again wrong and misleading. A “gentle cleaning” technology was used
at all times. However, Ukraine has not provided photographs or any visual evidence
other than a reference to a UNESCO report, whose authors have not inspected in
person the buildings of the museum complex. Any cracks that are present were
caused by other reasons, for example due to deformation of part of the foundation
and of the walls, which had been identified prior to the start of restoration works.1732
(e) The beams in the Mosque were in a depleted state and needed replacement. Since
Crimea is located in a zone of high seismic activity, extra caution must be exercised
when managing buildings in light of that natural threat. Accordingly, all beams,
and not just some of them, needed to be replaced, lest there be a significant risk of
roof collapse. As regards the beams that were replaced, it is highly possible that
they were not all entirely authentic, as replacements had already been made in the
1727 Witness Statement of , 19 March 2021, ¶10 (Counter-Memorial (CERD),
Annex 15).
1728 Second Witness Statement of , 7 March 2023, ¶17 (Annex 23)..
1729 Witness Expert Statement of , 6 March 2023, ¶¶13, 15 (Annex 24).
1730 Witness Expert Statement of , 6 March 2023, ¶¶43, 44 (Annex 24).
1731 Ibid., ¶44.
1732 Ibid., ¶36.
Page 458 out of 541
past. The beams that were considered unsuitable for further use have been
preserved and remain accessible to the public on the territory of the “Salachik”
archaeological complex.1733
(f) As regards the tiles, the technology employed, which includes to the use of selftapping
screws, is also explained by seismic activity in the Peninsula as well as the
angle of inclination which increased during reconstructions. Therefore, since the
18th century a heavy cement-lime mortar was used. Furthermore, it is unclear,
which tile can qualify as authentic because tiles have been re-laid many times in the
past. It is also noteworthy that after the completion of the first phase of restoration
of Khan’s Mosque, the tiles that were removed and were not severely damaged,
were later used in restoring other objects of the Khan’s Palace complex, such as the
“Sary-Guzel baths”, the “Stable building” and the “Library building”.1734
(g) With respect to the anti-seismic belt that was put in place, it should be noted that
this is required by the safety regulations of the Russian Federation, as
explains.1735 If the belt had not been built, the Mosque may have collapsed during
the restoration process.
1213.Ukraine takes particular issue with the contractors that were engaged by the Russian
authorities to carry out the restoration of the Khan’s Palace (Kiramet and the ATTA
Group), alleging that they lack the expertise required to conduct such work.1736 These
unfounded accusations were already addressed in the Counter-Memorial,1737 with which
Ukraine again fails to engage. The same holds true for the alleged “comparator”
presented by Ukraine between the Ablyalimova and Efimov cases to show racial
discrimination targeted against the Tatar community: the Reply merely restates the
Memorial, with no response to Russia’s detailed counter-arguments. It is thus understood
that most of the facts remain uncontested by Ukraine.
1733 Ibid., ¶29-33.
1734 Ibid., ¶¶39-41.
1735 Ibid., ¶¶37-38.
1736 Reply, ¶¶651-652.
1737 Counter-Memorial (CERD), Appendix F, ¶¶10-12.
Page 459 out of 541
1214.In light of the above, Ukraine’s attempt to portray the restoration of the Khan’s Palace as
a masked attempt to “dismantle” the Palace is simply wrong and constitutes a cynical
attempt to blame the Russian Federation for the rectification of the manner in which
Ukraine itself neglected this cultural site in the past. The Russian Federation’s actions
concerning the Palace constitute good faith efforts to maintain and promote the Crimean
Tatar cultural heritage in Crimea. No racial discrimination, and certainly no “systematic
racial discrimination campaign”, has been established by Ukraine in this regard.
ii. Muslim burial grounds and the Palace of Kalga-Sultan Akmejitsaray
1215.As noted above, being aware of the weakness of its allegations concerning the restoration
of the Khan’s Palace, Ukraine succinctly refers in its Reply to two “additional examples
of degradation of Crimean Tatar culture”: the alleged destruction of Muslim burial
grounds and of archaeological sites at the Palace of Kalga-Sultan Akmejitsaray. 1738
These baseless accusations, too, can be swiftly dismissed.
1216.First, as regards the alleged “demolition of Muslim burial grounds to build the Tavrida
Highway”,1739 Ukraine presents no real evidence to substantiate this accusation; in fact,
the Reply simply reproduces an excerpt of a Chatham House blogpost, written by a
Ukrainian lawyer, which makes the same claim without any supporting sources. 1740
Carrying out excavations when working on large infrastructural projects is common
practice. It is worth noting that Ukraine itself carried out excavations in Crimea and found
remains when building the road in 1992.1741
1217.As Mr Bariev explains, the builders of the Tavrida Highway and the parallel waterway
found a group of ancient burials, the origin of some of which was not immediately
determined. The builders stopped the construction and archaeological and scientific
works were carried out to determine their origin. All artefacts were carefully extracted,
1738 Reply, ¶¶657-659.
1739 Reply, ¶657.
1740 Reply, fn. 1298.
1741 S. Vnukov, O. Sharov, CRIMEA - TAURIDA. ARCHAEOLOGICAL RESEARCH IN CRIMEA IN 2017-2018 (Institute
of Archeology RAS, 2019, Vol. 1), p. 63 (Annex 40).
Page 460 out of 541
transported and examined by appropriate scientists and later transferred to a museum
fund, while the remains were re-buried.1742
1218.The scientists determined that the burials dated back to the 1st- 4th centuries and cannot
belong to the Crimean Tatars, who settled in Crimea much later. The Crimean Mufti
office also conducted its own research and determined that even if burials were of
Crimean Tatar origin, the archaeological works and subsequent re-burial of the remains
did not violate Islamic rules.1743
1219.Second, in relation to the alleged destruction of archaeological sites at the Palace of
Kalga-Sultan, Ukraine again only refers to an online article published by an NGO which,
in turn, does not contain any actual evidence of the convoluted allegations made therein,
and to a “flash mob” video on YouTube.1744
1220.The reality is the opposite. As an archaeologist explains, from the beginning
of the 19th century and until 1982, the site was occupied by a brewery plant. In 1984 the
plant buildings were demolished and the land plot under it remained neglected until 2017.
Even though Ukrainian authorities had knowledge that the Palace of Kulga-Sultan might
be located in that area, no archaeological research was conducted.1745
1221.Ukrainian authorities demonstrated nothing but disregard for the cultural heritage of the
Crimean Tatar people by selling the land plots in the area where the Kalga-Sultan might
have been located to private individuals. These private owners, as part of standard
development, conducted an archaeological inspection at the construction site to establish
whether it has any cultural layers. As a result, the archaeologists located a cultural layer
containing the foundation and other remains of an ancient palace, which resulted in
recognising the land plot marked in red as the object of cultural heritage.1746
1742 Second Witness Statement of , 27 February 2023, ¶¶19-20 (Annex 15); NTS,
Scientists Discover Secrets of Ancient Necropolis on Tavrida Highway near Sevastopol – Sevastopol Independent
TV (13 July 2018), available at: https://nts-tv.com/news/uchyenye-otkryvayut-tayny-drevnego-nekropolyaraspolozhennogo-
na-puti-trassy-tavrida-pod-sevastopole-7915/ (Annex 174); Russian Gazette, 3500+ years old
Artifacts Found on Tavrida Highway Construction Site (20 May 2021), available at: https://rg.ru/2021/05/20/regufo/
na-meste-trassy-tavrida-najdeny-artefakty-vozrastom-bolee-3500-let html (Annex 175).
1743 Statement of the Centralized religious organization Spiritual direction of muslims of the Republic of Crimea
and the city of Sevastopol (Tavrichesky Muftiat) No 31, 22 February 2023, (Annex 15, Exhibit Q).
1744 Reply, fn. 1304.
1745 Witness Statement of 22 February 2023, ¶¶4-6 (Annex 30).
1746 Ibid., ¶8.
Page 461 out of 541
1222.Later on one of the owners who confronted the Crimean authorities on the issue of
construction on land plots, requested specialists from the Institute of Archaeology of the
Russian Academy of Sciences (RAS) to determine that the site contains no remnants of
the Kalga-Sultan Palace. , who signed the documentation on behalf of Institute
of Archaeology RAS, explains that the results of the excavations proved that land plot
had no signs of cultural layer. Thus, the said land plot was excluded from the list of
objects of cultural heritage and the authorities allowed construction works.1747
1223.The Scientific Project Documentation for the Boundary Change Project of Institute of
Archaeology of Crimea RAS, from 2019, reads as follows:
“In view of the pitting conducted in 2019, it can be argued that no remains of
structures dating earlier than the first half of the XX century were found on
the land plot […]. The only remains of the cultural layer of the end of XVIII
- first half of XIX century are some fragments strongly mixed with rubbish of
the first half of the XX century. […]
Based on archival data and in view of the 2019 pitting, the area of the land
plot […] can be excluded from the territory of the newly discovered cultural
heritage object ‘Urban Area of Ak-Mosque, XVII - XVIII centuries (possible
site of the Palace of Kalga Sultan)’.”1748
1224.As it was established that there is no cultural layer, and the land plot where the Palace of
Kalga-Sultan supposedly was located was excluded from the list of cultural heritage
objects, the construction of any structures cannot be regarded to impair the Crimean Tatar
heritage. The new limits of the object of cultural heritage were as follows.
1747 Ibid., ¶¶11-13.
1748 Scientific Project Documentation for the Boundary Change Project dated 2019 (Annex 30, Exhibit C).
Page 462 out of 541
Scheme of Boundaries, 25 August 2019 (Annex 30, Exhibit C, p. 6)
1225.As regards construction of a chapel at one of the land plots, the local authorities never
endorsed its construction. As explains, the Simferopol Eparchy denied any
connection to that church.1749 In any event, as the dome was constructed by a private
individual who has no connection with State authorities, this cannot be attributed to the
Russian Federation.
B. THE RUSSIAN FEDERATION PRESERVES THE CULTURAL HERITAGE OF UKRAINIAN
COMMUNITIES
1226.Ukraine claims that the Russian Federation “has worked systematically toward
stigmatization and harassment of Ukrainian culture and language, spoken and written,
and degradation of institutions that try to preserve them”.1750 Despite the broad language
employed in levelling this highly regrettable charge, Ukraine lists no more than two
allegations of such alleged “systematic work”: the alleged harassment and closure of the
Lesya Ukrainka Museum and the Svitanok drama school.1751 These allegations, even if
proven on the facts (quod non), clearly cannot establish Ukraine’s grave accusation; they
1749 Witness Statement of 22 February 2023, ¶¶15 (Annex 30).
1750 Reply, ¶667.
1751 The Russian Federation notes that Ukraine does not insist on other allegations it made in its Memorial, in
particular as regards the alleged crack-down on Crimea-based NGOs, activists and media outlets; the case of the
Ukrainian Cultural Centre and Krymsky Teren; and other unspecified allegations (see Counter-Memorial (CERD),
Appendix F, ¶¶29-34, 41-42).
Page 463 out of 541
are also irrelevant to the present proceedings because they bear no relationship
whatsoever with racial discrimination, as explained in detail in the Counter-Memorial.1752
1227.Ms , – a
non-governmental organisation that is officially registered as the Regional National
Cultural Autonomy of Ukrainians of Crimea Republic – likewise for the second time
rejects allegations of the impairment of the Ukrainian culture. She recounts multiple ways
in which the Russian authorities sought to support Ukrainian culture in Crimea, such as:
(a) sponsoring cultural events on Ukrainian language and Ukrainian literature, e.g.,
open lectures, presentations, public poem-reading, including the reading of Lesya
Ukrainka’s poems;
(b) printing of books in Ukrainian, including a recent publication of a poem-collection
“A Flower on the Palm of Eternity” by Lesya Ukrainka, translation of Russian
books into Ukrainian and printing of a bilingual (Russian and Ukrainian) book of
fairy-tales for children;
(c) supporting Ukrainian traditional dance groups, including the internationally
acclaimed folk ensemble “Radonitsa”; and
(d) spreading the culture of the Ukrainian embroidery and other decorative arts,
including organising exhibitions devoted to the art of a Ukrainian embroiderer Vera
Roik.1753
1228.Furthermore, the Minister of Culture of Crimea, Ms Manezhina explains that many
Ukrainian “ethnic corners” are being created in cultural centres throughout Crimea.1754
1229.Ukraine’s presentation of facts concerning Lesya Ukrainka Museum once again distorts
the reality. According to the director of the Museum, she drew the attention of Ukrainian
authorities to the need to engage in urgent repair works as early as 2005, but Ukraine did
nothing for the ensuing 9 years and even planned to use its premises as a hotel.1755 The
1752 Counter-Memorial (CERD), ¶¶35-40.
1753 See generally Second Witness Statement of , 22 February 2023 (Annex 10).
1754 Witness Statement of Tatiana Anatolyevna Manezhina, 7 March 2023, ¶21 (Annex 16).
1755 Suspilne Crimea, In occupied Yalta, the second floor of Lesya Ukrainka museum is closed for more than 5
years 25 February (Annex 163). Available at: https://crimea.suspilne media/ru/news/3194.
Page 464 out of 541
museum became seriously neglected,1756 which led to the need for a long and costly
restoration project. The Ukrainian authorities would not allocate funds required for the
extensive refurbishment of the museum, despite its director’s repeated requests for
financing. It is the Russian authorities that finally approved the funding for the repairs
and began gradual restoration works.1757
1230.As Ms Manezhina points out, the Lesya Ukrainka Museum was not the only culturally
significant object that needed restoration after the long period of abandonment until 2014,
and the Crimean authorities had to prioritize certain works. Notably, even though the
project for restoration works of the Lesya Ukrainka Museum have been approved, the
works themselves have not started yet, as funds have first been allocated to the reparation
of rural cultural community centres.1758
1231.Although the museum’s collection currently remains closed, local authorities continue to
hold public events linked to commemoration of Lesya Ukrainka, including on the
museum’s grounds.1759 This is further proof that the Ukrainian culture has no relevance
to the problems that the museum currently experiences.
1232.In relation to Svitanok, Ukraine’s claims regarding the closure of this Ukrainian artistic
studio are based on a couple of sensationalist news articles that repeat a second-hand
account by the spouse of the studio’s director. As notes, there is no reason
to believe that the closure had anything to do with the overall treatment of the Ukrainian
culture, as the real reason was the resignation of Ms Petrova, and no one has ever
officially complained about Svitanok’s closure.1760 This very isolated incident cannot
overshadow the fact that many other Crimean artistic groups that concentrate on
Ukrainian culture operate freely in Crimea.1761.
(a) For example, another artistic folk team, which is also called “Svitanok”, was created
in 2014 and operates in one of the villages of Simferopol region. ,
1756 Second Witness Statement of , 22 February 2023, ¶5 (Annex 10); Witness
Statement of Tatiana Anatolyevna Manezhina, 7 March 2023, ¶10 (Annex 16).
1757 Second Witness Statement of , 22 February 2023, ¶5 (Annex 10).
1758 Witness Statement of Tatiana Anatolyevna Manezhina, 7 March 2023, ¶¶12-16 (Annex 16).
1759 Ibid., ¶19-20.
1760 Second Witness Statement of , 22 February 2023, ¶8 (Annex 10).
1761 Witness Statement of Valentina Vasilyevna Lavrik, 7 March 2023, (Annex 25), ¶¶16-19.
Page 466 out of 541
1235.In sum, Ukraine’s complaints regarding the treatment of cultural heritage in Crimea are
not only based on sources that contain false information, but plainly contradict the reality
and evidence originating from Crimea.
Page 467 out of 541
XII. THE RUSSIAN FEDERATION HAS NOT VIOLATED THE COURT’S ORDER
ON PROVISIONAL MEASURES
1236.In its Order of 19 April 2017, the Court indicated the following provisional measures:
(1) With regard to the situation in Crimea, the Russian Federation must, in
accordance with its obligations under the International Convention on the
Elimination of All Forms of Racial Discrimination,
(a) By thirteen votes to three,
Refrain from maintaining or imposing limitations on the ability of the
Crimean Tatar community to conserve its representative institutions,
including the Mejlis;
…
(b) Unanimously,
Ensure the availability of education in the Ukrainian language;
(2) Unanimously,
Both Parties shall refrain from any action which might aggravate or extend
the dispute before the Court or make it more difficult to resolve.1766
1237.In its Reply, Ukraine accuses the Russian Federation of violating the Order of 19 April
2017 “by failing to lift its ban on the Mejlis, failing to ensure that education in the
Ukrainian language is available in Crimea, and by aggravating the dispute and making it
more difficult to resolve”.1767 Perhaps bearing in mind the considerable weakness of its
claims in regard to alleged violations of the ICSFT and the CERD, Ukraine seeks to
emphasize that non-compliance with an Order of the Court would constitute an
independent violation of the international obligations by which the Russian Federation is
bound.1768
1238.The Russian Federation has been scrupulous in complying with the Order of 19 April
2017. As detailed in the letter of the Agents of the Russian Federation to the Registrar of
the Court dated 7 June 2018, the Order of 19 April 2017 was immediately reported to the
President of the Russian Federation and was “expeditiously transmitted to all competent
authorities and agencies of the Russian Federation, including in the Republic of Crimea,
in order that they ensure – each within their respective competence – implementation of
1766 Order of 19 April 2017, pp. 140-141, ¶106.
1767 Reply, ¶716.
1768 Ibid., ¶¶716-717.
Page 468 out of 541
its provisions”.1769 A number of inter-agency meetings were soon convened for purpose
of ensuring compliance with the Order of 19 April 2017, and various meetings were held
with the Crimean authorities as well as with the leaders of non-governmental
organizations representing the interests of national minorities, including Crimean
Tatars. 1770 In a subsequent letter to the Registrar dated 21 June 2018, the Russian
Federation reiterated that it “continues to take all necessary measures ensuring
implementation of the Order of this Court”;1771 and in a letter dated 18 January 2019 it
informed the Registrar that it “continues to implement the Court’s Order on provisional
measures, [which] is in the focus of the Ministry of Foreign Affairs and other competent
authorities of the Russian Federation”.1772
1239.As the present chapter will briefly explain, the Russian Federation has indeed acted
pursuant to any obligations it may have under the CERD (Section A) and refrained from
any action that might aggravate or extend the dispute before the Court or make it more
difficult to resolve (Section B).
A. THE RUSSIAN FEDERATION HAS ACTED IN ACCORDANCE WITH ANY OBLIGATIONS IT
MAY HAVE UNDER THE CERD
i. “Refrain from maintaining or imposing limitations on the ability of the Crimean
Tatar community to conserve its representative institutions”
1240.The Order of 19 April 2017 did not prescribe without more that the Russian Federation
must refrain from maintaining or imposing limitations on the ability of the Crimean Tatar
community to conserve its representative institutions, including the Mejlis. Rather, it
specified expressly that this was to be done “in accordance with [the Russian
1769 Letter of the Agents of the Russian Federation to the Registrar of the International Court of Justice, 7 June
2018, ¶6 (Counter-Memorial (CERD), Annex 483).
1770 Ibid., ¶¶7-8 and 24.
1771 Letter of the Agents of the Russian Federation to the Registrar of the International Court of Justice, 21 June
2018, p. 6 (Counter-Memorial (CERD), Annex 483).
1772 Letter of the Agents of the Russian Federation to the Registrar of the International Court of Justice, 18 January
2019, ¶2 (Counter-Memorial (CERD), Annex 483).
Page 469 out of 541
Federation’s] obligations under the International Convention on the Elimination of All
forms of Racial Discrimination.”1773
1241.Thus, and bearing in mind that the Court’s decision clearly did not prejudge the merits of
the present case,1774 the Order of 19 April 2017 did not require the Russian Federation to
refrain from maintaining or imposing any limitations on the ability of the Crimean Tatar
community to conserve its representative institutions, including the Mejlis; it prescribed
instead that the Russian Federation must do so in keeping with its obligations under the
CERD.
1242.That this reading of the Order of 19 April 2017 is possible and indeed accurate finds
support in the Declaration by Judge Tomka, who was concerned that the measure
indicated under point 1 of the operative clause “can be read as requiring the Russian
Federation to lift or at least suspend the existing ban on the activities of the Mejlis”1775
[Emphasis added]. In other words, the measure in question does not necessarily require
the Russian Federation to lift or suspend the existing ban on the activities of the Mejlis,
and does not necessarily intend to do so. Ukraine had in fact asked the Court expressly
to order the Russian Federation to “suspend the decision to ban the Mejlis”,1776 but the
Court decided not to do so.
1243.The wording of the Order of 19 April 2017 is consistent with the fact that rights protected
under the CERD are not unlimited. Acting in accordance with the CERD most certainly
means safeguarding those rights—but also that restrictions may be imposed on them when
such restrictions are not based on racial considerations and pursue a legitimate aim.1777 It
is indeed difficult to imagine that the Court would demand otherwise of States Parties to
the CERD—or that they had ever accepted otherwise. In the same vein, provisional
1773 Order of 19 April 2017, pp. 140-141, ¶106(1). The French version reads: “… conformément aux obligations
lui incombant au titre de la convention internationale sur l’élimination de toutes les formes de discrimination
raciale …”.
1774 Ibid., p. 140, ¶105. The Russian Federation would recall that it does not consider the CERD to provide for
any right to representative institutions of minorities, nor does it consider the Mejlis to be a representative institution
of Crimean Tatars: see Chapter IV above.
1775 Ibid., p. 150, ¶2.
1776 Ibid., p. 132, ¶78, and p. 135, ¶85.
1777 See also ibid., Declaration of Judge Crawford, at p. 215, ¶8 (recognising that “Nothing in CERD prevents a
State party from regulating an organization that represents an ethnic group or even from banning it in the most
serious cases. But such measures must be carefully justified.” (Footnote omitted)).
Page 470 out of 541
measures indicated by the Court surely do not seek to deny the right of a State to maintain
its national security and public order either.
1244.As the Russian Federation has repeatedly explained,1778 the ban on the Mejlis was adopted
on national security grounds in the face of serious extremist threat. The designation of
the Mejlis as an extremist organisation and the subsequent ban on its activities were the
outcome of a specific and rigorous process carried out in accordance with law on the basis
of indisputable evidence, a number of which Ukraine itself has not denied. The Supreme
Court of Crimea upheld the ban, as did the Russian Supreme Court on appeal.1779 As the
Russian Federation explained in its letter to the Registrar dated 21 June 2018, the severe
threat to national security and public order emanating from the Mejlis by virtue of its
declared support for a full-scale military conflict with the Russian Federation, has not
been removed.1780 Thus the Russian Federation “has been genuinely addressing the
situation of the Mejlis without at the same time hampering the principle of the rule of law
and undermining the protection of national security”.1781
1245.All the while, and bearing well in mind its obligations under domestic as well as
international law, the Russian Federation has continued to guarantee that Crimean Tatars
can enjoy and exercise their rights to freedom of peaceful assembly and association, and
to full participation in civic and political life. As the Court is aware, more than 30
Crimean Tatar organizations, representing some 30,000 members, have continued freely
to operate in Crimea and advance the interests of the Crimean Tatars. Among these
bodies is the Shura, the “Council of the Crimean Tatar People”, which was elected in
February 2018 by the Qurultay.1782 Some of the organisations themselves repudiated the
Mejlis for reason that it engaged in a radical, violent, and subversive agenda.1783 It is
noteworthy that Ukraine itself limits its claim concerning an alleged violation of the
1778 See Chapter IV, Section C above; Counter-Memorial (CERD), Chapter IV, Section II.
1779 Petitions for reconsideration of these decisions have been abandoned: see Letter of the Agents of the Russian
Federation to the Registrar of the International Court of Justice, 21 June 2018, pp. 1-2 (Counter-Memorial (CERD),
Annex 483).
1780 Ibid., pp. 5-6.
1781 Ibid., p. 2.
1782 Other Crimean Tatar representative bodies are present in Crimea, including “КЪЫРЫМ”, “Inquishaf”,
Regional national-cultural autonomy of the Crimean Tatars.
1783 See Ibid., p. 3; Counter-Memorial (CERD), ¶¶181, 184(b).
Page 471 out of 541
measure indicated by the Court under point 1 of the Order of 19 April 2017’s operative
clause to the ban on the Mejlis.1784
1246.Nor is it without significance that since 2014, some former leaders of the Mejlis have
organised themselves in Kiev and proclaimed themselves to be the Mejlis.1785 The fact
that these individuals serve the interests of the Government of Ukraine rather than those
of the Crimean Tatars has been shown in Chapter IV above. Meanwhile, the Crimean
Tatar community is represented in all State bodies of the Republic of Crimea, including
the State Council (the Crimean parliament). Moreover, former members of the Mejlis
have not been prosecuted for the membership in it since the Court handed down its Order.
1247.In sum, the ban on the activity of the Mejlis was both legitimate and non-discriminatory,
and thus fully in accordance with the Russian Federation’s obligations under the CERD.
It follows that the Court’s Order on Provisional Measures was complied with in this
regard.
ii. “Ensure the availability of education in the Ukrainian language in Crimea”
1248.In keeping with the Order of 19 April 2017, and with its character as a multi-ethnic State,
the Russian Federation has also continued to ensure the availability of education in the
Ukrainian language in Crimea.
1249.As the Russian Federation has explained at length in its Counter-Memorial and once more
in the present Rejoinder,1786 the Ukrainian language remains an official language of
Crimea (alongside the Russian and Tatar languages) and enjoys the protection of the law.
There is moreover no prohibition—Ukraine itself could not point to any—on education
in the Ukrainian language. Parents can request that Ukrainian be the language of
education for their children,1787 and the Crimean authorities have maintained the capacity
of schools and teachers to grant that request.1788
1784 Ukraine’s submissions in this regard, which are framed in a more general way, are thus baseless: see Reply, p.
375.
1785 See above, ¶¶937-938.
1786 See above, ¶¶Chapter V; Counter-Memorial (CERD), ¶260.
1787 See above, ¶¶Chapter V(B)(ii); Counter-Memorial (CERD), ¶308.
1788 See above, ¶¶Chapter V(B)(iii) above; Counter-Memorial (CERD), ¶¶306-307.
Page 472 out of 541
1250.In other words, access to education in the Ukrainian language is not denied to those who
wish to pursue it, and Ukrainian can be the language of instruction for students upon
request. It is demand for education in the Ukrainian language that has fallen, for reasons
explained above;1789 and it is this drop in demand that accounts for the decrease in the
number of students receiving such education.1790 In arguing otherwise Ukraine has once
again not established the facts which it bears the burden of proving, and its submissions
on this point must accordingly be rejected.
B. THE RUSSIAN FEDERATION HAS NOT AGGRAVATED OR EXTENDED THE DISPUTE
BEFORE THE COURT OR MADE IT MORE DIFFICULT TO RESOLVE
1251.Contrary to Ukraine’s allegations, the Russian Federation has not engaged in any activity
that might aggravate or extend the dispute or make it more difficult to resolve. Ukraine
points in this regard to the events that have unfolded beginning in February 2022, but
these bear no relation to the present proceedings. Ukraine itself, in reliance on those same
events, has brought before the Court a separate application invoking the Convention on
the Prevention and Punishment of the Crime of Genocide.1791
1252.Ukraine’s argument that the Russian Federation has aggravated the dispute is not only
inconsistent with Ukraine’s own approach, but also with the Court’s observation in the
Order of 19 April 2017, according to which “the case before the Court is limited in
scope”.1792
1253.As another unfortunate example of Ukraine’s manipulation or misunderstanding of
international law and practice, the Reply goes so far as to suggest that a proposal made
by the Russian Federation to discontinue the present proceedings upon reaching a
negotiated settlement between the Parties is “a testament to the depths of Russia’s disdain
for international law”.1793 Needless to add, the Court has recognized, in keeping with its
predecessor, that the judicial settlement of international disputes “is simply an alternative
1789 See ¶¶ Chapter V(B)(ii)(b) above; Counter-Memorial (CERD), ¶¶293-295.
1790 See ibid.; Counter-Memorial (CERD), ¶¶296-297.
1791 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation). The Russian Federation filed preliminary objections to the jurisdiction of the
Court in this case and to the admissibility of Ukraine’s claims there.
1792 Order of 19 April 2017, ¶16.
1793 Reply, ¶732.
Page 473 out of 541
to the direct and friendly settlement of such disputes between the parties”.1794 Thus, the
Court itself has said that “pending a decision of the Court on the merits, any negotiation
between the Parties with a view to achieving a direct and friendly settlement is to be
welcomed.”1795 Indeed, Articles 88-89 of the Rules of Court expressly envisage that the
parties may agree “to discontinue the proceedings in consequence of having reached a
settlement of the dispute”.
1254.It follows that the Russian Federation has not violated the Court’s Order in regard to the
measure indicated under point 2 of the operative clause either.
1794 North Sea Continental Shelf, Judgment, 20 February 1969, I.C.J. Reports 1969, p. 47, ¶87 (quoting the PCIJ
in its Order of 19 August 1929 in the case of the Free Zones of Upper Savoy and the District of Gex).
1795 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order, 29 July 1991, I.C.J.
Reports 1991, p. 20, ¶3. The Court has also had occasion to state that “[w]hile judicial settlement may provide a
path to international harmony in circumstances of conflict, it is none the less true that the needless continuance of
litigation is an obstacle to such harmony”. See Nuclear Tests (New Zealand v. France), Judgment, 20 December
1974, I.C.J. Reports 1974, p. 477, ¶61.
Page 474 out of 541
SUBMISSIONS ON PART 2
1255.In view of the foregoing, the Russian Federation respectfully requests the Court to dismiss
all of the claims made by Ukraine under the CERD.
Agent of the Russian Federation
Alexander V. SHULGIN
The Hague, 10 March 2023
Page 475 out of 541
APPENDIX 1
UKRAINE’S COAL TRADE WITH THE DPR AND LPR
1. DTEK's coal mining enterprises “Komsomolets Donbassa” (in the DPR),
“Sverdlovanthracite” and “Rovenkianthracite” (both in the LPR) produced a total of 12.6
million tons of coal in 2014, 4.7 million tons in 2015 and 8 million tons in 2016. In March
2017, when the Kiev government imposed the “blockade” on Donbass, the total capacity
of the mines of these associations reached 1 million tons per month.1796
2. Much of the coal was supplied to thermal power plants in Ukraine: Tripolskaya TPP (Kiev
Region), Zmievskaya TPP (Kharkov Region), Pridneprovskaya TPP, Krivorozhskaya
TPP (Dnepropetrovsk Region), as well as to Zuyevskaya TPP in the DPR and Luganskaya
TPP in the LPR.
3. Among the consumers of the aforementioned mines' products were also Ukrainian
metallurgical enterprises. For example, in June 2016, the Commercial Court of Kiev
considered a number of claims to recover damages from Ukrainian Railways for negligent
delivery of coal shipped by DTEK Rovenkianthracite LLC to Ilyich Iron and Steel Works
of Mariupol operating under the Ukrainian jurisdiction.1797
4. The total volume of coal exported by DTEK from the DPR and LPR reached 2.46 million
tons in 2015 and 4.83 million tons in 2016.1798 In total, DTEK earned UAH 9.95 billion
($389 million) or 7.8% of the holding's annual revenues through economic activity in
DPR and LPR in 2016 ($243 million in 2015; $730 million in 2014). In Q1 and Q2 2017,
the DPR and LPR held 17.8% of the holding's assets totalling $785 million (2015 - $1.39
billion; 2014 - $1.93 billion).1799
1796 See FY 2016 Results Corporate Presentation DTEK Energy B.V., April 2017, pp. 10, 19, available at:
http://web.archive.org/web/20170712221415/http://www.dtek.com/content/files/ir-presentation-fy-2016.pdf
(Annex 477).
1797 See Commercial Court of Kiev, Case No. 910/7790/16, Judgment, 15 June 2016, available at:
http://reyestr.court.gov.ua/Review/58490173 (Annex 407); Commercial Court of Kiev, Case No. 910/10009/16,
Judgment, 30 June 2016, available at: http://reyestr.court.gov.ua/Review/58808523 (Annex 408); Commercial
Court of Kiev, Case No. 910/9327/16, Judgment, 30 June 2016, available at:
http://reyestr.court.gov.ua/Review/58808518 (Annex 409).
1798 See FY 2016 Results Corporate Presentation DTEK Energy B.V., April 2017, pp. 10, 19, available at:
http://web.archive.org/web/20170712221415/http://www.dtek.com/content/files/ir-presentation-fy-2016.pdf
(Annex 477).
1799 Ibid.
Page 476 out of 541
5. In 2014, the Krasnodonugol PJSC, which was a part of the Rinat Akhmetov’s Metinvest
holding, produced 3.1 million tons of coal in the DPR and LPR (compared to 0.8 million
tons in 2015, 1.6 million tons in 2016). The coal was shipped to various regions of
Ukraine, in particular, to Zaporozhkoks PJSC (Zaporozhye region) and Azovstal PJSC
(Mariupol, Donetsk region).1800
6. After the beginning of the ATO in 2014, the Zasyadko Mine, Donetsk (the DPR), owned
by its former director, Verkhovnaya Rada Member Yefim Zvyagilsky, was re-registered
under the Ukrainian jurisdiction in Avdeyevka, Donetsk region in order to “legalize” its
activities in Ukraine’s legal field. At the same time, the extraction of minerals continued
in the same place in the DPR.1801
7. The work of the mine, both before 2014 and after, was not transparent: its management
did not publish its audit reports in the public domain. However, a number of sources
indicate that it produced 0.75 million tons of G-grade coal concentrate in 2014. The
company’s production capacity was estimated at 1.2 million tons of coal yearly.1802
8. The coal produced by the Zasyadko mine in the DPR was headed for enrichment to the
Kiev Central Processing Coal Plant and then shipped to Alchevsk, Gorlovka, Donetsk,
Zaporozhye, Krivoy Rog, Makeyevka, Mariupol and Yasinovataya Coke Plants operating
under the Ukrainian jurisdiction.1803
9. The main suppliers of equipment for the Zasyadko mine (the DPR) were PJSC Mining
Machines, Kharkov Machine-Building Plant Svet Shakhtyora, JSC Yasinovatsky
Machine-Building Plant, and TD Krasnoluchsky Machine-Building Plant operating under
the Ukrainian jurisdiction.1804
1800 See Commercial Court of the Lugansk Region, Case No. 913/1184/16, Judgment, 21 November 2016,
available at: https://reyestr.court.gov.ua/Review/62911633 (Annex 410).
1801 See Youcontrol, PJSC Shakhta im. A.F Zasyadka, available at:
https://youcontrol.com.ua/contractor/?id=8079593.
1802 See SMIDA, Information on production and sales volumes of the main types of products, available at:
https://smida.gov.ua/db/emitent/year/xml/showform/53850/169/templ (Annex 430).
1803 Ibid.
1804 See Commercial Court of the Donetsk Region, Case No. 905/1544/14, Judgment, 12 May 2014, available at:
http://reyestr.court.gov.ua/Review/38632669 (Annex 413), See also: SMIDA, Business profile of the Zasyadko
mine, available at: https://smida.gov.ua/db/emitent/year/xml/showform/53850/156/templ (Annex 431).
Page 477 out of 541
10. In June 2016, the management of the Zasyadko mine (the DPR) placed an order with the
Poltava Geophysical Works enterprise to perform blasting operations in the mine. One
hundred percent advance payment was made for the explosives used by the geologists.1805
Thus, commercial activities also involved explosives.
11. The largest State-owned coal mining company in the DPR until March 2017 was the
Donbass Mine Administration PJSC, which included mines No. 22 Kommunarskaya and
Sheglovskaya Glubokaya (coal production in 2016 – 1.55 million tons). The coal was
shipped to Tripolskaya TPP, Kiev Region, and Zmeevskaya TPP in the Kharkov Region
under the Ukrainian jurisdiction.1806
12. Metallurgical enterprises owned by Ukrainian oligarchs were no less active in the DPR
and LPR. The signs of their economic activity on republics’ territories are similarly traced
from publicly available decisions of Ukrainian commercial courts. The ones with the
largest volumes of economic activity were Donetsk Metallurgical Plant (DMZ, PJSC
Donetskstal, Donetsk, DPR), Alchevsk Metallurgical Plant (AMK, Alchevsk, LPR), and
Enakievo Metallurgical Plant (EMZ, Enakievo, DPR).
13. The decision of the Donetsk Region Commercial Court of 17 November 2016 solved a
dispute between LLC Inkotel Group (Kiev) and PJSC Donetskstal (the DPR) concerning
the supply of iron ore pellets from Inkotel owned Severny Mining and Processing Plant
(Krivoy Rog).1807
14. On 31 October 2014, PJSC “Donetskstal” and freight forwarding company “Energotrans”
(Kiev) signed a contract for transportation of DMZ (DPR) export products from Donetsk
to Mariupol Seaport, as well as the goods imported by DMZ (DPR) from Mariupol to
Donetsk.1808
1805 See Commercial Court of the Poltava Region, Case No. 917/482/17, Judgement, 23 May 2017, available at:
http://reyestr.court.gov.ua/Review/66713571 (Annex 414).
1806 See Commercial Court of the Donetsk Region, Case No. 905/3455/15, Judgment, 18 February 2016, available
at: https://reyestr.court.gov.ua/Review/56514743 (Annex 411). See also Zaporozhye Commercial Court, Case No.
908/286/15-г, Judgment, 5 March 2015, available at: https://reyestr.court.gov.ua/Review/43033419 (Annex 411).
1807 See Commercial Court of the Donetsk Region, Case No. 905/2849/16, Judgment, 17 November 2016,
available at: http://reyestr.court.gov.ua/Review/62910967 (Annex 415).
1808 See Commercial Court of the Donetsk Region in case No. 905/3531/15, Judgment, 3 March 2016, available
at: http://reyestr.court.gov.ua/Review/56421088 (Annex 416).
Page 478 out of 541
15. On 22 July 2014, AMK (LPR) received 6 carriages of grey metallurgical dolomite from
a supplier located in Lvov Region under the Ukrainian jurisdiction. 1809 During the
reconstruction of the plant's facilities, project documentation was prepared by PSKKharkov
LLC.1810 Ventan LLC (Kramatorsk, Donetsk Oblast) was involved in the
replacement of concrete slabs in the workshops.1811
16. On 9 February 2017, a freight car of 62 tones of AMK (the LPR) products was sent to
ThyssenKrupp Energostal SA (Torun, Poland), two freight cars of rolled iron with a total
weight of 125 tones were sent to Slovakia, and five freight cars of rolled steel were sent
to Romania with a total weight of 329 tones.1812 Thus EU countries were also involved
in trade with companies from the LPR.
17. In October 2018, the Liberian-flagged ship “Comet” was detained in the seaport of
Mariupol. It was carrying 3,000 tons of AMK (the LPR) rolled metal products, which,
according to investigators, were to be exported to Germany via the Belgian port of
Antwerp. This time Ukraine’s Prosecutor General Lutsenko decided to make a strong
promise “to prosecute all those involved in terrorist financing”. However, judging from
open sources information, no charges have been brought against any specific individuals.
18. Moreover, on 31 July 2020, the Severodonetsk city court released the seized metal and
handed it over to AMK PJSC, whose management, while “denying" any operations with
the products of the factory ‘seized by LPR militants’, nevertheless did not abandon its
attempts to "get their hands on” the disputed property, claiming ownership of it.1813
19. EMZ (the DPR) generally exported its products through the Mariupol Sea port. In the
meantime, port operations were carried out by Metinvest-Shipping, a company belonging
1809 See Commercial Court of the Donetsk Region in Case No. 905/2456/15, Judgment, 11 January 2016, available
at: http://reyestr.court.gov.ua/Review/54985154 (Annex 417).
1810 See Commercial Court of the Lugansk Region, Case No. 913/638/17, Judgment, 7 September 2017, available
at at: http://reyestr.court.gov.ua/Review/68781545 (Annex 418) and Commercial Court of the Lugansk Region,
Case No. 913/639/17, Judgment, 14 September 2017, available at: http://reyestr.court.gov.ua/Review/68963844
(Annex 419).
1811 See Commercial Court of the Lugansk Region, Case No. 913/511/17, Judgment, 27 July 2017, available at:
http://reyestr.court.gov.ua/Review/68038819 (Annex 420).
1812 See Commercial Court of Kiev, Case no. 910/13519/17, Judgment, 6 October 2017. available at:
https://reyestr.court.gov.ua/Review/69544181 (Annex 421).
1813 See Severodonetsk City Court of the Lugansk Region, Case No. 428/5927/20, Judgment, 31 July 2020,
available at: reyestr.court.gov.ua/Review/90921696
Page 479 out of 541
to the same holding. The decision of the Commercial Court of the Donetsk Region dated
27 April 2016 mentions the shipment from EMZ of 60 tones of rolled steel to Mariupol
Port-Export on 22 June 2015.1814 Then, on 29 November 2015, two more carriages of the
same products with a total weight of 133 tones were dispatched in the same direction.1815
1814 See Commercial Court of the Donetsk Region, Case No. 905/44/16, Judgment, 27 April 2016, available from:
https://reyestr.court.gov.ua/Review/57613978 (Annex 423).
1815 See Commercial Court of Kiev, 6 September 2016 in Case no. 910/7494/16, Judgment, 6 September 2016,
available at: https://reyestr.court.gov.ua/Review/61318480 (Annex 424).
Page 480 out of 541
APPENDIX 2
GENERAL ASSESSMENT OF THE WORK OF THE JIT AND THE HAGUE
DISTRICT COURT AS COMMUNICATED TO THE UN SECURITY COUNCIL
1. Since the downing of the Malaysia Airlines flight MH17 in Donbass on 17 July 2014, the
Russian Federation has called for a full, thorough, non-biased and depoliticized
investigation into the causes of the crash, based on facts and irrefutable evidence.1816 The
Russian Federation initiated the adoption of the UN Security Council Resolution 2166
and remains fully committed to its implementation.
2. The Russian side has repeatedly pointed out that the JIT pursued a selective and
politicized approach while collecting evidence on the MH17 case, which later served as
the basis for criminal proceedings initiated by the District Court of the Hague against
three Russian citizens – I.V. Girkin, O.Y. Pulatov and S.N. Dubinskiy, as well as one
Ukrainian citizen, L.V. Kharchenko.
3. As a result, the court found S.N. Dubinskiy, L.V. Kharchenko and I.V.Girkin guilty on
all counts of the charge, i.e., of intentionally causing an aircraft to crash and murder, and
sentenced them in absentia to life imprisonment. O.Y. Pulatov, the only Russian
defendant whose interests were represented by lawyers, was acquitted.
4. The sentence was mainly built on the findings of the Public Prosecution Service of the
Netherlands which were drawn from statements of classified anonymous witnesses and
data supplied by the SBU, which has repeatedly been caught providing false,
contradictory information and is an interested party in the case. The prosecutors and the
judges failed to take into consideration the statements of the witnesses called for by
O.Y. Pulatov's defence and the entire set of materials provided by the Russian Federation,
including radar raw data and reports on the live-fire test carried out by the Almaz-Antey
company, manufacturer of the Buk anti-aircraft missile system.
5. They also disregarded the fact that Ukraine had refused to provide radar data as well as
records of communications of ground flight-tracking services. Furthermore, the
Ukrainian air traffic control officers who were on duty that day and therefore could have
1816 Permanent Representative of the Russian Federation to the United Nations, Letter addressed to the Secretary-
General and the President of the Security Council, S/2023/96, 7 February 2023, available at: https://documentsdds-
ny.un.org/doc/UNDOC/GEN/N23/038/95/PDF/N2303895.pdf?OpenElement.
Page 481 out of 541
shed light on the facts of the tragedy, disappeared. Since the downing of the flight the
responsibility of Ukraine for not closing the airspace above the zone of hostilities where
the UAF deployed air defence systems, including Buks, has not been duly investigated.
6. Satellite images made by the US on the day of the crash could have helped clarify its
circumstances, but Washington flatly refused to comply with the judges' request to
disclose the data, or at least allow it to be examined under special conditions.
7. It is crystal clear that the District Court of the Hague adopted a highly politicized approach
when considering the MH17 case, disregarding the evidence that ran counter to its initial
version of the tragedy. Despite this biased position, the verdict says nothing about the
Russian Federation's guilt for the crash, as was speculated in the Western media. Besides,
the verdict contains the following conclusions.
(a) Firstly, the DPR troops were not recognized as being part of the Armed Forces of
the Russian Federation – that is, the involvement of the Russian troops in the crash
has not been established (¶4.4.3.1.4 of the Judgment “...the court notes that the DPR
was not part of the official Armed Forces of the Russian Federation...”, “...the DPR
cannot be viewed as part of the Armed Forces of the Russian Federation, the
members of the DPR also cannot be considered part of those Armed Forces”).1817
(b) Secondly, according to the District Court Judgment, a Buk missile was launched at
a civil aircraft by mistake. In other words, one cannot speak of an act of terrorism:
“...the court considers it completely implausible that a civil aircraft was
deliberately downed...A mistake being made is something the court does find
plausible...”1818
(c) Thirdly, the court was unable to identify specific persons responsible for launching
the missile. It is also noteworthy that the “guilty” verdict of complicity was handed
down only to those defendants who did not participate in the trial:
1817 District Court of The Hague, Case No. 09/748004-19, Judgment against I.V. Girkin, 17 November 2022,
¶4.4.3.1.4, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14037&showbutton=true&keyword=09
%252f748004-19&idx=1%2F.
1818 District Court of The Hague, Case No. 09/748005-19, Judgment against S.N. Dubinsky, 17 November 2022,
¶6.2.5.3, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14036&showbutton=true&keyword=09
%252f748005-19&idx=1%2F.
Page 482 out of 541
“...the actions of the crew of the Buk TELAR when launching the Buk missile
at MH17 cannot be established on the basis of the case file. The case file also
fails to identify who gave the instruction to launch a missile, and why that
order was given...”1819
(d) Fourthly, the court noted the improper work of the Dutch Public Prosecution
Service in a number of cases. The judges found it a procedural violation to display
the suspects' personal data and photographs at press conferences:
“...Communicating the full names and other personal details of the accused,
combined with displaying their photographs, at a press conference broadcast
globally goes beyond the type of dissemination of information that is usual
for criminal cases...», «...the manner chosen by the prosecution and the JIT to
communicate on the fate of flight MH17 and announce the suspects in these
criminal proceedings does give pause for thought... In the court’s view they
did contribute to shaping public opinion on this criminal case... Stating the
personal details of the accused at the press conferences and showing their
photographs might quite easily be considered to be a potential infringement
of the right to privacy protected under Article 8 ECHR...”1820.
8. Throughout the trial, the court was under unprecedented pressure from Dutch politicians,
representatives of the Dutch Prosecution Service and the media seeking to impose a
politically motivated decision. It is also obvious that the Netherlands, having initiated
parallel hearings of the MH17 case against the Russian Federation in other fora, simply
could not allow any verdict other than guilty at the national level because that would lead
to its arguments falling apart in international formats. Needless to say, objectivity and
impartiality in such circumstances are out of question.
A. UKRAINE’S FAILURE TO PROVIDE ORIGINAL DATA FILES
9. Ukraine and the Netherlands failed to provide the Russian Federation or the ECtHR with
original digital files in respect of this material despite an Order of the European Court
that covered it.1821
1819 Ibid.
1820 District Court of The Hague, Case No. 09/748006-19, Judgment against O.Y. Pulatov, 17 November 2022,
¶4.4.4.2, available at:
https://uitspraken.rechtspraak nl/#!/details?id=ECLI:NL:RBDHA:2022:14040&showbutton=true&keyword=09
%252f748006-19&idx=7%2F.
1821 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16,
43800/14 and 28525/20), Grand Chamber Decision, 25 January 2023, ¶¶401-402.
Page 483 out of 541
10. The indications are that proper original data files do not exist. Evidence has emerged that
original digital files were not even shared with the States in the JIT. Investigators in
Australia requested the original data and it was not provided. They sought to analyse key
photographs said to show the passage of a Buk TELAR from the Russian Federation to
Ukraine. They quickly identified that the files provided to them were not original and
had been manipulated.1822 They were central to the efforts of Bellingcat and the JIT to
depict the passage of a Buk Telar from the Russian Federation to Snezhnoe and back
again.
B. THE RUSSIAN FEDERATION’S UNCONTRADICTED PROOF THAT THE LIMITED DIGITAL
MATERIAL THAT DID EMERGE WAS FALSE
11. In addition, the Russian Federation was able to present unequivocal evidence showing
that digital material incriminating it was fake. For example, critical reliance was placed
by Bellingcat and then the JIT on a video showing a Buk Telar near Snezhnoe (the
“Snezhnoe video”).
12. The original version of the Snezhnoe video was published on the internet on 17 July 2014,
the day of destruction of MH17, but it was uploaded onto the internet the day before – on
16 July 2014. The same applied to a compendium of alleged intercepts of rebels
discussing an accidental shooting down. It was published by the Ukrainian security
service, the SBU, on 17 July 2014, but again, it was uploaded onto the internet the day
before the destruction of MH17.
13. The video and the intercepts were also defective and manipulated, as demonstrated by
copious expert evidence.1823
14. The intercepts were also clearly false. Aside from the problem that the digital file with
the compendium of intercepts was encoded, and therefore uploaded, on 16 July 2014, the
day before the destruction of MH17, another fatal problem has emerged.
1822 Australian Federal Police, Report in the Matter of AFR Case Reference No. 5667342 (Operation
AVENELLA), July 2015, available at: https://www.bonanzamedia.com/bonanza-leaks/ (Annex 360).
1823 Expert report of Mr Akash Rosen, 26 May 2019 (Annex 197); Expert report analyzing videos from social
media (Annex 361); Report on Expert Examination of a Video File for Any Signs of Falsification, 7 December
2020 (Annex 362); OG IT Forensic Services, International Platform Global Right of Peaceful People, Report, 3
March 2020 (Annex 364).
Page 484 out of 541
15. One of the key intercepts featured Mr Bezler, a rebel commander, speaking about the
downing of an airplane. When a full recording of his conversation came to light,1824 it
transpired that his real conversation concerned a Sukhoi bomber shot down in a different
place on a different day. The SBU had manipulated the recording to remove the reference
to the Sukhoi, and then used it in the fake compendium uploaded on 16 July 2014, in
order to suggest that the rebels discussed the shooting down of MH17 on 17 July 2014.
16. Mr Bezler sued Bellingcat in the Russian Federation. Fully represented, Bellingcat was
unable to offer any defence.1825 No doubt also, they preferred not to draw attention to this
damning indictment of the SBU’s fake compendium of intercepts.
17. For any objective tribunal, the clear Bezler fabrication shows at the least that the SBU
could not be relied upon as a source of intercepts. They were the only source, as the JIT
was driven to admit.1826 Ukraine and the Netherlands failed to answer these points. The
ECtHR ignored them altogether.
C. UKRAINE’S INTERFERENCE WITH PHYSICAL WRECKAGE AND RELIANCE ON PIECES
WITHOUT PROVENANCE
18. The Russian Federation was also able to show that physical evidence had unconvincing
provenance. More particularly, men in the blue uniforms of Ukraine’s emergency service
(the “SES”) had full access to the crash site.
19. An OSCE observer, Michael Bociurkiw, saw men “hacking away” at the cockpit with a
power saw:1827
1824 The Dutch National Police, Official Report Concerning Disclosed Intercepted Conversations, 16 December
2019, p. 36 (Annex 200).
1825 Telegram, St. Petersburg Courts Unified Press Service, The Oktyabrsky District Court of St. Petersburg ruled
in the suit of Igor Bezler against the Foundation Bellingcat (19 May 2021), available at: https://t.me/SPbGS/8487
(Annex 308); See also St. Petersburg’s Oktyabrsky District Court, Case № 2-323/2021, Judgement, 19 May 2021,
available at: https://oktibrsky--
spb.sudrf ru/modules.php?name=sud_delo&name_op=doc&number=520996079&delo_id=1540005&case_type
=0&new=0&text_number=1&srv_num=1 (Annex 432).
1826 When asked at a JIT media presentation about the source of intercepts, Wilbert Paulissen (head of the National
Investigative department of the Dutch police) first stated that the intercepts were “mainly” from a Ukrainian
service. When pressed about his use of the word “mainly” and asked whether there were any other sources, he
stated that they were all intercepts from Ukraine - see Ruptly, Translation of JIT Press Conference, September
2016, available at: https://m facebook.com/RTnews/videos/10154726285794411/.
1827 YouTube, OSCE Investigator: Flight MH17 downed by machine-gun fire (31 July 2014) at 2 minutes 45
seconds, available at: https://www.youtube.com/watch?v=76PG9RQStFU; See also CBC News, Malaysia Airlines
Page 485 out of 541
“… going almost daily to the cockpit scene, that has been the most stark in
terms of how it’s changed. When we first arrived there … the cockpit appears
to have just slammed down into earth. It was pretty much intact. Over the
days, we have seen that piece of cockpit kind of spread out like this. Day two,
I believe it was there were actually men in uniform hacking into it with a
power saw.”
20. This eye-witness observation is corroborated by video showing men in blue uniforms
using power tools.1828
21. At the same time, there was press coverage identifying the men in blue uniforms as
members of Ukraine’s State Emergency Services (SES).1829
MH17: Michael Bociurkiw talks about being first at the crash site (29 July 2014), available at:
https://www.cbc.ca/news/world/malaysia-airlines-mh17-michael-bociurkiw-talks-about-being-first-at-the-crashsite-
1.2721007 (Annex 365).
1828 YouTube, Vice News, Searching Through the Debris of Flight MH17: Russian Roulette (Dispatch 61) (23
July 2014), available at: https://www.youtube.com/watch?v=lNXf_HncM20.
1829 ABC News, IMAGE: MH17 crash site, Ukrainian State Emergency Service employees search for bodies
amongst the wreckage of Malaysia Airlines Flight MH17, available at: https://www.abc.net.au/news/2014-07-
21/ukrainian-state-emergency-service-mh17-wreckage/5612412?nw=0 (Annex 366).
Page 486 out of 541
22. There is no scope for dispute on this. Ukraine has acknowledged that its SES agents were
all over the crash area.1830 It was therefore “Statecraft” and disingenuous when President
Obama and various media accused local militia of interference with the wreckage of the
airplane.1831 The evidence shows that direct physical interference was by Ukraine’s State
Agents.
23. Contemporary pictures show that afterwards, the entire port side of the cockpit was
missing – for example, this one, published in London’s Evening Standard:
1830 NBC News, MH17 Investigators Face Huge Challenges in Ukraine ‘Combat Zone’ (18 July 2014), available
at: https://www.nbcnews.com/storyline/ukraine-plane-crash/mh17-investigators-face-huge-challenges-ukrainecombat-
zone-n158881 (Annex 196); CNN, Kerry: ‘Drunken separatists’ interfering at MH17 crash site (24 July
2014), available at: https://edition.cnn.com/2014/07/20/world/europe/ukraine-malaysia-airlines-crash/index html
(Annex 198); DNA, Ukrainian investigators found 196 bodies at #MH17 crash site (20 July 2014), available at:
https://www.dnaindia.com/world/report-ukrainian-investigators-found-196-bodies-at-mh17-crash-site-2003686
(Annex 199).
1831 Financial Express, What are they trying to hide, cries Barack Obama even as Malaysia Airlines MH17 bodies,
black boxes handed over (22 July 2014), available at: https://www.financialexpress.com/archive/what-are-theytrying-
to-hide-cries-barack-obama-even-as-malaysia-airlines-mh17-bodies-black-boxes-handed-over/1272346/
(Annex 201); Stuff, MH17 wreckage 'cut into pieces' (23 July 2014), available at:
http://www.stuff.co.nz/world/10299196/MH17-wreckage-cut-into-pieces (Annex 202). YouTube, Vice News,
Searching Through the Debris of Flight MH17: Russian Roulette (Dispatch 61) (23 July 2014), available at:
https://www.youtube.com/watch?v=lNXf_HncM20.
Page 487 out of 541
24.
25. This space on the port side of the cockpit was later filled with mysterious black pieces on
schematics of the wreckage produced by the DSB in draft and final versions of its report.
Black indicates that that origin is not known.
26. The difference between the schematics, showing the late-recorded pieces, is highlighted
in the comparison below.
27. The Draft DSB Report1832:
28. The Final DSB Report1833:
1832 Dutch Safety Board, Draft Final Report, Crash of Malaysia Airlines Flight MH17, May/June 2015 (Annex
204).
1833 Memorial, Annex 38.
Page 488 out of 541
29. The last collection of physical evidence by the DSB was in April-May 2015.1834 The Draft
DSB Report was produced in July 2015. It is therefore odd that further black pieces
emerged in the final DSB Report. The DSB does not even record who found them, who
handed them over, to whom, where and when. Nonetheless, these pieces are at the very
center of the DSB’s conclusion that MH17 suffered penetrating damage from high-energy
objects produced by an explosion outside and above the cockpit on the port side.
30. There has been no explanation of where these further black pieces suddenly materialized
from, which is extraordinary, given that they make up the crucial port side of the cockpit,
against the background of a DSB/JIT case that a Buk missile exploded just above and to
the port side of the cockpit. As part of any thorough and proper investigation, it should
have been critical to check their provenance. Neither the DSB nor the JIT appears to have
done so.
D. RELIANCE ON FAKE “BOW-TIES”
31. The DSB also relied on distinctive “bow-tie” shrapnel supposedly removed by the DSB
from the bodies of the aircrew - long after their funerals.1835 The funerals of each of the
relevant flight crew are documented, and they occurred in 2014, long before the alleged
1834 Ibid., p. 16, ¶1.4.
1835 Dutch Safety Board, Draft Final Report, Crash of Malaysia Airlines Flight MH17, May/June 2015, Section
2.16.1 (Annex 204).
Page 489 out of 541
further discovery.1836 If they had addressed the point, which they did not, Ukraine and
the Netherlands would have to argue that the metal fragments were extracted early and
set aside, but not examined until June 2015. That is absurd given the early and consistent
focus of the DSB on shrapnel to try to prove its Buk case.
32. Moreover, as between the draft DSB report and the final report, the DSB’s story changed
as to what alleged distinctive shrapnel was found in which body.1837
33. The DSB also misrepresented the mass of the key piece of shrapnel in the final DSB
report, in order to give it sufficient mass to be identified as a bow-tie. Evidently, someone
forgot that the said piece had been weighed earlier in the presence of Russian experts and
given by the Netherlands Aerospace Laboratory as an example of a piece that could not
qualify as a bow-tie because of its low mass.1838
34. Mr Akkermans of the Dutch broadcaster RTL was involved in a curious episode where
he purported to find a piece of “bow-tie” shrapnel distinctive of a 9N314M warhead in
very strange circumstances. More particularly, Mr Akkermans claimed in March 2015
that he had found a bow-tie piece in wreckage still lying at the site, supposedly in
November 2014, keeping quiet about it for six months.1839
35. Mr Akkermans’ made a news report1840 on RTL about how he found the piece:
1836 New Straits Times, MH17: Captain Eugene Choo Jin Leong at his final resting place (4 September 2014),
available at: https://www.nst.com.my/news/2015/09/mh17-captain-eugene-choo-jin-leong-his-final-resting-place
(Annex 203); AstroAWANI, #RememberingMH17: The Funeral Of Wan Amran Wan Hussin (3 September 2014),
available at: https://www.astroawani.com/foto-malaysia/rememberingmh17-the-funeral-wan-amran-wan-hussin-
1519/relatives-and-friends-of-captain-malaysia-airlines-flight-mh17-16797 (Annex 205); New Straits Times,
MH17: Two more remains to arrive on Sunday: Liow (22 August 2014), available at:
https://www.nst.com.my/news/2015/09/25710/mh17-two-more-remains-arrive-sunday-liow (Annex 206).
1837 The location in the DSB Draft Final Report for a 12x12x5mm fragment with mass 5.7g was given as “flight
crew member” (Dutch Safety Board, Draft Final Report, Crash of Malaysia Airlines Flight MH17, May/June 2015,
section 2.16.1, (Annex 204)). In a DSB presentation at a meeting with experts (including experts from the Russian
Federation) in August 2015, it was given as the First Officer. In the DSB Final Report it was given as the Captain’s
body (DSB Report, p. 89, figure 37 (Memorial, Annex 38)). In the DSB presentation at a meeting with experts in
August 2015, the location of the 12x12x1mm fragment with mass 1.2g was given as the Captain’s body. In the
Final Report, it was said to be the Purser’s body (DSB Report, p. 89).
1838 Netherlands Aerospace Centre (NLR), Presentation “Damage Investigation MH17”, p. 21 (Annex 367).
1839 BBC News, MH17 crash: My revealing fragments from east Ukraine (16 April 2015), available at:
https://www.bbc.com/news/world-europe-32283378 (Annex 207).
1840 YouTube, “BUK missile fragments are found in the debris of Malaysian Boeing MH-17, proof” (20 March
2015), available at https://www.youtube.com/watch?v=ClIzb6KHr18.
Page 490 out of 541
36. Note where he says that the bow-tie was found:
37. However, there is a problem with this account. When the crash occurred, this section of
wreckage landed the other way up:1841
1841 As shown in countless contemporary pictures from July 2014. See, for example, Getty images, Image “Ukraine
Russia crisis Malaysia aviation crash”, 25 July 2014, available at: https://www.gettyimages.co.uk/detail/newsphoto/
picture-shows-a-piece-of-debris-of-the-fuselage-at-the-news-photo/452667890 (Annex 368).
Page 491 out of 541
38. It follows that the single bow-tie could not have been lying on top of this section of
wreckage.
39. The Dutch investigators and JIT did not ultimately rely on the Akkermans fragment,
probably because of the obvious “upside down” problem had become public. However,
it was used to persuade Almaz-Antey that MH17 had been hit with a Buk missile with an
M1 warhead – the kind containing bow-ties.1842
40. Almaz-Antey later changed their mind on that point because of two developments.
(a) First, a test with a real M1 warhead exploding next to a plane showed a rash of
distinctively shaped holes caused by bow-tie shrapnel. Almaz-Antey undertook
their own experiments with a missile and a similar airframe, and discovered a
number of things. One, that the airframe was riddled with bow-tie shaped holes,1843
not present on the wreckage of MH17; two, that the wreckage contained many bowties;
and three, that they had a minimum mass after impact, of around 6.5 to 7.9
grams.1844 Almaz-Antey accordingly changed their mind and concluded that a
9N314M warhead could not have been involved.
1842 Witness Statement of Mikhail Vadimovich Malyshevskiy (submitted in support of the Russian Federation’s
position in the ECtHR), ¶14 (Annex 369).
1843 Ibid., ¶23.
1844 Ibid., ¶15.
Page 493 out of 541
attack with an Iskander missile. The purported evidence was a fake video showing missile
pieces and the alleged discovery of distinctive shrapnel in holes around the square.
However, the video was clearly fake with transposed missile pieces. The shrapnel holes
only appeared on contemporary videos after a mission coordinated by the State
Department of the United States.1846 The shrapnel damage “miraculously” avoided the
famous statue of Stalin in the square, which has since been removed. Nonetheless, a
Dutch investigative mission including representatives of its police force concluded that
the Russian Federation was responsible. Under cross-examination, its representatives
were driven to accept that they had seen no missile parts, and they had relied on dubious
digital pictures and video.
43. A key picture showed the tail of a missile on a sofa inside a top floor apartment. The
Russian Federation showed that an Iskander missile descends at several times the speed
of sound and this section had very substantial mass. Had it really hit the building, it would
have penetrated to the bottom and buried itself in the basement.
44. It transpired that the picture was created by Lieutenant Hoeft, who went to Gori in
Georgia as part of a US State Department Mission, after Russian forces withdrew.
1846 Georgia v. Russia (II), Application No. 38263/08, Open Exhibit for Oral Submissions of the Russian
Federation on 23 May 2018, pp. 59-64 (Annex 371).
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45. In the event, the ECtHR was saved from making findings on this clear demonstration of
fabrication of evidence because of its decision of principle, somewhat against the run of
its previous jurisprudence, that the European Convention on Human Rights does not
apply in a situation of active conflict.1847
E. THE DSB’S UNRELIABLE TRIANGULATION EXERCISE
46. There are other clear indications that the DSB work was not reliable. The most obvious
example is the triangulation exercise by which the DSB purported to establish that a Buk
missile exploded above and outside the cockpit on the port side of MH17 based on the
different timings of receipt of the sound of the explosion at various cockpit microphones
recorded on the “Black Box” Flight Recorder. This was utterly absurd and suggests the
work of an Arts graduate recruited for information operations rather than anyone with a
basic knowledge of physics.
47. As the Russian Federation proved:
(a) There is no sound wave so close to an explosion – just a pressure wave, which
travels much faster than sound.1848
1847 European Court of Human Rights, Case of Georgia v Russia II (applications no. 38263/08), Judgment on the
Merits, 21 January 2021, ¶126ff.
1848 Expert Report on the Applicability of the Triangulation Method of Oleg Rudenko, Boris Goncharenko and
Andrei Shurup, 18 May 2021 (Annex 372).
Page 495 out of 541
(b) A Buk missile also expels shrapnel at many times the speed of sound. That would
have penetrated the aircraft much faster and ahead of any sound wave if, quod non,
it existed. The microphones would have been destroyed before they registered
anything, or anything that they did register would derive from local impact of the
shrapnel striking around them.
(c) Sound travels much faster through metal than air. Accordingly, there would have
been myriad routes to each microphone through the structure of the airplane. A
straight-line triangulation exercise, as depicted by the DSB, was unreliable – albeit
glossy and convincing for a lay reader already prejudiced by the likes of Bellingcat.
F. INCONSISTENT EXPLOSIVE TRACES
48. The Russian Federation also noted evidence that further called into question whether
MH17 was destroyed by a missile on 17 July 2014. As noted above, digital proof against
the Russian Federation had evidently been created before that date. The draft and final
DSB reports were radically inconsistent as to the number of swab tests done on the MH17
wreckage to detect explosives. The number reduced (unaccountably) from 500 to 126.1849
Moreover, inexplicably different explosive traces were found on alleged missile parts
(tainted with the explosive RDX) and on the airplane (RDX, TNT and PETN; the latter
two were not found on the missile parts).1850 The DSB attempted to obfuscate this fact in
the Report’s conclusions by misleadingly stating that “similar” explosives were found on
both missile and airplane parts.1851 However, in the Dutch prosecution, the Prosecutor
produced a table showing the results of some swab tests of the plane wreckage.1852
1849 At section 2.16.3, the Draft Final Report states that 500 swab tests were undertaken on “various locations of
the wreckage of the aeroplane” (Dutch Safety Board, Draft Final Report, Crash of Malaysia Airlines Flight MH17,
May/June 2015 (Annex 204). At section 2.16.3 of the Final Report, it is said that 126 swab samples were taken
“on the wreckage and one of the missile parts” (Memorial, Annex 38).
1850 See section 2.16.3 of the DSB Final Report (Memorial, Annex 38).
1851 “The missile parts also had traces of a type of explosive (i.e. RDX) on them that is similar to the traces found
on the wreckage.” See DSB Final Report, p. 255, ¶10.2(7) (Memorial, Annex 38).
1852 YouTube, The Dutch Public Prosecution Service, Presentation (9 June 2020), available at:
https://www.youtube.com/watch?v=Bdz0yl4NLbk.
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49. The DSB does not state the nature of explosives in a Buk missile. That is a very serious
omission, because there is no PETN in a Buk missile. However, the airplane parts were
covered in degradation products of PETN. It should be noted that PETN is an extremely
powerful explosive favoured by real terrorists – such as Richard Reid who infamously
concealed it in his shoes for an attack on an American Airlines flight in 2001.1853
G. NO RADAR TRACES
50. To this must be added the evidence, from specialists at Almaz-Antey, that no Buk could
have been fired from the launch site contended for by the JIT and Ukraine.1854 Any such
Buk would have been caught in profile by three successive sweeps of the Utes-T radar.
No missile was detected, which meant (with 99% certainty) that no launch occurred.1855
H. FAKE LAUNCH PICTURES
51. Next, the Russian Federation debunked pictures of the alleged launch plume of the missile
which had been given false authentication by none other than Bellingcat. Two pictures,
taken seconds apart, were irreconcilable. See below:
(a) The first picture:
1853 Federal Bureau of Investigation, Richard Reid's Shoes, available at:
https://www.fbi.gov/history/artifacts/richard-reids-shoes (Annex 209); The New York Times, Packages’
Explosive PETN Used in Past Plots (30 October 2010), available at:
https://www.nytimes.com/2010/10/31/world/middleeast/31petn html (Annex 210).
1854 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on the results of studies related to the
technical investigation into the crash of the Malaysian airlines Boeing 777-200 9M-MRD (flight MH17), 2023, p.
108, clause 5.2.4.5 (Annex 1).
1855 Ibid.
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(b) The second picture:
(c) Consider now, a super-position of the zoomed picture over the panned out picture:
Page 498 out of 541
52. The first picture was zoomed in more than the second, which pans back to cover the area
of the first picture and more background. However, the zoomed picture shows power
lines, which are conspicuously absent from the wider version. It would have been
physically impossible for the second picture, if real, to omit the power lines. Bellingcat’s
attempt to explain this makes no sense.
E. FAKE LAUNCH SITE
53. For good measure, the Russian Federation showed that an exercise to locate the launch
site in a partly burned field was fake. The exercise was undertaken by Mr Roland
Oliphant of the Daily Telegraph newspaper and Christopher Miller of Buzzfeed. Their
work was adopted by the Netherlands Government via an “Official Report of the Dutch
National Police” which incorporated it. 1856 However, there is a problem. The
photographs and video that the “reporters” supposedly took of the launch site showed
partial burning of the wheat field, with golden wheat behind. However, a Google Earth
picture given below from the day before showed that the field was already substantially
burned – including in the area of golden wheat shown by the Oliphant-Miller team.
54. More particularly, Mr Oliphant and Mr Miller claim to have tracked down the launch site
of the alleged Buk missile based on the smoke plume pictures. That was not a promising
1856 Dutch National Police, Official Report Concerning the Transport Route, on the Basis of Open Sources, 16 May
2018, p.13 (Annex 373).
Page 499 out of 541
start because, as demonstrated above, those were fake. 1857 They say that they took
photographs and a video of the alleged site on 22 July 2014.1858 Mashable published the
photographs with metadata the same purported day.1859 One photograph,1860 dated 22
July 2014, has location 47.974628 North; 38.760117 East. It shows a burned patch of
ground, with unburned wheat in the background:
55. Another picture1861 also dated 22 July 2014 again shows what appears to be localized
burning, with golden wheat behind, in the space toward the line of trees:
1857 See ¶¶51 of the present Appendix 2.
1858 Dutch National Police, Official Report Concerning the Transport Route, on the Basis of Open Sources, 16 May
2018, p. 14 (Annex 373).
1859 Mashable, Picture of Alleged Launch Site, 22 July 2014, available at: https://mashable-evaporationwordpress.
s3.amazonaws.com/2015/07/image_5.jpeg; Mashable, Picture of alleged launch site, 22 July 2014,
available at: https://mashable-evaporation-wordpress.s3.amazonaws.com/2015/07/image-3.jpeg;Mashable, Picture
of alleged launch site, 22 July 2014, available at: https://mashable-evaporationwordpress.
s3.amazonaws.com/2015/07/image-4.jpeg; Mashable, Picture of alleged launch site, 22 July 2014,
available at: https://mashable-evaporation-wordpress.s3.amazonaws.com/2015/07/image_7.jpeg.
1860 Mashable, Picture of alleged launch site, 22 July 2014, available at: https://mashable-evaporationwordpress.
s3.amazonaws.com/2015/07/image-3.jpeg.
1861 Mashable, Picture of alleged launch site, 22 July 2014, available at: https://mashable-evaporationwordpress.
s3.amazonaws.com/2015/07/image_5.jpeg.
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58. Unfortunately for Ukraine, the Oliphant/Miller pictures and video of 22 July 2014 do not
fit with the Google Earth picture from the day before. The picture from 21 July 2014
shows a huge burned area in the field. A picture taken from the position of the
photographer in the wheat field photos would show a vast area of burned land – not golden
wheat. It is therefore clear that the wheat field photographs are fabricated, which makes
a mockery of Ukraine’s supposed geo-location of a purported launch site in this case.
59. It is also interesting to note that one of the Oliphant/Miller pictures1862 has curious geolocation
metadata (which would have been recorded automatically by the iPhone 5 on
which the metadata indicates that it was taken1863). The location data is in the middle of
a town, and not in a field:
1862 Mashable, Picture of Alleged Launch Site, 22 July 2014, available at: https://mashable-evaporationwordpress.
s3.amazonaws.com/2015/07/image_5.jpeg.
1863 Metapicz, Metadata for the Picture of Alleged Launch Site Image, available at:
metapicz.com/#landing?imgsrc=https%3A%2F%2F (Annex 472).
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F. THE RESULTS OF AEROSPACE DEFENSE CONCERN ALMAZ-ANTEY’S TECHNICAL
INVESTIGATION WERE UNJUSTIFIABLY REJECTED
60. Almaz-Antey is the manufacturer of the Buk TELAR. It has conducted a highly technical
investigation and concluded that the DSB's findings, which were taken at face value by
the District Court in The Hague and the ECtHR, were unreliable.
61. In this report, Almaz-Antey analysed in detail the nature of the damage to various parts
of the aircraft and technical aspects of the Buk TELAR. In the course of this
investigation, Almaz-Antey experts discovered mistakes made by the Dutch specialists.
For example, when calculating the likely launch area, they did not consider “a correction
of about 4 degrees between the course line projection of the Boeing 777 on the map and
the actual orientation of the aircraft's longitudinal axis must be considered when
estimating the likely launch area”.1864
62. It was found that the DSB's analysis of the launch area was also not intended to establish
an objective truth. As noted in the Almaz-Antey report:
“Thus, during the technical investigation, NLR specialists carried out
calculations of the "likely launch area" three times using different models.
The main feature of these calculations was that, despite changing the
parameters of the warhead model, damage model, detonation point areas, and
missile flight models, the calculated area always "included the town of
Snizhne. In all cases, the "matching" was done by fitting the parameters of
1864 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on the results of studies related to the
technical investigation into the crash of the Malaysian airlines Boeing 777-200 9M-MRD (flight MH17), 2023, p.
79, clause 5.2.3 (Annex 1).
Page 503 out of 541
the warhead, damage model, and detonation region, as well as by fitting the
parameters in the missile flight model”1865
63. Moreover, the results obtained by Almaz Antey “directly contradict the results obtained
in the DSB-led technical investigation”1866. As a result, “the studies using adjusted source
data in the models do not support the version of a missile launch from the area of
Snezhnoye and Pervomaysky settlements”.1867
64. This applies not only to the launch area, but also to the modification of the missile. Thus,
the damage patterns of the outer skin, airframe, floor and interior of the cockpit prove that
if flight MH 17 was shot down by a Buk TELAR, it could only have been an older
modification of the 9M38 missile, which approached the aircraft on a collision course in
the horizontal plane with angles 72+2
-10 deg.1868 This is inconsistent with the findings of
the DSB, according to which the aircraft's encounter with the missile occurred on an
oncoming course.
65. All of these materials were groundlessly dismissed by the District Court of The Hague.
In its judgment, it pointed out that Almaz-Antey was a State-owned enterprise of the
Russian Federation and could not be objective in its investigations. Also, the Court stated
that its studies were not presented in a “perfectly clear, insightful, followable and
verifiable manner”. Therefore, preference was given to the expert appointed by the Court.
The ECtHR in its recent judgment also found only prima facie evidence and did not
consider the merits.
66. Thus, until now, the Almaz-Antey material has never been assessed in substance, as it
rejects the generally accepted version of the shooting down of flight MH17 and the
Russian Federation's (or the DPR’s) involvement in it.
1865 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on the results of studies related to the
technical investigation into the crash of the Malaysian airlines Boeing 777-200 9M-MRD (flight MH17), 2023, p.
125 (Annex 1).
1866 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on the results of studies related to the
technical investigation into the crash of the Malaysian airlines Boeing 777-200 9M-MRD (flight MH17), 2023, p.
124, clause 5.3.2.2 (Annex 1).
1867 Ibid., p.129, clause 6.
1868 Ibid.
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G. THE BIAS OF THE DUTCH POLICE AGAINST THE RUSSIAN FEDERATION DURING THE
INVESTIGATION
67. The prejudiced negative perception towards the Russian Federation during the
investigation is clearly demonstrated in the Dutch National Police Report on the Crew of
the Buk. This report, for example, provides the following transcript of the intercepted
conversation:
Recipient: There’s only hope – Russia. (…) I wish they give us surface to air
system.
Caller: That’s what I’m telling. I wish they give you at least something. If you
can’t come, don’t come. Give something, they will deal with it.
Recipient: ‘[inaudible] We have air defense guys [sic!]. We have everyone.
Everyone was serving in the Soviet [sic!] army. Give us that weapon.1869
68. In comments on this conversation, the Dutch Police notes the following:
“The separatist claims that they have people in their midst who served in the
Russian army and have experienced with air defense systems”.1870
69. Thus, the Dutch Police deliberately equates "Russian army" and "Soviet army", which
distorts the meaning. The reference to the Soviet Army relates to the period before 1991
and means that the DPR Armed Forces, which could have people who served in the Soviet
army among them, can operate air defense systems independently, without the need to
send specialists from outside. This is supported by the plain fact of the DPR actually
operating such surface-to-air missile systems they have captured from the UAF before
the MH17 incident – like, for instance, the Strela-10 mobile surface-to-air missile system
that DPR was known to operate prior to the crash.1871
1869 Dutch National Police, Official Report on the Crew and two DPR Separatist Leaders, 7 October 2019, p. 8
(Annex 374).
1870 Ibid.
1871 Reuters, Ukraine rebel commander says will not pull out of Donetsk (10 July 2014), available at:
https://www.reuters.com/article/us-ukraine-crisis-strelkov-idUSKBN0FF2BX20140710 (Annex 177).
Page 505 out of 541
70. DPR-operated Strela-10 self-propelled anti-aircraft guided missile system, captured as a
trophy from the UAF. Donetsk, 10 July 2014
71. However, the Dutch Police chose to misinterpret the (alleged) intercept in order to give
the impression that the DPR Armed Forces are composed of former or current Russian
Federation military personnel, which does not directly follow from the dialogue.
72. Furthermore, the Dutch police file explicitly states that there is evidence of at least one
soldier in the DPR forces who had previously been trained to operate air defence systems
and who took an active part in the DPR's air defence operations in the summer of 2014:
“Evidence confirms that this separatist has been trained in Missile Air
Defense and was active in air defense for the separatists in summer 2014” .1872
73. In this report, the Dutch Police also drew attention to an article by an Associated Press
reporter in the section "Identifications relating to the potential country of origin of the
crew on the BUK-TELAR". According to that article, an AP reporter met the Buk-
TELAR crew who spoke English with a “distinctive Russian accent” and wore “send
colored camouflage without identifying insignia”. With regard to this, the following is
worth noting.
1872 Dutch National Police, Official Report on the Crew and two DPR Separatist Leaders, 7 October 2019, p. 10
(Annex 374).
Page 506 out of 541
74. Sand-colored camouflage corresponds to the uniform of the Ukrainian and not Russian
Armed Forces. In contrast, the Russian “Ratnik” combat outfit used by Russian troops in
Crimea in the spring of 2014 is bright green in colour (which is where the expression
“little green men” comes from). The sandy colour is not characteristic of the Russian
Armed Forces uniform (even Russian soldiers in Syria were equipped with the Ratnik in
green).
Ratnik combat equipment kit used by the Russian Armed Forces1873
Ukrainian Armed Forces uniforms1874
75. The Associated Press journalist's statement that the servicemen had a “Russian accent”
also cannot indicate that they belonged to the Russian Armed Forces, as over 90% of the
population in Eastern Ukraine are Russian speakers, 1875 and the DPR Armed forces
1873 Rostec, Rostec delivered almost 300,000 sets of Ratnik combat equipment (10 December 2020), available at:
https://rostec.ru/news/rostekh-postavil-pochti-300-000-komplektov-boevoy-ekipirovki-ratnik/ (Annex 310);
RBC, Three Russian soldiers killed in Syria (25 March 2019), available at:
https://www.rbc ru/politics/25/03/2019/5c9924cd9a79477f008a4a3e?ysclid=ldy7ysaa3b784094146 (Annex 309).
1874 The Kiev Independent, British instructors train Ukrainian military to operate NLAW tank killers (PHOTOS)
(25 January 2022), available at: https://kyivindependent.com/national/british-instructors-train-ukrainian-militaryto-
operate-nlaw-tank-killers-photos (Annex 211); Reuters, Ukraine holds military drills with U.S. forces, NATO
allies (20 September 2021), available at: https://www reuters.com/business/aerospace-defense/ukraine-holdsmilitary-
drills-with-us-forces-nato-allies-2021-09-20/ (Annex 212).
1875 Gallup, Russian Language Enjoying a Boost in Post-Soviet States (1 August 2008), available at:
https://news.gallup.com/poll/109228/russian-language-enjoying-boost-postsoviet-states.aspx (Annex 213).
Page 507 out of 541
certainly spoke with a “Russian accent”. Moreover, many Ukrainian citizens outside of
Donbass are also Russian-speaking; a foreign journalist would be unlikely to be able to
tell from the pronunciation of the foreign language in which the conversation was
apparently taking place whether the person in front of him was a native Russian or a
native Ukrainian, and in any event could not have distinguished a native Russianspeaking
DPR resident from a citizen of the Russian Federation. Thus, the pronunciation
with a Russian accent not only does not prove that the person in question came from the
Russian Federation (and was not a local resident of Donbass), but also does not rule out
that the person was a member of the UAF (which would fit with the “sandy” colour of
their uniform).
H. SUBSTANTIVE DEFICIENCIES OF DUTCH CRIMINAL PROCEEDINGS AND THE ECTHR
PROCEEDINGS
76. Against this background, all of which was known to the Netherlands Government and the
ECtHR, the judicial decisions of the Dutch Criminal Court and of the ECtHR in relation
to MH17 are lamentable departures from justice.
77. The Dutch State was clearly aware of the points that the Russian Federation made in
Strasbourg, and its Prosecutor in the Dutch Criminal Court was plainly aware of them.
The case was founded on the investigative work of the DSB and JIT, which adopted much
of the analysis of Bellingcat and Mr Oliphant of the Daily Telegraph. In particular, the
JIT purported to track the arrival of a Buk Telar from the Russian Federation at the request
of rebels, the shooting down of MH17 and the surreptitious return of the Buk Telar to the
Russian Federation.
78. After the Russian Federation had raised the points above concerning digital evidence in
Strasbourg, the Prosecutor changed his tune. Extraordinarily, he announced in his
opening statement on 8 June 2020 that he did not have to prove what kind of missile
brought down MH17 or that it came from the Russian Federation.1876 He said (in free
translation from the Dutch):
“…the charges do not request that we also investigated the type of rocket of
that 9M38 series …”
1876 The Dutch Public Prosecution Service, Opening statement and context of the investigation (8 June 2020),
available at: https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-sessionsjune-
2020/opening-statement-and-context-investigation (Annex 363).
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79. The Prosecutor’s statement is eloquent testimony to a total collapse of confidence by the
Dutch authorities in the core case that Ukraine and the Netherlands had previously made
and which Ukraine now puts forward again in this Court.
80. The ECtHR decision is even worse than what happened in the Dutch criminal
proceedings, because it is not clear that the Dutch judges, as opposed to the Prosecutor,
were made aware of the holes in the Prosecution case. The ECtHR however was fully
aware of the Russian Federation’s objections. That Court was also fully acquainted with
the pedigree of Bellingcat.
81. However, it responded to the Russian Federation’s evidence by making it secret, and
making secret some of the submissions themselves. This was a grotesque contradiction
of open justice, which is the only true justice.
82. The Russian Federation protested about the secrecy with utmost force, but to no avail. In
its submission of March 2021, it said the following:
“... the Court has spontaneously imposed confidentiality on evidence, and
sometimes on submissions, in such cases. A further unfair direction from the
President is that whilst submissions in Ukraine’s application are open,
evidence must be treated as confidential, and the Netherlands’ entire
application, including its evidence, must be treated as confidential. This is
utterly wrong, antithetical to justice and an impossible way of proceeding in
the present applications”.
83. Secrecy has produced absurd results. It allowed the ECtHR to suggest that the Russian
Federation had provided little evidence and to dismiss it on the unreasoned basis that the
Court had confidence in the DSB and JIT.1877 The European Court ignored all of the
Russian Federation’s objections to the DSB and JIT reports, which were well-made and
properly vouched with compelling evidence. It ignored the fact that Ukraine and the
Netherlands failed to produce original digital material and failed to respond, in substance,
to the Russian Federation’s objections. The Netherlands merely asserted that digital
materials had been checked, and produced short formulaic purported expert reports saying
so. However, these did not attach any original digital material and did not engage with
any of the Russian Federation’s specific objections. In fact, it was absurd to say that
original digital material had been checked:
1877 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16,
43800/14 and 28525/20), Grand Chamber Decision, 25 January 2023, ¶¶464, 467 and 469. .
Page 509 out of 541
(a) Real originals did not even exist. The JIT was unable to produce original data files
to Australia – one of the JIT members – for assessments performed by the
Australian Federal Police between 22 April 2015 and 2 July 2015.1878
(b) If the data had been checked, why is there no mention by Ukraine, or the
Netherlands, or the JIT, of the fact that the crucial Snezhnoe video was uploaded
on 16 July 2014 - the day before MH17 was destroyed? Why is there no mention
of the fact that the SBU’s compendium of intercepts of rebels discussing MH17 was
also uploaded the day before? Why is there no acknowledgment that the Bezler
intercept about MH17 in fact related to a Sukhoi airplane shot down on a different
date in a different place? Why has there been no proper attempt by Ukraine, the
Netherlands or the JIT to deal with Russia’s objections? There is no evidence
whatsoever of original data files, and no evidence whatsoever that they were
checked for veracity. They are manifestly fake, for reasons that the Russian
Federation proved with copious evidence, and which the JIT, Ukraine and the
Netherlands have almost consistently ignored.
84. The almost arises in this way. Written submissions concluded before the ECtHR in May
2021, subject to further directions of the Court. Of course, there should have been further
directions: Ukraine and the Netherlands to produce original digital evidence etc., an
evidential hearing before an evidential commission, cross-examination, a proper
opportunity to challenge evidence on both sides with witnesses and experts available for
cross-examination.
85. Even Ukraine was conscious at this stage of its embarrassing failure to engage with the
Russian Federation’s evidence. Intriguingly, but belatedly, Ukraine acknowledged the
strength of the Russian Federation’s points by requesting permission from the ECtHR to
submit a “comprehensive expert report” from Eliot Higgins of Bellingcat, together with
the generous proposal that he be offered for cross-examination - albeit for a parsimonious
60 minutes.1879
1878 Australian Federal Police, Report in the Matter of AFR Case Reference No. 5667342 (Operation
AVENELLA), July 2015, available at: https://www.bonanzamedia.com/bonanza-leaks/ (Annex 360).
1879 Ukraine and the Netherlands v. Russia, Applications nos. 8019/16, 43800/14 and 28525/20, Submission of
May 2021 of Ukraine, ¶20.
Page 510 out of 541
86. The President of the ECtHR refused Ukraine permission to file the proposed “expert
report” in June 2021, noting that Ukraine had already “…had every opportunity to submit
any expert reports they considered necessary or desirable …”.1880 However, even though
the Russian Federation’s expert evidence had not been met, the ECtHR ignored it, failed
to refer to it and found against the Russian Federation without reference to it.
87. Moreover, the scant references that the Court does make in its judgment to the Russian
Federation’s evidence are wrong and, whilst they appear, in a superficial way, to
demonstrate consideration of the evidence, all of which was secret, they in fact show the
opposite.
88. For example, the Court complained that there was only one expert report challenging the
SBU’s compendium of alleged intercepts of rebel conversations about the shooting down
of MH17, as if quantity instead of quality rules the day.1881 This was an unsustainable
basis for rejection.
89. First, in the Report that presumably the Court refers to, the Malaysian expert, Mr Rosen,
noted the following about the intercepts in the compendium:1882
(a) Track 1 [“I Bezler (‘Bes’)” and “V. Geranin”] : “This … Track 1 is tampered”, with
“…possible cuts and edits which can be seen as the Background noises in the
V. Geranin track are different when V. Geranin speaks”;1883
(b) Track 2 [“Major” and “Grek”]: “…Difference level of noise in the background seen,
which clearly indicating of editing/addition of different audio into this part of the
audio track”;1884
1880 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16,
43800/14 and 28525/20), Letter, 10 June 2021 (Annex 376), which did not give any reasons for refusing the
relevant request for permission.
1881 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16,
43800/14 and 28525/20), Grand Chamber Decision, 25 January 2023, ¶465.
1882 Expert report of Mr Akash Rosen, 26 May 2019 (Annex 197).
1883 Ibid., p. 77, see also p. 140.
1884 Ibid., p. 83, see also p. 140.
Page 511 out of 541
(c) Track 3 [“Major” and “Grek”]: “Possible merging can be seen, and background
noises appear to be different”;1885
(d) Track 4 [“Major” and “Grek”]: “Audio seems to be cut between time frame 1.24.2
and 1.24.3. Different frequency level appears in many places and different
background noises level were seen”;1886
(e) Track 5 [“Kozitsyn” and “Militant”]: “Possible merging can be seen… also sudden
difference in the spectrum frequency from 2:02:98”;1887
90. These points were compelling. Moreover, it was clear beyond any doubt that the first
conversation, the Bezler tape, was manipulated. After Mr Rosen’s work, a full record of
the Bezler conversation came to light1888 – and it showed, as noted above, that it was
recorded on an earlier date and related to the shooting down of a Sukhoi bomber. The
Court ignored this too.
91. Further, the Court was wrong to say that only one expert report undermined the intercepts.
It ignored other expert evidence that when a digital file is uploaded to YouTube, it is
encoded at that time, so that the encoding date in the metadata of a digital file is the date
of uploading.1889 The date of publication may be later.
1885 Ibid., p. 88, see also p. 141.
1886 Ibid., p. 93, see also p. 141.
1887 Ibid., p 99, see also p. 141.
The Dutch Prosecutor has stated Kozitsyn has confirmed that he took part in this conversation (see The Dutch Public
Prosecution Service, Status of the investigation and position on the progress of the trial of the Dutch Public
Prosecution Service (10 March 2020), available at: https://www.prosecutionservice nl/topics/mh17-planecrash/
prosecution-and-trial/court-sessions-march-2020/status-of-the-investigation-and-position-on-the-progressof-
the-trial---part-2-10-3-2020 (Annex 377)). However, it is clear from the relevant Vice News interview with
Simon Ostrovsky that Kozisyn does not appear to know specifically which conversation was being referred to.
Simon Ostrovsky refers to remarks about the involvement of Cossacks which Kozitsyn did not say in the alleged
intercept published on 17 July 2014. The only remark made by Kozitsyn was a natural response of rebels, easy to
anticipate. This does not work as corroboration (see YouTube, Vice News, Return to the MH17 Crash Site: Russian
Roulette (Dispatch 87) (19 November 2014), at 6 minutes 45 seconds onwards, available at:
https://www.youtube.com/watch?v=cYEH6Tfzouo). The relevant compendium was uploaded on 16 July 2014.
This is a curious recording, with at least 3 different voices (with the relevant part of the SBU compendium only
referring to Kozitsyn and an unnamed “Militant”).
1888 Sharij net, BOEING. The Bird Has Come (10 August 2020), available at: https://sharij net/boing-ptichkapriletela
(Annex 405).
1889 Expert report analyzing videos from social media (Annex 361); Report on Expert Examination of a Video File
for Any Signs of Falsification, 7 December 2020 (Annex 362).
Page 512 out of 541
92. As the Russian Federation explained,1890 this expert evidence showed that the Snezhnoe
video and the compendium were fake, because both were encoded, and therefore
uploaded, on 16 July 2014. The Court failed even to mention this point or the evidence
supporting it.
93. Another example concerns photographs of a soldier called Tarasov who was presented
on a military vehicle – a BMP – about to move into Ukraine. The Russian Federation
noted that so many hands were involved in disinformation that some did not know what
others were doing. Thus the Russian Federation pointed to the fact that different versions
were used by Bellingcat and the Atlantic Council. In the Bellingcat version, the number
on the vehicle was removed, which fitted Bellingcat’s allegations that military marks
were removed from Russian military vehicles before they were sent into Ukraine. The
pictures are below.
1890 Ukraine and the Netherlands v. Russia, Applications nos. 8019/16, 43800/14 and 28525/20, Further
Observations of the Russian Government on Admissibility (Regarding East Ukraine), Submission of May 2021 of
Ukraine, 8 November 2019, ¶¶390-402 (Annex 375).
Page 513 out of 541
94. In its judgment, the European Court said that Mr Eliot Higgins of Bellingcat had produced
a statement, which answered the Russian Federation’s objections to the Tarasov
pictures.1891 He suggested that Mr Tarasov changed his own picture in two postings to
conceal his unit. The European Court said that the Russian Federation had no riposte.1892
This, however, is not right. In written submissions, [in expert evidence] and in oral
submissions in front of the full Court, the Russian Federation made the point that the
changing of the picture to delete the number on the BMP vehicle was probably done by
AI – some artificial intelligence algorithm - rather than a human hand. A close-up shows
that the number was obscured by cloning the soldier’s boots into the metal where the
number had been. No human would choose boots to cover up a number on metal. A
human would use an area of metal. By contrast, AI can be stupid:
1891 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16,
43800/14 and 28525/20), Grand Chamber Decision, 25 January 2023, ¶473.
1892 Ibid.
Page 514 out of 541
95. In any event, the Russian Federation has pointed out that the Tarasov manipulation was
by no means unique.
Page 515 out of 541
APPENDIX 3
THE RUSSIAN FEDERATION IS NOT ACCOUNTABLE FOR THE ACTS OF
DISAPPEARANCE, MURDER, ABDUCTION AND TORTURE ALLEGED BY
UKRAINE
1. No doubt being well aware that it has not shown that the Russian Federation is responsible
for the alleged acts of disappearance, murder, abduction and torture, Ukraine continues
to argue that the Russian Federation has alternatively violated the CERD by “facilitating
and tolerating” those alleged acts.1893 In this connection it claims more specifically that
the Russian Federation has not investigated the alleged acts in a satisfactory manner.1894
As has been shown in the Counter-Memorial1895 as well as the following account makes
plain, that claim, too, does not withstand scrutiny.
A. THE RESHAT AMETOV CASE
2. In regard to the death of Mr Reshat Ametov, it first bears to mention that the Ukrainian
authorities investigating the matter themselves elected to qualify the crime as an
“intentional murder of a kidnapped person” under clause 3 of Part 2 of Article 115 of the
Criminal Code of Ukraine.1896 The Ukrainian authorities did not invoke clause 14 of the
same Article, which penalizes “intentional murder for reasons of racial, national or
religious intolerance”1897. Thus even Ukraine, it appears, does not consider the death of
Mr Ametov as having to do with his ethnicity.
3. Ukraine dismisses the serious investigation undertaken by the Russian Federation into the
circumstances of Mr Ametov’s death, as detailed in the Counter-Memorial,1898 on the
basis of a single argument that no polygraph examination was performed during its
course1899. In so doing Ukraine essentially calls into question the judgment and expertise
1893 Reply, ¶466.
1894 Ibid., ¶467.
1895 See, e.g., Counter-Memorial (CERD), ¶¶21-24; 30-32; 34-39;
1896 Criminal Code of Ukraine, 5 April 2001, Article 115(2)(2), available at:
https://zakon rada.gov.ua/laws/show/2341-14#Text (Annex 91).
1897 Ibid., Article 115(2)(14).
1898Counter-Memorial (CERD), ¶¶21-24.
1899 Reply, ¶454.
Page 516 out of 541
of the Russian authorities simply for not achieving an outcome that Ukraine desires. That
clearly cannot be a violation of the CERD.
4. Moreover, in reality the interrogation was conducted. However, the use of polygraph is
not provided for by the Code of Criminal Procedure of the Russian Federation. Notably,
the Supreme Court of the Russian Federation has pointed out that the results of a study
using a polygraph do not meet the requirements of the law for evidence and may not be
used in investigative activity.1900 Noteworthy is the fact that Ukraine itself refused a
request for legal assistance made by Russian investigative and prosecution body as part
of this investigation.
B. THE ERVIN IBRAGIMOV CASE
5. Ukraine is moreover discontent with the investigation into the abduction of Mr Ibragimov
by individuals dressed in police uniform, notwithstanding the substantive efforts
undertaken by the Russian authorities that examined the matter. Despite the fact that
CCTV footage was accessed, over 500 potential witnesses were questioned, over 150
vehicles were checked, at least 7 searches and seizures were performed, and at least 5
expert examinations were conducted,1901 Ukraine complains that “there is no evidence
that Russia’s police force was ever investigated”1902.
6. In fact, as Ukraine itself recognizes,1903 the Russian authorities investigating this case did
contact law enforcement bodies. This line of investigation simply did not yield any
meaningful results. This, again, does not constitute racial discrimination contrary to the
CERD.
C. THE SHCHEKUN, KOVALSKY AND VDOVCHENKO CASES
7. Ukraine once more chooses to ignore the significant record of activity undertaken in the
course of the investigation into the alleged abductions of Mr Shchekun, Mr Kovalsky,
1900 Supreme Court of the Russian Federation, Cassation Ruling №33-UD22-11-А2, 28 June 2022, p.5: “For a
psychophysiological study using a polygraph, the need for which the applicant indicates in the complaint, there
are no scientifically based methods, which does not allow using the results obtained as evidence in the case”,
available at: https://vsrf.ru/stor_pdf.php?id=2134162 (Annex 69).
1901 Counter-Memorial (CERD), Appendix A, ¶32.
1902 Reply, ¶455.
1903 Ibid., fn. 839.
Page 517 out of 541
and Mr Vdovchenko.1904 It also considers the Note from the 534th Military Investigative
Directorate, which made it clear that no military personnel of the Armed Forces of the
Russian Federation were stationed in the area in question at the relevant time, to “lack
evidentiary value”, but without giving any reason why that can possibly be so.1905 The
Note is also criticized for not disproving the alleged crimes,1906, when clearly it was not
intended to do that.
8. Ukraine does not disprove the finding that no military personnel of the Armed Forces of
the Russian Federation, nor local police or the Crimean People’s Militia, were (or could
have been) in the area in question at the relevant time. It may not like the decision of the
Russian authorities not to open a criminal case following their extensive investigation,
but that decision was a natural and lawful consequence of the results yielded by the
investigation.
9. Ukraine seeks to rely in the Reply on a witness statement by the Metropolitan of
Simferopol and Crimea Klyment,1907 yet that statement itself suggests that Mr Shchekun
and Mr Kovalsky were kidnapped not for any reason having to do with their ethnicity,
but because they organized a political demonstration against Crimea’s separation from
Ukraine.1908
10. The statement by the Metropolitan of Simferopol and Crimea Klyment also refers to a
meeting that took place between the Metropolitan Klyment and a man named Igor
Strelkov, who, it is claimed, knew of the condition of Mr Shchekun and Mr Kovalsky and
facilitated their release.1909 To the extent that any such meeting took place, the statement
itself suggests that Mr Strelkov was not an official of the Russian Federation but rather
“an adviser on security and defense of the Council of Ministers of the Republic of
Crimea”.1910
1904 Counter-Memorial (CERD), Appendix A, ¶¶34-39.
1905 Reply, ¶457. ¶
1906 Ibid.
1907Witness Statement of the Metropolitan of Simferopol and Crimea Klyment (Reply, Annex 4).
1908 Ibid., ¶6.
1909 Ibid., ¶10. .
1910 Ibid., ¶7.
Page 518 out of 541
11. Ukraine likewise complains of the investigation concerning the alleged abduction of Mr
Vdovchenko, 1911 despite the fact that the Russian Federation spared no efforts in
attempting to find individuals involved.1912 Now it suggests that investigation activities
“apparently came in 2017, over 3 years after the abduction”1913, pointing to the date of
the “Report on the Results of Operative Search Activities” presented by the Russian
Federation. As it is clear from the very title of the document, however, it is the Report
that dates from 2017; the date clearly does not relate to the investigation activities that
preceded it.
D. THE KOSTENKO AND PARALAMOV CASES
12. In regard to the alleged torture of Mr Kostenko and Mr Paralamov, Ukraine itself accepts
that the Russian Federation’s military investigative authorities investigated those
allegations, including by questioning FSB officers.1914 It is simply the result of these
investigations that Ukraine once again refuses to accept, apparently considering it
implausible that complaints of torture might be raised as part of a criminal defence
strategy. In the meantime, both Mr Kostenko and Mr Paralamov refused to pursue
complaints of torture;1915 Ukraine may argue they were coerced to do so,1916 but points
to no evidence in this regard.
13. What is more, Ukraine does not put forward any evidence that Mr Kostenko and Mr
Paralamov were tortured, nor that any alleged mistreatment was based on their ethnicity.
In fact, Ukraine does not deny that Mr Kostenko and Mr Paralamov were both involved
1911 Reply, ¶458.
1912 Counter-Memorial (CERD), Appendix A, ¶36.
1913 Reply, ¶458.
1914 Reply, ¶¶459-460.
1915 See Counter-Memorial (CERD), ¶¶54-56; See also Senior Forensic Investigator of the 534th Military
Investigative Department of the Military Investigative Directorate of the Investigative Committee of the Russian
Federation for the Black Sea Fleet, Resolution on the refusal to initiate a criminal case, 18 April 2015 (Counter-
Memorial (CERD), Annex 228); Investigator of the First Investigative Department for Investigation of High-
Priority cases of the Main Investigative Directorate of the Investigative Committee of the Russian Federation for
the Republic of Crimea, Resolution on the refusal to initiate a criminal case, 25 May 2015 (Counter-Memorial
(CERD), Annex 235); 534th Military Investigative Department of the Investigative Committee of the Russian
Federation, Resolution on the refusal to initiate a criminal case, 27 October 2017 (Counter-Memorial (CERD),
Annex 371). Prosecutor’s Office of the Republic of Crimea, Letter No. 27-239-2017/Np10860-2017 to the Military
Prosecutor’s Office of the Black Sea Fleet, 20 December 2017 (Counter-Memorial (CERD), Annex 584);
Prosecutor’s Office of the Republic of Crimea, Letter No. 27-239-2017/On6074-2017 to E.M. Kurbedinov, 20
December 2017 (Counter-Memorial (CERD), Annex 585).
1916 Reply, ¶459.
Page 519 out of 541
with extremist organisations (Samooborona Maidana and Hizb ut-Tahrir respectively),
as they themselves have acknowledged.1917
14. Thus, either individually or collectively, the cases referred to by Ukraine cannot be said
to show any signs of violation of the CERD. Ukraine has not shown — and cannot show
— that any of them can reasonably be capable of constituting racial discrimination, let
alone a “systematic racial discrimination campaign”, against the Crimean Tatars and
Ukrainians.
15. It is further of note that the investigative procedures in question have been reviewed by
the competent Russian authorities, namely the General Prosecutor’s Office of the Russian
Federation, the Investigative Committee of the Russian Federation, and, where
applicable, competent courts.1918 Ukraine’s mischaracterization of these investigations is
self-serving and misinformed.
16. Ukraine itself offers no justification in its Reply for failing to respond to Russian requests
for cooperation made in the context of various investigations, choosing instead to criticize
the timing of those requests.1919 Needless to explain, proper investigations do take time;
it is expected of Ukraine to lend assistance to them rather than hamper them.
17. The Russian Federation has sought to maintain public order and safety in Crimea, and, as
shown above, investigates alleged crimes that may cause a threat in this regard. At no
point did it promote or sponsor discrimination or violence against any ethnic group in
Crimea (or elsewhere). Given that the alleged crimes had nothing to do with racial
discrimination, obligations under Articles (2)(1)(b), 5(b) and 6 of the CERD do not arise
either.
1917Ibid.
1918 See, for example, Kievskiy District Court of Simferopol, Case No. 3/6-330/2014, Ruling authorizing the search
in Mr Paralamov’s house, 3 September 2014 (Counter-Memorial (CERD), Annex 181); Kievskiy District Court
of Simferopol, Republic of Crimea, Case No.444/2017, Ruling authorizing the inspection of R.R. Paralamov’s
house, September 2017 (Counter-Memorial (CERD), Annex 343); Military Prosecutor of the 309th Military
Prosecutor’s Office of the Garrison, Report on the examination of the legality of the decision to refuse to initiate
criminal proceedings, 20 February 2018 (Counter-Memorial (CERD), Annex 395); see also with respect to other
Ukraine’s allegations Head of the Directorate for Supervision of Criminal Procedural and Operative Search
Activities of the Prosecutor’s Office of the Republic of Crimea, Letter No. 15/1-382-2016/On4261-2017, 29
August 2017 (Counter-Memorial (CERD), Annex 339); Directorate for written appeals of Citizens and
Organisations of the Administration of the President of the Russian Federation, Letter No. A26-16-7216411, 24
January 2018 (Counter-Memorial (CERD), Annex 391).
1919 Reply, ¶¶461-462.
Page 520 out of 541
APPENDIX 4
NO DISCRIMINATION IN REJECTION TO GRANT PERMISSIONS TO
ORGANISE PUBLIC EVENTS IN CRIMEA
1. As the Russian Federation established in its Counter-Memorial, the various individual
instances of enforcement measures complained of by Ukraine have nothing at all to do
with racial discrimination1920. Contrary to Ukraine’s unsubstantiated claim, they were
neither arbitrary nor “pretextual”: anti-terrorist and anti-extremist measures against
banned extremist organizations are carried out in all relevant parts of the territory of the
Russian Federation and against all suspects, regardless of their ethnic background.
Ukraine’s account of the facts is thus at best inaccurate, and the Russian Federation
contests it. These is in particular confirmed by Expert Report of Mr Engel and Expert
Report of Prof Merkuryev, who brought relevant statistics that shows that the majority of
extremist organizations banned pertain to pseudo-religious organizations and Russian
extremist.1921
2. The following examples illustrate just how unfounded Ukraine’s claims are in regard to
law enforcement measures undertaken by the Russian federation in combatting
extremism.
A. THE CASE OF MR IBRAIM IBRAGIMOV
3. The court-approved search in question was conducted in the context of criminal
proceedings opened in June 2014 concerning goods stolen from another resident of
Bakhchisaray. Clearly, in regard to this and other cases, the fact that these goods were not
then found does not render the search unlawful. Ukraine itself accepts that extremist
literature related to Hizb ut-Tahrir was however found, along with firearm and
ammunition1922. Only naturally, this led to the commencement of further investigation
and eventually the opening of a criminal case for illegal possession of a firearm (article
222 (1) of the Criminal Code of the Russian Federation).
1920 Counter-Memorial (CERD), Appendix B.
1921 Expert Report of Vladimir Viktorovich Merkuryev, Chapter D (Annex 20); Second Expert Report of Valery
Viktorovich Engel, ¶¶103-108 (Annex 19); See also Witness Statement of Alexey Gayarovich Zhafyarov, ¶10
(Annex 22).
1922 Reply, ¶526.
Page 521 out of 541
B. THE CASE OF MR MARLEN MUSTAFAYEV
4. Mr Mustafayev was suspected of extremist activity, and following a search at his home
in 2017 was charged and convicted by Russian courts for the public dissemination of the
symbols of the terrorist organization Hizb ut-Tahrir. He notably pleaded guilty in 2018
to committing actions directed at incitement of hatred and enmity against other people on
radical religious grounds1923. Two new criminal cases were indeed brought against him
in 2022 (and later joined) for his continued dissemination of Hizb ut-Tahrir propaganda
on social media. His detention took place in accordance with the law, and his trial is
currently ongoing. Ukraine’s own account suggest that the measures taken had a
legitimate basis as he was suspected of extremist activity.
C. THE CASE OF MR GIRAI KULAMETOV,MR KEMAL SAITYAEV,MR ENVER KROSH AND
MR EBAZER ISLYAMOV
5. Proceedings against these individuals concerned investigations into Hizb ut-Tahrir’s
activities, and all of them were eventually found guilty and convicted for the
dissemination of the symbols of Hizb ut-Tahrir or other extremist materials1924. The
searches conducted at their homes were court-approved on the basis of a reasonable
suspicion of their involvement in public incitement to terrorist activity, incitement of
hatred and enmity against other people, as well as participation in the activity of a terrorist
organization. These were not “outrageous retroactive convictions”1925: arguments that the
prohibited information shared on the internet by these individuals had been posted by
them prior to the reunification of Crimea with the Russian Federation were the subject of
consideration by the courts; the latter came to the conclusion that the prohibited
information was subject to deletion from the moment when the legislation of the Russian
Federation took effect in the territory of Crimea1926.
1923 See also Counter-Memorial (CERD), Annex B, ¶¶43-44.
1924 See also Counter-Memorial (CERD), Annex B, ¶48.
1925 Reply, ¶534.
1926 Counter-Memorial (CERD), Chapter IV, Section C.
Page 522 out of 541
D. HOME SEARCHES AND ARRESTS OF CRIMEAN TATARS AFFILIATED WITH TERRORIST
ORGANIZATIONS IN OCTOBER 2016 AND OCTOBER 2017
6. In regard to searches that took place on 12 October 2016, for example, Ukraine does not
deny that evidence was indeed gathered against the individuals concerned from multiple
sources1927. Nor does it deny that Hizb ut-Tahrir materials were found during those
searches1928. Here and in regard to Crimean Tatars whose homes were searched on 2
October 2017, what Ukraine appears to be concerned with is the prison sentences handed
down against individuals who were affiliated with Hizb ut-Tahrir and Tablighi Jamaat,
and not that criminal affiliation itself, which Ukraine does not contest1929.
E. ALLEGED DISPROPORTIONATE LAW ENFORCEMENT ACTIONS AGAINST PERSONS
PARTICIPATING IN PROTESTS
7. In reply to Ukraine’s complaint that “numerous” Crimean Tatars who were at the scene
of home searches of suspected extremists in Bakhchisaray were detained and charged
with participation in a mass gathering causing a public nuisance.1930
8. It is further of note that according to statistics between the years 2015 and 2018, 1,610
administrative proceedings were initiated in the Russian Federation for violations of the
procedure for organising or holding a meeting of extremist/terrorist organizations (Article
20.2 of the Code of Administrative Offences of the Russian Federation); the vast majority
of persons against whom such proceedings were initiated were Russians. The total
number of people arrested was 7411931.
F. THE MEASURES AT THE CAFÉ “BAGDAD”, PIONERSKOE, ON 1 APRIL 2016
9. This operation was part of an ordinary preventive operation conducted by officers of the
Crimean offices of the Ministry of Internal Affairs, the Federal Drug Control Service, and
the Federal Migration Service, with the purpose of combatting illegal drug circulation and
1927 Reply, ¶535.
1928 Ibid.
1929 Reply, ¶¶535, 537
1930 Reply, ¶536.
1931 See ODV.info, Article 20.2 of the Code of Administrative Offenses: Application, available at:
https://data.ovdinfo.org/20_2/#/regions/RU (Annex 436).
Page 523 out of 541
countering illegal migration 1932 . The Russian Federation has already presented
explanatory statements of several individuals who were among those alleged by Ukraine
to have been detained but showing that in fact they were not, and were cooperating with
the State officials without being coerced to1933. To be more precise, these persons were
invited to the premises of the Center for Combating Extremism of the Ministry of Internal
Affairs of the Russian Federation in order to verify their identity. Nor was administrative
detention carried out, and no persons were forcibly delivered. Not a single one of them
claimed that State officers destroyed furniture or behaved wrongfully during the
operation, or that they were targeted on an ethnic basis. Ukraine has failed to refute this
evidence.
G. OPERATION “BARRIER-2015”
10. As to the operation “Barrier-2015” conducted in April 2015, Ukraine has not provided
any evidence of a discriminatory conduct based on ethnicity against Crimean Tatars
during random inspections and searching1934. The real context and nature of the operation
is also of importance, which Ukraine fails to mention. As the Russian Federation
previously explained, it was a country-wide-scale strategic training exercise carried out
by the Russian Ministry of Internal Affairs. The purpose of this was to master the plans
of cooperation between internal troops and other enforcement bodies. The “Barrier 2015”
operational strategic exercise obviously did not constitute discriminatory treatment, not
to mention a systematic campaign of racial discrimination.
11. The law-enforcement episode of 23 November 2017 was carried out to gather evidence
as part of a criminal investigation into extortion of money from Mr Aitan. As part of this
operation, Messrs Ametov, Degermendji, Trubach, and Chapukh were detained in
accordance with Russian law and eventually found guilty. FSB had grounds to suspect
their involvement in criminal conduct at the time of their arrest; ethnic identity was
immaterial.1935
1932 See Counter-Memorial (CERD), Annex B, ¶¶53-57.
1933 See Explanation, 13 July 2016 (Counter-Memorial (CERD), Annex 284), Explanation, 14 July 2016 (Counter-
Memorial (CERD), Annex 285), Explanation, 14 July 2016 (Counter-Memorial (CERD), Annex 286) (describing
circumstances of the MIA’s preventive operation in café “Bagdad” on 1 April 2016 and the consequent
questioning).
1934 Reply, ¶539.
1935 See Counter-Memorial (CERD), Appendix B, ¶64.
Page 524 out of 541
12. Law enforcement measures taken in the case of Mr Velilyaev and Mr Bariev were also
based on lawful and legitimate grounds. Both individuals and employees of their business
(the company KrymOpt) were charged under Article 238(2) of the Criminal Code of the
Russian Federation for storage and sale of food products whose use-by date had
expired.1936 It is obvious that the respective case relied on legitimate concern for public
health and sanitary issues, not to mention that sale of spoilt food to the population is a
criminal offense. In the course of the investigation, both Mr Velilyaev and Mr Bariev
admitted their guilt. On 26 March 2020, the Belogorskiy District Court of the Republic
of Crimea found them guilty of the charges raised against them. As their sentence had
been fully served during pre-trial detention, Mr Velilyaev and Mr Bariev were both
released upon delivery of the judgment.1937 Once again, Ukraine did not submit any
evidence that the measures were discriminatory on grounds of ethnicity.
13. The basic point remains that for racial discrimination within the meaning of the CERD to
be established, Ukraine would need to establish a (1) “distinction, exclusion, restriction
or preference” that is (2) “based on race, colour, descent, or national or ethnic origin” and
which had (3) “the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing” of human rights and fundamental freedoms. As with
other allegations put forward by Ukraine in the present case, none of these elements have
been established in regard to searches and detentions involving Crimean Tatars. Ukraine’s
claims cannot be sustained in this regard either.
1936 See Counter-Memorial (CERD), Appendix B, ¶68.
1937 See Counter-Memorial (CERD), Appendix B, ¶69.
Page 525 out of 541
APPENDIX 5
NO DISCRIMINATION IN REJECTION TO GRANT PERMISSIONS TO
ORGANISE PUBLIC EVENTS IN CRIMEA
1. In the Counter-Memorial, the Russian Federation addressed every individual instance of
decisions to postpone, relocate or cancel public events that Ukraine relied on in its
Memorial, and showed that all such decisions were legitimate, in accordance with Russian
law, and not at all discriminatory against Crimean Tatar or Ukrainian communities.1938
Ukraine’s Reply addresses only some of these cases,1939 which indicates that Ukraine no
longer insists on the rest of its claims. As regards the events that the Reply does address,
Ukraine’s arguments are unconvincing and misleading, as will be shown below.
A. THE 2014 SÜRGUN COMMEMORATION
2. The Russian Federation notes how Ukraine has softened its position on the 2014 Sürgün
commemoration. After claiming in the Memorial that it was “prohibited”,1940 the Reply
now states that the Crimean Tatars were “obstructed” in holding this event,1941 which
implies that they were able to do (as they were), but with some alleged limitations. Now
Ukraine’s complaint appears to be limited to the allegation that some Crimean Tatars
attempted to gather on the Lenin Square on 17 May 2014 but found it blocked by the
authorities.1942
3. The Mejlis, as the organizer of the event, was fully aware of the restrictions on the use of
the Lenin Square based on security issues. The website of the Mejlis contains numerous
news pieces dedicated to the 2014 Sürgun commemoration, posted in advance of the
event, which included detailed plans and schedules.1943 By the Mejlis’ own account, over
1938 Counter-Memorial (CERD), Appendix D, ¶¶30-54.
1939 In the Memorial Ukraine also referred to the following cases, but does not address them in the Reply:
Commemoration of the Death of Noman Ḉelebicihan in 2015; Private events (press-Conferences in 2014 and
2015); Shevchenko’s Birthdays outside of 2015.
1940 Memorial, ¶485.
1941 Reply, ¶589.
1942 Ibid., ¶589.
1943 See generally Mejlis, News (9 September 2013), available at:
https://web.archive.org/web/20140702114241/http:/qtmm.org/news/index/page/2 (Annex 164); Mejlis,
Procedure for Holding 18 May 2014 Memorial Events Dedicated to the Memory of Crimean Tatar People
Genocide Victims (17 May 2014), available at:
Page 526 out of 541
30,000 people participated in the event,1944 which exceeds the number of participants in
the 2013 Sürgün commemoration by around 5 000 people.1945 Thus, it is unclear why in
Ukraine’s view a mere venue change, which did not lead to a decrease of participants, but
instead made the event available to more people, would limit the Crimean Tatars’ ability
to commemorate the Sürgün and could be considered as racial discrimination.
4. Ukraine refers to the need for participants “to assemble within sight and sound of their
target audience, or at whatever site is otherwise important to their purpose”.1946 However,
Ukraine never explains why the Lenin Square (named after the Soviet leader) was
culturally significant for the Crimean Tatars to hold an event dedicated to
commemorating their ill-treatment by the Soviet Government. In fact, the choice of the
Lenin Square seems to be explained by mere practical reasons, such as more asphalt at a
square as compared to other venues, as well as its central location in the city of
Simferopol.1947 Thus, clearly, the Lenin Square bears no specific cultural significance to
Crimean Tatars.
5. Neither does Ukraine explain why the Ak-Mechet neighbourhood of Simferopol, where
the Mejlis did hold the Sürgün in accordance with the applicable legal requirements, was
not a suitable venue for the event – Ak-Mechet is a historical Crimean Tatar settlement,
previously the capital of the Crimean Tatar Khanate, of a very high cultural significance
to the Crimean Tatar people and hosting numerous historical buildings preserved from
the Khanate epoch. Ak-Mechet is still predominantly inhabited by Crimean Tatars, and
thus represents a much more suitable venue for a Crimean Tatar cultural event.
6. The desire to use the Lenin square may have been present because the Mejlis actually
used the Sürgün not as an event of commemoration, but as an opportunity to put political
https://web.archive.org/web/20140728215349/http:/qtmm.org/новости/4486-порядок-проведения-18-мая-
2014-года-мемориальных-мероприятий-посвященных-памяти-жертв-геноцида-крымскотатарского-
народа (Annex 165).
1944 Mejlis, “No Nation Can Exist without Its Historical Memory”, Refat Chubarov (18 May 2014), available at:
https://web.archive.org/web/20140728205426/http:/qtmm.org/новости/4489-ни-один-народ-не-может-
существовать-без-своей-исторической-памяти-рефат-чубаров (Annex 166).
1945 KP.ua, Rally in Memory of Deportation Victims Took Place in Crimea (18 May 2013), available at:
https://kp.ua/crimea/394378-v-krymu-proshel-mytynh-pamiaty-zhertv-deportatsyy (Annex 105).
1946 Reply, ¶590.
1947 Avdet, So that the youth remember (26 February 2000), available at: https://avdet.org/2000/02/26/strong-
CHtoby-pomnila-molodezh-Gulnara-Abdulaeva-Zazhgi-ogonek-v-svoem-serdtse-pod-takim-lozungom-17-
maya-Krymskotatarskij-Molodezhnyj-TSentr-KMTS-minuya-prepony-i-nedovolstva-so-storony-vlastej/ (Annex
106).
Page 527 out of 541
pressure (demands) on local authorities, in particular the Crimean Council of Ministers,
which is located in the Lenin Square.1948
7. To exemplify, in 2013, the Mejlis did hold the Sürgün at the Lenin Square. However, it
used this allegedly commemorative event to advance political demands against Crimean
authorities.1949
8. Thus, the press report on the website of the Mejlis mentions the following: “In the central
square of Ak'mesjit,1950 participants of the All-Crimean mourning rally held … banners
with the inscriptions “Mogilev!1951 Leave Crimea and take with you the team of “Council
of Akshakals 2”… “Give the Crimean Tatars the status of an indigenous people!”…“With
a chauvinistic snout – no way to the European Union”, and others. One of the senior
members of Mejlis, Mr Mustafa Dzhemilev demanded the immediate resignation of
Mogilev, and the investigation of his activities. 1952 Thus, the event was not used to
commemorate the deportation of Crimean Tatars, but to advance demands against
authorities, which is why a central location was required.
9. In 2014, Chubarov and the Mejlis also used the Lenin Square to stage provocations. For
instance, in February 2014, Chubarov demanded that the square be renamed, and the
Lenin monument be taken down. He also threatened to take action if his demands were
not complied with: “I think the leaders of other cities and regions of Crimea have heard
1948 Witness Statement of , Annex 17.
1949 Mejlis, Over 40,000 people took part in All-Crimean mourning rally dedicated to the 69th anniversary of the
deportation of Crimean Tatars (18 May 2013), available at:
https://web.archive.org/web/20140324063144/http:/qtmm.org/новости/2873-свыше-40-тысяч-человек-
приняли-участие-во-всекрымском-траурном-митинге-посвященном-69-й-годовщине-депортации-
крымских-татар (Annex 107); Milli Firka, Mejlismen want Mogilev's resignation (7 May 2013), available at:
http://milli-firka.org/меджлисмены-хотят-отставки-могилева/ (Annex 108); BBC, Anniversary of deportation:
Crimean Tatars want Mogilev’s resignation - BBC News Ukraine (17 May 2013), available at:
https://www.bbc.com/ukrainian/ukraine_in_russian/2013/05/130517_ru_s_crimea_tatars_deportation_anniv
(Annex 109).
1950 Crimean Tatar for Simferopol.
1951 At the time head of Crimean Government.
1952 Mejlis, Over 40,000 people took part in All-Crimean mourning rally dedicated to the 69th anniversary of the
deportation of Crimean Tatars (18 May 2013), available at:
https://web.archive.org/web/20140324063144/http:/qtmm.org/новости/2873-свыше-40-тысяч-человек-
приняли-участие-во-всекрымском-траурном-митинге-посвященном-69-й-годовщине-депортации-
крымских-татар (Annex 107).
Page 528 out of 541
us. If not, we will take action… In 10 days, be ready for a new call. We gave them 10
days. There are 10 thousand of us today, in 10 days there will be 50-60 thousand”.1953
10. Therefore, given extremist methods used by the Mejlis and its bosses as explained above,
it was reasonable to expect that further provocations would be staged at the Lenin Square
by Chubarov and the Mejlis.
B. THE CRIMEAN TATAR FLAG DAY ON 26 JUNE 2015
11. Ukraine disputes the measures concerning the celebrations of the Flag day on 26 June
2015.1954 In the Reply, Ukraine’s only argument appears to boil down to the fact that the
application to hold an event was dismissed despite the organisers providing alternative
dates or venues for the event.1955 However, neither the originally cited source,1956 nor any
further evidence adduced by Ukraine in the Reply, 1957 show what such proposed
alternative venues or times were, or whether they were actually appropriate or safe for a
public event, and whether the resubmitted applications were in compliance with the other
requirements of Russian law.
12. In fact, the organisers of the Flag Day celebrations themselves issued a statement that
they merely suggested to move their celebration to the next day – 27 June 2015.1958
However, as the Russian Federation has demonstrated in the Counter-Memorial, the
location was already occupied for the entire weekend period between 26 June and 28 June
2015.1959 Therefore, it made no sense to request permission to hold a meeting on 27 June
instead of 26 June, being aware that the venue would not be available until after 28 June.
Therefore, rejection of this application did not show any violation of the law, let alone
any racial prejudice.
1953 Centre for Investigative Journalism, Mejlis gives authorities 10 days to demolish Lenin monuments in Crimea
- Centre for Investigative Journalism (23 February 2014), available at: https://investigator.org.ua/en/news/119259/
(Annex 110).
1954 Reply, ¶592.
1955 Ibid., ¶592.
1956 Memorial, Annex 961, p. 4.
1957 Reply, ¶592, footnote 1179.
1958 Haberler, The Organising Committee Has Filed Another Application for the Celebration (3 June 2015),
available at: https://web.archive.org/web/20150710141231/http:/bayraq.info/haberler/72-orgkomitet-podaleshche-
odno-zayavlenie-na-provedenie-prazdnika html (Annex 111).
1959 Counter-Memorial (CERD), Annex 554.
Page 529 out of 541
13. In addition, Article 3.2 of the Resolution of the Administration of the City of Simferopol
of the Republic of Crimea “On Approval of the Regulations on the Procedure for
Organizing and Holding Mass Events in the Territory of the Municipality of City District
of Simferopol of the Republic of Crimea” No. 128, dated 23 March 2015, which governs
the organisation of public events and applies to the situation at hand, allows organisations
to hold joint mass events, if they are united by a common theme.1960 Because both the
approved event that went on, and the event Ukraine complains of were aimed at
celebrating the Crimean Tatar Flag, it could have been reasonably possible to hold a joint
event.
14. Accordingly, there are no grounds to suggest that the applications were dismissed based
on any ethnic prejudice. As the Russian Federation demonstrated in its Counter-
Memorial, widespread celebrations were held on 26 June 2015,1961 and Ukraine does not
dispute this in the Reply.
C. THE SÜRGÜN COMMEMORATION IN 2015
15. As regards the Sürgün commemoration of 2015, Ukraine does not dispute the fact that
Qirim’s application was submitted about six hours earlier,1962 which is the reason for
Qirim’s application being granted. This is merely a case of one Crimean Tatar
organization acting faster than the other in organizing a public event. Ukraine provides
no evidence substantiating its allegations that Qirim was a “blocking device”, and relies
merely on speculations.1963 Likewise, Ukraine fails to comment on the fact that there
have been no judicial challenges to any refusal of applications to commemorate
Sürgün. 1964 Thus, Ukraine failed to show that what happened in this instance was
anything more than one organisation filing an application requesting permission for a
culturally significant public events hours earlier than the other – or that there was any
discrimination based on ethnicity involved.
1960 Administration of the City of Simferopol of the Republic of Crimea, Resolution No. 128 “On Approval of the
Regulations on the Procedure for Organizing and Holding Mass Events in the Territory of the Municipality of City
District of Simferopol of the Republic of Crimea”, 23 March 2015, Article 3.2 (Annex 443).
1961 Counter-Memorial (CERD), Appendix D, ¶39.
1962 Reply, ¶594.
1963 Reply, ¶¶594-595.
1964 See Counter-Memorial (CERD), Appendix D, ¶28.
Page 530 out of 541
16. This would also be the appropriate place to refute Ukraine’s contentions on specially
assigned places, as if the regulation was applied discriminatory against Crimean
Tatars.1965 According to the Resolution of the Council of Ministers of Crimea No. 452,
which provides for a list of specially assigned places, in the City of Simferopol, four
places have been “specially assigned”:
(a) Territory in front of the Private institution “Crimean Republican Palace of Culture
of Trade Unions”;
(b) The area in front of the center of culture and business “Consol”;
(c) Park named after Yu.A. Gagarin (from the sculptural composition “Three Graces”
along the pedestrian zone located along the ponds);
(d) Area from the territory of the Private Institution “Crimean Republican Palace of
Culture of Trade Unions” along the pedestrian zone located along Kievskaya str. to
the Salgir River.1966
17. The 2015 Sürgün Commemoration was ultimately approved for the Crimean Tatar Qirim
in more locations – namely, at Vorovskogo str., at the monument to I. Gaprinsky, in the
“Fontany” microdistrict, between the building of the State Council of the Republic of
Crimea and the Pobedy public garden, in the Gagarin Park, in the Territory in front of the
Crimean Republican Palace of Culture of Trade Unions, in the Public garden near the
Railway station, and in front of the culture and business center “Konsol”.1967 This is
direct proof that Crimean Tatars were also allowed to hold events in places outside of the
“specially assigned” list, which Ukraine conveniently overlooks.
D. HUMAN RIGHTS DAY 2015
18. As regards the celebration of the 2015 Human Rights Day, Ukraine consistently fails to
explain why this universal human rights event should be considered a “culturally
significant gathering” for the Crimean Tatar people, as if a particular ethnicity had a
“special claim” to a universal celebration of human rights. This cynical claim is on par
1965 Reply, ¶¶596-597.
1966 Counter-Memorial (CERD), Annex 74.
1967 Counter-Memorial (CERD), Annex 550.
Page 531 out of 541
with Ukraine’s other claim – that for some reason only anti-Russian political affiliation
is permissible for Crimean Tatars, and those who support Crimea’s unification with
Russia are not “real” Crimean Tatars but “illegitimate” “proxies”. The 2015 Human
Rights Day claim is particularly appalling because this event was cancelled due to the
cutting off of power supply to Crimea, which left the entire peninsula in deficit of
electricity, severely impacting, inter alia, the Crimean Tatar community. This energy
blockade was inspired, organised and physically perpetrated by the Mejlis and its
activists, including Mustafa Dzhemilev and Refat Chubarov.1968 Ukraine continuously
tries to downplay the severity of the blockade against Crimea, but in reality after Mejlis
tried to destabilise the situation in Crimea by economic blockade and by leaving the
population of Crimea with no electricity or food in deteriorating conditions,1969 it was not
reasonably possible to hold any public events in Crimea. Ukraine’s referral to the 27
November 2015 event is irrelevant because the Decision on the application in question
was only taken after that date – namely, on 3 December 2015. 1970 As the Russian
Federation explained in the Counter-Memorial, the situation got significantly worse after
27 November 2015, which ultimately ruled out any possibility for public events due to
the state of public emergency caused by the lack of electric power and the necessity to
deploy police to protect socially-significant objects once they were without energy.1971
Ukraine does not submit any evidence that the emergency regime was applied differently
in respect to any other community.
19. In the Reply, Ukraine mentions that on 8 December 2015 the Russian Ministry of Energy
was able to restore power supply in Crimea and suggests that “[i]f power had been
restored, it is unclear why the International Human Rights Day event could not have been
held on 10 December”.1972 The simple answer to this is that the Mejlis application was
submitted, and rejected, before power supply was restored. After the restoration of power
supply on 8 December the Mejlis did not submit any requests for a public rally, either for
10 December or for any other day that year.
1968 See also Chapter IV(C).
1969 The Russian Federation explains the blockade’s effects on Crimean Tatars in a different part of this Rejoinder.
1970 Counter-Memorial (CERD), Annex 560.
1971 Counter-Memorial (CERD), Appendix D, ¶¶37-38.
1972 Reply, ¶600.
Page 532 out of 541
E. THE SÜRGÜN COMMEMORATION 2016
20. With respect to the Sürgün 2016 Commemoration, Ukraine fails to explain the actions of
the organisers, including why they declined alternative options suggested to them by the
Crimean authorities due to works taking place in the location applied for, which mandated
a different venue. In the Counter-Memorial, the Russian Federation explained that the
authorities offered the organizer other options, including to hold the planned meeting in
the morning at 9 a.m. before the works commence so as to avoid their interruption, or to
hold with other citizens a joint cultural event of laying flowers at the commemorative
plaque, which had previously been planned at the indicated place and time. The applicant
refused to agree to any suggested solutions.1973
21. Ukraine completely disregards this, and continues to promote the false narrative
according to which the organisers were denied any opportunity to commemorate the
Sürgün. However, the organisers’ own failure to consider alternative venues, in spite of
the perfectly reasonable grounds behind the refusal to hold the public event in the Voinka
Village, once again cannot be framed as racial discrimination.
F. BAKHCHISARAY FINES
22. Ukraine likewise continues to mislead the Court on the essence of the 2017 Bakhchisaray
fines.1974 Ukraine does not dispute that Crimean Tatar flags have been freely displayed at
other events in Crimea without restriction and are indeed displayed all over Crimea on a
daily basis. As the Russian Federation explained in the Counter-Memorial1975 – and what
Ukraine also does not dispute – the persons in questions were (modestly) fined not for
displaying Crimean Tatar flags (which is itself permissible) but for failing to comply with
the procedural requirements of Russian law to notify the authorities of such planned
public events in advance.
23. Ukraine’s position on this incident appears to suggest that being part of an ethnic group
exempts one from the obligation to comply with the requirements of local law concerning
1973 Counter-Memorial (CERD), Appendix D, ¶30.
1974 Reply, ¶603.
1975 Counter-Memorial (CERD), Appendix D, ¶31.
Page 533 out of 541
public events, and that holding one accountable for violating that local law constitutes
racial discrimination. This proposition is obviously untenable.
G. ALLEGED DISCRIMINATION AGAINST UKRAINIAN COMMUNITY
24. In the Reply Ukraine expands on two cases, which it considers indicating a “pattern of
discrimination” against the ethnic Ukrainian community in Crimea.1976 Such claims are
likewise unfounded.
25. In respect of Mr Sergey Dub, Ukraine merely disputes that that the accusations against
him were “without evidence”. 1977 However, the Russian Federation produced such
evidence in the Counter-Memorial, which confirms that Mr Dub was rightfully held by a
court to be responsible for using foul language under Article 20.1 of the Code of
Administrative Offences of the Russian Federation.1978 This is an ordinary misdemeanour
for which thousands of people are fined every year.1979 The Russian Federation also noted
that Mr Dub never challenged the decision against him. Ukraine does not engage with
the evidence that the Russian Federation presented, nor does Ukraine present any
alternative evidence or point of view on the case. Accordingly, this case is entirely
irrelevant to the claims advanced by Ukraine under the CERD.
26. With respect to the restrictions placed on the celebration of the Shevchenko birthday in
2015, Ukraine does not deny that certain participants turned a social event into a political
rally, provoking the attendants. Such provocations can usually lead to public disorder and
violence, which is exactly what happened in 2014, when a similar celebration of
Shevchenko’s birthday ended in a scuffle.1980
27. Instead of commemorating the poet’s accomplishments and his work, the individuals
concerned started making political statements. Distracting the Court from what happened
1976 Reply, ¶¶605-610.
1977 Reply, ¶606.
1978 See Central District Court of Simferopol of the Republic of Crimea, case No. 5-930/2014, Decision, 24
September 2014 ((Counter-Memorial (CERD), Annex 191)).
1979 For example, in 2021, over 150 000 people were fined under Article 20.1 of the Code of Administrative
Offences of the Russian Federation, see Judicial Statistics of the Russian Federation on Administrative Offences,
Article 20.1 of the Code of Administrative Offences, 2021, available at: https://stat.xn----7sbqk8achja.xn--
p1ai/stats/adm/t/31/s/1 (Annex 442).
1980 Counter-Memorial (CERD), Appendix D, ¶48.
Page 534 out of 541
in reality, Ukraine discusses whether the actions of the Russian authorities meet the
standard for restricting the freedom of assembly and expression under international
human rights law. 1981 However, whether the Russian Federation’s actions met the
relevant standards under the ECHR or the ICCPR is not the appropriate subject of
discussion for this particular issue before this Court.
28. In reality, the Russian Federation did not in any way restrict the possibility for the
participants of the event in question to commemorate Taras Shevchenko and honor his
works. The Crimean authorities interfered only when a few participants started shouting
provocative slogans that were completely unrelated to Mr Shevchenko’s birthday and did
so to prevent what happened a year prior.1982 Thus, Ukraine failed to show that these
measures discriminated against ethnic Ukrainians.
29. Ever since, Ukrainian communities have peacefully celebrated Shevchenko’s birthday
every year, including in 2022.1983 Thus Ukrainians, have all the opportunities to publicly
celebrate Shevchenko’s birthday. The events described by Ukraine were aimed at
preventing social unrest, and not at hampering the opportunity for ethnic Ukrainians to
celebrate their culture.
1981 Reply, ¶609.
1982 See Appendix 5, ¶26 above.
1983 Gorod 24, Simferopol Celebrates Taras Shevchenko’s Birthday (10 March 2022), available at:
https://gorod24.online/simferopol/news/238837-v_simferopole_otmetili_den_rojdeniya_tarasa_shevchenko html
(Annex 112).
Page 535 out of 541
APPENDIX 6
INDIVIDUAL INSTANCES OF MEDIA OUTLETS TO PASS REGISTRATION
PROCEDURE SHOWS NO DISCRIMINATION BASED ON ETHNIC ORIGIN
1. At the outset it should be noted that Ukraine failed to disprove the fact that the majority
of Crimean media outlets in Crimea successfully passed the re-registration procedure.1984
Ukraine portrays a few individual instances of failure to do so as examples of
discrimination based on ethnic origin. However, those are simply due to the noncompliance
of the applicants with the requirements of the Russian legislation. Ukraine
does not show that there was any prejudice against those applicants at all, let alone any
prejudice based on their ethnicity. Ukraine also fails to provide evidence to the effect
that any other media outlet which would similarly disregard the applicable law would be
excused for it and granted registration, or that the decisions of the relevant competent
bodies were based on any discriminatory grounds including ethnicity.
2. As has been shown in Chapter III, measures taken legitimately with the aims of preventing
public disorder and protecting national security and are not discriminatory. 1985 The
Russian Federation has demonstrated this in the Counter-Memorial with regard to the
media organizations to which Ukraine refers, and will further elaborate on that below.
A. AVDET NEWSPAPER
3. Ukraine’s references to the denial of the registration of Avdet newspaper are
erroneous. 1986 Ukraine does not provide any evidence that Avdet’s registration was
denied on a discriminatory basis. Notably, Ukraine does not contest that: (1) the first and
second applications of Avdet had procedural defects; and (2) Avdet did not challenge the
denial before the competent courts. As regards Avdet’s third application,1987 contrary to
Ukraine’s allegations, Avdet did receive a response that it did not comply with Article 13
of the Law “On Media”. 1988 . Ukraine may not claim the Russian Federation’s
1984 Roskomnadzor, 232 Media Outlets Registered in Crimea (2 April 2015), available at:
https://rk.gov ru/ru/article/show/1502. (Annex 128)
1985 See above, Chapter III(F).
1986 Reply, ¶635.
1987 Ibid., ¶634.
1988 Roskomnadzor, Letter dated 26 March 2015 No. 571-05-91 (Annex 124).
Page 536 out of 541
responsibility under the CERD for Avdet’s own failure to register its status in compliance
with the law.
4. Having failed to comply with the legislation, Avdet decided not to file a proper
application to be registered and made good of the permission to continue its activity after
adjustment of the volume of it printing circulation. 1989 In this regard, Avdet also
maintains a website, where this newspaper and other materials are available in Crimean
Tatar, Russian and English.1990 This website is not subject to any restrictions and is easily
accessible in the Russian Federation.
5. Although Ukraine tries to present 1 April 2015 as a preclusive deadline for the registration
of media in Crimea, in fact all interested organizations could file their applications for the
re-registration after that date as well; the only difference would be that the registration
after 1 April 2015 would proceed on a regular basis, applicable to all media, with no
simplified procedures introduced by the Federal Law of 1 December 2014 No. 402-
FZ.1991
B. CHERNOMORSKAYA TV
6. Ukraine misrepresents the course of events concerning Chernomorskaya TV. A review
of the operation of Chernomorskaya TV in the years prior to Crimea’s reunification with
the Russian Federation shows no hint of ethnic discrimination, but rather a picture of
severe financial problems dating back to 2010 (with media describing the situation as
critical1992), which does not correspond to what Ukraine argues.
1989 See, for example, Avdet, Newspaper No 27 of 29 September 2020 (30 September 2020), available at:
https://avdet.org/wp-content/uploads/2020/09/gazeta-avdet-27-ot-29-sentjabrja-2020-g..pdf (Annex 131); see also
Counter-Memorial (CERD), Appendix E, ¶27.
1990 See https://avdet.org/
1991 Roskomnadzor, 232 Media Outlets Registered in Crimea (2 April 2015), available at:
https://rk.gov ru/ru/article/show/1502. (Annex 128); See also the Federal Law of 1 December 2014 No. 402-FZ
“On the peculiarities of legal regulation of relations in the field of mass media in connection with the admission
of the Republic of Crimea to the Russian Federation and the formation of new subjects within the Russian
Federation - the Republic of Crimea and the federal city of Sevastopol”, Article 2, available
at:http://www.consultant ru/document/cons_doc_LAW_171583/1d13e9394279f71a6e2276fd25f6d4d725d7c04a/
(Annex 470); see also Counter-Memorial (CERD), Appendix E, ¶10.
1992 Investigative Journalism Centre, BSTRC Threatened with Discontinuation of Broadcasting in Crimea (13
January 2014), available at: https://investigator.org.ua/news/114144/ (Annex 155).
Page 537 out of 541
7. In 2013, workers of Chernomorskaya TV began a strike because they were not paid their
wages. The management of the company refused to promptly satisfy the demands of the
journalists:1993
“I personally and in front of witnesses declared this to the president of the
television and radio company… She replied that she knew about our demands
and about the strike. She made it clear that they are not going to pay
journalists yet,” Andronaki wrote on his Facebook page.
8. In January 2014, reports came out showing that Chernomorskaya TV was still over 1.6
million in debt and unable to pay its employees, as well as to cover its electricity bills.1994
All these reports show that well before Crimea reunited with the Russian Federation,
Chernomorskaya TV was in a dire financial situation.
9. Accordingly, Ukraine mischaracterized the dispute between Chernomorskaya TV and
RTPC in 2014, which is nothing more than an ordinary civil dispute between two entities.
10. The Resolution of the Appeal Court, which introduced the interim measures against
Chernomorskaya TV’s property, clearly indicated the reasons for doing so, and for
overturning the Ruling of the 1st instance Court, which declined such measure:
“Thus, from the materials of the case it is seen that in the letters Ref. No.
131220/03, ref. No. 140114/02 and ref. No. 140428/01, the defendant
acknowledged the fact that it had a debt (pp. 94, 116-119 volume 1), and in
support of its obligations sent a schedule for its repayment (p. 120 volume 1).
Moreover, by letter ref. No. 140506/01yu dated 6 May 2014, the
Chernomorskaya Television and Radio Company Limited Liability Company
offered to pay off the resulting debt under contract No. 02/01-2007 dated
March 30, 2007 in one payment and asked the state enterprise Radio and
Television Transmitting Center of the Autonomous Republic of Crimea to
issue an invoice for payment. On 12 May 2014, the plaintiff issued and sent
to the defendant an invoice No. SF-0000880 in the amount of 3,014,774.15
rubles. (p. 121 volume 1).
However, as follows from the response to the statement of claim dated 19
June 2014 (entry No. 23810/2014), Chernomorskaya TV and Radio Company
LLC did not recognize the claim and asked the court to refuse to satisfy it (pp.
103-104 volume 1). These circumstances, according to the court, indicate a
change in the position of the debtor in the dispute, which may cast doubt on
his voluntary performance of obligations, and also allows the court to make
1993 Investigative Journalism Centre, Employees of BSTRC, Crimea’s Largest TV Company, Walked Out (7
February 2013), available at: https://investigator.org.ua/en/news/72786/ (Annex 156).
1994 Taurica.net, BSTRC Begins Repaying Debts to RTTC (20 January 2014), available at: https://taurica net/90873-
Chernomorskaya-teleradiokompaniya-nachala-oplachivat-dolgi-pered-RTPC html (Annex 157).
Page 538 out of 541
an assumption about the impossibility or difficulty of enforcing a judicial
act...”1995 [Emphasis added]
11. Subsequently, after the Court considered the case on the merits and dismissed the claims
against Chernomorskaya TV, its property was returned to it. Despite Ukraine’s attempts
to portray an ordinary civil law case as an instance of ethnic discrimination, this is clearly
not the case.
12. It should also be noted that Chernomorskaya TV did not in fact apply to competent
Russian authorities for a broadcasting license. Thus, a claim that it was discriminated
against is absurd, as the company did not even pursue the opportunity of broadcasting in
the Russian Federation.
C. ATR TV CHANNEL
13. As regards ATR TV Channel, Ukraine likewise misrepresents the facts.
14. Ukraine argues that “Mr. Islyamov was condemned for daring to give voice to the
Crimean Tatar people’s conviction that Crimea remained part of Ukraine”.1996 In doing
so, Ukraine conveniently tries to hide the real face of the company, as well as its controller
– Mr Lenur Islyamov. It is also not clear on what basis Ukraine asserts that Mr Islyamov
is a voice of the Crimean Tatar people. Mr Ervin Musaev, who has submitted a witness
statement attached to this Rejoinder, specifically disputes ATR’s and Islyamov’s claims
to be the voice of Crimean Tatars, pointing out that the channel exploited the Crimean
Tatar agenda when it benefitted Islyamov, and was not popular among Crimean Tatars
according to Mr Islyamov himself.1997
15. As the Russian Federation highlighted elsewhere, 1998 Mr Islyamov was not a mere
peaceful protester, who expressed his disagreement with Crimea reuniting with the
Russian Federation in a civilized manner. He was one of the ideologists and leaders of
1995 Sevastopol Commercial Appeal Court, Case No. A83-112/2014, Resolution, 31 July 2014, available at:
https://21aas.arbitr ru/node/13305 (Annex 437).
1996 Reply, ¶641.
1997 Witness Statement of Ervin Kyazimovich Musaev, ¶¶27-28 (Annex 33). See also Witness Statement of
22 February 2023, ¶19 (Annex 11); See also Witness Statement of , 18
February 2023, ¶¶7-8 (Annex 27).
1998 See above, Chapter IV(C).
Page 539 out of 541
the Crimean blockade, which was organized together with neo-Nazi movements,1999 and
was aimed at leaving Crimea without food or electricity.
16. Subsequently, Mr Islyamov formed a military battalion in order to destabilize the
situation in Crimea and “facilitate its return to Ukraine”:
“The battalion will include 560 people. They will deal with the tasks set by
the General Staff. But the main task is to protect the border of Crimea in
Crimea itself. We will do our best to bring Crimea closer as soon as possible.
The task of this battalion is to strike in a way that we can only know……”2000
17. On a press-conference devoted to energy blockade of Crimea Lenur Islyamov publicly
called Crimean Tatars to armed jihad:
“We are waiting for your children here. This is a liberation jihad for us. Yes,
some of you will shed blood, yes, some of you will die, but we need to fight!
We will have to do it, at the cost of blood of certain people as well.”2001
18. Mr Islyamov also suggested introducing a naval blockade of Crimea, and opined that it
would be “patriotic” to attack ships transferring goods to Crimea.
“If there were more patriots from Odessa, then it would be possible to attack
ships with small boats when they allegedly go to Skadovsk, while they
themselves are transporting goods to the Crimea”2002
19. It is telling that “patriotism” in the understanding of Mr Islyamov is to deprive Crimeans
of essential supplies required for day-to-day life. The ATR Channel itself also
consistently promoted and celebrated the blockade, calling for “fighting the aggressor”,
and advocating for inhumane measures that the blockade organisers decided to undertake,
1999 Witness Statement of , 22 February 2023, ¶17 (Annex 11). See also above i
2000 Odessa Crisis Media Center, “We’ll Return Crimea in 2016”, Says Lenur Islyamov (25 December 2015),
available at: https://web.archive.org/web/20160207145939/http://www.odcrisis.org/lenur-islyamov2/ (Annex
158); See also Witness Statement of , 9 June 2021, ¶¶16-18 (Counter-Memorial
(CERD), Annex 19); Second Witness Statement of , 27 February 2023, ¶16 (Annex
15).
2001 Komsomolskaya Pravda, “Inglourious extremists: How a runaway businessman wanted to ‘advance to Crimea’
but failed” (14 January 2020) (Counter-Memorial (CERD), Annex 1015.)
2002 Odessa Crisis Media Center, “We’ll Return Crimea in 2016”, Says Lenur Islyamov (25 December 2015),
available at: https://web.archive.org/web/20160207145939/http://www.odcrisis.org/lenur-islyamov2/ (Annex
158).
Page 540 out of 541
which can be seen in information available online and in recollections of Crimean
Tatars.2003
20. To sum up, Mr Islyamov has been consistently promoting radical ideas of violence,
including through his channel ATR, and actively acted to realize them. Those ideas,
which include proposals for military actions against the Russian Federation itself, as well
as the blockade, which directly targets ordinary Crimeans and their well-being, are very
far from the “peaceful protest” that Ukraine is trying to present them as.
21. It should also be noted that ATR tried applying for a license, but its applications were
returned without consideration because ATR failed to meet the most basic formal
requirements – such as paying the state fee to the correct requisites, or submitting
information on the company that complies with the requirements of the Unified State
Register of Legal Entities (EGRUL).2004 Ukraine must not be allowed to blame ATR’s
incompetence on the Russian Federation and accuse it of violating the CERD. In this
regard, it should be noted that former employees of the ATR Channel, even those, who
did not initially support Crimea’s reunification with the Russian Federation, have
successfully opened media outlets and web-resources in Crimea, which operate with no
restrictions.2005
22. On the other hand ATR that was moved to Kiev by Mr Islyamov discontinued its work in
2021 for financial reasons.2006
2003 Facebook, ATR TV Channel, “This Is Our Second Victory. First One Was Trade Blockade of Crimea”, Liza
Bogutskaya Says (17 August 2017), available at:
https://www.facebook.com/atrchannel/posts/1587344634620099/ (Annex 159); See also Witness Statement of
Ervin Kyazimovich Musaev, ¶¶9-13, 27 (Annex 33); Witness Statement of , 22 February
2023, ¶¶17-19 (Annex 11); Youtube, Civil Blockade of Crimea: How it all started three years ago and what its
results were (20 September 2018), avalable at:
https://www.youtube.com/watch?v=_2J5XG_qgjs&ab_channel=%D0%A2%D0%B5%D0%BB%D0%B5%D0%
BA%D0%B0%D0%BD%D0%B0%D0%BBATR (Annex 33 Exhibit H).
2004 Counter-Memorial (CERD), Appendix E, ¶¶46-49.
2005 Witness Statement of , 18 February 2023, ¶9 (Annex 27).
2006 Witness Statement of , ¶28 (Annex 33).
Page 541 out of 541
CERTIFICATION
I hereby certify that the annexes are true copies of the documents referred to and that the
translations provided are accurate.
Agent of the Russian Federation
Alexander V. SHULGIN
The Hague, 10 March 2023
INDEX OF ANNEXES
Number: Name:
Annex 1 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on the
results of studies related to the technical investigation into the crash of the
Malaysian airlines Boeing 777-200 9M-MRD (flight MH17), 2023.
Annex 2 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on the
conduct of a full-scale experiment, 2016.
Annex 3 Report of JSС Air and Space Defense Corporation "Almaz-Antey" on a flight
test of the air-route radar complex "Utes-T" located at the air-route radar
position "Ust-Donetsk" at the Rostov Regional Centre of the Russian Federation
Unified Air Traffic Management System, 2019.
Annex 4 Second Expert Report of Alexander Alekseevich Bobkov, 10 March 2023.
Annex 5 Expert Report of Vladislav Alexeyevich Filin, 10 March 2023.
Annex 6 Expert Report of Yuri Vladimirovich Bezborodko, 10 March 2023.
Annex 7 Expert Report of Oleg Serzhevich Bondarenko, 10 March 2023.
Annex 8 Second Expert Report of Valery Alexeyevich Samolenkov, 10 March 2023.
Annex 9 Witness Statement of , 10 March 2023.
Annex 10 Second Witness Statement of , 22 February
2023.
Annex 11 Witness Statement of , 22 February 2023.
Annex 12 Witness Statement of , 22 February 2023.
Annex 13 Second Witness Statement of Aider Serverovich Ablyatipov, 22 February 2023.
Annex 14 Witness Statement of , 2 March 2023.
Annex 15 Second Witness Statement of , 27 February 2023.
Annex 16 Witness Statement of Tatyana Anatolyevna Manezhina, 7 March 2023.
Annex 17 Witness Statement of , 6 March 2023.
Annex 18 Expert Report of Alexei Stanislavovich Avtonomov, 28 February 2023.
Annex 19 Expert Report of Valery Viktorovich Engel, 28 February 2023.
Annex 20 Expert Report of Viktor Viktorovich Merkuryev, 1 March 2023.
Annex 21 Expert Report of Sergey Miroslavovich Markedonov, 8 March 2023.
Annex 22 Witness Statement of Alexei Gayarovich Zhafyarov, 28 February 2023.
Annex 23 Second Witness Statement of , 7 March 2023.
Annex 24 Expert Witness Statement of , 6 March 2023.
Annex 25 Witness Statement of Valentina Vasilyevna Lavrik, 7 March 2023.
Annex 26 Witness Statement of , 2 March 2023.
Annex 27 Witness Statement of , 18 February 2023.
Annex 28 Witness Statement of , 7 March 2023.
Annex 29 Witness Statement of , 7 March 2023.
Annex 30 Witness Statement of , 22 February 2023.
Annex 31 Witness Statement of , 3 March 2023.
Annex 32 Witness Statement of , 2 March 2023.
Annex 33 Witness Statement of , 7 March 2023.
Annex 34 , Informational Note.
Annex 35 Ministry of Internal Affairs, Information on the number of missing persons in
the Republic of Crimea and the City of Sevastopol between 2014 and 2022, No.
3466/dp, 22 February 2023.
Annex 36 Uspishna Varta, THE RIGHT TO FREEDOM OF SPEECH AND OPINION IN UKRAINE:
THREATS AND OPPORTUNITIES, 2018.
Annex 37 Mediacentre n.a. I. Gasprinsky, Letter, 2 March 2023.
Annex 38 Council of Ministers of the Republic of Crimea, Letter No. 1/01-46/8775/3/3/2,
14 February 2023.
Annex 39 A. Dyukov, M. Vilkov, FROM MURDERS TO POGROMS: UNPUNISHED VIOLENCE
FROM THE SIDE OF RIGHT-WING ACTIVISTS AGAINST ROMA IN UKRAINE
(Warsaw, 2018).
Annex 40 S. Vnukov, O. Sharov, CRIMEA - TAURIDA. ARCHAEOLOGICAL RESEARCH IN
CRIMEA IN 2017-2018 (Institute of Archeology RAS, 2019, Vol. 1).
Annex 41 S. Kozlov, GRU SPETSNAZ: FIFTY YEARS OF HISTORY, TWENTY YEARS OFWAR
(Russkaya Panorama Publishers, Essays on Contemporary History Series,
2003).
Annex 42 Vzglyad, Seven Major War Crimes Committed by Ukraine against Donbass
Residents (8 May 2022).
Annex 43 Lostarmour, Shelling of the Mirny and Gaevogo Quarters by Grad MLRS Units
on 14 July 2014 (29 November 2021).
Annex 44 LiveJournal, Lest We Forget – How Lugansk Was Shelled in July 2014 (15 July
2018).
Annex 45 MigNews, Mirny and Gaevogo Quarters Attacked by Grad MLRS in Lugansk.
PHOTOS. VIDEOS (15 July 2014).
Annex 46 VESTI.ru, Airstrike at Snezhnoye: Militiamen Report Dead Civilians (15 July
2014).
Annex 47 RT, “Still No Answer”: Eighth Anniversary of Tragic Shelling of Children
Beach in Zugres (13 August 2022).
Annex 48 TASS, Ukrainian Shelling Killed at Least 11 in Donetsk (28 August 2014).
Annex 49 Letter from the Office of the Prosecutor General of the Russian Federation No.
82/1-5094-15, 7 February 2017.
Annex 50 Letter from the Office of the Prosecutor General of the Russian Federation No.
82/1-5100-15, 20 October 2016.
Annex 51 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-5095-15, 18 November 2016.
Annex 52 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-5099-15 dated 16 November 2016.
Annex 53 Letter from the Office of the Prosecutor-General of the Russian Federation No.
87-200-2015, 29 February 2016.
Annex 54 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-2791-15, 25 September 2015.
Annex 55 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-1897-17, 28 February 2019.
Annex 56 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-5598-17, 19 December 2018.
Annex 57 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-580-17, 22 June 2017.
Annex 58 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82/1-3545-15, 11 February 2016.
Annex 59 Letter from the Office of the Prosecutor-General of the Russian Federation No.
82-1-2445-15 dated 17 February 2016.
Annex 60 All-Russian Population Information Classifier.
Annex 61 Code of Administrative Proceedings of the Russian Federation, 8 March 2015.
Annex 62 Ministry of Education, Science and Youth of the Republic of Crimea, On the
state of education in the state languages of the Republic of Crimea (Russian,
Ukrainian, Crimean Tatar) and the study of native languages of the peoples of
the Russian Federation living in the Republic of Crimea in general education
institutions of the Republic of Crimea in the academic year 2021/2022.
Annex 63 Ministry of Education, Science and Youth of the Republic of Crimea,
Information on the Students Studying in the State Languages of the Republic of
Crimea (Russian, Ukrainian, Crimean Tatar) in General Educational Institutions
of the Republic of Crimea in the 2022/2023 School Year.
Annex 64 Crimean Federal University, Allocation of budgetary places in the bachelor's
and specialist's programme in 2023 (full-time programmes).
Annex 65 Crimean Federal University, Allocation of budgetary places in the bachelor's
and specialist's programme in 2023 (extramural programmes).
Annex 66 Crimean Engineering and Pedagogical University, Number of places for
admission for the 2023/2024 academic year.
Annex 67 Decree of the Council of Ministers of the Republic of Crimea No. 658 “On
Approval of the Regulations on the Remuneration System for Employees of
State Budgetary and Autonomous Educational Organizations of the Republic of
Crimea”, 30 December 2014.
Annex 68 International Affairs, Republic of Crimea: Education in Native Languages
(12 November 2019).
Annex 69 Supreme Court of the Russian Federation, Cassation Ruling No. 33-UD22-11-
А2, 28 June 2022.
Annex 70 Unian, Ukraine Cannot Do without Coal from the Occupied Territories - Head
of the SBU (26 January 2017).
Annex 71 Zaxid.net, Deputy Prime Minister says how much coal Ukraine buys from the
occupied territories (16 December 2016).
Annex 72 Cenzor.net, Chernysh is Against Ban on Goods Transportation Through
Contact Line (26 December 2019).
Annex 73 Ukrainian railway, Due to the blocking of train traffic in the Donbass, Ukraine
did not receive almost 240 thousand tons of thermal coal, and the industry
suffered UAH 53.5 million in losses (15 February 2017).
Annex 74 Slovo i dilo, Coal case of Poroshenko-Medvedchuk: details of procurement
announced by SBI (17 January 2022).
Annex 75 Hromadske, "Coal case": Poroshenko was appointed a personal obligation (19
January 2022).
Annex 76 NRC, Aid workers are staying in Afghanistan - as they do in crises globally. We
must protect them (30 August 2021).
Annex 77 AIF.RU, Ukrainian Barbarians. Ukrainian nationalists demolish Lenin
monument in Kharkov (29 September 2014).
Annex 78 Ukrainian Pravda, Journalist Babchenko is alive, the Murder is Staged (30 May
2018).
Annex 79 Polit.ru, “Kharkiv Partisans” Disclaim Responsibility for Terrorist Attack in
Kharkiv (23 February 2015).
Annex 80 Korrespondent.net, SSU Has Tortured Marina Kovtun Accused of Blowing up
Stena Rock Pub for Three Years (22 November 2017).
Annex 81 BAGNET, Kharkov terrorists may have been helped by police officers (22
November 2014).
Annex 82 Ukranews.com, Kharkov Police Officer Kept Mine at Home (22 November
2014).
Annex 83 Ukraine.ru, 11 years for a note. Political prisoner Kovtun convicted in Kharkov
on falsified evidence (10 October 2019).
Annex 84 5140.org, Baranenko Andrii Volodymyrovych (25 January 2023).
Annex 85 Anti-fascist, Kharkiv political prisoner Marina Kovtun is to be sentenced on 7
October. The prosecutor's office requested 12 years in prison (2 October 2019).
Annex 86 Interfax.ru, PrivatBank branch shelled in Kharkov (28 July 2018).
Annex 87 Sm.news, AFU uses MON-50, MON-100 and Claymore on drones
(24 December 2022).
Annex 88 Ukraina.ru, Gerashchenko Could Stage Attempt on Him (22 January 2017).
Annex 89 Sila v Pravde, Attempt on Gerashchenko Was Feign Staged by SSU and Interior
Ministry (22 January 2017).
Annex 90 Ukrainski Novini, Assassination Attempt on Gerashchenko Could Be Staged
(22 January 2017).
Annex 91 Criminal Code of Ukraine, 5 April 2001.
Annex 92 Slovo i Delo, Assassination Attempt on Anton Gerashchenko. Was It Real? (23
January 2017).
Annex 93 The Guardian, Arkady Babchenko Reveals He Faked His Death to Thwart
Moscow Plot (2018).
Annex 94 The Guardian, Ukraine Clashes: Dozens Dead after Odessa Building Fire
(2014).
Annex 95 BBC News, Ukraine Crisis: Russia Condemns Attack on Kiev Embassy (2014).
Annex 96 NV, "Where it will be comfortable." Kremin called on opponents of the
language law to leave Ukraine (6 August 2021).
Annex 97 Law No. 2827–IX “On National Minorities (Communities) of Ukraine”, 13
December 2022.
Annex 98 Krymsky Analitik, Photos. Crimean Tatars Demand that Yushchenko and
Tymoshenko Stop Racial Discrimination in Ukraine (18 May 2009).
Annex 99 Ukraina.ru, Dzhemilev and the West are trying to prevent Crimea from joining
Russia (28 November 2014).
Annex 100 Sprotyv.info, Traitors will flee Crimea even sooner than Russian soldiers –
Chubarov (8 May 2017).
Annex 101 Bigmir.net, Chubarov: It is necessary to establish criminal liability for
collaborators (10 April 2016).
Annex 102 RIA Novosti Crimea, The Head of the Mejlis named the condition for the
resumption of water supply to Crimea (30 June 2019).
Annex 103 RIA Novosti Crimea, “Right Sector” reported that “Azov” had joined the
blockade of Crimea (1 October 2015).
Annex 104 Komsomolskaya Pravda, “Immortal Regiment 2018” in Crimea: Route and
Time (3 May 2018).
Annex 105 KP.ua, Rally in Memory of Deportation Victims Took Place in Crimea (18 May
2013).
Annex 106 Avdet, So that the youth remember (26 February 2000).
Annex 107 Mejlis, Over 40,000 people took part in All-Crimean mourning rally dedicated
to the 69th anniversary of the deportation of Crimean Tatars (18 May 2013).
Annex 108 Milli Firka, Mejlismen want Mogilev's resignation (7 May 2013).
Annex 109 BBC, Anniversary of deportation: Crimean Tatars want Mogilev’s resignation
- BBC News Ukraine (17 May 2013).
Annex 110 Centre for Investigative Journalism, Mejlis gives authorities 10 days to
demolish Lenin monuments in Crimea - Centre for Investigative Journalism (23
February 2014).
Annex 111 Haberler, The Organising Committee Has Filed Another Application for the
Celebration (3 June 2015).
Annex 112 Gorod 24, Simferopol Celebrates Taras Shevchenko’s Birthday (10 March
2022).
Annex 113 Millet, Khizmet ve Bereket, TV Programme of 18 November 2022, Ayder
Ismailov (18 November 2022).
Annex 114 Millet, Prime Time. TV Programme of 24 November 2022, Eldar Seitbekirov
(25 November 2022).
Annex 115 Millet, Ana Yurtun – Altyn Beshik, Episode 28, Remzi Devletov (21 November
2022).
Annex 116 Millet, Tek arzum Watan!, TV Programme of 17 November 2022, Eskender
Tarakchiev (21 November).
Annex 117 Millet, Prime Time. TV Programme of 22 September 2022. Ruslan Yakubov (23
September 2022).
Annex 118 Crimea Newsfeed, Third Open Festival-Contest of Children's Folklore Groups
‘Crimean Terem’ held in Crimea (3 December 2018).
Annex 119 Kerch Education and Training Complex Boarding School-Lyceum of Arts,
“Pearl of Crimea” Dance Ensemble – Winner of the Republican Contest
“Crimean Terem” (6 December 2019).
Annex 120 Krym Realii, Ukrainian and European dances performed in Sevastopol
(+video) (24 March 2018).
Annex 121 Avdet, Crimean Tatars cherish their language so much that they don’t even
speak it (24 June 2013).
Annex 122 Interfax, Crimean Historical Textbook to Get Rid of Chapter Insulting Crimean
Tatars (6 May 2019).
Annex 123 Roskomnadzor, 232 Registered Media Outlets Operating in Crimea (2 April
2015).
Annex 124 Roskomnadzor, Letter dated 26 March 2015 No. 571-05-91.
Annex 125 Roskomnadzor, Report on Registration of Media Outlets, 3rd Quarter of 2017.
Annex 126 Bez Formata, Crimean Schools Got Over 80,000 Textbooks in Crimean Tatar
Language (16 January 2018).
Annex 127 Roskomnadzor, Report on Registration of Media Outlets, 4rd Quarter of 2017.
Annex 128 Roskomnadzor, 232 Registered Media Outlets Operating in Crimea (2 April
2015).
Annex 129 BBC News, Crimea Hit by Power Blackout and Ukraine Trade Boycott (23
November 2015).
Annex 130 Roskomnadzor, 483 Registered Media Outlets Operating in Crimea (18 March
2017).
Annex 131 Avdet, Newspaper No 27 of 29 September 2020 (30 September 2020).
Annex 132 Millet, Vatan Khatirasi (17 February 2023).
Annex 133 Millet, History of the Crimean Tatars Programme (17 February 2023).
Annex 134 Millet, Crimean family (17 February 2023).
Annex 135 Millet, Kirimda Bayram (17 February 2023).
Annex 136 Millet, Millet Bereketi (17 February 2023).
Annex 137 Millet, The Peoples of Crimea: Diversity of Unity (17 February 2023).
Annex 138 Millet, Prime Time (17 February 2023).
Annex 139 Millet, Seyaat (17 February 2023).
Annex 140 Millet, Tarikh Izleri (17 February 2023).
Annex 141 Millet, Tek Arzum Vatan (17 February 2023).
Annex 142 Millet, Yurt Nefesi (17 February 2023).
Annex 143 Millet, Yaylya Boyu (17 February 2023).
Annex 144 Millet, Chalgidzhi Live (17 February 2023).
Annex 145 Millet, Ana Yurtun - Altin Beshik (17 February 2023).
Annex 146 Millet, Diniy Subet (17 February 2023).
Annex 147 Millet, The World of Islam (17 February 2023).
Annex 148 Millet, Khizmet ve Bereket (17 February 2023).
Annex 149 Millet, Millet Khatirlay (17 February 2023).
Annex 150 Millet, Miras (17 February 2023).
Annex 151 Millet, Yerketay (17 February 2023).
Annex 152 Millet, Yuku Time (17 February 2023).
Annex 153 Millet, Documentary "The Long Way Home" (18 May 2022).
Annex 154 Millet, Documentary "Fevzi Bilyalov: Singer for All Times…" (5 November
2022).
Annex 155 Investigative Journalism Centre, BSTRC Threatened with Discontinuation of
Broadcasting in Crimea (13 January 2014).
Annex 156 Investigative Journalism Centre, Employees of BSTRC, Crimea’s Largest TV
Company, Walked Out (7 February 2013).
Annex 157 Taurica.net, BSTRC Begins Repaying Debts to RTTC (20 January 2014).
Annex 158 Odessa Crisis Media Center, “We’ll Return Crimea in 2016”, Says Lenur
Islyamov (25 December 2015).
Annex 159 Facebook, ATR TV Channel, “This Is Our Second Victory. First One Was Trade
Blockade of Crimea”, Liza Bogutskaya Says (17 August 2017).
Annex 160 Tatar-inform.ru, Mufti of Crimea: “We cannot repeat the mistake we made in
1783” (13 August 2022).
Annex 161 TASS, Head of the Council of Muftis of the Russian Federation: Crimean
Tatars will be able to regain ownership of their mosques (1 April 2014).
Annex 162 RIA, Mufti Speaks about Restoration of Khan’s Palace in Crimea (17 February
2022).
Annex 163 Suspilne Krym, Second Floor of Lesya Ukrainka Museum in Occupied Yalta
Closed for Almost Five Years (25 February 2022).
Annex 164 Mejlis, News (9 September 2013).
Annex 165 Mejlis, Procedure for Holding 18 May 2014 Memorial Events Dedicated to the
Memory of Crimean Tatar People Genocide Victims (17 May 2014).
Annex 166 Mejlis, “No Nation Can Exist without Its Historical Memory”, Refat Chubarov
(18 May 2014).
Annex 167 Euronews, UN Adopts Russian-drafted Resolution on Ukraine Crisis (17
February 2015).
Annex 168 Telegraf, Poltorak on Disengagement: Agreements with Aggressor are Worth
Nothing (20 October 2016).
Annex 169 Ukrinform, Reznikov: Only Normandy Four Leaders Can Change Minsk
Agreements (11 July 2020).
Annex 170 Ukrinform, Poroshenko Says Minsk Agreements Partially Fulfilled Their Goal
(13 December 2019).
Annex 171 Russia Today, Minsk Deal Was Used to Buy Time – Ukraine's Poroshenko (17
June 2022).
Annex 172 Roskomnadzor, Data on media outlets registration between 01.01.2016 and
31.12.2016.
Annex 173 ANO OKTRK, Letter, 8 February 2023.
Annex 174 NTS, Scientists Discover Secrets of Ancient Necropolis on Tavrida Highway
near Sevastopol – Sevastopol Independent TV (13 July 2018).
Annex 175 Russian Gazette, 3,500+ Years Old Artefacts Found on Tavrida Highway
Construction Site (20 May 2021).
Annex 176 AMNESTY International, Ukraine: Ukrainian fighting tactics endanger
civilians (4 August 2022).
Annex 177 Reuters, Ukraine rebel commander says will not pull out of Donetsk (10 July
2014).
Annex 178 U.S. Agency for International Development, Ukraine, 2023.
Annex 179 Ned.org, National Endowment for Democracy.Ukraine.
Annex 180 The World, Who Were the Maidan Snipers? (14 March 2014).
Annex 181 BBC News Ukraine, The Maidan Shooting: a Participant’s Account
(13 February 2015).
Annex 182 INTENTIONALLY OMITTED
Annex 183 INTENTIONALLY OMITTED
Annex 184 INTENTIONALLY OMITTED
Annex 185 BBC News, Ukraine crisis: Transcript of Leaked Nuland-Pyatt Call
(7 February 2014).
Annex 186 Reuters, Special Report: Flaws found in Ukraine's probe of Maidan massacre
(10 October 2014).
Annex 187 Sputnik International, Incidents With Russian Reporters in Ukraine in 2014-
2017 (31 August 2017).
Annex 188 Unian.ua, Military warehouses with weapons burn in Lvov (19 February 2014).
Annex 189 KPHG, Ukraine follows Russia in dubious ‘State treason’ arrests (16 February
2015).
Annex 190 Human Rights Watch,Ukraine Foreign Journalists Barred or Expelled
(1 September 2017).
Annex 191 The Guardian, Rebel Leader Alexander Zakharchenko Killed in Explosion in
Ukraine (31 August 2018).
Annex 192 Deutsche Welle, Alexander Zakharchenko: The Latest Ukrainian Rebel Leader
to Face an Abrupt Death (2 September 2018).
Annex 193 European Pravda, No pressure over Concessions: Kuleba on Negotiations with
Germany’s Foreign Minister (7 February 2022).
Annex 194 Uryadovy Kuryer, On the Future of Donbass in Terms of Numbers
(21 July 2018).
Annex 195 Interfax-Ukraine, Rada Appoints Next Elections to Local Self-Govt Bodies for
Oct 25 (15 July 2020).
Annex 196 NBC News, MH17 Investigators Face Huge Challenges in Ukraine ‘Combat
Zone’ (18 July 2014).
Annex 197 Expert report of Mr Akash Rosen, 26 May 2019.
Annex 198 CNN, Kerry: ‘Drunken separatists’ interfering at MH17 crash site
(24 July 2014).
Annex 199 DNA, Ukrainian investigators found 196 bodies at #MH17 crash site
(20 July 2014).
Annex 200 The Dutch National Police, Official Report Concerning Disclosed Intercepted
Conversations, 16 December 2019.
Annex 201 Financial Express, What are they trying to hide, cries Barack Obama even as
Malaysia Airlines MH17 bodies, black boxes handed over (22 July 2014).
Annex 202 Stuff, MH17 wreckage 'cut into pieces' (23 July 2014).
Annex 203 New Straits Times, MH17: Captain Eugene Choo Jin Leong at his final resting
place (4 September 2014).
Annex 204 Dutch Safety Board, Draft Final Report. Crash of Malaysia Airlines Flight
MH17, May/June 2015.
Annex 205 AstroAWANI, #RememberingMH17: The Funeral Of Wan Amran Wan Hussin
(3 September 2014).
Annex 206 New Straits Times, MH17: Two more remains to arrive on Sunday: Liow
(22 August 2014).
Annex 207 BBC News, MH17 crash: My revealing fragments from east Ukraine (16 April
2015).
Annex 208 RT, Serial numbers of missile that downed MH17 show it was produced in 1986,
owned by Ukraine - Russia (17 September 2018).
Annex 209 Federal Bureau of Investigation, Richard Reid's Shoes.
Annex 210 The New York Times, Explosive on Planes Was Used in Past Plots (30 October
2010).
Annex 211 The Kyiv Independent, British instructors train Ukrainian military to operate
NLAW tank killers (PHOTOS) (25 January 2022).
Annex 212 Reuters, Ukraine holds military drills with U.S. forces, NATO allies
(20 September 2021).
Annex 213 Gallup, Russian Language Enjoying a Boost in Post-Soviet States
(1 August 2008).
Annex 214 Opinio Juris, Kevin Jon Heller, MH17 Should Be Framed as Murder, Not as a
War Crime (11 August 2014).
Annex 215 INTENTIONALLY OMITTED
Annex 216 5.ua, Kharkov Stena Pub Terrorist Attack: Prosecutors Demand 12 Years’ in
Prison for Accused Bomber – Details (27 September 2019).
Annex 217 The Guardian, Euro 2012: Ukraine's festering football racism (1 June 2012).
Annex 218 Lenta.ru, Kyrym Khanlygy: Crimea Remembers Its Local Statehood (12 January
2012).
Annex 219 TASS, How the Use of the Russian Language in Ukraine Was Restricted in
Ukraine (15 July 2021).
Annex 220 Vedomosti, Ukraine Legislatively Bans Screening of Russian Movies Filmed
after January 2014 (21 April 2016).
Annex 221 TASS, Ukraine Banned 780 Russian Movies and Series Since 2014 (5 October
2018).
Annex 222 TASS, How Russian Was Restricted in Ukraine (1 August 2022).
Annex 223 MK, Kiev Schools to Abandon Study of Russian (12 August 2022).
Annex 224 RT, “The Spirit of Intimidation and Terror”: How Ukraine Is Fighting Russian
(12 November 2022).
Annex 225 TASS, Ukraine Imposes Fines for Breach of State Language Law (16 July
2022).
Annex 226 DW, Ukraine bans music, books from Russia, Belarus (29 June 2022).
Annex 227 The Guardian, Ukraine restricts Russian books and music in latest step of
‘derussification’ (20 June 2022).
Annex 228 CNE, Ukrainian ban on Russian language forces Christian radio to move to
Hungary (8 September 2022).
Annex 229 Wikipedia, Demolition of monuments to Alexander Pushkin in Ukraine.
Annex 230 Mosregtoday, Ukraine continues to dismantle monuments linked to Russian
history and culture (22 April 2022).
Annex 231 MK, From Pushkin to Suvorov: How Many Monuments Have Already Been
Demolished in Ukraine (2 December 2022).
Annex 232 Lenta.ru, Pushkin Monument Dismantled in Zaporozhye (27 July 2022).
Annex 233 Urdupoint, Ukraine Dismantles Monument to Soviet Writer Maksim Gorky –
Reports (14 November 2022).
Annex 234 Babel, A monument to Marshal Zhukov, which has been the subject of
controversy for years, was dismantled in Kharkiv (17 April 2022).
Annex 235 Gazeta.Ru, “The Bloody Russian”: a Monument to Vatutin Demolished in
Ukraine (16 July 2022).
Annex 236 TASS, Soviet Soldier-Liberator Monument Demolished in Western Ukraine (23
June 2022).
Annex 237 Iz.ru, Soviet Army’s Glory Monument Demolished in Ukraine (24 July 2021).
Annex 238 Lenta.ru, Ukrainians Dismantled Suvorov Monument (4 February 2022).
Annex 239 RIA, Suvorov's Monument in Nikolaev is Covered in Paint (3 December 2022).
Annex 240 TASS, Kutuzov Monument Dismantled in Western Ukrainian Town of Brody
(25 February 2014).
Annex 241 Vzglyad-Info, Journalists Found Demolished Kutuzov Monument in Ukrainian
Landfill (15 March 2014).
Annex 242 Gazeta.ru, Chekhov, Pushkin and Gagarin Streets Change Names in Ternopol
(11 July 2014).
Annex 243 RIA Novosti, Leo Tolstoy Street Renamed in Honour of Bandera in Vinnytsia
(25 November 2022).
Annex 244 HHRF, New Ukrainian Law on National Minorities Misses the Mark (19
December 2022).
Annex 245 The Avalon Project, Nuremberg Trial Proceedings Vol. 7, Fifty-Sixth Day,
Monday, 11 February 1946.
Annex 246 The Independent, To see what Ukraine's future may be, just look at Lviv's
shameful past (9 March 2014).
Annex 247 RT, “Divide and Rule”: What Were the Real Relations between the UPA and
Nazi Germany? (14 October 2022).
Annex 248 Resolution of the Sejm of the Republic of Poland on paying tribute to the
victims of the genocide committed by Ukrainian nationalists against citizens of
the Second Republic of Poland in the years 1943 to 1945, 22 July 2016.
Annex 249 Interfax.ua, Anti-Terrorist Measures to be Taken Against Separatists –
Turchynov (7 April 2014).
Annex 250 BBC News, Ukraine Crisis: Turchynov Announces Anti-Terror Operation (13
April 2014).
Annex 251 The Economist, Ukraine’s top soldier runs a different kind of army from
Russia’s (15 December 2022).
Annex 252 RT, Poroshenko Signs Laws Praising Ukraine Nationalists as ‘Freedom
Fighters’ (16 May 2015).
Annex 253 The website of R. Khanna, Release: Rep. Khanna Leads Bipartisan Members
in Condemning Anti-Semitism in Europe (25 April 2018).
Annex 254 The Times of Israel, Ukrainian marchers in Kiev chant ‘Jews out’ (3 January
2017).
Annex 255 Haaretz, Ukraine Designates National Holiday to Commemorate Nazi
Collaborator (27 December 2018).
Annex 256 Kyiv Post, 2019 Declared Year of Stepan Bandera in Lviv Region (13 December
2018).
Annex 257 Gazeta.ru, “Glorification of Nazism”: Kiev March Criticised by Germany (2
January 2019).
Annex 258 Times of Israel, Hundreds of Ukrainian Nationalists March in Honor of Nazi
Collaborator (1 January 2022).
Annex 259 Ternopol City Council, From now on, the Ternopol City Stadium will bear the
name of UPA Commander-in-Chief Roman Shukhevych (5 March 2021).
Annex 260 Gazeta.ru, Kiev Residents Vote to Rename Tulskaya Square in Honour of “UPA
Heroes” (21 June 2022).
Annex 261 Lenta.ru, Turgenev Street Renamed in Honour of UPA Fighters in Lvov (17
April 2008).
Annex 262 RT, Poland Wants Ukraine to Admit Genocide (16 August 2022).
Annex 263 People’s World, Ukraine’s Ally Poland Demands It Stop Glorifying Nazi
Collaborators (18 August 2022).
Annex 264 Golos Sokalshchiny, Memorial Plaque Unveiled on the Facade of Yury Lipa
District Central Library in Yavorov (20 August 2020).
Annex 265 EurAsia Daily, OUN-UPA “Euthanasiologist” Doctor Honoured in Lvov
Region (22 August 2020).
Annex 266 Wikipedia, Yury Lipa Street.
Annex 267 Kulturologia.ru, How Nationalist Symon Petlyura Became a Hero of Ukraine,
and Why the Man Who Killed Him Was Acquitted (11 April 2022).
Annex 268 Lenta.ru, Comintern Street in Kiev Renamed to Petlyura Street (19 June 2009).
Annex 269 UKRINFORM, Nationalists Succeed in Protecting Petlyura Street in Poltava
Region (28 February 2017).
Annex 270 The Ukrainian News, Expert Council of Ukraine’s State Committee on
Television and Radio Broadcasting Bans Swedish Historian’s World-Famous
Book That Mentions Jewish Pogroms of Petlyura Times (26 December 2018).
Annex 271 Time, Exclusive: Leader of Far-Right Ukrainian Militant Group Talks
Revolution With TIME (4 February 2014).
Annex 272 Jewish.ru, Anti-Semitism Goes Uphill (9 April 2013).
Annex 273 Gazeta.ru, Mila Kunis Called “Zhyd” in Ukraine (24 December 2012).
Annex 274 Wolfram Nordsieck, Parties and Elections in Europe. Supreme Council of
Ukraine Elections.
Annex 275 Central Election Commission, Extraordinary Parliamentary Election 2014, Data
as of 29 October 2014.
Annex 276 European Parliament Resolution on the Situation in Ukraine No. 2012/2889
(RSP), 13 December 2012.
Annex 277 Newsweek, Yarosh: Russians, Rise Up Against Putin! (19 March 2014).
Annex 278 Reuters, Commentary Ukraine’s neo-Nazi problem (20 March 2018).
Annex 279 The Telegraph, Ukraine crisis: the neo-Nazi brigade fighting pro-Russian
separatists (11 August 2014).
Annex 280 Pravfond, Why Western Human Rights Activists Paid Attention to Ukrainian
Nationalists’ Outages (18 June 2018).
Annex 281 Azov.org, About Azov.
Annex 282 SPIEGEL, Ukraine: German mercenaries join far-right volunteer battalion (11
November 2017).
Annex 283 Gazeta.ua, Biletskiy: "Azov" will become a party" (28 May 2016).
Annex 284 Newsweek, Ukrainian Nationalist Volunteers Committing 'ISIS-Style' War
Crimes (10 September 2014).
Annex 285 Amnesty International Briefing, Ukraine: Abuses and war crimes by the Aidar
Volunteer Battalion in the north Luhansk region, 8 September 2014.
Annex 286 US Department of State, Custom Report Excerpts.
Annex 287 UK Government Official Site, Protests and marches: letting the police know.
Annex 288 Right to Assembly, The right of peaceful assemble in France.
Annex 289 Zpravy, Law on rallies flawed, Prague officials plan amends (29 April 2008).
Annex 290 AA, German court upholds ban on pro-Palestine protest in Berlin (30 April
2022).
Annex 291 France 24, Pro-Palestinian rally in Paris banned amid rising Israel-Gaza
tensions (13 May 2021).
Annex 292 Yonhap News Agency, 11 pct of assemblies banned in Seoul last year due to
pandemic: activists (12 August 2021).
Annex 293 Report of the High Commissioner for Human Rights in the Russian Federation,
2014.
Annex 294 National Academy of Sciences of Ukraine. I.F. Kuras Institute of Political and
Ethnic Studies. Alexander Sych. Thesis “Modern Ukrainian nationalism:
political science aspects of paradigm transformation”.
Annex 295 A. Sych. The Influence of the National Liberation Struggle of the OUN-UPA
on the Militarization of the Modern Ukrainian Nationalist Movement.
Annex 296 Unn.com.ua, Financing of terrorism by Rybalka's companies: pre-trial
investigation continues, examinations appointed (17 October 2018).
Annex 297 Youtube, Victoria Nuland's Admits Washington Has Spent $5 Billion to
"Subvert Ukraine" (9 February 2014).
Annex 298 Unian.ua, In Lvov activists continue to block the RSA building, "Berkut" bases
and internal troops (24 January 2014).
Annex 299 DailyLviv.com, Lvov Regional State Administration and "Berkut" and Internal
Troops bases are being blocked (24 January 2014).
Annex 300 TSN, Map of seizures of regional state administrations in Ukraine: eight
regions are under the control of demonstrators (24 January 2014).
Annex 301 2000.ua, Mysterious Maidan snipers (14 October 2015).
Annex 302 Gazeta.ru, Unheroic justice (11 January 2016).
Annex 303 RIA Novosti Ukraine, Never-ending investigation. Four years later, killers of
the ‘Heavenly Hundred’ still at large (22 February 2018).
Annex 304 RIA Novosti Ukraine, Investigation in all Maidan cases stalled (21 February
2018).
Annex 305 RusNext.ru, No one came to commemorate. The Heavenly Hundred and their
‘exploits’ on Maidan devalued (20 February 2018).
Annex 306 TASS, How Ukraine imposed sanctions on Russian individuals and entities (20
March 2019).
Annex 307 RIA Novosti, Cases of harassment of journalists in Ukraine in 2014-2017
(19 June 2017).
Annex 308 Telegram, St. Petersburg Courts Unified Press Service, The Oktyabrsky District
Court of St. Petersburg ruled in the suit of Igor Bezler against the Foundation
Bellingcat (19 May 2021).
Annex 309 RBC, Three Russian soldiers killed in Syria (25 March 2019).
Annex 310 Rostec, Rostec delivered almost 300,000 sets of Ratnik combat equipment
(10 December 2020).
Annex 311 Magnolia-TV, Nightmare in Kharkov. A chronicle of bloody events
(15 March 2014).
Annex 312 Censor.net, 14 March 2014 - Ukraine stands up for Kharkov
(14 March 2018).
Annex 313 Euro.kharkiv.ua, Day of the Volunteer. Anniversary of the defense of
Rymarskaya (24 February 2023).
Annex 314 SM News, The Armed Forces of Ukraine use MON-50, MON-100 and
Claymore on drones (24 December 2022).
Annex 315 Tyzhden.ua, Donetsk region has the highest crime rate in Ukraine (11 July
2013).
Annex 316 Tyzhden.ua, Moskal: In the first half of the year, police managed to solve only
one in five registered crimes (10 July 2013).
Annex 317 Nv.ua. "Bandera is our father". Torchlight procession to mark 113th
anniversary of Ukrainian nationalist leader held in Kiev - photos, videos
(1 January 2022).
Annex 318 Gazeta Wyborcza, Forget about Giedroyc: Poles, Ukrainians, IPN
(24 May 2008).
Annex 319 OUN-UPA, Personalities, Slava Stetsko (14.05.20 - 12.03.03) (1 January 2015).
Annex 320 Unian, Hero of Ukraine Yuriy Shukhevich dies (22 November 2022).
Annex 321 BBC News Ukraine, National Corps in Faces: Who are these people and where
are they from? (11 March 2019).
Annex 322 LB.ua. "Svoboda" members suspected of shooting at protesters on Maidan (13
October 2015).
Annex 323 Unian, Ministry of Internal Affairs: 130 law enforcement officers hospitalised
with gunshot wounds (20 February 2014).
Annex 324 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 27 April 2018.
Annex 325 Decree of the President of Ukraine No. 806/2014 “On the Day of the Defendant
of Ukraine”, 14 October 2014.
Annex 326 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 15 June 2018.
Annex 327 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 23 August 2018.
Annex 328 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 27 July 2018.
Annex 329 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 7 September 2018.
Annex 330 Administration of the President of Ukraine, Letter No 12-09/2938, 16 July
2019.
Annex 331 Decree of the President of Ukraine No. 46/2010 “On Awarding S. Bandera the
title of Hero of Ukraine”, 10 January 2010.
Annex 332 Decree of the President of Ukraine No. 965/2007 “On Awarding R. Shukhevych
the Title of Hero of Ukraine”, 12 October 2007
Annex 333 Ukrainska Pravda, “Right Sector will not lay down arms until Yanukovych
resigns” (21 February 2014).
Annex 334 Channel One, In Odessa, radicals chased protesters into building and set fire
to it (3 May 2014).
Annex 335 Telegram, Denazification of UA. There is no shame in destroying residents of
villages near Artemovsk/Bakhmut because they are all "separatists and
katsaps" (13 December 2022).
Annex 336 Focus.ua, "We are trying to kill more": Kazakhstan protests Ukraine's
ambassador for words about Russians (video) (23 August 2022).
Annex 337 RBK Ukraine, Igor Klymenko: There is more darkness in Ukraine, but also
more police on the streets (13 December 2022).
Annex 338 Volynonline.com, Uncensored and "Bez Obmezhen": the third day of
"Bandershtat-2021" in photos (9 August 2021).
Annex 339 Unian, The 4-day sports and patriotic game "Gurby-Antonivtsi" has started in
Ternopol region (5 May 2016).
Annex 340 Chas.cv.ua, Ukraine's largest sports and patriotic game "Gurby-Antonivtsi"
will bring together young people from all regions of Ukraine (2 March 2016).
Annex 341 TASS, Attempt to “give Ukraine time”: Merkel on Minsk agreements
(7 December 2022).
Annex 342 Decree of the President of Ukraine No. 699/2022 “On Awarding M. Simchich
the Title of Hero of Ukraine”, 14 October 2022.
Annex 343 Gazeta.ru, “Do Not Make Tragedy of This”. How Ukraine Shot Down Russian
Aircraft (4 October 2021).
Annex 344 Law of Ukraine No. 3551-XII “On the Status of War Veterans and Guarantees
of Their Social Protection”, 22 October 1993.
Annex 345 Youtube, UPA’s March of Glory: Oleg Tyagnibok's speech / October 14 /
Protection / Day of Defenders of Ukraine (17 October 2021)
Annex 346 Resolution of the Verkhovna Rada of Ukraine No. 802-VII “On Formation of
the Cabinet of Ministers of Ukraine”, 27 February 2014.
Annex 347 Youtube, 14.40/02.05.2014.Arrest on Alexandrovsky prospect in Odessa (15
July 2015).
Annex 348 Decree of the President of Ukraine No. 80\2023 “On awarding the honorary
name to the 10th separate mountain assault brigade of the Land Forces of the
Armed Forces of Ukraine”.
Annex 349 YouTube, Turchinov Announced Anti-Terrorist Measures Against Armed
Separatists (7 April 2014).
Annex 350 Irina Berezhnaya Institute for Legal Policy and Social Protection, REPORT:
INFRINGMENT OF RIGHTS AND FREEDOMS IN UKRAINE (2018).
Annex 351 Iryna Berezhnaya Institute of Legal Policy and Social Protection, REPORT:
INFRINGMENT OF RIGHT AND FREEDOMS IN UKRAINE (2019).
Annex 352 Irina Berezhnaya Institute for Legal Policy and Social Protection, ONLINE
ENVIRONMENT AS AN INSTRUMENT OF INFRINGEMENTS OF HUMAN RIGHTS AND
FREEDOMS IN UKRAINE (2022).
Annex 353 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 7 September 2018.
Annex 354 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 14 May 2018.
Annex 355 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo № 2, 14 May 2018.
Annex 356 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 21 May 2018.
Annex 357 The OSCE SMM Deputy Chief Monitor Mark Eterington’s briefing for the
Diplomatic corps, Photo, 18 January 2019.
Annex 358 The OSCE SMM Deputy Chief Monitor Alexander Hug’s briefing for the
Diplomatic corps, Photo, 1 June 2018.
Annex 359 Administration of the President of Ukraine, Letter No 12-09/2938, 16 July
2019.
Annex 360 Australian Federal Police, Report in the Matter of AFR Case Reference No.
5667342 (Operation AVENELLA), July 2015.
Annex 361 Expert Report Analyzing Videos from Social Media.
Annex 362 Report on Expert Examination of a Video File for Any Signs of Falsification, 7
December 2020.
Annex 363 The Dutch Public Prosecution Service, Opening statement and context of the
investigation (8 June 2020).
Annex 364 OG IT Forensic Services, International Platform Global Right Of Peaceful
People, Report, 3 March 2020.
Annex 365 CBC News, Malaysia Airlines MH17: Michael Bociurkiw talks about being first
at the crash site (29 July 2014).
Annex 366 ABC News, IMAGE: MH17 crash site, Ukrainian State Emergency Service
employees search for bodies amongst the wreckage of Malaysia Airlines Flight
MH17 (21 July 2014).
Annex 367 Netherlands Aerospace Centre (NLR), Presentation “Damage Investigation
MH17”.
Annex 368 Getty images, Image “Ukraine Russia crisis Malaysia aviation crash”
(25 July 2014).
Annex 369 Witness Statement of Mikhail Vadimovich Malyshevskiy.
Annex 370 Documents Regarding BUK Missile Delivered to Ukraine in the 1980s.
Annex 371 Georgia v. Russia (II), Application No. 38263/08, Open Exhibit for Oral
Submissions of the Russian Federation on 23 May 2018.
Annex 372 Expert Report on the Applicability of the Triangulation Method of Oleg
Rudenko, Boris Goncharenko and Andrei Shurup, 18 May 2021.
Annex 373 Dutch National Police, Official Report Concerning the Transport Route, on the
Basis of Open Sources, 16 May 2018.
Annex 374 Dutch National Police, Official Report on the Crew and two DPR Separatist
Leaders, 7 October 2019.
Annex 375 Ukraine and the Netherlands v. Russia, Applications nos. 8019/16, 43800/14
and 28525/20, Further Observations of the Russian Government on
Admissibility (Regarding East Ukraine), 8 November 2019.
Annex 376 European Court of Human Rights, Case of Ukraine and the Netherlands v.
Russia (applications nos. 8019/16, 43800/14 and 28525/20), Letter, 10 June
2021.
Annex 377 The Dutch Public Prosecution Service, Status of the investigation and position
on the progress of the trial – part 2 (10 March 2020).
Annex 378 Hromadske, Deadly "Friendly Fire": Why 5 Policemen Were Killed in
Knyazhychi (4 December 2016).
Annex 379 UNIAN, Kholodnytskyi Accuses Sytnyk of Using National Anti-Corruption
Bureau of Ukraine for Revenge and “Satisfying His Own
Complexes” (19 September 2018).
Annex 380 Hromadske, Budanov about Denis Kireev's death: "He was killed in an SBU
car" (22 January 2023).
Annex 381 MK.ru, SBU: Slavyansk ‘people's mayor’ discussed with Russian GRU officer
how to get rid of MP Rybak's corpse (24 April 2014).
Annex 382 Gazeta.ua, Farmer Was Kidnapped from His Car in the Middle of the Road (19
August 2016).
Annex 383 Interfax-Ukraine, Farmer was robbed at night in Zaporozhskaya Oblast
(8 August 2017).
Annex 384 Hromadske, Odessa Tragedy: Why the Court Acquitted the “Anti-Maidan
Activists” (22 September 2017).
Annex 385 RIA Novosti, Investigative Committee reveals new details of investigation into
Andrei Stenin's death (2 August 2017).
Annex 386 Fishki.net, Ukraine draws in BUK missile defence systems to Donetsk Oblast (8
March 2014).
Annex 387 UNIAN, The Ukrainian air forces receive reconditioned Buk-M1 anti-aircraft
missile system (photo) (6 June 2014).
Annex 388 UNIAN, Ukraine's first reconditioned Buk-M1 SAMS tested in Khmelnytchyna
(27 June 2014).
Annex 389 Dutch National Police Crime Squad, Official Report Concerning the Buk
Surface-to-Air Missile System, 7 October 2019.
Annex 390 JIT, Transcript of press conference JIT MH17, 8 February 2023.
Annex 391 Joint Investigation Team, Presentation of first results of the MH17 criminal
investigation, 28 September 2016.
Annex 392 Joint Investigation Team, Report, Findings of the JIT MH17 investigation into
the crew members of the Buk TELAR and those responsible in the chain of
command, 8 February 2023.
Annex 393 Flight Safety Foundation, Factual inquiry into the airspace closure above and
around eastern Ukraine in relation to the downing of Flight MH17, January
2021.
Annex 394 Opinions of the Office of Legal Counsel of the United States Department of
Justice, United States Assistance to Countries that Shoot Down Civil Aircraft
Involved in Drug Trafficking, 1994.
Annex 395 Commonwealth Secretariat, Implementation Kits for the International Counter-
Terrorism Conventions.
Annex 396 Max Van Der Werff, MH17 properly investigated?
Annex 397 YouTube, (English) Vitaly Nayda. UCMC, 19th of July 2014 (19 July 2014).
Annex 398 TSN, In Lvov Protesters Seize Main Law Enforcement Buildings and Weapons
Arsenal (19 February 2014).
Annex 399 Centre for Analysis of the Radical Right, Can new educational reforms in
Ukraine be seen as a tool for forced assimilation of national minorities (8
September 2020).
Annex 400 Federal Law No. 402-FZ “On Peculiarities of the Legal Regulation of Relations
in the Field of Mass Media in Connection with the Admission of the Republic
of Crimea to the Russian Federation and the Establishment of the Republic of
Crimea and the Federal City of Sevastopol as New Constituent Entities of the
Russian Federation”, 1 December 2014.
Annex 401 Federal Law No. 273-FZ “On Education in the Russian Federation”,
29 December 2012.
Annex 402 Defusing the Nuclear Threat, Transcript of Estonian FM Bombshell Revelation
(19 June 2014).
Annex 403 Statement of the Council of Crimean Tatars under the auspices of the Head of
the Republic of Crimea, 6 March 2023.
Annex 404 The Kremlin, News conference following Russian-Belarusian talks
(18 February 2022).
Annex 405 Sharij.net, BOEING. The bird has come (10 August 2020).
Annex 406 Roskomnadzor, Report on Registration of Media Outlets, 2016.
Annex 407 Commercial Court of Kiev, Case No. 910/7790/16, Judgment, 15 June 2016.
Annex 408 Commercial Court of Kiev, Case No. 910/10009/16, Judgment, 30 June 2016.
Annex 409 Commercial Court of Kiev, Case No. 910/9327/16, Judgment, 30 June 2016.
Annex 410 Commercial Court of Lugansk Region, Case No. 913/1184/16, Judgment, 21
November 2016.
Annex 411 Commercial Court of Donetsk Region, Case No. 905/3455/15, Judgment, 18
February 2016.
Annex 412 Commercial Court of Zaporozhye Region, Case No. 908/286/15-g, Judgment,
5 March 2015.
Annex 413 Commercial Court of Donetsk Region, Case No. 905/1544/14, Judgment, 12
May 2014.
Annex 414 Commercial Court of Poltava Region, Case No. 917/482/17, Judgment, 23 May
2017.
Annex 415 Commercial Court of Donetsk Region, Case No. 905/2849/16, Judgment, 17
November 2016.
Annex 416 Commercial Court of Donetsk Region, Case No. 905/3531/15, Judgment, 3
March 2016.
Annex 417 Commercial Court of Donetsk Region, Case No. 905/2456/15, Judgment, 11
January 2016.
Annex 418 Commercial Court of Lugansk Region, Case No. 913/638/17, Judgment,
7 September 2017.
Annex 419 Commercial Court of Lugansk Region, Case No. 913/639/17, Judgment,
14 September 2017.
Annex 420 Commercial Court of Lugansk Region, Case No. 913/511/17, Judgment,
27 July 2017.
Annex 421 Commercial Court of Kiev, Case No. 910/13519/17, Judgment, 6 October 2017.
Annex 422 Severodonetsk City Court of Lugansk Oblast, Case No. 428/5927/20, Judgment,
31 July 2020.
Annex 423 Commercial Court of Donetsk Region, Case No. 905/44/16, Judgment, 27 April
2016.
Annex 424 Commercial Court of Kiev, Case No. 910/7494/16, Judgment,
6 September 2016.
Annex 425 Moscow Circuit Commercial Court, Resolution, 18 October 2021, Case No.
А40-207643/2020.
Annex 426 Darnitsky District Court of Kyiv, Case No. 753/23764/15-k, Judgment,
28 December 2015.
Annex 427 Kyivskiy District Court of Kharkov, Case No. 640/9543/15-k, Judgment, 3 June
2015.
Annex 428 Sosnovsky District Court of Cherkassy, Case No. 712/8363/15-k, Judgment, 17
February 2016.
Annex 429 Slavyansky District Court of Donetsk Region, Case No. 1-kp/243/378/2014,
Sentence, 7 November 2014.
Annex 430 SMIDA, Information on the volumes of production and sales of the main types
of products (3 February 2023).
Annex 431 SMIDA, Business profile (3 February 2022).
Annex 432 Oktyabrsky District Court of Saint Petersburg, Case No. 2-323/2021, Decision,
19 May 2021.
Annex 433 Constitutional Court of the Russian Federation, Ruling N 2450-O Dismissing a
Complaint Filed by Alexander Ivanovich Kolpakidi and Sergey Vasilyevich
Nikolayev Against an Alleged Infringement Of Their Constitutional Rights By
Articles 1(3) And 13 Of Federal Law “On Counteracting Extremist Activities”,
27 October 2015.
Annex 434 Constitutional Court of the Russian Federation, Ruling No. 137-O-O
Dismissing a Complaint Filed by E.D. Bzarova, E.L. Kesayeva, V.A. Nazarov
and E.L. Tagayeva Against an Alleged Infringement of Their Constitutional
Rights by Article 14(2) of the Federal Law “On Combating Terrorism”, 19
February 2009.
Annex 435 Constitutional Court of the Russian Federation, Ruling No. 1873-O Dismissing
a Complaint Filed by Nadezhda Andreyevna Tolokonnikova Against an
Alleged Infringement of Her Constitutional Rights by Article 213(2) of the
Criminal Code of the Russian Federation, 25 September 2014.
Annex 436 OVDInfo, What is Article 20.2 of the Russian Code of Administrative Offences?
Annex 437 Sevastopol Commercial Appeal Court, Case No. A83-112/2014, Resolution, 31
July 2014.
Annex 438 Slavyansk City Court of Donetsk Region, Case No. 243/3885/14, Sentence, 5
November 2014.
Annex 439 Central Municipal District Court of Gorlovka, Donetsk Region, Case No.
253/12580/13-k, Sentence, 18 April 2014.
Annex 440 Selydovo City Court of Donetsk Region, Case No. 1-kp/242/341/14, Sentence,
24 December 2014.
Annex 441 Commentary of Permanent Representative of the Russian Federation to OSCE
A. K. Lukashevich for the 6th Anniversary of the Reunification of Crimea
with Russia, 18 March 2020.
Annex 442 Judicial Statistics of the Russian Federation on Administrative Offences, Article
20.1 of the Code of Administrative Offences, 2021.
Annex 443 Administration of the City of Simferopol of the Republic of Crimea, Resolution
No. 128 “On Approval of the Regulations on the Procedure for Organizing and
Holding Mass Events in the Territory of the Municipality of City District of
Simferopol of the Republic of Crimea”, 23 March 2015.
Annex 444 Law of Ukraine No 2704-VIII “On Ensuring the Functioning of the Ukrainian
Language as the State Language”, 25 April 2019.
Annex 445 Law of Ukraine No. 3759-XII “On Television and Radio Broadcasting”, 21
December 1993.
Annex 446 Law of Ukraine No 1616-IX “On Indigenous Peoples of Ukraine”, 1 July 2021.
Annex 447 Dzerzhinskiy District Court of Saint Petersburg, Case No. 2a-863/22, Decision,
15 March 2022.
Annex 448 Evpatoria City Court of the Republic of Crimea, Case No.2a-1433/2021,
Decision, 22 September 2021.
Annex 449 Topchikhinsky District Court of the Altai Krai, Case No. 2a-161/2021,
Decision, 4 June 2021.
Annex 450 Central District Court of the City of Simferopol of the Republic of Crimea, Case
No.2a-1105/2022, Decision, 21 February 2022.
Annex 451 Central District Court of the City of Simferopol of Republic of Crimea, Case
No. 2a-4159/16, Decision, 30 September 2016.
Annex 452 Yalta City Court of the Republic of Crimea, Case No. 2a-2964/2022, Decision,
29 July 2022.
Annex 453 RG, The Supreme Court of Ukraine did not recognize as Nazi the symbols of
the SS Division “Galichina” (6 December 2022).
Annex 454 Ukraine’s General Attorney Office Letter No. 19/1/1-24020-19, 9 February
2022.
Annex 455 Russian Federation General Attorney, Request for assistance No. 82/2-1382-
2020, 23 September 2021.
Annex 456 Law of Ukraine No. 638-IV “On the fight against terrorism”, 20 March 2003.
Annex 457 Protocol of 28 March 1997 to the Minsk Convention of 22 January 1993 on
legal aid and legal relations in civil, family and criminal cases.
Annex 458 Commissioner for Human Rights in Donetsk People’s Republic, Letter No.
4/04-8408, 5 December 2022.
Annex 459 Commissioner for Human Rights in Lugansk People’s Republic, Letter No. 851,
8 December 2022.
Annex 460 Ukrinform, “Batkivshchyna” Deputy Was Brutally Tortured by Foreign
Saboteurs Before His Death (22 April 2014).
Annex 461 Kharkov Region Prosecutor’s office’s website, Prosecutor’s Office prevents
contract killing of farmer (photos, video) (10 December 2018).
Annex 462 Ukraine National Police Facebook account, The National Police of Ukraine’s
Press-service (6 April 2022).
Annex 463 Wikipedia, Schematic diagram of the battle on Rymarskaya Street in Kharkov,
14/15 March 2014 (23 September 2019).
Annex 464 RIA, Ukraine Announces Near-Total Blocking of Access to Russian Websites
(20 April 2022).
Annex 465 TASS, Re-Broadcasting of 15 Russian Channels Was Banned in Ukraine (9
September 2014).
Annex 466 RT, Ukraine Issues New Ban on Russian Language (16 August 2022).
Annex 467 KyivPost, Russian Language Excluded from Kyiv State Schooling
(11 November 2022).
Annex 468 Law of Ukraine No. 743-VII “On Preventing the Prosecution and Punishment
of Persons in Connection with the Events that Occurred during Peaceful
Assemblies and on Invalidating Certain Laws of Ukraine”, 21 February 2014.
Annex 469 Law of Ukraine No. 1680-VII “On the Special Procedure for Local Self-
Government in Certain Areas of Donetsk and Lugansk Regions”, 16 September
2014.
Annex 470 Law of Ukraine No. 2268-VIII “On the Peculiarities of the State Policy on
Ensuring Ukraine’s State
Sovereignty Over Temporarily Occupied Territories in Donetsk and Lugansk
Regions”, 18 January 2018.
Annex 471 Resolution of the Verkhovnaya Rada of Ukraine No. 795-IX “On Calling
Regular Local Elections in 2020”, 15 July 2020.
Annex 472 Metapicz, Metadata for the Picture of Alleged Launch Site Image.
Annex 473 Pictures.reuters.com, Members of a “Maidan” self-defence battalion take part
in a training at a base of Ukraine's National Guard near Kiev (31 March 2014).
Annex 474 Verkhovnaya Rada of Ukraine, Resolution No. 802-VII “On Formation of the
Cabinet of Ministers of Ukraine”, 27 February 2014.
Annex 475 Explosive Ordnance Guide for Ukraine, GICHD, 2022.
Annex 476 Selidovo City Court of Donetsk region, Case No. 242/2571/14-к Sentence of 24
December 2014.
Annex 477 FY 2016 Results Corporate Presentation DTEK Energy B.V., April 2017.
Annex 478 Photo of remains of the rocket part of 122 Grad MLRS projectile in the
pavement at Andrey Linev Street, opposite the western end of the house at 79A.
Annex 479 VPK News, Even school buses have been mobilised in Ukraine (14 April 2021).
Annex 480 Verkhovnaya Rada of Ukraine, Resolution No. 1822-VIII “On Establishing
Ukrainian Volunteer Day Kyiv”, 17 January 2017.
Annex 481 State Committee for Inter-ethnic Relations of the Republic of Crimea,
Information for MFA (from 2014 to 2022 and plans for 2023).
Annex 482 Roskomnadzor, List of existing media outlets operating in the territory of the
Republic of Crimea and/or Sevastopol fully or primarily in Ukrainian and/or
Crimean Tatar from 18 March 2014 until present time.
Annex 483 Decree of the Acting President of Ukraine No. 405/2014 “On the Decision of
the National Security and Defence Council of Ukraine dated 13 April 2014 “On
Urgent Measures to Overcome the Terrorist Threat and Preserve the Territorial
Integrity of Ukraine”, 14 April 2014.
Annex 484 Facebook, Ruslan Balbek, Forum of the Crimean Tatar Social-Political
Powers, Declaration (17 August 2019).
Annex 485 DTEK Energy B.V. Abbreviated IFRS Consolidated Financial Statements, 31
December 2015.
Annex 486 Working Program in the subject “Mother tongue (Ukrainian)” for grades 5-9.
Annex 487 Avdet, Appeal to the President of Ukraine on the Council of Representatives
(11 February 2013).
Annex 488 Ministry of Culture and Information Policy of Ukraine, Ministry of Information
Policy of Ukraine, Ministry of Foreign Affairs of Ukraine and Crimean Tatar
Resource Center present information on human rights in Crimea to the world
(7 November 2017).
Annex 489 A. Arefiev, Russian language in the Ukrainian Republic, Center for Social
Forecasting and Marketing - Russian language in former Soviet republics,
2012.
Rejoinder of the Russian Federation