Counter-Memorial Russian Federation

INTERNATIONAL COURT OF JUSTICE
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)
COUNTER-MEMORIAL ON THE CASE CONCERNING APPLICATION OF THE
INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING
OF TERRORISM
Submitted by the Russian Federation
9 August 2021

As the Russian Federation repeatedly noted, Ukraine’s Application to the International Court of
Justice of 16 January 2017 is formally directed jointly against alleged violations of the International
Convention for the Suppression of the Financing of Terrorism and the International Convention on
the Elimination of All Forms of Racial Discrimination. It actually concerns two entirely separate
cases which have in common only the use of the Court’s forum in an attempt to stigmatise Russia for
alleged aggression against, and violation of sovereignty of, Ukraine. Accordingly, Russia submits
two Counter-Memorials dealing separately with each of these cases.
The present Counter-Memorial deals with the case concerning the International Convention for the
Suppression of the Financing of Terrorism (“ICSFT”).

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TABLE OF CONTENTS
CHAPTER I INTRODUCTION .............................................................................................................. 1
I. The Armed Conflict in Eastern Ukraine....................................................................................... 1
II. The Continuing Importance of the Court’s Order of 19 April 2017 ............................................ 2
III. There Is Unsurprisingly Still No Evidence of Funding of Terrorism .......................................... 3
IV. Ukraine Relies on Inferences to Be Drawn from an Alleged Pattern of Conduct........................ 4
V. The Express Elements of the Offence of Terrorism Financing .................................................... 5
CHAPTER II FUNDS WITHIN THE MEANING OF THE ICSFT ....................................................... 8
I. Introduction .................................................................................................................................. 8
II. Wording of Article 1(1) Read in Conjunction with Article 2(1) of the ICSFT .......................... 10
III. Interpretation of the Notion of “Funds” In Light of Other Provisions of the ICSFT ................ 10
A. Title of the International Convention for the Suppression of the Financing of Terrorism ........ 10
B. Preamble .................................................................................................................................... 14
C. Article 8(4) of the ICSFT .......................................................................................................... 16
D. Article 12(2) of the ICSFT ........................................................................................................ 16
E. Article 13 of the ICSFT ............................................................................................................. 17
F. Article 18 of the ICSFT .............................................................................................................. 17
IV. Object and Purpose of the ICSFT .............................................................................................. 18
V. Drafting History of Article 1(1) of the ICSFT ........................................................................... 19
VI. Interpretation of the Notion of “Funds” In Light of Other Relevant Rules of International Law .
.................................................................................................................................................... 21
A. Introduction ............................................................................................................................... 21
B. Arms Trade Treaty ..................................................................................................................... 21
C. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and
Components and Ammunition Supplementing the United Nations [Palermo] Convention against
Transnational Organized Crime ..................................................................................................... 23
D. Security Council Resolutions .................................................................................................... 24
VII. Conclusion ................................................................................................................................. 25
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CHAPTER III THE MENTAL ELEMENTS OF THE OFFENCE OF TERRORISM FINANCING
UNDER THE CHAPEAU TO ARTICLE 2(1) OF THE ICSFT ........................................................... 26
I. The “Intention” or “Knowledge” Necessary for the Offence of Terrorism Financing under the
Chapeau to Article 2(1) of the ICSFT ................................................................................................ 26
A. The Ordinary Meaning of the Terms Used, in Their Context, and in Light of Object and
Purpose ........................................................................................................................................... 27
1. Ordinary Meaning of “Intention That They Should Be Used” .............................................. 29
2. Ordinary Meaning of “Knowledge That They Are to Be Used” ........................................... 29
3. Further Points on Context...................................................................................................... 30
4. Object and Purpose ................................................................................................................ 32
B. Travaux Préparatoires and Other Materials ............................................................................... 33
1. Travaux Préparatoires ............................................................................................................ 33
2. Materials Concerning Domestic Implementation .................................................................. 35
3. Other Materials ...................................................................................................................... 40
CHAPTER IV THE REQUIREMENTS FOR ACTS OF TERRORISM WITHIN THE MEANING OF
ARTICLE 2(1)(A) OF THE ICSFT ....................................................................................................... 41
I. Article 1(1)(b) of the Montreal Convention ............................................................................... 41
A. Article 1(1)(b) of the Montreal Convention Interpreted According to the Ordinary Rules ...... 41
B. Other Materials Relied Upon by Ukraine to Interpret Article 1(1)(b) of the Montreal
Convention ..................................................................................................................................... 43
II. Article 2(1) of the ICSTB .......................................................................................................... 47
CHAPTER V THE REQUIREMENTS FOR ACTS OF TERRORISM WITHIN THE MEANING OF
ARTICLE 2(1)(B) OF THE ICSFT ....................................................................................................... 49
I. Intent to Cause Death or Serious Bodily Injury to Civilians ..................................................... 50
A. The Ordinary Meaning of the Words “Intended to Cause” ....................................................... 50
B. The Context Confirms the Exclusion of Forms of Mens Rea Other Than Direct Intent .......... 52
C. The Object and Purpose of the ICSFT as well as an Interpretation in Line with International
Humanitarian Law Warrants Encompassing Direct Intent Only ................................................... 53
D. Neither International Criminal Law Nor the Domestic Case Invoked by Ukraine Support
Ukraine’s Position .......................................................................................................................... 57
E. The Mental Element of Intent Cannot Simply Be Inferred From the Mere Occurrence of a
Particular Act ................................................................................................................................. 59
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F. Conclusion ................................................................................................................................. 60
II. The Required Purpose of the Act Qualifies Terrorism as a Special Intent Crime ...................... 61
A. Terrorism Requires a Specific Intent ......................................................................................... 61
B. A Specific Intent Crime Requires an Additional Mental Element of Dolus Specialis .............. 65
C. The Specific Intent to Create Terror Must Form the Purpose of the Act .................................. 66
D. Reference to the Nature And Context Was Not Meant to Replace the Mental Element of
Purpose ........................................................................................................................................... 67
E. In Any Event, the Nature And Context of the Act Must Allow a Conclusion That Terror Was
Actually Intended ........................................................................................................................... 68
F. Intimidation And Compelling of a Government Similarly Require Contextualisation ............. 71
G. Selected Domestic Cases Do Not Support Ukraine’s Case ....................................................... 72
H. Conclusion ................................................................................................................................ 74
CHAPTER VI UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM
FINANCING WITH RESPECT TO FLIGHT MH17 ........................................................................... 75
I. The Alleged Request for and Provision of a BUK for the Purpose of Defending against
Ukrainian Air Attacks ........................................................................................................................ 76
II. Ukraine’s Intercept Evidence Concerning the Shooting Down of Flight MH17 ....................... 80
III. Relevant Intercepts Not Produced by Ukraine ........................................................................... 81
IV. Relevant Social Media Posts Not Produced by Ukraine ............................................................ 86
V. Air Restrictions Imposed by Ukraine and by Russia as of 17 July 2014 ................................... 86
VI. Ukraine’s Expert Evidence Is of No Assistance to It ................................................................. 92
VII. Ukraine Has Failed to Establish the Existence of a “Terrorist” Act under Article 2(1)(a) of the
ICSFT ................................................................................................................................................. 93
CHAPTER VII THE SHELLING INCIDENTS ................................................................................... 94
I. Reported Indiscriminate Shelling ............................................................................................... 94
A. General Observations ................................................................................................................ 94
B. The Shelling Close to the Checkpoint Near Volnovakha ........................................................ 100
1. The Character of the Buhas Checkpoint and Military Advantage ....................................... 100
2. Contradictions and Other Deficiencies in Ukraine’s Evidence with respect to DPR’s Alleged
Responsibility for the Attack ................................................................................................... 107
i. Inconsistent assessment of the dispersal pattern of impact sites .................................... 107
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ii. Failure to collect fragments from all craters ................................................................... 109
iii. Insufficient explanation contained in Ukraine’s inspection reports ............................... 110
iv. Ukraine’s witness statements are of no assistance to the Court ..................................... 110
v. Ukraine’s intercept evidence .......................................................................................... 110
3. Ukraine Has Failed to Establish the Requisite Intent and Terrorist Purpose ...................... 112
C. Mariupol .................................................................................................................................. 113
1. The Context of the Shelling Impacts at the Vostochniy District of Mariupol ..................... 114
2. Relevant Military Objects Which the DPR May Have Been Targeting .............................. 118
3. Ukraine’s Intercept Evidence .............................................................................................. 125
4. Ukraine’s Interrogation Evidence ........................................................................................ 131
5. The Timing of the Shelling .................................................................................................. 132
6. Use of BM-21 Grad MLRS ................................................................................................. 133
D. Kramatorsk .............................................................................................................................. 133
E. Avdiivka ................................................................................................................................... 137
1. The Reason for the Escalation of Hostilities in Late January 2017 .................................... 139
2. The Positions of the Ukrainian Armed Forces in Avdiivka ................................................. 142
3. The Presence of Military Equipment Moving Through Residential Areas of Avdiivka
between January and March 2017............................................................................................ 146
4. Specific Shelling Episodes Relied on by General Brown and Ukraine .............................. 149
II. Bombings and Killings/Ill-Treatment ...................................................................................... 155
A. Bombings ................................................................................................................................ 155
B. Killings and Ill-Treatment ....................................................................................................... 156
CHAPTER VIII UKRAINE HAS FAILED TO ESTABLISH THAT RUSSIA BREACHED ITS
OBLIGATIONS UNDER ARTICLES 8-10, 12 AND 18 OF THE ICSFT ......................................... 160
I. Introduction .............................................................................................................................. 160
II. Russia Has Complied with Its Obligations under Article 8 of the ICSFT ............................... 161
A. The Proper Scope of the Obligation under Article 8 of the ICSFT ......................................... 161
B. Ukraine has Failed to Establish that Russia Breached Its Obligations under Article 8 of the
ICSFT ........................................................................................................................................... 163
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III. Russia Has Complied with Its Obligations under Article 9 of the ICSFT ............................... 165
A. Correct Interpretation of Article 9 of the ICSFT ..................................................................... 165
B. Russia has Complied with Its Obligations under Article 9 of the ICSFT with respect to the
Specific Incidents Relied on by Ukraine ..................................................................................... 168
IV. Russia Complied with Its Obligations under Article 10 of the ICSFT .................................... 170
A. Correct Interpretation of Article 10 of the ICSFT ................................................................... 170
B. Ukraine has Failed to Establish that Russia Violated Its Obligations under Article 10 of the
ICSFT ........................................................................................................................................... 171
V. Has Complied with Its Obligations under Article 12 of the ICSFT ............................. 171
A. The Correct Interpretation of Article 12 of the ICSFT ........................................................... 172
B. Ukraine Has Failed to Establish that Russia Violated Its Obligations with respect to Any of the
MLA Requests Relied on ............................................................................................................. 172
1. Ukraine’s MLA Requests Do Not Relate to Investigations of Terrorism Financing under
Article 2 of the ICSFT ............................................................................................................. 173
2. In Any Event, Russian Authorities Handled Ukraine’s MLA Requests Consistently with
Applicable Legal Assistance Treaties ...................................................................................... 175
VI. Russia Has Complied with Its Obligations under Article 18 of the ICSFT ............................. 177
A. The Proper Interpretation of Article 18 of the ICSFT ............................................................. 178
1. Obligation to “Cooperate in the Prevention” under Article 18 of the ICSFT ..................... 179
2. A Breach of Article 18 of the ICSFT Can Be Established Only Provided an Act of Terrorism
Financing under Article 2 of the ICSFT Has Been Committed ............................................... 183
B. Ukraine Has Failed to Demonstrate that Russia Has Violated Its Obligations under Article 18
of the ICSFT ................................................................................................................................ 183
SUBMISSION ..................................................................................................................................... 187
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II. Russia Has Complied with Its Obligations under Article 8 of the ICSFT ............................... 161
A. The Proper Scope of the Obligation Under Article 8 of the ICSFT ........................................ 161
B. Ukraine has Failed to Establish that Russia Breached Its Obligations Under Article 8 of the
ICSFT ........................................................................................................................................... 163
III. Russia Has Complied with Its Obligations under Article 9 of the ICSFT ............................... 165
A. Correct Interpretation of Article 9 of the ICSFT ..................................................................... 165
B. Russia has Complied With Its Obligations Under Article 9 of the ICSFT With Respect to the
Specific Incidents Relied on by Ukraine ..................................................................................... 168
IV. Russia Complied with Its Obligations under Article 10 of the ICSFT .................................... 170
A. Correct Interpretation of Article 10 of the ICSFT ................................................................... 170
B. Ukraine has Failed to Establish that Russia Violated Its Obligations Under Article 10 of the
ICSFT ........................................................................................................................................... 171
V. Russia Has Complied with Its Obligations under Article 12 of the ICSFT ............................. 171
A. The Correct Interpretation of Article 12 of the ICSFT ........................................................... 172
B. Ukraine Has Failed to Establish that Russia Violated Its Obligations With Respect to Any of
the MLA Requests Relied on ....................................................................................................... 172
1. Ukraine’s MLA Requests Do Not Relate to Investigations of Terrorism Financing Under
Article 2 of the ICSFT ............................................................................................................. 173
2. In Any Event, Russian Authorities Handled Ukraine’s MLA Requests Consistently with
Applicable Legal Assistance Treaties ...................................................................................... 175
VI. Russia Has Complied with Its Obligations under Article 18 of the ICSFT ............................. 177
A. The proper Interpretation of Article 18 of the ICSFT ............................................................. 178
1. Obligation to “cooperate in the prevention” under Article 18 of the ICSFT ...................... 179
2. A breach of Article 18 of the ICSFT can be established only provided an act of terrorism
financing under Article 2 of the ICSFT has been committed .................................................. 183
B. Ukraine Has Failed to Demonstrate that Russia Has Violated Its Obligations Under Article 18
of the ICSFT ................................................................................................................................ 183
SUBMISSION ..................................................................................................................................... 187
APPENDIX A ...................................................................................................................................... 189
INDEX OF ANNEXES ....................................................................................................................... 259

1
CHAPTER I
INTRODUCTION
1. On any reading of Ukraine’s Memorial, it is plain that its real complaint concerns an alleged
Russian “campaign for hegemony in Ukraine” (the heading given to section A of the Introduction to
Ukraine’s Memorial),1 including alleged “overt aggression”2 and “supporting and arming illegal
proxy groups” in Eastern Ukraine.3 For the purposes of establishing the Court’s jurisdiction, however,
Ukraine has characterised its allegations concerning the armed conflict in Eastern Ukraine as
concerning the financing of terrorism – although Ukraine stands alone in its characterisation of the
Donetsk People’s Republic (“DPR”) and the Lugansk People’s Republic (“LPR”) as “groups which
have notoriously committed terrorist acts”,4 and likewise in its characterisations of the tragic shooting
down of Flight MH17 and acts of shelling within the armed conflict as acts of “terrorism”.
2. Before turning to the details of Ukraine’s untenable (and indeed still implausible5) case on breach
of the ICSFT, Russia makes five introductory observations.
I. The Armed Conflict in Eastern Ukraine
3. As the Court recorded in its Order of 19 April 2017 that rejected Ukraine’s application for
provisional measures with respect to its ICSFT case, “extensive fighting” has claimed a significant
number of lives in large parts of Eastern Ukraine.6 Indeed, the armed conflict between Ukraine and
the DPR/LPR, and particularly shelling, has resulted in an appalling loss of civilian life on both sides
(i.e., Ukraine and the DPR/LPR), and both sides have also reportedly engaged in killings of political
figures and mistreatment.
4. This armed conflict provides the critical context in which Ukraine’s claims are made. It is certainly
not Russia’s case that the ICSFT does not apply in an armed conflict or that acts of terrorism cannot
be committed during an armed conflict. However, it is of great and even systemic importance that
1 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), Memorial of
Ukraine, 12 June 2018 (“Memorial” or “MU”), Part I, Section A, paras. 8-22.
2 MU, para. 11.
3 MU, para. 16.
4 MU, para. 281. See also 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), Written Statement of Observations and Submissions on the Preliminary Objections of the Russian Federation
by Ukraine, 14 January 2019 (“Ukraine’s Observations” or “WSU”), paras. 194 and 203.
5 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, p. 104 (“Order of 19 April 2017”), para. 75.
6 Order of 19 April 2017, para. 16.
2
alleged acts in an armed conflict are not improperly elevated and mischaracterised as terrorism per
se.
II. The Continuing Importance of the Court’s Order of 19 April 2017
5. The Court’s assessment, in its Order of 19 April 2017, that there was no plausible allegation of
terrorism retains considerable – and unusual – importance for this merits phase, given the way that
Ukraine has constructed its case on terrorism funding.
6. According to Ukraine’s Memorial: “Since early in the conflict, it was apparent that these illegal
armed groups in Ukraine [i.e., the DPR and LPR] had committed, and were willing to continue to
commit, terrorist acts. Despite the DPR and LPR’s early and open embrace of terrorism, followed by
a series of significant acts of terrorism, Russian state officials repeatedly provided these groups with
additional funds”.7 The case is then built up as follows, by reference to the key question of what the
alleged funders supposedly knew (or intended) in terms of the end use of funds:
a. Ukraine contends that: “By the spring and summer of 2014, the whole world was aware
of the terrorist nature of the aims and activities of the DPR and LPR”, who were
“engaged in a pattern of violence against civilians, targeting political opponents with the
unmistakable purpose of intimidation”;8 and that anyone providing or collecting funds
for the DPR/LPR “knew that their […] indifference to human life would continue”.9
b. Ukraine also contends that the terrorist nature of the acts of the DPR/LPR was “surely
common knowledge” following the shooting down of Flight MH17 in July 2014 and the
four subsequent specific episodes of reportedly indiscriminate shelling between January
2015 and 2017 to which it refers.10
c. Ukraine states that it is necessary to take into account “all of these circumstances,
particularly when viewed against the backdrop of the DPR’s established track record of
targeting civilians”.11
7. Thus, Ukraine’s case is premised on what a person who was collecting or providing funds for the
DPR/LPR in 2014-2017 knew about the acts committed by those groups and their purposes (allegedly,
“the whole world was aware”12).
8. Yet, in its Order of 19 April 2017, and with the benefit of the close examination of a large
collection of evidence, the Court determined that there was not even a plausible allegation of
7 MU, para. 279.
8 MU, para. 285.
9 MU, para. 287.
10 MU, para. 290-291.
11 MU, para. 290.
12 MU, para. 285.
3
terrorism. That determination gave, and still gives, a highly relevant insight into what “the whole
world” would indeed have been aware of, i.e. the likely state of knowledge (as to whether funds were
being used for terrorist acts) of anyone with access to even a very considerable pool of information
and evidence, such as was before the Court in 2017. In short, regardless of what Ukraine now contends
the whole world knew, an alleged funder would not be concluding that (so-called) funds were being
used for terrorism.
III. There Is Unsurprisingly Still No Evidence of Funding of Terrorism
9. As to the position in the current merits phase, there is no material new evidence to support
Ukraine’s exceptionally serious allegation of terrorism funding with respect to the shooting down of
Flight MH17. It remains the case that, even if Ukraine’s evidence (and the position as stated by
Ukraine’s Security Service) were to be accepted, it would merely show that whoever supplied the
weapon used to shoot down Flight MH17 did so specifically in response to a request for assistance in
defending against a series of armed strikes by Ukraine’s military aircraft that were taking place within
the context of the armed conflict. Likewise, it would 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.13
10. As to the further central element to Ukraine’s case, i.e. the alleged financing by Russian state
officials and other Russian nationals of shelling during the armed conflict in Eastern Ukraine, it
remains the case that it is Ukraine alone that has characterised such acts of shelling as “terrorism”.
a. By contrast, the OHCHR, OSCE and ICRC have consistently characterised such acts
(including the specific episodes relied on by Ukraine in this case) as indiscriminate
shelling in breach of IHL, but never as a breach of the IHL prohibition on spreading
terror. Further, if this were indeed terrorism (it is not), on the basis of the reports of the
OHCHR, OSCE and ICRC which Ukraine relies on, Ukraine would be equally, if not
more, responsible than the forces of the DPR and LPR.14 Civilian casualties caused by
the reported indiscriminate shelling of populated areas have consistently been greater in
territory controlled by the DPR and LPR, i.e., through shelling by Ukrainian forces.15
b. Moreover, as part of the Minsk “Package of Measures” of February 2015, Ukraine itself
gave an undertaking to “[e]nsure pardon and amnesty […] of persons in connection with
the events that took place in certain areas of the Donetsk and Luhansk regions of
Ukraine”.16 That commitment postdates and encompasses the specific events at
13 See further Chapter VI below.
14 See further Chapter VII below.
15 As to the fact that such shelling by Ukraine includes use of MLRS of the same type that it says were used by the
DPR/LPR, see Chapter VII below.
16 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), Preliminary
4
Volnovakha, Mariupol and Kramatorsk that Ukraine now focuses on. It is hardly
conceivable that Ukraine would have agreed to pardon and amnesty if it truly considered
these to have been “terrorist” acts.17
c. Ukraine has also elected to make its very serious allegations of terrorism financing whilst
failing to put before the Court the abundant documentation that must exist that would
show the activities and movements of Ukrainian armed forces in the vicinity of the
alleged terrorist attacks, and therefore allow for a proper assessment of the relevant
military backdrop.
11. The final series of episodes relied on by Ukraine concern bombings and killings/ill-treatment of
civilians. The principal function of the allegations here appears to be to form a basis from which to
allege that the (wholly separate) shooting down of Flight MH17 and the four specific incidents of
shelling constitute terrorism. Notably, before commencing the present proceedings, Ukraine did not
request the Russian authorities’ legal assistance in the investigation of these offences, and it did not
provide information in its possession to the Russian authorities, despite Russia’s express request to
do so.18
IV. Ukraine Relies on Inferences to Be Drawn from an Alleged Pattern of Conduct
12. Consistent with the absence of solid evidence, Ukraine seeks to prove its allegations of terrorism
financing – and in particular the requisite mental elements of the offence – largely by inference from
an (untenable) alleged pattern of conduct.19
13. Before entering into any details on the evidence, Russia recalls that, in the Bosnia Genocide case,
the Court reaffirmed that it “has long recognised that claims against a State involving charges of
exceptional gravity must be proved by evidence that is fully conclusive” and applied this standard to
allegations under Article III of the Genocide Convention.20 Further, in respect of the claims related
to the obligations to prevent and punish genocide, the Court required “a high level of certainty
appropriate to the seriousness of the allegation”.21 In relation to the question of whether the specific
Objections submitted by the Russian Federation, 12 September 2018 (“Preliminary Objections of the Russian Federation”
or “PORF”), para. 100.
17 See further Chapter VIII below.
18 See, e.g., Note Verbale No. 3219/dnv of the Ministry of foreign Affairs of the Russian Federation to the Embassy of
Ukraine, 4 March 2016 (Annex 1 to PORF), p. 56.
19 Notably, the allegations of terrorism financing with respect to the DPR/LPR and their alleged conduct in Eastern
Ukraine are entirely separate from the allegations concerning financing of “other illegal armed groups” allegedly
responsible for bombings in Ukrainian cities: see MU, para. 115. The only link that Ukraine pleads exists between “the
DPR, the LPR, the Kharkiv Partisans, and others” is that they are all allegedly “Russia’s proxies” (see, for instance, MU,
paras. 25 and 41). It follows from this that the bombings are not relevant to the terrorism financing claims with respect to
the killing and intimidation, the shooting down of Flight MH17 and the shelling episodes.
20 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, para. 209.
21 Ibid., para. 210.
5
intent required to establish genocide may be inferred, the Court has held that this must be “the only
reasonable inference that can be drawn from the pattern of conduct […] relied upon”.22 The same
approach is called for here with respect to the exceptionally grave allegations against Russia for any
breach of the ICSFT.
14. In this respect, Ukraine seeks to build its whole case around two references to “terror” in the
2014 reports of the OHCHR that are taken entirely out of their context (of certain reported individual
killings and mistreatment).23 It contends that these two isolated references evidence the existence of
a “substantial risk” that weapons would be used in indiscriminate attacks,24 which Ukraine
characterises as terrorist acts. This is the foundation on which Ukraine seeks to build its case with
respect to the shoot down of Flight MH17 and the episodes of reported indiscriminate shelling.
15. Yet these two isolated references were made in the different context of alleged individual killings
and mistreatment, acts which the OHCHR has also reported Ukraine as having engaged in. The
OHCHR did not use the same language in subsequent reports (including after the current proceedings
were initiated). It has never used the language of “terrorism” with respect to either the tragic shoot
down of Flight MH17 or episodes of reported indiscriminate shelling. Russia also recalls that the
OHCHR reports were before the Court at the provisional measures stage, and Ukraine evidently –
and correctly – thought little of these two references then, but now seeks to place them at the centre
of its case.
V. The Express Elements of the Offence of Terrorism Financing
16. By way of a final introductory observation, Russia notes that Ukraine’s attempt to portray the
various events that it relies on as concerning terrorism financing is entirely dependent on its
systematic – and impermissible – watering down of the express elements of the offence of financing
of terrorism established by Article 2(1) of the ICSFT. It is recalled that this 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,
22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, p. 129, para. 440. See also p. 68, para. 148.
23 See MU, paras. 21, 25, 53, 196, 213, 285 and 291; in particular para. 285 referring to OHCHR, Report on Human
Rights Situation in Ukraine (15 June 2014), para. 207 (Annex 293 to MU).
24 MU, paras. 285-294.
6
when the purpose of such act, by its nature and context, is to intimidate a population, or
to compel a government or an international organization to do or to abstain from doing
any act.”
17. As to its expansive (incorrect) interpretation:
a. Ukraine interprets the provision/collection of “funds” expansively and well beyond its
ordinary meaning in context and in light of the objects and purposes of the ICSFT.
b. Ukraine seeks to give the broadest possible meaning to the express mental elements of
the offence of terrorism financing in the chapeau to Article 2(1) of the ICSFT of
“intention” or “knowledge” that the funds should/are to be used to commit a terrorist act.
Ukraine’s position is that these are overlapping mental elements and that recklessness,
indirect intent or constructive knowledge will suffice.
c. Similarly, Ukraine takes the broadest possible interpretation of the mental elements of
the definition of a terrorist act 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 Aviation25) and under Article 2(1)(b) of the ICSFT. It seeks to subject both the
requirement of a specific intent to kill or harm civilians and the requirement to establish
a specific terrorist purpose to an unduly low threshold.
18. While the details of Ukraine’s expansive case on interpretation are considered in the Chapters
that follow, Russia notes at the outset that on Ukraine’s expansive interpretation of the offence of
terrorism financing, Ukraine’s own provision of funds to the DPR and LPR in return for coal or steel
(or for any other reason)26 would entail the provision of funds in circumstances where Ukraine knew
(applying its misconceived interpretative approach) that those funds are to be used to commit a
terrorist act under Article 2(1) of the ICSFT.
* * *
25 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, United
Nations Treaty Series (UNTS), Vol. 974, p. 178 (the “Montreal Convention”).
26 See Ernst & Young, Extractive Industries Transparency Initiative, National Report of Ukraine 2014–2015,
https://eiti.org/files/documents/uaeiti_2014-2015_report_eng_final_0.pdf, p. 11, emphasis added: “At the beginning of
2016 coal was produced at 150 mines, of them 85 mines of all types of ownership (83 in 2014), or 57% of the total number
of Ukrainian mines (55% - 2014), are located in the territories of Donetsk and Luhansk regions that are temporarily not
under control of the Ukrainian authorities”. By way of example, in 2014 the Donbas Fuel and Energy Company (DTEK)
generated 10% of its revenue (around USD 730 million) from power generation, electricity distribution and coal mining
in the territories under the control of the DPR/LPR, where 29% of the company’s assets (around USD 1,934 million) were
located, and the company produced a total of 4.6 million tons of coal (16% of total output) from the non-government
controlled areas of the Donetsk and Lugansk regions in 2015 and 8 million tons (26% of total output) in 2016: see DTEK,
2014 Results Corporate Presentation DTEK Energy B.V., March 2015,
https://energo.dtek.com/content/files/fy2014/dtek2014-ir-presentation-march2015-pdf.pdf, p. 27; DTEK, 2015 Results
Corporate Presentation DTEK Energy B.V., March 2016, https://www.dtek.com/content/files/fy2015/ir-presentationmarch-
2016-2.pdf, p. 26; DTEK, FY 2016 Results Corporate Presentation DTEK Energy B.V., April 2017,
https://www.dtek.com/content/files/dtek_prezirfy2017_02-10-17.pdf, p. 18.
7
19. This Part of Russia’s Counter-Memorial is structured as follows:
a. Chapter II explains that, properly interpreted, the provision/collection of “funds” under
Article 2(1) of the ICSFT does not include non-financial support for insurgents,
including through the supply of weapons;
b. Chapter III explains the key role that the offence of terrorism financing as defined in
Article 2(1) plays with respect to the ICSFT as a whole, including the substantive
provisions relied on by Ukraine. Russia interprets the mental elements of “intention” or
“knowledge” in the chapeau to Article 2(1) of the ICSFT that must be established for
there to be an offence of financing of terrorism;
c. Chapter IV explains the definition of terrorist acts under Article 2(1)(a) of the ICSFT
read together with the two treaty offences in Annex A that Ukraine relies on, namely (i)
the offence of the intentional destruction of a civil aircraft in Article 1(1)(b) of the
Montreal Convention, and (ii) the offence under Article 2(1) of the International
Convention for the Suppression of Terrorist Bombings (“ICSTB”);27
d. Chapter V explains the correct interpretation of the definition of terrorist acts under
Article 2(1)(b) of the ICSFT, namely the requisite specific intent and purpose to commit
a terrorist act as defined;
e. Chapter VI responds to Ukraine’s case that Russian officials or nationals allegedly
financed the tragic shooting down of Flight MH17, showing that there is no material
evidence of the presence of the requisite mental elements under the chapeau to Article
2(1) of the ICSFT;
f. Chapter VII responds to Ukraine’s case that Russian officials or nationals allegedly
financed acts of shelling at Volnovakha, Mariupol, Kramatorsk and Avdiivka that are
alleged to constitute terrorism, and also its case with respect to certain bombings and
killings of individuals;
g. Chapter VIII responds to Chapter 6 of Ukraine’s Memorial, i.e., the specific allegations
that Russia breached its obligations under Articles 8, 9, 10, 12 and 18 of the ICSFT;
h. This Counter-Memorial closes with Russia’s submission.
27 International Convention for the Suppression of Terrorist Bombings, 15 December 1997, UNTS, Vol. 2149, p.256.
8
CHAPTER II
FUNDS WITHIN THE MEANING OF THE ICSFT
I. Introduction
20. In its Judgment on Preliminary Objections of 8 November 2019 the Court unequivocally
confirmed that
“[t]he financing by a State of acts of terrorism is not addressed by the ICSFT”.28
Accordingly, the Court also found that any matter of State responsibility for a State allegedly
financing acts of terrorism
“lies outside the scope of the Convention”.29
21. In its Judgment, the Court further emphasized that “the interpretation of the definition of ‘funds’
could be relevant […] at the stage of an examination of the merits”.30 This is indeed an important
issue that now falls for consideration since Ukraine alleges that the (purported) provision of weapons
comes within the scope of the ICSFT.31
22. In the following discussion, the Russian Federation will demonstrate that the wording of Article
1 of the ICSFT read in the context of other provisions of the treaty, its object and purpose, its drafting
history, as well as other relevant rules of international law all confirm that any alleged delivery of
weapons, assuming arguendo that such took place, does not amount to the provision of “funds” within
the meaning of Article 2(1) of the ICSFT.
23. At the outset, it has however to be noted first that Ukraine itself, in various diplomatic notes
preceding the submission of the current case, has carefully distinguished between the alleged
financing of terrorist attacks on the one hand, and others forms of support for such acts on the other.32
24. Even when bringing its case, Ukraine still seems to have implicitly accepted the distinction
between the financing of terrorism (covered by the ICSFT) and other means of support of terrorism
(as being beyond the scope of the ICSFT). It is for this reason that the very heading of the Chapter of
Ukraine’s Application dealing with alleged violations of the ICSFT drew a distinction between the
alleged “supply of arms” to terrorist groups on the one hand, and the “financing” of such alleged
28 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), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 558 (“Judgment of 8 November 2019”), para. 59.
29 Ibid.
30 Judgment of 8 November 2019, para. 62.
31 MU, p. 80 et seq.
32 See e.g. Note Verbale No. 72/22-620-1069 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign
Affairs of the Russian Federation, 7 May 2015 (Annex 24 to PORF), as well as Note Verbale No. 72/22-484-1103 of the
Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of the Russian Federation, 13 May 2015 (Annex
26 to PORF).
9
groups on the other.33 Ukraine thereby distinguished between the financing of terrorist activities and
other activities not amounting to such financing. Ukraine thereby acknowledged that any such supply
of weapons does not constitute the financing of alleged terrorist acts within the meaning of the ICSFT.
25. Second, this approach also stands in line with the way the Ukrainian government interpreted the
ICSFT when in 2002, it submitted the ICSFT for ratification by the Ukrainian parliament. The
memorandum proposing the ratification of the ICSFT by Ukraine provided that Ukraine’s envisaged
accession to the ICSFT was
“driven by the need to counter, through joint efforts, the social phenomenon of terrorist
financing”.34
26. It then further referred to “financial transactions” that are meant to be combated by the ICSFT.35
According to Ukraine itself the ICSFT thus
“qualifies terrorist financing as a criminal offence”,36
which the State parties of the Convention have to prevent
“without impeding in any way the freedom of legitimate capital movements.”37
27. It must be further noted that the said explanatory memorandum, laying out Ukraine’s own
understanding of the scope and content of the ICSFT, at no point claimed that the ICSFT as a matter
of treaty law regulates or prohibits other forms of material support to terrorist organizations. Notably,
the explanatory memorandum makes no mention whatsoever to the transfer of weapons or arms as
being covered by the ICSFT, although Ukraine now claims that such are also covered by the ICSFT.
28. Third, this distinction between the provision of arms to terrorists on the one hand, and the
financing of terrorists on the other, is also reflected in two separate sets of provisions of Ukraine’s
own penal code: while Article 258-4 of the Criminal Code of Ukraine inter alia deals with the arming
of terrorists, Article 258-5 of the Criminal Code of Ukraine as per its title specifically addresses the
“Financing of Terrorism”. Financing and arming thus constitute in Ukraine’s own understanding two
different acts.38
33 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), Application
instituting proceedings, 16 January 2017 (“Ukraine’s Application of 16 January 2017” or “Application”), p. 26; heading
number 1.
34 Explanatory note on the draft law of Ukraine on ratification of the International Convention for the Suppression of the
Financing of Terrorism (Law No. 149-IV, 12 September 2002), 8 July 2002 (Annex 7 to PORF), p. 1 (emphasis added).
35 Ibid. (emphasis added).
36 Ibid., p. 2 (emphasis added).
37 Ibid. (emphasis added).
38 Criminal Code of Ukraine, 5 April 2001, Articles 258-4 and 258-5 (Annex 51).
10
II. Wording of Article 1(1) Read in Conjunction with Article 2(1) of the ICSFT
29. The central provision of the ICSFT, Article 2(1), prohibits 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 full or in
part, in order to carry out any of the offences listed therein. The term “funds” is defined in Article
1(1) of the ICSFT, which provides that funds are
“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”.
30. The notion of “assets”, as used in Article 1(1) of the ICSFT, must in turn be read in the context
of the provision as a whole, and in particular in light of the specific categories of assets provided,
namely bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts,
letters of credit, as well as documents or instruments evidencing title to, or interest in, such assets.
Those examples all refer exclusively to assets that share three common characteristics: (i) they have
an inherent monetary value as such; (ii) they are forms of payments, and (iii) they can be freely and
legally purchased, exchanged and sold. In serving as examples for the interpretation of the term
“assets” they indicate that the provision is only meant to encompass instruments and titles, be they
movable or immovable, that are similar in nature to those explicitly listed in Article 1(1) of the ICSFT.
None of these listed assets are, however, items that can be used in and of themselves to undertake
terrorist activities. Or to put it otherwise, the definition aims at covering items that are meant to
finance the commission of terrorist activities, rather than items that are themselves means to be
resorted to in order to commit these very acts of terrorism.
31. As a matter of fact, “financing” is by its very definition an ancillary activity, i.e., an activity that
enables the recipient to then decide how, and for what purpose, to use the funds that have been
provided. This stands in contrast to a situation where the very means to commit the alleged terrorist
acts are being provided, which does not amount to the “financing” of such acts.
III. Interpretation of the Notion of “Funds” In Light of Other Provisions of the ICSFT
A. TITLE OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF
TERRORISM
32. The Court has previously noted that the purpose of a treaty “is that indicated in its title”.39 In this
respect, the title of the ICSFT does indeed demonstrate that it is only the financing of terrorist
activities that is governed by the ICSFT.
39 Certain Norwegian Loans (France v. Norway), Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 24.
11
33. The title of the ICSFT refers to the suppression of the “financing of terrorism” or, in the French
version, the “financement du terrorisme”. Accordingly, the purpose of the “International Convention
for the Suppression of the Financing of Terrorism” (“Convention internationale pour la répression du
financement du terrorisme”)40 is not generally to cover any form of support of terrorism. Rather the
ICSFT is meant, as confirmed by this title, specifically to prevent financial support of terrorism.
34. Hence, the term “funds”, as used in Article 2 of the ICSFT, must be interpreted in light of the
aim of the Convention to prohibit specifically the financing of terrorism, rather than broadly
prohibiting all forms of support for such alleged acts.
35. This result is further confirmed by the Court’s Judgment in the Oil Platforms case, where the
Court compared the title of the instrument providing for the Court’s jurisdiction in that case with that
of other contemporaneous treaties covering a similar subject-matter. In Oil Platforms the Court
accordingly first noted that
“the actual title of the Treaty of 1955 – contrary to that of most similar treaties concluded
by the United States at that time, such as the Treaty of 1956 between the United States
and Nicaragua – refers, besides ‘Amity’ and ‘Consular Rights’, not to ‘Commerce’ but,
more broadly, to ‘Economic Relations’.”41
36. Taking this broader formula into account, the Court then concluded that
“it would be a natural interpretation of the word ‘commerce’ in […] the Treaty of 1955
that it includes commercial activities in general – not merely the immediate act of
purchase and sale, but also the ancillary activities integrally related to commerce”.42
37. To similar effect, where the title of a treaty like the ICSFT contains a very specific and limited
concept, i.e., “financing” rather than “supporting”, and where at the same time the titles of other
contemporaneous and closely related treaties use a broader terminology, one cannot but conclude (to
paraphrase the Court in Oil Platforms) that it would be a natural interpretation of the word
“financing”, as used in the title of the ICSFT, so as not to encompass the transfer of non-financial
assets.
38. As a matter of fact, where States have wanted also to regulate the transfer of weapons in antiterrorism
conventions, they have addressed the matter explicitly. They have done so by choosing a
title that broadly covers all types of support for terrorist activities, and by then also including
provisions to that effect in the operative part of the respective treaty. Indeed, it is hard to imagine that
a matter as sensitive as regulating the provision of weapons to non-state groups would be addressed,
as claimed by Ukraine, implicitly and en passant, without explicitly referring to it and regulating the
40 Emphasis added.
41 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports
1996, p. 803, 819, para. 47.
42 Ibid., para. 49.
12
details thereof. It is even less plausible that such a sensitive question would fall within the scope of a
treaty without the matter having been subject to a very thorough debate throughout the drafting
process.
39. Consistent with this reasoning, in 1998 (i.e., only one year prior to adoption of the ICSFT) States
within the framework of the League of Arab States adopted an anti-terrorism convention with a
notably broader title, namely the “Arab Convention for the Suppression of Terrorism”.43 This
Convention, as confirmed by its title and unlike the ICSFT, not only regulates the suppression of the
financing of terrorism, but more generally deals with the suppression of terrorism in toto. The Arab
Convention, unlike the ICSFT, was thus meant to also address other forms of support of terrorism.
Accordingly, and in line with its broad title, the “Arab Convention for the Suppression of Terrorism”
in its Article 3- I(3) specifically addresses
“the movement, importation, exportation, stockpiling and use of weapons, munitions and
explosives […] as well as procedures for monitoring their passage through customs and
across borders in order to prevent their transfer from one Contracting State to another or
to third-party States other than for lawful purposes”.
40. The same holds true for the Convention of the Organization of African Unity on the Prevention
and Combating of Terrorism (“OAU Convention”),44 which was adopted in July 1999, i.e., only five
months prior to the adoption of the ICSFT. Again, in line with its broad title, and unlike the ICSFT it
not only regulates in its Article 4(1) the financing of terrorist activities, but also other forms of support
for such acts. Consistent with this broad scope, Article 4(2)(b) of the OAU Convention explicitly
encompasses the obligation to
“(b) develop and strengthen methods of monitoring and detecting plans or activities aimed
at the illegal cross-border transportation, importation, export, stockpiling and use of arms,
ammunition and explosives and other materials and means of committing terrorist acts”.
41. Thus, as could only be expected, where a matter as important and sensitive as the supply of arms
is concerned, the parties to the OAU Convention also thought it necessary specifically to include a
provision expressly aimed at weapon supply in the scope of the notion of support of terrorist activities.
Further, where the parties to the OAU Convention refer to “funds”, they plainly had in mind financial
resources, not weaponry. In the 2004 Protocol to this OAU Convention, concluded with the desire
“of ensuring the effective implementation of the OAU Convention on the Prevention and Combating
43 The Arab Convention for the Suppression of Terrorism, April 1998, available at: https://www.unodc.org/images/tldbf/
conv_arab_terrorism.en.pdf (emphasis added).
44 Convention of the Organization of African Unity on the Prevention and Combating of Terrorism (“OAU
Convention”), July 1999, available at: https://au.int/sites/default/files/treaties/37289-treaty-0020_-
_oau_convention_on_the_prevention_and_combating_of_terrorism_e.pdf (emphasis added).
13
of Terrorism”,45 and in order to “supplement the Convention”,46 its Article 3(1)(c) obliges State
parties inter alia to compensate victims of terrorist acts and their families with confiscated funds used
or allocated for the purpose of committing a terrorist act. Yet, since such funds are thus meant
financially to compensate victims of terrorist acts, the term cannot be meant to include weapons, but
instead must be limited to financial resources.
42. Reference should also be had to the Convention of the Organisation of the Islamic Conference
on Combating International Terrorism, adopted on 1 July 1999, i.e., again only five months prior to
the ICSFT. This OIC Convention, unlike the ICSFT, and in line with its broad title which refers to
“Combating International Terrorism”, concerns the fight against terrorism in general, rather than
merely addressing the financing of terrorism. In line with its broad title, the OIC Convention then
regulates financing, as well as other forms of support of terrorist acts. Accordingly, Article 3(I) of the
OIC Convention on Combating International Terrorism provides that the contracting States are
committed
“not to execute, initiate or participate in any form in […] financing […] or supporting
terrorist acts whether directly or indirectly.”47
43. In the same vein Article 3 (II) lit. (A) no. 3 of the OIC Convention specifically addresses the
“transportation, importing, exporting stockpiling, and using of weapons, ammunition and
explosives”.48
44. Accordingly, the OIC Convention, again in line with its very broad title, not only regulates the
financing of terrorist acts, but also deals with forms of non-financial support. Besides, Article 3(I) of
the OIC Convention on Combating International Terrorism clearly distinguishes between the arming
of terrorist elements on the one hand, and their financing on the other.
45. The drafters of the ICSFT must obviously have been aware of these other closely related
conventions which had been adopted just months before the ICSFT, and which had been negotiated
in parallel with the ICSFT. It can thus safely be inferred that the drafters of the ICSFT deliberately
decided not to select a broader title, and indeed content, for the ICSFT. Had the drafters indeed wanted
also to encompass forms of non-financial support of terrorist activities they would have chosen, being
aware of those other contemporaneous broad anti-terrorist treaties, a different title such as
“International Convention for the Suppression of the Support of Terrorism”.
45 Protocol to the OAU Convention on the Prevention and Combating of Terrorism, 8 July 2004, available at:
https://au.int/sites/default/files/treaties/37291-treaty-0030_-_protocol_to_the_oau_convention_on_the_prevention_and_
combating_of_terrorism_e.pdf, preambular paragraph 16.
46 See Article 2 of the Protocol to the OAU Convention on the Prevention and Combating of Terrorism.
47 Convention of the Organisation of the Islamic Conference on Combating International Terrorism, 1 July 1999,
available at: https://undocs.org/en/A/54/637 (emphasis added).
48 Ibid. (emphasis added).
14
46. Consistent with its narrow title, the ICSFT (unlike other significantly broader treaties) as a matter
of treaty law thus obliges States to suppress the financing of terrorism. It does not encompass other
forms of support, which continue to be governed by customary international law. Any possible
violations of such customary law based prohibitions (including the provision of weapons to non-State
actors by a State), as confirmed by the Court in its judgment on jurisdiction and admissibility, fall
outside the Court’s jurisdiction under the ICSFT’s compromissory clause. This is in line with the
Court’s reasoning that:
“[a]s the title of the ICSFT indicates, the Convention specifically concerns the support
given to acts of terrorism by financing them.”49
Respectively in the authoritative French text of the judgment:
« Comme l’indique son intitulé, la CIRFT réprime précisément le fait d’appuyer la
commission d’actes de terrorisme en les finançant. »50
B. PREAMBLE
47. In the same vein, the preamble of the ICSFT also refers to the aim of the treaty to suppress
specifically the financing of terrorist activities rather than more generally to suppress any support for
terrorist activities. Particularly telling in this respect is preambular paragraph 7, as well as preambular
paragraphs 10-13, of the ICSFT.
48. Preambular paragraph 7 recalls the work of the General Assembly on the prevention of the
financing of terrorists and terrorist organizations. It recalls in particular General Assembly resolution
51/210 of 17 December 1996. In this resolution the General Assembly had called upon States to take
steps to prevent and counteract the financing of such individuals and organizations regardless of
“whether such financing is direct or 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”.51
49. Under preambular paragraph 7, it is thus also the aim of the ICSFT to cover the recipients of
financial support, i.e., terrorists and terrorist organizations that might as a separate matter be engaged
inter alia in the trafficking in arms. Put another way, the ICSFT is meant to procure the eradication
of financial support for terrorist organizations, which organizations might then acquire weapons or
ammunition with the financial support previously received. A contrario this preambular paragraph
thereby confirms that only direct or indirect financial support to terrorists and terrorist organizations,
but not support by way of providing physical means to commit terrorist acts, is covered by the ICSFT.
49 Judgment of 8 November 2019, para. 62 (emphasis added).
50 Ibid. (emphasis added).
51 Emphasis added.
15
50. Besides, preambular paragraph 7 further 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”.52
51. This reference in preambular paragraph 7 to legitimate capital movements, which should not be
impeded by measures aimed to prevent certain movements of funds, confirms that funds are to be
understood as merely encompassing funds that possess a monetary value as such.
52. Preambular paragraphs 12 and 13 of the ICFST also specifically refer to the financing of acts of
terrorism and terrorist organizations. Preambular paragraph 12 of the ICSFT thus notes that
“existing multilateral legal instruments do not expressly address such financing [of
terrorists]”.53
53. Accordingly, the ICSFT was meant to supplement other pre-existing legal instruments so that,
henceforth, there would also be a prohibition of specifically the provision of financial support for
terrorists. The aim of the ICSFT was thus a limited and specific one, namely expressly to address and
prohibit the monetary support for terrorists and terrorist organizations.
54. If the ICSFT had indeed been meant to cover generally all forms of direct support for terrorists,
it would in particular have been necessary to rephrase preambular paragraphs 10-13 as follows:
“[10] Considering that the financing and other forms of support of terrorism is a matter
of grave concern to the international community as a whole,
[11] Noting that the number and seriousness of acts of international terrorism depend on
the financial or other forms of support that terrorists may obtain,
[12] Noting also that existing multilateral legal instruments do not expressly address such
financial or other forms of support […],
[13] Being convinced of the urgent need to enhance international cooperation among
States in devising and adopting effective measures for the prevention of the financing and
of other forms of support of terrorism, as well as for its suppression through the
prosecution and punishment of its perpetrators”.
55. Yet, preambular paragraphs 10-13, as drafted and adopted, all limit the scope of the ICSFT to
the provision of financial support for terrorist and terrorist organizations.
52 Emphasis added.
53 Emphasis added.
16
56. The preamble of the ICSFT therefore confirms that only various forms of financial support to
terrorist and terrorist organization is covered by the ICSFT, but not direct support in the form of
providing as such the means to commit terrorist acts.
C. ARTICLE 8(4) OF THE ICSFT
57. Other provisions in the ICSFT confirm this interpretation. Notably, Article 8(4) of the ICSFT
obliges State parties to
“consider establishing mechanisms whereby the funds derived from the forfeitures [of
funds] referred to in this article are utilized to compensate the victims of offences referred
to in article 2, paragraph 1, subparagraph (a) or (b), or their families.”
58. Article 8(4) of the ICSFT accordingly presupposes that the funds that have been seized under
Article 8(1) of the ICSFT can be subject to forfeiture in order for them to be used as financial
reparation for victims of the principal offence, i.e. the terrorist activities themselves. This possibility
of forfeiture, as envisaged by Article 8(4), in turn presupposes that the seized funds, which had been
intended to finance terrorist activities, can compensate those that have suffered from terrorist
activities. It is obvious that non-monetary items such as weapons cannot be used in such a manner,
nor could they be sold on the open market in order for the proceeds of such sale to compensate
possible victims.
59. Article 8(4) of the ICSFT therefore, by necessary implication, confirms that the ICSFT at large,
and Article 1 of the ICSFT in particular, only cover forms of financial support to terrorist activities,
but not the direct support in the form of providing the means to commit terrorist activities.
D. ARTICLE 12(2) OF THE ICSFT
60. In the same vein, Article 12(2) of the ICSFT provides that
“2. States Parties may not refuse a request for mutual legal assistance on the ground of
bank secrecy.”54
61. This provision confirms once again that the focus of the ICSFT is on financial transactions, and
financial transactions only, since it deals exclusively with the issue of the secrecy of financial
transactions, but not with other form of secrets.
62. If the ICSFT were indeed to cover the transfer of weapons, it would in particular have been
necessary to also address the issue of military secrets or related matters of national security either in
Article 12(2) of the ICSFT or elsewhere. As a matter of fact, if the drafters had indeed wanted to
cover the supply of weapons one would expect the treaty to contain a provision addressing, in one
way or another, the issue of whether or not requests for mutual legal assistance may be refused on
54 Emphasis added.
17
grounds of military secrets or national security. This is due to the fact that any cross-border transfer
of weapons is, to state the obvious, intrinsically linked to issues of national security.
63. A contrario, the lack of any such provision regulating a possible denial of requests for mutual
legal assistance for reasons of national security therefore confirms that the transfer of weapons was
not perceived as being governed by the ICSFT.
E. ARTICLE 13 OF THE ICSFT
64. Article 13 of the ICSFT further provides that none of the offences set forth in Article 2 of the
ICSFT shall be regarded, for the purposes of extradition or mutual legal assistance, as a fiscal offence
and that States Parties may not refuse a request for extradition or for mutual legal assistance on the
ground that it concerns a fiscal offence.
65. This, once more, implies that the offences that the ICSFT is addressing are offences of a financial
character, given that those offences relate to the non-payment of taxes and similar duties. Hence the
need formally to exclude the possibility of claiming that such offences constitute fiscal offences for
purposes of the ICSFT. In contrast, offences related to the transfer of items to be directly used for
terrorist acts by their very nature never constitute fiscal offences, which means Article 13 of the
ICSFT would be at least redundant as far as such transfers are concerned – if one were to follow
Ukraine’s interpretation of the term “funds” in Article 1 of the ICSFT.
F. ARTICLE 18 OF THE ICSFT
66. Similarly, Article 18(1)(b) of the ICSFT specifically addresses financial transactions and the
behaviour of financial institutions, and indeed of such institutions only. In the same vein, Article
18(2)(a) obliges State parties to supervise money-transmission agencies only. A contrario it does not
oblige State parties to supervise legal entities involved in the alleged transfer of items meant directly
to commit terrorist acts. This again confirms that such items are not encompassed by the notion of
“funds”.
67. Most telling, however, is Article 18(2)(b) of the ICSFT. It obliges States parties to cooperate in
the prevention of offences set forth in Article 2 of the ICSFT by considering feasible measures to
detect or monitor the physical cross-border transportation of “cash and bearer negotiable
instruments”55 only.
68. This limited scope of Article 18(2)(b) of the ICSFT is further reinforced by the fact that any such
border controls shall not impede “the freedom of capital movements”.56
55 Emphasis added.
56 Emphasis added.
18
69. If indeed, as claimed by Ukraine, the physical cross-border transportation of weapons were to
amount to the provision of “funds” within the meaning of Article 1 of the ICSFT read in conjunction
with Article 2, it cannot be explained why the treaty does not also address cooperation between States
Parties to prevent the cross-border transportation of weapons either in its Article 18, or in a separate
provision, akin to the cooperation when it comes to the physical cross-border transportation of cash.
70. Indeed, if the term “funds” in Article 1 of the ICSFT were also to cover assets that do not possess
an intrinsic financial value as such, the ICSFT would necessarily provide for the obligation of States
Parties to consider
“(b) Feasible measures to detect or monitor the physical cross-border transportation of
cash and bearer negotiable instruments or other assets, subject to strict safeguards to
ensure proper use of information and without impeding in any way the freedom of capital
movements and the freedom of movements of goods.” (emphasis added).
71. By omitting in Article 18 any either direct or indirect reference to the physical cross-border
transportation of non-monetary funds, the text of the ICSFT itself confirms that the direct supply of
means to commit terrorist activities does not fall within the scope of the said Convention.
72. This result that weapons are not encompassed by the notion of “funds”, based on the wording of
Article 1 of the ICSFT, as well as from its context, is further confirmed by the object and purpose of
the ICSFT.
IV. Object and Purpose of the ICSFT
73. The object and purpose of the International Convention for the Suppression of the Financing of
Terrorism is to suppress one specific form of support of terrorist activities only, namely its financing.
It aims to do so because assets such as cash, shares, money orders, cheques, titles, or even immovable
property [such as buildings], are themselves “neutral” in character. The inherent and specific risk in
providing such assets to non-state actors therefore lies in the fact that those assets can readily be
liquidated and transformed into bombs or weaponry, but are prima facie not linked to terrorist
activities. What is more, such financial assets can freely and legally be exchanged and traded both,
domestically and internationally. The provision of such prima facie “neutral” assets to terrorists
therefore poses the particular danger that terrorist activities are supported by financial means that
themselves are not subject to domestic or international supervision and regulation, or other forms of
control by States, were it not for the ICSFT.
74. Providing financial support to terrorist organizations also gives terrorist organizations the ability
to continue their illegal activities, and also participate in regular, otherwise “neutral” economic
activities. It was thus specifically the raising of such financial support, not previously addressed in a
specific treaty that was addressed by the ICSFT.
19
75. In contrast, any form of cross-boundary trafficking in weapons undertaken by individuals has,
throughout the world, always been subject to strict governmental scrutiny and control by States. At
the same time there was an urgent need to regulate the financial support to be provided to terrorists
by individuals, be it by way of money or other means of payments, since such financial support had
not previously been subject to governmental scrutiny, and even less subject to an international treaty
regime.
76. Hence, the object and purpose of the ICSFT was specifically to dry out the financial support for
terrorist organizations, which confirms that the provision of means that themselves can be used to
commit terrorist acts is not covered by the treaty. This result is further confirmed by the drafting
history of the ICSFT.
V. Drafting History of Article 1(1) of the ICSFT
77. The ICSFT is based on a draft submitted by France in 1999.57 That draft contained definitions of
both “financing” and “funds”, as follows:
“For the purposes of this Convention:
1. ‘Financing’ means the transfer or reception of funds, assets or other property, whether
lawful or unlawful, by any means, directly or indirectly, to or from another person or
another organization.
2. ‘Funds’ means any type of financial resource, including the cash or currency of any
State, bank credits, travellers’ cheques, bank cheques, money orders, shares, securities,
bonds, drafts, letters of credit and any other negotiable instrument in any form, including
electronic or digital form.”58
78. This proposal in French read:
« Aux fins de la présente Convention:
1. Financement s’entend du transfert ou réception de fonds, d’avoirs ou d’autres biens,
licites ou illicites, par quelque moyen que ce soit, directement ou indirectement, à une
autre personne ou à une autre organisation.
2. Fonds s’entend de tout type de ressource financière, et notamment des espèces ou de
la monnaie de tout État, des crédits bancaires, des chèques de voyage, chèques bancaires,
mandats, actions, titres, obligations, traites, lettres de crédit, de tout autre instrument
57 Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Third session, Draft
international convention for the suppression of the financing of terrorism, Working document submitted by France, UN
Doc. A/AC.252/L.7, 11 March 1999 (Annex 5 to PORF), p. 2.
58 Ibid. (emphasis added).
20
négociable sous quelque forme que ce soit, y compris sous forme électronique ou
numérique. »59
79. Accordingly, while the notion of funds was to be understood for purposes of the Convention as
limited to financial resources, the term “financing” was originally extended to include also the
transfer of other “property” as distinct from “funds”, as well as “assets”. In the perspective of its
sponsor, the notion of “financing” was thus to be understood only to cover providing financial means,
were it not for the proposed explicit use of the words “or other property”.60 Put another way, it was
only the proposed addition of the words “other property” that would have extended the scope of the
future ICSFT to also cover direct support for acts prohibited under the Convention.
80. Both definitions of “financing” and “funds” were then merged in a working paper submitted by
France where the notion of “property” was still used in addition to, and distinguished from, the notion
of assets.61 It was thus still the understanding of the sponsor that there exists “other property” («autres
biens») that does not at the same time constitute “assets” («d’avoirs»). Hence, such other forms of
support for terrorist activities by way of transferring items of “other property” that do not at the same
time constitute “assets” would accordingly not come within the scope of the envisaged Convention,
were it not for the proposed addition of the term “property”.
81. The issue as to whether the term “property” should be retained in draft Article 1 of the ICSFT
led to an intense debate within the Working Group dealing with the matter.62 It is particularly relevant
to note that there was a consensus that “other property” was understood as specifically covering
“arms, explosives and similar goods”.63 Consistent with the intended scope of the Convention and
this understanding of the term “other property”, it was decided to drop the reference to this concept
of “other property”, and thereby also to weapons, from Article 1 as adopted.
59 Ibid. (emphasis added).
60 Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Third session, Draft
international convention for the suppression of the financing of terrorism, Working document submitted by France “Why
an international convention against the financing of terrorism?”, A/AC.252/L.7/Add.1, 11 March 1999 (Annex 275 to
MU), p. 2.
61 United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37 (Annex 5 to
PORF), p. 12.
62 Informal summary of the discussion in the Working Group, prepared by the Rapporteur: first reading of draft articles
1 to 8, 12, paragraphs 3 and 4, and 17 on the basis of document A/AC.252/L.7, ibid., p. 57.
63 Ibid.
21
VI. Interpretation of the Notion of “Funds” In Light of Other Relevant Rules of International
Law
A. INTRODUCTION
82. This understanding of the notion of “funds” contained in Article 1 of the ICSFT, as only
encompassing financial means, as well as more generally the clear distinction between the
“financing” of terrorism and the backing of terrorism by way of in-kind support is further confirmed
by reference to other relevant international instruments.
B. ARMS TRADE TREATY
83. The Arms Trade Treaty (“ATT”) was adopted on 2 April 2013,64 i.e., fourteen years after the
ICSFT, which in Ukraine’s reading of the ICSFT had already regulated the transfer of arms to terrorist
groups.65 Yet, the development of the ATT, as well as its content, confirm that it has been the shared
understanding of the States participating in the negotiation of the ATT that prior treaties, including
notably the ICSFT that had already entered into force 11 years earlier, had not yet addressed the
transfer of conventional weapons to terrorist groups.
84. Already General Assembly resolution 61/89 of 6 December 2006 “Towards an arms trade treaty:
establishing common international standards for the import, export and transfer of conventional
arms”66 had confirmed the lack of
“international standards on the […] transfer of conventional arms”,67
which lacuna the General Assembly considered to constitute
“a contributory factor to […] terrorism”.68
85. Yet, if Ukraine’s interpretation of the ICSFT was correct, this finding by the General Assembly,
in 2006, as to the lack of any specific legal regulation of the transfer of arms contributing to acts of
terrorism would have been blatantly wrong. It follows that it has been, and indeed necessarily must
have been, the General Assembly’s understanding, when adopting its resolution 61/89, that the ICSFT
64 Arms Trade Treaty, 2 April 2013, United Nations, UNTS, Vol. 3013 (“ATT”).
65 MU, pp. 166-167.
66 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.
67 Ibid., preambular paragraph 9.
68 Ibid.
22
did not already regulate the transfer of arms to terrorist groups. In that regard, it is worth noting that
Ukraine itself was one of the sponsors of the said resolution,69 and later voted in favour of it.70
86. This understanding of the scope of the ICSFT, as not encompassing the transfer of weapons, is
then further reflected in the preamble of the ATT itself. Its preamble underlines
“the need […] to prevent their [i.e. conventional arms] diversion […] for unauthorized
end use and end users, including in the commission of terrorist acts”.71
87. If the notion of “funds” within the meaning of Article 1 of the ICSFT truly covered weapons and
arms, and if therefore the ICSFT had already addressed the diversion of weapons for the purpose of
committing terrorist acts in its Article 2(1), this would have been recorded in the preamble of the
ATT. The preamble of the ATT, however, does not contain any reference to the ICSFT. By contrast,
the preamble to the ATT specifically mentions certain other pre-existing international instruments
that do govern the control of arms transfers such as inter alia the 2005 “Protocol against the Illicit
Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition,
supplementing the United Nations Convention against Transnational Organized Crime”;72 but it does
not mention the ICSFT.
88. Instead, and to the contrary, the preamble of the ATT deplores the fact that the obligation to
prevent the transfer of weapons to terrorist groups was, at the date of the adoption of the ATT on 2
April 2013, i.e. at a time when 182 States including both Ukraine and the Russian Federation had
already become bound by the ICSFT, still missing. Yet again, such statement is inconsistent with
Ukraine’s claim that already as from 2002 onwards, i.e. from the time the ICSFT entered into force,
such an obligation did already exist as per Article 2 of the ICSFT.
89. It is also telling that during the negotiations leading to the adoption of Article 6 para. 2 of the
ATT, which obliges States Parties of the ATT not to
“authorize any transfer of conventional arms […] if the transfer would violate its relevant
international obligations under international agreements to which it is a Party, in
particular those relating to the transfer of, or illicit trafficking in, conventional arms”,
no mention was made of the ICSFT. This again contradicts Ukraine’s claim that the ICSFT
encompasses a treaty-based international obligation to prevent the transfer of arms to terrorist groups.
The result that the ICSFT does not comprise such an obligation is further confirmed by the fact that
leading authorities on the ATT, when analyzing Article 6, para. 2 of the ATT in detail, do not even
69 Cf. General Assembly resolution 61/89, Notes: Additional sponsors, at:
https://digitallibrary.un.org/record/584694?ln=en.
70 General Assembly resolution 61/89, Voting record, at: https://digitallibrary.un.org/record/588253?ln=en.
71 ATT, preambular paragraph 4; emphasis added.
72 See ATT, preambular paragraphs 7-8.
23
mention the ICSFT.73 Accordingly, the ICSFT is not seen as entailing a treaty-based prohibition on
transfer of weapons.
90. This is further confirmed by Article 7 para. 1 lit. b) (iii) of the ATT which contains an additional
obligation for States Parties, prior to authorizing the export of weapons, to assess the potential that
the conventional arms or items could be used to
“(iii) commit or facilitate an act constituting an offence under international conventions
or protocols relating to terrorism to which the exporting State is a Party”.
91. If, as argued by Ukraine, Article 1 of the ICSFT read in conjunction with Article 2 of the ICSFT
already obliged States to prevent the transfer of weapons as such, the obligation laid down in Article
7 of the ATT merely to assess the potential for the terrorist use of any such weapons to be transferred,
and only in case of an overriding risk of such use not to authorize such transfer, rather than prevent
such transfer per se, would be significantly lower than the standard allegedly already previously
contained in the ICSFT. This would contradict the overall aim of the ATT to strengthen the legal
regime for the transfer of conventional weapons, rather than to weaken it. What is more,
commentators on Article 7 of the ATT have never considered the ICSFT to fall within the ambit of
that provision,74 once again contradicting Ukraine’s overbroad interpretation of the ICSFT.
C. PROTOCOL AGAINST THE ILLICIT MANUFACTURING OF AND TRAFFICKING IN FIREARMS, THEIR
PARTS AND COMPONENTS AND AMMUNITION SUPPLEMENTING THE UNITED NATIONS [PALERMO]
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
92. The 2001 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts
and Components and Ammunition, supplementing the United Nations [Palermo] Convention against
Transnational Organized Crime75 specifically addresses illegal trafficking in weapons. This once
again confirms that any such regulation, provided it is meant to be covered by a given treaty, is done
expressis verbis, not least given the sensitive character of the matter. Besides, the preamble to the
2001 Protocol does not mention the ICSFT, which would have been expected if the drafters of the
Protocol had shared Ukraine’s position that the transfer of weapons had previously been addressed
by the ICSFT.
73 See, inter alia, C. Da Silva/ P. Nevill, Article 6 ATT, passim, in: C. Da Silva/ B. Wood (eds.), Weapons and
International Law –The Arms Trade Treaty (2015), as well as S. Casey-Maslen, Article 6 para. 2 ATT, passim, in:
S. Casey-Maslen/ A. Clapham/ G. Giacca/ S. Parker (eds.), The Arms Trade Treaty – A Commentary (2016).
74 See inter alia C. Da Silva/ B. Wood, Article 7 ATT, 4.5., p. 127 and accompanying footnotes, in: C. Da Silva/ B. Wood
(eds.), Weapons and International Law –The Arms Trade Treaty (2015), as well as S. Casey-Maslen, Article 7 para. 2
ATT, p. 272, marginal note 7.83 and in particular fn. 121, in: S. Casey-Maslen/ A. Clapham/ G. Giacca/ S. Parker (eds.),
The Arms Trade Treaty – A Commentary (2016).
75 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and
Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, 31 May 2001,
UNTS, vol. 2326, p. 211.
24
D. SECURITY COUNCIL RESOLUTIONS
93. The distinction between the financing of terrorist activities on the one hand, and other forms of
support in kind of terrorism, is further confirmed by the practice of the Security Council. Its
resolutions of course constitute other relevant rules of international law applicable in the relations
between the parties within the meaning of Article 31 para. 3 lit. c of the Vienna Convention on the
Law of Treaties.
94. Security Council resolution 1373 (2001) indicated that “funds” are to be understood as various
forms of “financial assets” when obliging the member States of the United Nations to freeze the
“funds and other financial assets […] of persons who commit, or attempt to commit,
terrorist acts or participate in or facilitate the commission of terrorist acts”.76
95. The same resolution further confirmed the distinction between the support for terrorist activities
e.g., by supplying weapons77 on the one hand, and its financing on the other, when obliging States to
deny safe haven to those who
“finance, plan, support, or commit terrorist acts”.78
96. This distinction was then reiterated by Security Council resolution 1377 (2001), when referring
to “financial and […] other forms of support” for terrorist activities.79
97. Most recently, and indeed soon after Ukraine had brought its case under the ICSFT,80 the Security
Council in resolution 2370 (2017) reaffirmed the obligations of States to
“prevent and suppress the financing of terrorist acts and refrain from providing any form
of support […] including by […] eliminating the supply of weapons to terrorists”.81
98. Put another way, Security Council resolution 2370 (2017) confirms that the supply of weapons
to terrorists, while forming part of support for terrorist acts, does not amount to the specific offence
of terrorism financing. Yet, as previously shown, the ICSFT only regulates the financing of terrorists,
but does not encompass issues related to other forms of support for such terrorists.
99. Most telling is operative paragraph 3 of Security Council resolution 2482 (2019) in which the
Security Council, after having made an explicit reference to the ICSFT, calls for the fight against
76 Security Council resolution 1373 (2001), operative paragraph 1, lit. c) (emphasis added).
77 See ibid., operative paragraph 2, lit. a), obliging States to “[r]efrain from providing any form of support, […] including
by […] eliminating the supply of weapons to terrorists”.
78 Ibid., operative paragraph 2, lit. c).
79 See Security Council resolution 1377 (2001), Annex, paragraph 12.
80 Ukraine’s Application of 16 January 2017, p. 26.
81 Security Council, resolution 2370 (2017), preambular paragraph 17, emphasis added; see also most recently Security
Council, resolution 2462 (2019), operative paragraph 1.
25
“illicit finance including terrorist financing and money-laundering”.82 At the same time operative
paragraph 10 of the very same resolution, addressing the trade of all types of military materials and
components, does not contain any such reference to the ICSFT. This confirms the understanding of
the Security Council that the ICSFT does not encompass the transfer of weapons, but is limited to
regulating the transfer of financial assets.
100. More specifically concerning the notion of “funds”, the Security Council in its practice
subsequent to the adoption of the ICSFT has frequently made reference to the notion of “funds and
other financial assets”83 including inter alia in resolution 2199 (2015),84 resolution 2253 (2015),85
resolution 2255 (2015),86 as well as in resolution 2395 (2017),87 thereby confirming, by consistently
using the word “other”, that the term “funds” is to be understood as something with an inherently
financial character as opposed to other kind of assets.
VII. Conclusion
101. As has thus been demonstrated, Article 2(1) of the ICSFT read in conjunction with its Article
1, properly interpreted, does not encompass the provision of direct, in-kind support to alleged terrorist
groups, but is limited to suppressing the provision of financial support.
102. A different, yet overbroad, reading of the notion of “funds”, as proposed by Ukraine, would be
contrary, as shown, to established principles of treaty interpretation.
103. What is more, and even more importantly, it would, be it only through the backdoor, turn the
ICSFT into an all-embracing comprehensive anti-terrorist convention on which the international
community has so far unfortunately failed to reach a consensus, as confirmed by the still ongoing
negotiations on a comprehensive convention on international terrorism.88
82 Security Council, resolution 2482 (2019), operative paragraph 3; emphasis added.
83 Emphasis added.
84 Security Council resolution 2199 (2015), operative paragraphs 3, 4 and 5.
85 Security Council resolution 2253 (2015), operative paragraph 2, lit. a); ibid., operative paragraph 75, lit. a).
86 Security Council resolution 2255 (2015), operative paragraph 1, lit. a); ibid., operative paragraph 5; ibid., operative
paragraph 18.
87 Security Council resolution 2395 (2017), preambular paragraph 22.
88 See most recently General Assembly resolution A/RES/75/145, 15 December 2020, para. 25.
26
CHAPTER III
THE MENTAL ELEMENTS OF THE OFFENCE OF TERRORISM FINANCING UNDER
THE CHAPEAU TO ARTICLE 2(1) OF THE ICSFT
104. All of the substantive provisions that Ukraine relies on – i.e. Articles 8-10, 12 and 18 of the
ICSFT – apply only in respect of the offence of terrorism financing in Article 2 of the ICSFT. Indeed,
as Ukraine has accepted in its Written Statement of Observations and Submissions on Preliminary
Objections (“Observations”), “the entire architecture of the treaty hinges on the Article 2 offence”.89
In this respect, as the Court explained in its Judgment on Preliminary Objections:
“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).”90
105. To similar effect, in its Order of 19 April 2017, in responding to Ukraine’s request for
provisional measures which was focused on Article 18 of the ICSFT, the Court recognised the
importance of the relationship between that provision and the offence under Article 2 of the ICSFT,
reasoning that:
“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.”91
106. It follows that it is essential in the current case to focus on all the elements of Article 2(1) of the
ICSFT, including the specific requirements with respect to the mental elements of intention,
knowledge and purpose. In this section Russia interprets the mental elements which are required to
establish the offence of terrorism financing “intention” or “knowledge” under the chapeau to Article
2(1) of the ICSFT. The additional elements of the offence under Article 2(1)(a) and 2(1)(b) of the
ICSFT are addressed in Chapters IV and V respectively.
I. The “Intention” or “Knowledge” Necessary for the Offence of Terrorism Financing
under the Chapeau to Article 2(1) of the ICSFT
107. Article 2(1) of the ICSFT – and, indeed, the Convention as a whole – is concerned only with
the suppression of financing of terrorism, that is the unlawful and wilful provision or collection of
“funds with the intention that they should be used or in the knowledge that they are to be used” to
carry out one of the specified terrorist acts, as then defined in Articles 2(1)(a) and (b) of the ICSFT.
89 WSU, para. 200.
90 Judgment of 8 November 2019, para. 59 (emphasis added).
91 Order of 19 April 2017, para. 74.
27
The mental element of the offence of terrorism financing, and its component elements, therefore
performs a central role in the structure and application of the Convention.92
108. Contrary to Ukraine’s repeated assertion, it has never been Russia’s position that the ICSFT
does not apply during armed conflict.93 However, the ICSFT was not intended to, and does not,
criminalise support for a party to an armed conflict as such. The Convention is concerned specifically
and exclusively with terrorism financing as defined in the Convention, and the requirement that the
financier must intend or know that the funds are to be used to commit a terrorist act is critical to that
distinction.
109. While the provision or collection of financing under Article 2(1) of the ICSFT may be by direct
or indirect means, Article 2(1) contains the further qualification that this must be “unlawfully and
wilfully”, i.e. a lawful and/or non-deliberate (e.g. inadvertent, negligent or involuntary)
provision/collection of funds would not fall within Article 2(1) of the ICSFT.94 The key mental
requirements are then further spelled out as the provision/collection of funds with the “intention that
[funds] should be used” “or” with the “knowledge that [funds] are to be used” to commit a terrorist
act as defined in Article 2(1)(a) or (b) of the ICSFT.
110. Hence, the first mental element is the provision/collection of funds “with the intention that they
should be used” to carry out a terrorist act as defined in Article 2(1)(a) or (b) of the ICSFT. The
second, alternative, mental element is the provision/collection of funds “in the knowledge that they
are to be used” to carry out a terrorist act, as defined in Article 2(1)(a) or (b) of the ICSFT.
A. THE ORDINARY MEANING OF THE TERMS USED, IN THEIR CONTEXT, AND IN LIGHT OF OBJECT
AND PURPOSE
111. As follows from the ordinary meaning of the phrase “with the intention that [funds] should be
used or in the knowledge that [funds] are to be used”, “intention” and “knowledge” are plainly not
synonyms and they refer to two different, alternative, mental elements. Put another way, the mental
92 See, e.g., the commentary relied on by Ukraine: M. Lehto, Indirect Responsibility for Terrorist Acts, Martinus Nijhoff,
2009, p. 287 (Annex 490 to MU): “As article 2 has been formulated, […] it lays all the stress on the subjective side
(intention or knowledge)”. See also pp. 261 (“The mental element of terrorist financing has been defined carefully, and
consists of several components”), 264 (“The criminal nature of terrorist financing relies heavily, if not exclusively, on the
guilty mind of the perpetrator. For the purpose of the personal culpability of the financier, the connection is a mental one,
created by the criminal knowledge or intention”). By contrast, UN Security Council Resolution 1373 requires Member
States to prohibit terrorism financing, while remaining silent as to the mental element of the offence: see United Nations
Security Council, Resolution 1373 (2001), operative para. 1(d).
93 Cf. CR 2019/12, 7 June 2019, p. 15, para. 11 (Koh); p. 37, paras. 34-35 (Cheek).
94 See e.g. A. Aust, “Counter-Terrorism - A New Approach - The International Convention for the Suppression of the
Financing of Terrorism”, Max Planck Yearbook of United Nations Law, 5, 2001, p. 295: “‘wilfully’ was added to
emphasise that the financing had to be done deliberately, not accidentally or negligently, though the following elements
of intention or knowledge are probably sufficient.” See also Implementation Kits for International Counter-Terrorism
Conventions, Commonwealth Secretariat, p. 268, available at:
https://thecommonwealth.org/sites/default/files/key_reform_pdfs/
Implementation%20Kits%20for%20Terrorism%20Conventions_0.pdf.
28
element of “intention” must be interpreted in the context of the immediately following alternative
mental element of “knowledge”.
a. Every term of a treaty must be interpreted in a way that gives it meaning and effect.95
Hence if the words “intention that [funds] should be used” were interpreted as meaning
or encompassing “knowledge that [funds] are to be used”, that would render the latter
wording redundant, which cannot have been intended. This is because, if the words
“intention that [funds] should be used” included standards that are merely based on
knowledge, there would have been no need to refer to “knowledge that [funds] are to be
used” as a separate concept.
b. Further, where the ICSFT Parties wished to refer to the concept of “intention” alone, they
did so (as in Article 2(1)(b)).
112. It is therefore plain that the Contracting States did not agree to a broad concept of “intention
that [funds] are to be used” which subsumes knowledge-based mental elements. Rather, they
perceived the concept of “intention” as excluding knowledge-based standards and for this reason
expressly provided for an alternative “knowledge” mental element. Such knowledge-based standards
would include “indirect” intent (i.e. where a consequence is a virtually certain result of a person’s act
and that person knows this).
113. Ukraine nonetheless seeks to reinterpret the mental element of “intention” as if the drafters had
instead used the terms “dolus directus”, “dolus indirectus” and “dolus eventualis”.96 None of these
terms are to be found anywhere in the ICSFT. Moreover, while it interprets “intention” expansively
as including knowledge-based standards, Ukraine makes no attempt to explain how such an unduly
broad interpretation of “intention” can be reconciled with the meaning it ascribes to “knowledge” in
the chapeau of Article 2(1). Indeed, Ukraine puts forward no basis in the ICSFT for its interpretation,
instead referring to a (supposedly) “common practice in international law” and placing particular
reliance on international criminal law.97
114. Russia explains below the content of the two alternative mental elements included in the
chapeau of Article 2(1) of the ICSFT, starting with the ordinary meaning of the words.
95 As recognised in, e.g., Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 23,
para. 47.
96 MU, paras. 206-207 with respect to the meaning of “intent” in Article 2(1)(b) of the ICSFT. See also para. 229
applying this broad interpretation of “intent”.
97 Ukraine’s basic case has fluctuated. At the preliminary objections stage, the case put before the Court by Ukraine in
its Memorial was that Russian officials and other Russian nationals knowingly financed terrorism in Ukraine: see PORF,
para. 42 referring to MU, para. 26. During the hearing, however, Ukraine adopted a broader position, alleging that Russian
officials and other Russian nationals intentionally and/or knowingly financed terrorism in Ukraine, including with respect
to the tragic shoot down of Flight MH17: see CR 2019/12, 7 June 2019, p. 40, para. 49 (Cheek). Ukraine’s revised position
relies on conflating the separate mental elements of intent and knowledge, which it wrongly contends are “overlapping”:
WSU, para. 235.
29
1. Ordinary Meaning of “Intention That They Should Be Used”
115. By reference to their ordinary meaning, the words “intention that they should be used” refer to
an actual desire or goal – on the part of the financier that the funds “should be used” to commit a
terrorist act. Indeed, guidance that Ukraine relies on identifies the subjective element required under
the ICSFT as “specific intent”, which is “characterized by the intention of obtaining a certain result
prohibited by the texts, namely the pursued goal.”98 This is consistent with, and is supported by, the
Court’s analysis in cases concerning the Genocide Convention, in which the Court has held that the
purpose element of the offence of genocide establishes a requirement of “specific intent” or “dolus
specialis”.99 This is discussed further in Chapter V below.
116. There is no basis in the ICSFT for Ukraine’s unduly broad interpretation of “intention” as
encompassing knowledge-based mental elements and in particular “indirect intent” and recklessness.
Indeed, Ukraine does not suggest the contrary. Instead, it relies on sources of international law
external to the ICSFT such as the general definition of intention in the Rome Statute of the
International Criminal Court which, however, does not encompass an offence related to terrorism.100
2. Ordinary Meaning of “Knowledge That They Are to Be Used”
117. By reference to its ordinary meaning, the phrase “knowledge that they are to be used” (« sachant
qu’ils seront utilisés ») refers to actual awareness of a fact or situation,101 i.e. that the funds are to be
used to carry out a terrorist act.
a. In its Memorial, however, Ukraine argues that these words are to be interpreted as
meaning that “all that must be proved is that the financier” “had to know that the ‘funds’
would probably be used (or could be used)” to commit a terrorist act or that “the financier
‘is aware of the possibility, sometimes even the probability, that the funds may be used
for the commission of terrorist acts,’ and ‘willingly took the risk that they would be so
used.’”102
b. Ukraine seeks to support this interpretation by reference to its take on the object and
purpose of the ICSFT and the views of certain commentators. There is, however, no
98 UNODC, Guide for the legislative incorporation and implementation of the universal anti-terrorism instruments
(2006), p. 15, para. 31 referring to Article 2(1) as a whole.
99 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. 43, para. 187. See also Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3,
para. 132: “dolus specialis, that is to say a specific intent”.
100 See MU, para. 206 with respect to Article 2(1)(b) of the ICSFT.
101 A. Stevenson (ed.), Oxford Dictionary of English (3rd ed.), Oxford University Press, 2010 (current online version:
2015), entry for “knowledge”.
102 MU, para. 281 quoting M. Lehto, Indirect Responsibility for Terrorist Acts, Martinus Nijhoff, 2009, p. 293, 298
(Annex 490 to MU) (emphasis added) and R. Lavalle, “The International Convention for the Suppression of the Financing
of Terrorism”, Heidelberg Journal of International Law, Vol. 60, 2000, p. 504 (Annex 484 to MU).
30
textual basis for Ukraine’s expansive interpretation of the relevant words as including
knowledge or a likelihood or risk that the funds “might” be used, or “could” be used («
pourraient être utilisés »), to carry out a terrorist act. None of these words, which could
easily have been used, are to be found in the treaty text. Nor is there anything in the
ICSFT, which indicates that the Contracting States agreed that it was sufficient to show
that the relevant person should have known (i.e. constructive knowledge) that the funds
are to be used to carry out a terrorist act.
c. Ukraine seeks to emphasise that the chapeau of Article 2(1) does not refer to “actual
knowledge that [funds] are to be used”103 and on this basis argues that the concept of
knowledge must be broad given that it was open to the drafters to add the word “actual”,
and they did not do so. The correct position is that Ukraine is seeking to extend the terms
used beyond the meaning that follows from the usual rules of interpretation, ignoring the
ordinary meaning of these words in their context (including reading this phrase as a
whole; and as to context, see further below). If the Treaty Parties had been seeking to
broaden the knowledge mental element as Ukraine contends, they would have added
express language to this effect.
118. In support of its overbroad interpretation Ukraine also says that Article 2(1) of the ICSFT does
not require knowledge that “particular funds provided will be used for particular terrorist acts” and
that such an interpretation could not be in good faith.104 However, that is of no assistance to Ukraine.
Pursuant to the ordinary meaning of the words, Article 2(1) of the ICSFT does require that a person
must actually know that the funds are to be used in full or in part to carry out a terrorist act within the
meaning of Article 2(1)(a) and (b) of the ICSFT, rather than for some other purpose.105
3. Further Points on Context
119. In addition to the point on context made at paragraph 111 above as to the significance of
establishing in the alternative the two different mental elements of intention and knowledge in Article
2(1), the words “intention that they should be used” and “knowledge that they are to be used” in the
chapeau to Article 2(1) of the ICSFT must be read in the context of Article 2(1) of the ICSFT as a
whole.
120. One notable element here is that, unlike with respect to the separate specific purpose element
of the definition of a terrorist act in Article 2(1)(b) of the ICSFT, the chapeau does not state that the
requisite “intention” or “knowledge” as to the use of the funds may be inferred from the objective
103 CR 2019/12, 7 June 2019, p. 33, para. 11 (Cheek) (emphasis added).
104 MU, para. 280 (emphasis in the original) and see further para. 281, referring to M. Lehto, Indirect Responsibility for
Terrorist Acts, Martinus Nijhoff, 2009, p. 293 (Annex 490 to MU). See also WSU, para. 203.
105 The words “in full or in part” in no way change the ordinary meaning of the words “knowledge that [funds] are to be
used” to carry out a terrorist act: Cf. MU, para. 280; WSU, para. 201.
31
“nature or context”. This supports the point arising from the ordinary meaning of the words that the
focus is on what the funder actually intended the funds should be used for, or what the funder knew
the funds were to be used for.
121. The deliberate nature of the decision not to give circumstantial evidence greater weight is
emphasised by the fact that the wording of the chapeau to Article 2(1) of the ICSFT represents a
departure from the approach adopted in other UN conventions which were concluded both before and
after the ICSFT.106 For example:
a. Article 3(3) of the United Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances 1988 (the “Vienna Convention 1988”)107 states:
“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”
(emphasis added).
b. Article 5(2) of the United Nations Convention against Transnational Organized Crime
2000 (the “Palermo Convention”)108 states: “The knowledge, intent, aim, purpose or
agreement referred to in paragraph 1 of this article may be inferred from objective factual
circumstances” (emphasis added). Similarly, pursuant to Article 6(2)(f): “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” (emphasis added).
c. Article 28 of the United Nations Convention against Corruption 2002109 states:
“Knowledge, intent or purpose required as an element of an offence established in
accordance with this Convention may be inferred from objective factual circumstances”
(emphasis added).
122. Of course, even if these different formulations were to be applied to Article 2(1) of the ICSFT,
this would not assist Ukraine since it would mean only that, as a matter of principle, sufficient
objective proof could be used to establish the existence of the requisite intention or knowledge. As
demonstrated elsewhere in this pleading, Ukraine has failed to put forward sufficient objective
proof.110
106 Reference to such other conventions is to be made, including under Article 31(3)(c) of the Vienna Convention on the
Law of Treaties.
107 UNTS, vol. 1582, p. 95. Russia signed the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances 1988 on 19 January 1989 and ratified on 17 December 1990; Ukraine signed on 16 March 1989 and ratified
on 28 August 1991.
108 UNTS, vol. 2225, p. 209. Russia signed the UN Convention against Transnational Organized Crime 2000 on 12
December 2000 and ratified on 26 May 2004; Ukraine signed on 12 December 2000 and ratified on 21 May 2004.
109 UNTS, vol. 2349, p. 41. Russia signed the UN Convention against Corruption 2002 on 9 December 2003 and ratified
on 9 May 2006; Ukraine signed on 11 December 2003 and ratified on 2 December 2009.
110 See Chapters VI, VII below.
32
123. Ukraine’s reliance on Article 2(3) of the ICSFT, which states that it is not necessary that funds
were actually used to carry out an offence referred to in subparagraph 1(a) or 1(b), is misconceived;111
as Ukraine accepts in its Observations,112 that provision is not in any way concerned with the required
mental elements.113
4. Object and Purpose
124. As to object and purpose, although Ukraine has referred in its Memorial to the Preamble of the
ICSFT in support of its overbroad reading of the mental elements in the chapeau of Article 2(1) of
the ICSFT,114 this is of little assistance to its case. While, as Ukraine notes, the Preamble refers to the
United Nations Member States’ “unequivocal condemnation of all acts, methods and practices of
terrorism as criminal and unjustifiable, wherever and by whomever committed”,115 and the “urgent
need” to prevent and deter terrorism financing,116 these references tell the interpreter nothing about
either what is considered under the ICSFT as constituting an act of terrorism or the mental elements
of the offence of terrorism financing, including knowledge.
125. Ukraine also invokes the object and purpose in support of its contention that all that is required
is “knowledge that the financier is providing funds to groups or individuals known to commit terrorist
acts, because doing so necessarily facilitates the recipient’s ability to engage in further acts of
terrorism”,117 and that therefore it “must be assumed that the financing of a group which has
notoriously committed terrorist acts would meet the requirements of paragraph 1” of Article 2 of the
ICSFT.118 Whether that is correct or not, the point made is an irrelevance. Such notoriety will be
satisfied in relation to entities and persons who are shown to be associates of notorious terrorist groups
which have been characterised by the international community as engaging in terrorist acts such as
Al-Qaida, Usama bin Laden or the Taliban, including where the person or entity has been designated
by the UN Security Council pursuant to Security Council resolution 1373.119 In cases involving
111 MU, para. 280; WSU, para. 202.
112 WSU, para. 202, fn. 347.
113 See also the commentary relied on by Ukraine, M. Lehto, Indirect Responsibility for Terrorist Acts, Martinus Nijhoff,
2009, p. 296 (Annex 490 to MU).
114 See, e.g., MU, paras. 280-281 and see also para. 207 with respect to Article 2(1)(b).
115 MU, p. 134, fn. 481 (emphasis omitted).
116 See, e.g., MU, para. 280.
117 MU, para. 280 (emphasis in the original).
118 MU, para. 281, quoting M. Lehto, Indirect Responsibility for Terrorist Acts, Martinus Nijhoff, 2009, p. 289 (Annex
490 to MU) (emphasis added). See also p. 290: “For instance, financing a group that has been notoriously involved in
aircraft hijacking or in the taking of hostages and that could be expected to continue such odious activities would satisfy
the requirements of article 2.”
119 M. Lehto, Indirect Responsibility for Terrorist Acts, Martinus Nijhoff, 2009, p. 289 (Annex 490 to MU): “The existing
lists of terrorist organisations, groups and individuals for the purposes of preventive asset-freezing spread such notoriety
[…]. Thus, the act of financing is less ambiguous where funds have been transferred to a proscribed organisation or to a
person who has been listed as an associate of Al-Qaida, Usama bin Laden or the Taliban or on the basis of UN Security
Council resolution 1373. In such cases it may be presumed that the financier has intended to finance terrorist activities”
33
financing of such notorious entities, it would be no defence for the financier to say that he/she
intended the funds to contribute to the non-terrorist activities of the relevant group or that he/she
could not know whether the funds are to be used to commit a terrorist act or for some other purpose.
126. There has, however, been no such characterisation (whether by designation or otherwise120) of
the DPR/LPR, and the alleged perpetrators of terrorist acts in the present case can in no way be
suggested to be notorious terrorist groups equivalent to groups such as Al-Qaida.
B. TRAVAUX PREPARATOIRES AND OTHER MATERIALS
1. Travaux Préparatoires
127. Certain elements of the travaux préparatoires with respect to the chapeau of Article 2(1) of the
ICSFT, which Ukraine has omitted to bring to the Court’s attention, confirm Russia’s position that
“intention” means actual intention and that “knowledge” means actual knowledge.
128. Ukraine relies on a statement by France in its March 1999 working document containing
commentary on a draft convention it had prepared in the same month, explaining that: “This
convention is aimed both at ‘those who give orders’, who are aware of the use of the funds, and
contributors, who are aware of the terrorist nature of the aims and objectives of the whole or part of
the association which they support with their donations in cash or in kind”.121
129. First, Ukraine omits to mention that this statement concerns the materially different and broader
definition of the offence in the draft convention, which provided that:
“Any person commits an offence within the meaning of this Convention if that person
unlawfully and intentionally proceeds with the financing of a person or organization in
the knowledge that such financing will or could be used, in full or in part, in order to
prepare or commit” a terrorist act, as defined.122
“Commet une infraction au sens de la présente Convention toute personne qui,
illicitement et intentionnellement, procède au financement d’une personne ou d’une
(footnotes omitted). See also FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016,
para. 26, suggesting that a country could consider designation by the Security Council or by that country as “a prima facie
indication” (available at http://www.fatf-gafi.org/media/fatf/documents/reports/Guidance-Criminalising-Terrorist-
Financing.pdf).
120 Ukraine is incorrect to suggest that Russia’s position is that “designation of a group is legally necessary to establish
knowledge”: see WSU, para. 209 (emphasis in the original).
121 MU, para. 284, referring to Working document submitted by France “Why an international convention against the
financing of terrorism?”, A/AC.252/L.7/Add.1, 11 March 1999, para. 5 (Annex 275 to MU). See also WSU, para. 206;
CR 2019/12, 7 June 2019, p. 32, para. 8 (Cheek). For Russia’s position with respect to the meaning of “funds” in the final
text, see Chapter II above.
122 United Nations General Assembly, Ad Hoc Committee established by General Assembly resolution 51/210 of 17
December 1996, Third session, Draft international convention for the suppression of the financing of terrorism: Working
document submitted by France, UN Doc. A/AC.252/L.7, 11 March 1999, Article 2.
34
organisation en sachant que ce financement sera ou pourra être utilisé, en tout ou partie,
pour préparer ou pour commettre”.
130. As follows from the ordinary meaning of the words, the mental elements in this French proposal
were very different from those in the final text of the chapeau of Article 2(1) of the ICSFT. What was
proposed was “en sachant que ce financement sera ou pourra être utilisé” to carry out a terrorist act.
By contrast, what was agreed in the final text was “en sachant qu’ils seront utilisés”.
131. It also noted that this March 1999 draft deviated from an earlier draft in November 1998, which
focused on whether funds are intentionally provided to “a person or group of persons who, to his or
her [i.e., the funder’s] knowledge: (a) Commits, or proposes to commit” a terrorist act as defined.
This original draft did not require “intention that [the funds] are to be used” (“l’intention des les voir
utilisés”), or “knowledge that [the funds] should be used” (“en sachant qu’ils seront utilisés”), to
commit a terrorist act.123 Rather, it was sufficient that funds were intentionally provided to a person
or group who was known to have committed a terrorist act in the past.
132. Second, in the course of discussion in the Working Group on the basis of the French proposal,
the mental element in the chapeau of draft Article 2(1) was specifically considered and it was not
adopted. The summary of discussion prepared by the Rapporteur records that:
“The phrase ‘will or could be used’ was the subject of several proposals intended to clarify
the scope of the offences being created by draft article 2. Hence, the suggestion was made
to replace the phrase ‘will … be used’ by ‘is … to be used’; others recommended either
deleting ‘or could’ before the phrase ‘be used’ […] or replacing it by ‘is designed to’ or
‘is likely to’. Alternatively, some spoke in favour of the retention of the phrase ‘or could’
as in the draft text under consideration.”124
133. As follows from the final text, the Contracting States did not accept the French proposal that
would have lowered the standard to knowledge that the funds “will or could be used”.125 Consistent
with this, the travaux also shows that they rejected similar proposals (referred to by the Rapporteur
123 United Nations General Assembly, 53rd Session, Sixth Committee, Letter dated 3 November 1998 from the Permanent
Representative of France to the United Nations addressed to the Secretary-General, UN Doc. A/C.6/53/9, 4 November
1998, Article 2.
124 See United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37, 5 May 1999,
Annex IV, Informal summary of the discussion in the Working Group, prepared by the Rapporteur: first reading of draft
articles 1 to 8, 12, paragraphs 3 and 4, and 17 on the basis of document A/AC.252/L.7, para. 18 (Annex 5 to PORF).
125 See ibid. Cf. the commentary relied on by Ukraine suggesting that the phrase “or could be” may be read back into the
final text of Article 2(1) notwithstanding the deliberate omission of precisely that phrase during the negotiations: M.
Lehto, Indirect Responsibility for Terrorist Acts, Martinus Nijhoff, 2009, p. 303 (Annex 490 to MU); R. Lavalle, “The
International Convention for the Suppression of the Financing of Terrorism”, Heidelberg Journal of International Law,
Vol. 60, 2000, pp. 499-500 and 504 (Annex 484 to MU).
35
in the above passage) that would have encompassed knowledge that the funds are “likely to be
used”,126 or “[w]hen there is a reasonable likelihood that the funds will be used for such purpose”.127
134. It follows that recklessness (or dolus eventualis, as is referred to by Ukraine128) was specifically
excluded as insufficient to establish “knowledge” for the purpose of Article 2(1) of the ICSFT.129
135. On 25 March 1999, France submitted a working paper containing a revised proposed Article
2,130 which “took into account the views expressed by delegations during the debate in the Sixth
Committee and the ensuing consultations”.131 The words “or could” had been removed.
136. Third, a later proposal by Mexico that the requisite “intention” or “knowledge” “shall be
inferred from well-founded evidence or objective and actual circumstances”, as is sufficient in certain
other UN treaties (see para. 121 above), was not accepted.132
2. Materials Concerning Domestic Implementation
137. Contracting States are not precluded from defining the mental elements of the offence of
terrorism financing more broadly under their own domestic legislation; the core minimum
126 United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37, 5 May 1999,
p. 20, Annex III, p. 33, proposal submitted by Guatemala (A/AC.252/1999/WP.16) (Annex 5 to PORF).
127 United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37, 5 May 1999,
p. 20, Annex III, pp. 34-35, proposal submitted by the UK (A/AC.252/1999/WP.20) (Annex 5 to PORF). This language
was omitted from a revised UK proposal without explanation: see ibid., pp. 35-36, revised proposal submitted by the UK
(A/AC.252/1999/WP.20/Rev.1).
128 There is no need for the Court to seek to determine the vexed theoretical question of the exact relationship between
the concepts of recklessness at common law and the concept of dolus eventualis in civil law.
129 It is also noted that the phrase “are to be used” was substituted for the phrase “will be used”. However, the change
appears to have been one of form only and there is no suggestion that it was intended to entail any change in the standard
of knowledge required. Cf: United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report
of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37,
5 May 1999, p. 20, Annex II, Working Document submitted by France (“will or could be used”) (Annex 5 to PORF);
Report of the Working Group, 26 October 1999 (A/C.6/54/L.2), Annex I, Revised text prepared by the Friends of the
Chairman (“are to be used”) (Annex 277 to MU).
130 See United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37, 5 May 1999,
Annex I.B, Working Paper prepared by France on articles 1 and 2 (Annex 5 to PORF), p.12: “Any person commits an
offence within the meaning of this Convention if that person unlawfully proceeds with the financing, by any means,
directly or indirectly, of any person or organization with the intention that the funds should be used, or in the knowledge
that the funds are to be used, in full or part, to prepare for or to commit” a terrorist act as defined.
131 See United Nations General Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/54/37, 5 May 1999,
para. 26 (Annex 5 to PORF).
132 See proposal submitted by Mexico (UN Doc. A/C.6/54/CRP.10), reproduced in Report of the Working Group, UN
Doc. A/C.6/54/L.2, 26 October 1999, Annex II, Discussion papers, written amendments and proposals submitted to the
Working Group, pp. 22-23 (Annex 277 to MU). This proposal is also referred to in Annex III, Informal summary of the
discussions in the Working Group, prepared by the Chairman, para. 98 (Annex 277 to MU).
36
requirement of specific intention or actual knowledge under the chapeau of Article 2(1) of the ICSFT
establishes a floor, not a ceiling, for the content of domestic law. But it is the specific definition of
the chapeau of Article 2(1) of the ICSFT, as accepted by all Contracting States, that the Court is
concerned with in this case.
138. In its Handbook for Legislative Drafting on suppressing terrorism financing, the Legal
Department of the IMF interprets the chapeau to Article 2(1) of the ICSFT as containing “knowledge
and a specific form of intent as two alternative mental elements”,133 and advises States that:
“The Convention leaves it to each state party to define the form of intent or knowledge
that would be necessary to constitute the offense, as well as the means to prove either
element. The minimum requirement would consist of actual knowledge on the part of the
perpetrator that the funds will be used for a terrorist act, together with the will to achieve
this result. This requirement should be implemented in all states parties.”134
139. Ukraine’s only response to the above passage, at the Preliminary Objections stage, was that this
passage “has no citations to support the proposition”.135 This is, however, to ignore the obvious point
that the passage does no more than reflect the ordinary meaning of the words “intention that [funds]
should be used” and “knowledge that [funds] are to be used”, in their context, and in the light of the
other relevant UN conventions, as well as the confirmation in the travaux.
140. Ukraine also relies on Financial Action Task Force (FATF)’s Recommendation no. 5,136
according to which: “Countries should criminalise… the financing of terrorist organisations and
individual terrorists even in the absence of a link to a specific terrorist act or acts…” From this, it
follows according to FATF, that all that is required is that the financier should intend/know that the
funds are to be used by a terrorist organisation or individual terrorist.137
141. FATF’s Recommendation no. 5 is, however, of no assistance to Ukraine because:
a. In paragraph 1 to its 2016 Guidance (to which Ukraine does not refer in its Memorial),
FATF emphasises the obvious point that its Recommendation “deliberately goes beyond
the obligations contained in the Terrorist Financing Convention”.138
133 International Monetary Fund, Legal Department, Suppressing the Financing of Terrorism: A Handbook for Legislative
Drafting (2003), p. 52 (emphasis added), available at https://www.imf.org/external/pubs/nft/2003/
SFTH/pdf/SFTH.pdf.
134 Ibid.
135 CR 2019/12, 7 June 2019, p. 33, para. 11 (Cheek).
136 MU, para. 282, referring to 2012 Recommendations (updated 2018).
137 FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 8, Recommendation 5 and
p. 10, para. 24. See also UN Security Council resolution 2253 (2015), operative para. 17, highlighting that “FATF
Recommendation 5 applies to the financing of terrorist organizations or individual terrorists for any purpose, including
but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act”.
138 FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 1, para. 1 and p. 8, para. 18.
FATF explains that on its recommended approach there is no need to consider “the purpose for which the financier
intended th[e] funds […] to be used by the terrorist organisation / individual terrorist” or “any knowledge that the terrorist
37
b. Similarly, the UNODC confirms that: “The FATF Special Recommendations go beyond
the provisions of the 1999 Convention and Security Council resolution 1373 in several
respects”.139
c. FATF also explains that its Recommendation that the requisite intention or knowledge
“may be inferred from objective factual circumstances” is “based on [the mental
elements of the offence of money laundering specified in] Article 6(2) of the United
Nations Convention on Transnational Organised Crime”, rather than on Article 2(1) of
the ICSFT.140
d. FATF also recommends that: “Countries should criminalise terrorist financing on the
basis of the Terrorist Financing Convention”141 and confirms that the ICSFT “does not
require countries to criminalise [terrorism financing] as a strict liability offence (i.e., an
offence for which the mens rea need not be proven), reckless or negligent [terrorism
financing], or unwitting acts of [terrorism financing].”142 Thus FATF’s view on Article
2(1) of the ICSFT is inconsistent with Ukraine’s case on recklessness.
142. Ukraine also relies on UNODC materials on domestic implementation. It says that the advice
of the UNODC is that the ICFST requires that “the offence implementing the Convention must also
punish provision or collection of funds with the knowledge and willing acceptance of the possibility
that they may be used for terrorist acts”.143 The passage Ukraine relies on appears in the context of a
discussion about what the scope of implementing legislation should be, as opposed to what is actually
required by the ICSFT. In an earlier passage, which Ukraine seeks to pass over, the UNODC explains
what the chapeau to Article 2(1) of the ICSFT requires by way of mental element, and how some
national laws have extended this:
“The Financing Convention applies only to unlawful and wilful provision or collection
of funds ‘with the intention that they should be used or in the knowledge that they are to
financier may have had about how the terrorist organisation / individual terrorist was using or intending to use the funds”:
FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 9, para. 22.
139 UNODC, Guide for the legislative incorporation and implementation of the universal anti-terrorism instruments
(2006), p. 20, para. 59.
140 FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 21, para. 58.
141 FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 2, Recommendation 5.
142 FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 2, para. 8 (emphasis added).
See also p. 11, para. 29 stating that recklessness “cannot substitute for criminalising the intentional financing of a terrorist
organisation”. FATF also notes that: “Some countries use the concept of recklessness to criminalise financing an
individual terrorist in the absence of a link to a specific terrorist act or acts. This requires prosecutors to show that the
offender was aware of a substantial risk that the funds would be used for terrorist purposes, and that the risk was
unjustifiable”: FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 11, para. 28
(emphasis added). See also pp. 13-14 giving the example of the implementing legislation enacted by Australia. FATF
endorses this approach: see FATF, Guidance on Criminalising Terrorism Financing (Recommendation 5), 2016, p. 11,
para. 29.
143 MU, para. 282 (emphasis in the original), referring to UNODC, Legislative Guide to the Universal Legal Regime
Against Terrorism (2008), p. 31 (Annex 285 to MU). See also WSU, para. 205; CR 2019/12, 7 June 2019, p. 34, para. 15
(Cheek).
38
be used, in full or in part, in order 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 purposes of supporting
terrorist groups or actions. The question may arise whether proof of reasonable cause for
suspicion is a standard of negligence or at most recklessness and not of intentional or
knowing wrongdoing. […] Which view will prevail depends upon local jurisprudence
and statutory language.”144
143. This is plainly not suggesting that that there is a requirement under Article 2(1) of the ICSFT
to adopt implementing laws that refer to “reasonable cause to suspect” since the UNODC is merely
commenting on the practice under “some national laws” without suggesting that this is required of all
national laws.
144. As to Ukraine’s continued reliance on certain domestic court judgments which it claims support
an expansive concept of “knowledge”:145
a. Each of the cases relied on concerned financing of a group or organisation which was
designated as a terrorist group or organisation by competent international bodies or, at
least, by multiple States, namely FARC and PFLP,146 Hamas,147 PKK,148 ETA149 and
ISIS.150 In such circumstances, on the basis of international and/or national designations,
144 UNODC, Legislative Guide to the Universal Legal Regime Against Terrorism (2008), p. 30 (Annex 285 to MU)
(emphasis added).
145 See MU, para. 283; WSU, para. 204; CR 2019/12, 7 June 2019, pp. 33-34. paras. 13-18 (Cheek).
146 Supreme Court of Denmark, Fighters and Lovers Case, Case No. 399/2008, Press release, 25 March 2009 (Annex
476 to MU). The evidence before the Court as to the terrorist nature of FARC and PFLP included UN materials: see pp. 1-
2. See Supreme Court of Denmark, Fighters and Lovers Case, T1 and ors v A, Appeal judgment, Case No. 399/2008,
ILDC 2250 (DK 2009), accessed at: https://opil.ouplaw.com/, 25 March 2009 (Annex 249).
147 Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 698 (7th Cir. 2008) (Annex 474 to MU). See, e.g., p. 700
noting that Hamas “engages in violence as a declared goal of the organization”. See also pp. 693-694. It should also be
noted that that case also concerned tortious liability, rather than criminal law, and the U.S. Court recognised that
“knowledge and intent have lesser roles in tort law than in criminal law”: see p. 692.
148 French Cour de cassation, Case No. 13-83.758, Judgment, 21 May 2014 (Annex 477 to MU). As Ukraine notes at
paragraph 283 of its Memorial, the Cour de Cassation relied on the fact that the PKK had been “classified as terrorist”
(“un soutien logistique et financier effectif à une organisation classée comme terroriste”).
149 French Cour de cassation, Case No. Z 04-84.264, Judgment, 12 April 2005 (Annex 472 to MU). For background see
ECtHR, Case of Herri Batasuna and Batasuna v. Spain, ECtHR Applications nos. 25803/04 and 25817/04, Judgment, 30
June 2009.
150 Tribunal correctionnel de Paris, 28 September 2017 referred to in Nouvelobs, “Deux Ans de Prison Pour la Mère
d’un Djihadiste : ‘J’aurais Pu Sauver mon Fils’”, 6/28 September 2017 (Annex 480 to MU). It is noted that Ukraine has
annexed a press report only. The commentary relied on by Ukraine in Bertrand Perrin, “L’incrimination du Financement
du Terrorisme en Droits Canadien et Suisse”, Revue Générale de Droit, Vol. 42 (2012), pp. 236-237 (Annex 492 to MU)
also supports Russia’s position:
« Sur le plan subjectif, l’accusé doit avoir su que le bien serait utilisé pour le terrorisme. Les personnes qui soutiennent
une organisation, mais qui ne soupçonnent pas que tout ou partie de l’argent qu’ils donnent sera détourné pour le
financement d’une violence politique ou religieuse, ne sont pas punissables. Cette restriction protège ceux qui financent
le terrorisme à leur insu, mais elle rend aussi plus délicate la tâche des autorités de poursuite. Cependant, lorsqu’un
groupe a été inscrit comme entité terroriste, il est plus difficile pour un prévenu d’arguer qu’il ignorait que les montants
qu’il lui a alloués seraient utilisés, partiellement ou totalement, en faveur du terrorisme. » (footnote omitted).
39
and in light of other evidence, consistent with the general approach in Croatia v.
Serbia,151 the relevant national tribunals drew the inference that the financier knew that
the funds were to be used to carry out terrorist acts.152
b. In relation to the decision of the Supreme Court of Denmark in the Fighters and Lovers
Case, Ukraine fails to mention that the offence of terrorism financing in section 114(b)
of the Danish Criminal Code does not expressly state the mental element required, and
therefore sheds no light on the requirement in the chapeau of Article 2(1) of the ICSFT.153
Rather, it appears that the definition of intent in Danish criminal law is applied.154 The
evidence before the court as to the terrorist nature of FARC and PFLP included UN
materials. On the basis of such evidence, the court reasoned that the defendants knew or
should have known that FARC and PFLP had committed terrorist acts as defined in
Article 114 of the Danish Criminal Code.
c. Ukraine’s reliance on the decision of the US Court of Appeals, Seventh Circuit in Boim
v. Holy Land Foundation for Relief and Development is premised on its assertion that:
“The statute interpreted in Boim […] tracks the language of Article 2(1) of the ICSFT,
criminalizing the provision of material support ‘knowing or intending that they are to be
used’ for covered acts of terrorism.”155 However, this case did not concern the US
legislation implementing Article 2(1) of the ICSFT (18 U.S.C.A. § 2339C).156 Rather,
Whereas Ukraine translates the words « lorsqu’un groupe a été inscrit comme entité terroriste » as “when a group has
been identified as a terrorist entity” (WSU, para. 204), the passage is properly understood as referring to an entity which
has been designated on the list of terrorist groups in accordance with the mechanism established by section 83.05 read
together with the definition of “terrorist group” in section 83.01(1) as including “a listed entity”.
151 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, p. 67, para. 148.
152 This is without prejudice to the fact that FARC, PFLP, Hamas, PKK and ETA are not included in the Unified federal
list of organisations recognised as terrorist in accordance with the legislation of the Russian Federation.
153 An unofficial translation of Section 114 of the Danish Penal Code may be found in FATF/OECD, Mutual Evaluation
Third Follow-Up Report: Anti-Money Laundering and Combating the Financing of Terrorism: Kingdom of Denmark, 22
October 2010 at p. 20, fn. 8, available at http://www.fatfgafi.
org/media/fatf/documents/reports/mer/FoR%20Denmark.pdf:
“A person who (1) provides financial support directly or indirectly to, (2) procures or collects funds directly or indirectly
to, or (3) places money, other assets or financial or similar benefits at the disposal, directly or indirectly, of a person, a
group or an association which commits or intends to commit acts that are covered by sections 114 or 114A of this Act,
shall be liable to imprisonment for any term not exceeding ten years.”
154 See FATF/IMF, Third Mutual Evaluation Report on Anti-Money Laundering and Combating the Financing of
Terrorism: Kingdom of Denmark, 22 June 2006, p. 55, para. 220, available at http://www.fatfgafi.
org/media/fatf/documents/reports/mer/MER%20Denmark%20full.pdf.
155 MU, para. 283, footonote 624; WSU, para. 204, footnote 353.
156 18 U.S.C.A. § 2339C was enacted in 2001 pursuant to the USA PATRIOT Act. It defines the offence of terrorism
financing as “by any means, directly or indirectly, unlawfully and wilfully provides or collects funds with the intention
that such funds be used, or with the knowledge that such funds are to be used, in full or in part to carry out” a terrorist act
as defined in this section. See further M. Taxay, L. Schneider, K. Didow, “What to Charge in a Terrorist Financing or
Facilitation Case” (2014) 62(5) United States Attorneys’ Bulletin 9 at p. 11 where the authors also note that “Section
2339C has been used infrequently for several reasons. […] Perhaps most significantly, § 2339C further requires intent
that the funds be used to ‘carry out’ an enumerated predicate offense. Presently, no case law interpreting this language
40
the U.S. court was concerned with the interpretation of the mens rea element of a statute
providing a civil cause of action for US persons injured by an act of “international
terrorism” (18 U.S.C.A. § 2333(a)) where the alleged act of international terrorism (i.e.
the predicate offence) was not an offence under the domestic legislation implementing
the ICSFT.157
3. Other Materials
145. Ukraine also contends that the absence of express language in the Treaty does not mean that the
drafters meant to depart from what it calls the “widely accepted principle that knowledge is usually
proved by the circumstances”.158 Ukraine relies, inter alia, on the case law of the International
Military Tribunal and the ICTY, and the ICC Elements of Crimes.159 Even if the words “knowledge
that [funds] are to be used” were to be interpreted in this way, that would only mean that knowledge
as to the use of the funds to commit a terrorist act may be established by sufficient objective proof,
which is lacking in the present case.
146. It is also noted that the Rome Statute and the ICC Elements of Crimes are of little assistance
since they do not encompass the offence of terrorism, a deliberate decision having been made to
exclude this from their scope. In any event, reference to the Rome Statute would not support Ukraine’s
position. While the mental element of particular offences under the Rome Statute varies, Article 30(3)
of the Rome Statute defines “knowledge” as “awareness that a circumstance exists or a consequence
will occur in the ordinary course of events” (Article 30 of the Rome Statute is also considered in the
context of Article 2(1)(b) ICSFT: see paras. 217-218 below).
can be found. It therefore remains an open question whether courts would find that § 2339C covers funds intended
generally to support a terrorist group’s operational infrastructure.”
157 The predicate offence was “providing material support to terrorists” contrary to 18 U.S.C.A. § 2339A.
158 CR 2019/12, 7 June 2019, p. 33, para. 13 (Cheek).
159 Ibid.
41
CHAPTER IV
THE REQUIREMENTS FOR ACTS OF TERRORISM WITHIN THE MEANING OF
ARTICLE 2(1)(A) OF THE ICSFT
147. Article 2(1)(a) of the ICSFT defines a terrorist act for the purposes of Article 2(1) of the ICSFT
as: “An act which constitutes an offence within the scope of and as defined in one of the treaties in the
annex”.
148. In this Chapter, Russia sets out the correct interpretation of the acts of terrorism under Article
2(1)(a) of the ICSFT with respect to the two treaty offences relied on by Ukraine. Section I addresses
Ukraine’s strained and incorrect interpretation of the offence under Article 1(1)(b) of the Montreal
Convention. Section II briefly summarises the offence under Article 2(1) of the ICSTB, as to which
there is no interpretative dispute.
I. Article 1(1)(b) of the Montreal Convention
149. The offence under Article 1(1)(b) of the Montreal Convention applies where any person
“unlawfully and intentionally […] destroys an aircraft in service”. This offence is concerned with the
intent to destroy a civil aircraft. It does not encompass the destruction of civil aircraft in error as Ukraine
contends.
A. ARTICLE 1(1)(B) OF THE MONTREAL CONVENTION INTERPRETED ACCORDING TO THE ORDINARY
RULES
150. Article 1(1) is the central provision of the Montreal Convention, the full title of which is
“Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation”. When Article
1(1) of the Montreal Convention establishes the all-important offence where a person “unlawfully and
intentionally […] destroys an aircraft in service”, it is plain that it is concerned with the intent to destroy
a civil aircraft. This follows all the more from Article 4 of the Montreal Convention which states,
without qualification, that:
“The Convention shall not apply to an aircraft used in military, customs or police services”.
151. This formulation is identical to that contained in Article 1(4) of the Tokyo Convention 1963,160
and Article 3(2) of the Hague Convention 1970.161 As in those Conventions, in light of this express
160 Convention on Offences and Certain Other Acts Committed on Board Aircraft, 14 September 1962, UNTS, vol. 704,
p. 219, Article 1(4): “This Convention shall not apply to aircraft used in military, customs or police services.” Since it applies
to the Convention as a whole, this limitation qualifies the scope of the offence set out in Article 1(2), which concerns “any
aircraft”, as well as the definition of an “aircraft in flight” in Article 1(3).
161 Convention on the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, UNTS, vol. 860, p. 105, Article
3(2): “This Convention shall not apply to aircraft used in military, customs or police services.” Since it applies to the
Convention as a whole, this limitation qualifies the scope of the offence on board “an aircraft” in Article 1, as well as the
definition of an “aircraft in flight” under Article 3(1).
42
exclusion of military, customs and police aircraft, the term “aircraft” is not specifically defined in the
Montreal Convention.
152. Proper effect must be given to the limitation in Article 4 of the Montreal Convention, which is
expressly stated to apply to “[the] Convention” as a whole. Thus, pursuant to its ordinary meaning,
Article 4 of the Montreal Convention limits the scope of the offence 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. Ukraine is wrong to assert
that Russia’s interpretation “finds no support in the text of the Convention”.162 To the contrary, it is
anchored in the text of Article 4 of the Montreal Convention.
153. Ukraine’s position is that, notwithstanding the unqualified terms of Article 4 of the Montreal
Convention, the offence in Article 1(1)(b) of the Montreal Convention encompasses the unintentional
shoot down of a civil aircraft (i.e. where the intent was in fact to shoot down a military aircraft) because
the word “civil” does not appear in Article 1(1)(b) of the Montreal Convention. This interpretation is to
be rejected because it fails to give effect to the ordinary meaning of Article 1(1) when read alongside
and in the context of Article 4 of the Montreal Convention. Where Article 1 provides that “[a]ny person
commits an offence if he unlawfully and intentionally: […] (b) destroys an aircraft in service”, such intention
and destruction refers only to an aircraft that is “not [… an] aircraft used in military, customs or police
services”.
154. Ukraine also casts Russia’s position as depending on reading the word “civilian” into the phrase
“aircraft in service”, which phrase it characterises as establishing a “jurisdictional element not subject
to the requirement of mens rea”.163 This is to ignore the obvious point that the term “aircraft” is used in
both Article 1(1)(b) and in Article 2(b) without being specifically defined in the Montreal Convention
and this term cannot be understood other than by reference to Article 4. Ukraine’s distinction between
jurisdictional elements and mental elements is therefore an irrelevance.
155. The word “intentionally” is not to be given a broader meaning, which would encompass indirect
intent or recklessness, and this is confirmed by the context. Where the Contracting States to the Montreal
Convention agreed to a different mental element to achieve a certain end, they did so expressly. For
example, the offence under Article 1(1)(c) will be established where the relevant conduct (i.e.,
unlawfully and intentionally placing or causing to be placed a device or substance) is “likely to destroy”
an aircraft in service. This shows that “intention” was not understood as referring to actual or inferred
knowledge of a possibility or a probability that civil aircraft will be destroyed.
156. As to context and the object and purpose of the Montreal Convention, the mental element of the
offence in Article 1(1)(b) of the Montreal Convention is to be read together with the Protocol for the
162 WSU, para. 218.
163 WSU, para. 219.
43
Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (the
“Montreal Protocol”) adopted in 1988:164
a. Article 2(1) of the Protocol added Article 1 (1bis (b)) to the Montreal Convention,
establishing an offence for “unlawfully and intentionally” using any device, substance or
weapon to destroy or seriously damage the facilities of “an airport serving international
civil aviation”, where such act endangers or is likely to endanger safety at that airport.
b. Reference to this provision supports Russia’s interpretation because the offence will be
made out only where the intention is to target an airport of a particular status, i.e. an airport
that is “serving international civil aviation”. It follows from this element of the offence that
use of a weapon against the facilities of an airport serving international civil aviation which
is committed in error (believing this to be a military airport and being targeted by reason
of such status) would not fall within the scope of the offence under Article 1 (1 bis (b)).
c. If Ukraine were correct that a key objective of the Montreal Convention is to criminalise
all acts which in fact endanger civil aviation, Article 1 (1 bis) would be framed more
broadly to cover all such acts which are in fact against airports serving international civil
aviation, irrespective of whether this was the intention of the perpetrator. Further, it would
make little sense for the drafters to have limited the offence under Article 1 (1 bis (b)) of
the Protocol in this way while casting the related offence in Article 1(1)(b) of the
Convention much wider to encompass destruction of civil aircraft in error.
B. OTHER MATERIALS RELIED UPON BY UKRAINE TO INTERPRET ARTICLE 1(1)(B) OF THE MONTREAL
CONVENTION
157. Ukraine also relies on Article 2(1)(a) of the 1973 Convention on the Prevention and Punishment
of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (“IPP Convention”).
Russia agrees that this is a useful reference point.165
a. Article 2(1)(a) of the IPP Convention proscribes the offence of the “intentional commission
of: (a) A murder, kidnapping or other attack upon the person or liberty of an internationally
protected person”. In substantially similar terms, draft article 2(1)(a) of the said Convention
164 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, 24 February
1988, UNTS, vol. 1589, p. 474.
165 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including
Diplomatic Agents, 14 December 1973, UNTS, vol. 1035, p. 167. Russia signed the IPP Convention on 7 June 1974 and
ratified on 15 January 1976; Ukraine signed on 18 June 1974 and ratified on 20 January 1976. Regard is to be had to the IPP
Convention including under Article 31(3)(c) of the Vienna Convention on the Law of Treaties.
44
had proposed an offence of “[t]he intentional commission, regardless of motive, of: (a) A
violent attack upon the person or liberty of an internationally protected person”.166
b. Ukraine contends that there is a material distinction between Article 1(1)(b) of the Montreal
Convention and Article 2(1) of the IPP Convention because only the latter “includes the
status of the victim in the definition of the offence” (“an internationally protected
person”).167 This is, however, irrelevant since both provisions must be read in their context.
In the case of Article 1(1)(b) of the Montreal Convention, the context includes the limitation
in its Article 4 which applies to the Convention as a whole, including Article 1(1)(b), and
thereby does make the status of the aircraft part of the definition of the offence. Thus, the
fact that this limitation is located in Article 4 of the Montreal Convention, rather than in
Article 1(1)(b), is immaterial. Contrary to Ukraine’s contention, the definition of the
offence is not contained in Article 1(1)(b) alone. Moreover, in light of the general rule in
Article 4, which forms part of this definition, there was no need also expressly to include
the status of the aircraft in service in Article 1(1)(b).
c. At the Preliminary Objections stage, Ukraine also argued that “the IPP Convention has
been interpreted to require only that the victim in fact has protected status; it does not
require the attacker to intend to assault someone with that status”.168 This is incorrect. As
the ILC explained in its Commentary on the 1972 Draft Articles upon which the IPP
Convention was based, this provision was modelled on Article 1(1)(b) of the Montreal
Convention. Moreover, the ILC stated 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”.169 Further, in a 1974 article, Sir Michael Wood, who participated in
the negotiations, recorded that no different position was taken by States during the debate
in the Sixth Committee.170
d. Ukraine omitted to refer the Court to these authorities and instead relied on the practice of
selected States which it portrayed as evidence of how the IPP Convention “has been
166 International Law Commission, Draft articles on the prevention and punishment of crimes against diplomatic agents and
other internationally protected persons with commentaries (1972), Yearbook of the International Law Commission, 1972,
vol. II, p. 315, draft article 2.
167 CR 2019/12, 7 June 2019, pp. 35-36, para. 23 (Cheek).
168 WSU, para. 219.
169 International Law Commission, Draft articles on the prevention and punishment of crimes against diplomatic agents and
other internationally protected persons with commentaries (1972), Yearbook of the International Law Commission, 1972,
vol. II, p. 316, para. 8. See also the Implementation Kits for International Counter-Terrorism Conventions, Commonwealth
Secretariat, available at: https://thecommonwealth.org/sites/default/files/key_reform_pdfs/Implementation
%20Kits%20for%20Terrorism%20Conventions_0.pdf, p. 124, para. 7: “As the opening words make clear, the offences must
be committed intentionally. This means not only that negligent acts are excluded, but also that the alleged offender must
know before the act is committed that the victim is an IPP” (emphasis in the original).
170 See M. Wood, “The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents” (Oct. 1974) 23 (4) International and Comparative Law Quarterly 791, p. 803.
45
interpreted”.171 This is to confuse the separate questions of what Contracting States to the
Montreal Convention have understood Article 1(1)(b) to require as a matter of treaty
obligation and the scope of the criminal offence they have chosen to enact in their domestic
legislation (which may of course go further than what is required as a matter of the treaty
obligation). Just as in relation to the offence of terrorism financing in Article 2(1) of the
ICSFT, States are of course at liberty to enact an extended form of liability to suit their own
objectives.
e. Moreover, Ukraine sought to develop this argument by quoting only the penultimate
sentence in the following passage of the UNODC’s Legislative Guide:172
“29. […] It should be noted that, while the 1973 [IPP] Convention requires
penalization of attacks upon internationally protected persons, it is silent as to whether
that intent must include knowledge of the victim’s protected status. The Cook Islands
legislation criminalizes the offences established by the two conventions and addresses
the issue […] in the following manner: [quote]
30. Such an approach is typically used by those countries that provide particular
penalties or special jurisdiction, for example, by national authorities in a federal
system, for assaults on government officials. Invocation of such special jurisdiction
or particular penalties does not depend upon proof that the perpetrator knew that the
victim occupied an official position. The necessary element of a criminal intent is
supplied by the fact that an assault upon any person is a clearly criminal act, malum
in se. Such legislation can be regarded as a demonstration of a Government’s
commitment to protecting functionaries of and relationships with other States rather
than as a special deterrent to criminal conduct.”173
f. As follows from the above, the comments of the UNODC on the IPP Convention do not
assist Ukraine because these concern the domestic legislation of the Cook Islands, which
expressly excludes the requirement of knowledge of the victim’s internationally protected
status. The same point applies to Ukraine’s reference to a decision of a U.S. court, which
also concerns the specifics of domestic legislation.174
158. Ukraine also relies on the statement in the Commonwealth Secretariat’s Implementation Kits that
“[t]he requirement that the act should be intentional applies only to the acts performed, not to their
171 WSU, para. 219.
172 See WSU, para. 219, fn. 379.
173 UNODC, Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols (2003), pp. 12-13, para. 30
(Annex 284 to MU), emphasis added. See also UNODC, Legislative Guide (2008), p. 16 (Annex 285 to MU): “While the
1973 [IPP] Convention requires criminalization of attacks on protected persons, it is silent as to whether the necessary
criminal intent must include knowledge of the victim’s protected status. The Cook Islands legislation specifically provides
that knowledge of the person’s protected status is not an element of the offence and need not be proven by the prosecution.”
174 WSU, para. 219, footnote 379 referring to United States v. Murrillo, 826 F.3d 152 (Court of Appeals for the 4th Circuit
of the United States, 2016), pp. 158–59 (Annex 62 to WSU). See also CR 2019/12, 7 June 2019, pp. 35-36, para. 23 (Cheek):
“States parties to the IPP Convention have treated status of the victim as a jurisdictional requirement, not part of the mens
rea” (footnote omitted).
46
consequences; it is immaterial whether the consequences were those intended.”175 However, it omits to
mention that, with respect to what is recognised to be an “identical” limitation176 in Article 1(4) of the
Tokyo Convention, the same document proposes a model legislative provision stating that:
“In this Act, unless the context otherwise requires – ‘aircraft’ means any aircraft […] other
than - (a) a military aircraft; or (b) an aircraft which, not being military aircraft, is
exclusively employed in the service of the Government”.177
159. In doing so, the Commonwealth Secretariat accepts that the definition of an “aircraft” for the
purpose of the Tokyo Convention excludes military aircraft. This reflects the text of Article 1(4) of the
Tokyo Convention, which, in identical terms to Article 4 of the Montreal Convention, states: “This
Convention shall not apply to aircraft used in military, customs or police services”.
160. The same would presumably follow in respect of the Commonwealth Secretariat’s understanding
of the meaning of “aircraft” (and, by extension, “aircraft in flight”) in Article 1(1)(b) of the Montreal
Convention.
161. Moreover, this is the approach adopted by certain States in their legislation implementing the
Montreal Convention. Since the Montreal Convention, like the ICSFT, sets a floor on the elements of
the offences it proscribes, it is sufficient for present purposes to show that not all States have understood
Article 1(1)(b) of the Montreal Convention as requiring legislation which reflects Ukraine’s position.
Reference may be made, as an illustrative example, to the Malaysian Aviation Offences Act 1984 (as
amended).178 The term “aircraft” is defined in section 2(1) as meaning “any aircraft, whether or not a
Malaysian-controlled aircraft, other than – (a) a military aircraft; or (b) an aircraft which, not being a
military aircraft, is exclusively employed in the service of the Government”.179 The offence in Article
1(1)(b) of the Montreal Convention is implemented in section 9(1), which states:
“(1) Subject to subsection (4), any person who unlawfully and intentionally –
(a) destroys an aircraft in service or so damages such aircraft as to render it incapable of
flight or as to likely endanger its safety in flight; or […]
175 See CR 2019/10, 4 June 2019, p. 28, para. 41 (Professor Thouvenin) referring to Implementation Kits for International
Counter-Terrorism Conventions, Commonwealth Secretariat, p. 77, para. 9, available at:
https://thecommonwealth.org/sites/default/files/key_reform_pdfs/Implementation%20Kits%20for%20Terrorism%20
Conventions_0.pdf.
176 Implementation Kits for International Counter-Terrorism Conventions, Commonwealth Secretariat, p. 75, available at:
https://thecommonwealth.org/sites/default/files/key_reform_pdfs/Implementation%20Kits%20for%20Terrorism%20
Conventions_0.pdf.
177 Ibid., p. 37, Article 2(1) of the Model Legislative Provisions.
178 Malaysian Aviation Offences Act 1984, available at: https://www.icj.org/wp-content/uploads/1984/09/Malaysia-
Aviation-Offences-Act-1984-2012-eng.pdf.
179 For completeness, note also that section 10, which concerns “other acts endangering or likely to endanger the safety of
aircraft”, and which does not use the phrase “an aircraft in flight” (which is defined in section 2(2)(a) read together with the
definition of “aircraft” in section 2(1)) refers specifically to “civil aircraft” and defines this term in section 10(7).
47
commits an offence under this Act.”180 (emphasis added)
162. It follows from the general definition of “aircraft” in section 2(1) as excluding military aircraft
that 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 offence, including with respect to the
intention requirement.
163. It is also instructive to consider whether other episodes involving the destruction of civil aircraft
in error have been alleged to constitute (or have been prosecuted as) a breach of Article 1(1)(b) (or the
relevant offence as implemented in domestic law).
164. Most recently, and tragically, Ukrainian International Airlines Flight 752 was shot down by Iran
on 8 January 2020, which has since stated that it mistook Flight 752 in “human error” for an incoming
cruise missile. States have not characterised this explanation as entailing a breach of Article 1(1)(b) of
the Montreal Convention. For example, the UK Prime Minister referred to a “terrible mistake”.181
Likewise, once it became clear that Flight 1812 had been shot down over the Black Sea in 2001 by
Ukraine by mistake, Russia neither characterised this as a terrorist act nor invoked Article 1(1)(b) of the
Montreal Convention.182
II. Article 2(1) of the ICSTB
165. Article 2(1) of the ICSTB provides:
“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.”
166. It is common ground between the Parties that Article 2(1) of the ICSTB contains a dual intention
requirement: (1) intentional delivery, placing, discharging or detonating an explosive or other lethal
180 See also section 9(4) which qualifies the general definition of “aircraft” in section 2(1) and states: “Subsections (1) and
(2) do not apply to any act committed in relation to an aircraft used in military, customs or police service unless – (a) the act
is committed in or over Malaysia; or (b) where the act is committed outside of Malaysia, the person committing the act is a
citizen of Malaysia.”
181 BBC, “Iran plane downing: ‘Several people detained’ over airliner loss”, 14 January 2020,
https://www.bbc.co.uk/news/world-middle-east-51104687.
182 Other examples include the shooting down in error of Cathay Pacific Airways C-54 by China on 23 July 1954, the
shooting down over Western Sahara by the Western Sahara Popular Front for the Liberation of Saguia el-Hamra and Rio de
Oro of a Dornier Do 228-100 on 24 February 1985 and a Douglas DC-7CF on 8 December 1988, and the shooting down of
a helicopter chartered by the UN by the Sudan People’s Liberation Army in South Sudan on 21 December 2012.
48
device in, into or against a place of public use, a State or government facility, a public transportation
system or an infrastructure facility, with (2) the intent to cause death/serious bodily harm/extensive
destruction.
167. The word “intent” in Article 2(1) of the ICSTB is to be given the same meaning as the word
“intended” in Article 2(1)(b) of the ICSFT, which is explained further in Chapter V below.
168. Ukraine also does not dispute that where the Parties to the ICSTB agreed to introduce any element
of likelihood, they did so expressly in Article 1(b) of the ICSTB, which uses the formulation “or is
likely to result in”.
49
CHAPTER V
THE REQUIREMENTS FOR ACTS OF TERRORISM WITHIN THE MEANING OF
ARTICLE 2(1)(B) OF THE ICSFT
169. While Article 2(1)(a) of the ICSFT183 refers to offences within the scope of, and as defined in,
one of the treaties listed in the annex of the Convention, Article 2(1)(b) of the ICSFT lays out the
necessary elements that must be fulfilled for an act to constitute terrorism, i.e. such act must be
“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.”
170. Article 2(1)(b) of the ICSFT thus requires the fulfilment of two distinct mental elements, namely
that
- there has been the intention by the person responsible 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;
and
- the purpose of such act, by its nature or context, has been to intimidate a population, or
to compel a government or an international organization to do or to abstain from doing
any act.
171. As the Court determined in its Order on Provisional Measures of 19 April 2017, Ukraine had
then not been able to adduce sufficient evidence to support even a plausible claim that both those
mental elements of intention and purpose were present at the relevant time with regard to the events
that it relied upon.184
172. In seeking to overcome the problems it faces in light of this initial finding by the Court, Ukraine,
in its Memorial, proposes a very broad interpretation of the ICSFT in general, but even more so
specifically with regard to the two mental elements contained in Article 2(1)(b) of the ICSFT.185
173. Such interpretation is, however, not in line with the well-established methods of treaty
interpretation. Russia will thus now first establish the correct standard for the element of intent to
cause death or serious bodily injury (I), before turning to the second required mental element of
purpose (II).
183 See Chapter IV of this Counter-Memorial.
184 Order of 19 April 2017, para. 75 (emphasis added).
185 MU, paras. 202-209.
50
I. Intent to Cause Death or Serious Bodily Injury to Civilians
174. As a preliminary matter, it must first be noted that a relevant act within the meaning of Article
2(1)(b) of the ICSFT can only be committed provided the intention was to harm either “a civilian” or
“any other person not taking an active part in the hostilities”.186 If members of armed forces or groups
or other persons taking an active part in the hostilities were targeted, such an act is not encompassed
within Article 2(1)(b) of the ICSFT, and hence does not trigger the obligations of the contracting
parties under the ICSFT.
175. Regarding the appropriate interpretation of the intention to cause death or serious bodily injury,
Ukraine asserts in its Memorial that “the most appropriate reading of intent in Article 2(1)(b) [of the
ICSFT] encompasses all of these mens rea”,187 i.e. dolus directus, dolus indirectus and dolus
eventualis. According to Ukraine, any of these forms of its characterisation of intention would fulfil
this first mental element contained in Article (2)(1)(b) of the ICSFT.188
176. In doing so, Ukraine not only deliberately blurs the line between different categories of mens
rea and attempts to brand belligerent acts by insurgents within an armed conflict causing collateral
civilian damage as acts of terrorism,189 but also deviates from well-established methods of treaty
interpretation.
177. Further, Ukraine’s reliance on the Rome Statute and/or national case law does not support
Ukraine’s proposition that forms of intent other than direct intent suffice to trigger the applicability
of Article 2(1)(b) of the ICSFT.
178. Finally, Russia will demonstrate that Ukraine’s suggestion that one may simply draw a
conclusion from an objective situation as to the mental element of the existence of intent to cause
death to civilians in the situation of an armed conflict, such as the one prevailing in Eastern Ukraine,
is also misconceived.
A. THE ORDINARY MEANING OF THE WORDS “INTENDED TO CAUSE”
179. The phrase “intended to”, as used in Article 2(1)(b) of the ICSFT, is defined by the Oxford
Dictionary as something “that [one is] trying to achieve or reach”.190 The ordinary meaning thus refers
186 The distinction is e.g. found in Article 43 and 50 of the Additional Protocol I to the Geneva Conventions (referring to
Article 4 of the Third Geneva Convention); in the context of a non-international armed conflict especially Article 13 of
Additional Protocol II is reflective of the two categories; see also ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-
29-A, Appeals Chamber, Judgment of 30 November 2006, paras. 100 et seq.
187 MU, para. 207.
188 MU, para. 207.
189 MU, para. 206.
190 See Oxford Learners Dictionaries “intended”; https://www.oxfordlearnersdictionaries.com/definition/english/
intended.
51
to an actual aim, desire or plan. The specific effect and outcome of the act must therefore have been
aimed at and desired by the perpetrator.
180. This interpretation is supported by the Spanish version of Article 2(1)(b) of the ICSFT, which
uses the expression “a destinado a causar”. This wording connotes an intention actually to cause a
specific outcome, as confirmed by the official Dictionary of the Spanish language published by the
Royal Spanish Academy. It defines the term “destinar” as “ordering, pointing out or determining
something for some purpose or effect” (“ordenar, señalar o determinar algo para algún fin o
efecto”).191
181. In the same vein, the Russian version of Article 2(1)(b) of the ICSFT uses “napravlennogo na”
(«направленного на»), which is the equivalent of “directed at” and which expresses that a direct form
of intent was meant to be incorporated. This is confirmed by the Russian Criminal Code, in which
this same term is used to describe an action committed with direct intent and for a specific purpose.192
182. This interpretation is further supported by the French text of the ICSFT. Ukraine suggests that
the French language version implies a different and broader meaning than direct intent.193 However,
the term “destiné à” refers to “intended for” and “aimed at”, both of which mental states require a
specific will of the respective person that the act is directed at producing a certain result.194
183. Had the drafters indeed wanted to broaden the scope so as also to include forms of intent lesser
than direct intent they would have used wording from other closely related treaties such as “de nature
à causer” (used in Article 35(2) of Additional Protocol I), or “propres à” (previously used in Article
23(e) of the 1907 Hague Regulation Concerning the Laws and Customs of War on Land).
184. It is in this regard also worth noting that the French wording “destiné à” had, in an earlier
version, been translated as “designed to”. Draft Article 2(1)(b) of the ICSFT accordingly then referred
in English to acts
“designed to cause death or serious bodily injury to a civilian or to any other person, other
than in armed conflict”.195
191 See Diccionario de la lengua espanola, entry for “destinar”, at: https://dle.rae.es/destinar#DTzRYFc.
192 As to the interpretation of the term «направленный на» (“napravlennyi na”), i.e. intended to, used in Article 2(1)(b)
of the ICSFT in Russian criminal law see the relevant Schedule (Annex 248).
193 MU, para. 206.
194 The Larousse dictionary defines the verb “destiner” as: « Fixer la destination de quelque chose, le réserver à cet
usage, à cet emploi; affecter». The dictionary of the Académie Française is somewhat less specific but still clear in
defining it as “préparer, réserver”. See for instance, for a law where « destiné à » has been interpreted as to mean
“intented to”: Code pénal, Article 432-1: « Le fait, par une personne dépositaire de l'autorité publique, agissant dans
l'exercice de ses fonctions, de prendre des mesures destinées à faire échec à l'exécution de la loi est puni de cinq ans
d'emprisonnement et de 75 000 euros d'amende ».
195 Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Third session, Draft
international convention for the suppression of the financing of terrorism, Working document submitted by France, UN
Doc. A/AC.252/L.7., 11 March 1999 (emphasis added).
52
185. While the initial English version of “destiné à”, i.e. the term “designed to”, would have arguably
been slightly more open to interpretation, the English term “intended to” was perceived to be more in
line with the French term “destiné à” and thus replaced the phrase “designed to”. Yet, the term
“intended to”, just like “destiné à”, inherently entails a reference to the subjective mind-set of the
perpetrator, requiring that he or she actually wanted the act to cause a particular consequence.
186. This change in wording is reflective of the explanatory note, which accompanied the French
proposal. In that note, France referred to the underlying act of causing death to civilians, as now
contained in Article 2(1)(b) of the ICSFT, as an act of “murder”.196 Murder is however usually
referred to as an act that is committed with direct intent, and therefore “intended to” was more
appropriate in capturing that understanding.
187. Similarly, the Arabic version, namely يهدف إلى التسبب في , also indicates that the perpetrator must
have had the intention to cause the death or serious bodily injury to civilians or other persons not
taking an active part in hostilities.
188. The Chinese version for “intended to cause”, i.e. 意图致使, does not seem to include forms other
than direct intent either, since otherwise the addition of the term “intended to”, i.e. 意图, would have
been unnecessary.
189. Hence, according to the actual terminology used, only acts committed with direct intent to cause
the death or serious bodily injury to civilians are covered by Article 2(1)(b) of the ICSFT.
B. THE CONTEXT CONFIRMS THE EXCLUSION OF FORMS OF MENS REA OTHER
THAN DIRECT INTENT
190. This conclusion, based on the text of Article 2(1)(b) of the ICSFT, is further supported by a
comparison with other instances where the ICSFT refers to the concept of intention.
191. Notably, by contrast to the chapeau of Article 2(1) of the ICSFT, which uses the formulation
“intention […] or […] knowledge”,197 subparagraph (b) of Article 2(1) of the ICSFT deliberately does
not employ the same formulation. The ICSFT is thus reflective of the general distinction between
intention and knowledge and, importantly, Article (2)(1)(b) of the ICSFT refers to intention only. It
thereby implicitly excludes knowledge-based standards, i.e. a mind-set in which a perpetrator only
knows about the possibility or even likelihood of causing civilian deaths (“knowledge”), but does not
act with the actual will (“intention”/ “intended”) to cause that particular outcome.198 Article 2(1)(b)
196 Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Third session,
Explanatory Report France, UN Doc. A/AC.252/L.7/Add.1, 11 March 1999, para. 6; repeated in United Nations General
Assembly, 54th Session, Official Records, Supplement No. 37, Report of the Ad Hoc Committee established by General
Assembly resolution 51/210 of 17 December 1996, UN Doc. A/54/37, 5 May 1999, para. 29 (Annex 5 to PORF).
197 Emphasis added.
198 See above, paras. 111-112.
53
of the ICSFT, by referring to intention only, therefore a contrario explicitly requires the different and
stronger intention-based mind-set.
C. THE OBJECT AND PURPOSE OF THE ICSFT AS WELL AS AN INTERPRETATION IN LINE WITH
INTERNATIONAL HUMANITARIAN LAW WARRANTS ENCOMPASSING DIRECT INTENT ONLY
192. Ukraine’s interpretation so as to include all possible forms of intent is also incompatible with
the object and purpose of the Convention, especially in light of the requirement of an interpretation
of the ICSFT in line with other rules of international law, and most importantly rules and norms of
international humanitarian law.
193. The object and purpose of the ICSFT is the suppression of the financing of terrorism. Ukraine,
in order to interpret the concept of intent in Article 2(1)(b) of the ICSFT, refers to the preamble,199
according to which the ICSFT Parties recall the “condemnation of all acts, methods and practices of
terrorism as criminal and unjustifiable, wherever and by whomever committed”. This sentence,
however, sheds no light whatsoever on the meaning of the term “intended to” as a specific mandatory
component of the definition of a terrorist act under Article 2(1)(b) of the ICSFT. Notably (and
unsurprisingly), the condemnation does not refer to or otherwise shed light on the required mental
elements of the offence of terrorism.
194. Of course, if terrorism, no matter in what form, shape, method or practice, occurs, it is to be
condemned, and Russia firmly and unambiguously condemns it. Yet, in search of a definition of the
elements that constitute terrorism, a broad and unspecific reference to the preamble does not suffice
to establish the content of any of the specific elements laid out in detail in Article 2(1)(b) of the
ICSFT.
195. In fact, the question of what actually constitutes terrorism is a long-standing and disputed
question in international law, and a universal definition of terrorism has yet to emerge.200 While it is
of course true that the ultimate object and purpose of the Convention is to protect civilians from
terrorist attacks, the ICSFT was plainly not intended to upset and undermine other pre-existing and
well-established international standards.
196. In particular, the interplay between international humanitarian law and anti-terrorism
conventions warrants careful consideration. In armed conflict situations, the ICSFT is to be applied
alongside and with respect for international humanitarian law. It is for this reason that Article 21 of
the ICSFT provides explicitly that
199 MU, para. 207, fn. 481.
200 R. Higgins, “The General International Law of Terrorism”, in Terrorism and International Law (1997), R. Higgins
and M. Flory (eds.), pp. 27-28.
54
“[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.”201
197. The Russian Federation agrees that Article 21 of the ICSFT is not to be read as an exclusion
clause leading to the non-application of the ICSFT in its entirety in situations of armed conflict.
However, 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.202
198. Most importantly, international humanitarian law, while prohibiting a direct attack against
civilians, does not per se prohibit expected collateral damage among civilians when aiming at a
legitimate military target.203 International humanitarian law is thus reflective of the fact that during
situations of armed conflict military conduct can, and often does almost inevitably, lead to deaths or
serious bodily injuries of civilians, regrettable as that is. This is most clearly brought out by both of
the 1977 Additional Protocols to the four Geneva Conventions as being reflective of customary law
in demanding that
“the civilian population as such, as well as individual civilians, shall not be the object of
attack.”204
199. On the other hand, incidental loss of civilians only violates international humanitarian law
where it had been expected that such collateral damage would be excessive in relation to the
anticipated military advantage.205 An attack that is not directed against civilians is only prohibited
where it is indiscriminate, i.e. if the attack
“may be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which [is] excessive in relation to the concrete
and direct military advantage anticipated.”206
201 Emphasis added.
202 Cf. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para. 25.
203 See e.g. ICTY, Prosecutor v. Kordić & Čerzkez, Case No. IT-95-14/2-A, Appeals Chamber, Judgment of 17 December
2004, para. 52.
204 Article 51(2) of Additional Protocol I; the same rule can be inferred from Article 13(2) of Additional Protocol II for
non-international armed conflicts, see ICRC Customary Law Study, Rule 14, https://ihl-databases.icrc.org/customaryihl/
eng/docs/v1_rul_rule14.
205 Established in Article 48 and Article 51 (2), (4) (5) of Additional Protocol I for an international armed conflict; and
Article 13 (2) of Additional Protocol II for non-international armed conflicts.
206 Article 51(5)(b) of Additional Protocol I (emphasis added).
55
200. The expectation and eventual causation of death of civilians has thus, under international
humanitarian law, to be considered in relation to the military advantage.207 It is only if the expected
casualties are excessive in relation to the military advantage anticipated that such act is prohibited
under international humanitarian law. In turn, even expected civilian casualties are not generally
prohibited by international humanitarian law.
201. 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 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.
202. That such result is not in line with international humanitarian law is further reflected in the
drafting history of Article 51(2) of the Additional Protocol I to the Geneva Conventions, which
prohibits the spread of terror among the civilian population. Notably, it was the Ukrainian delegation
participating in the negotiations leading to the adoption of the Additional Protocol I, which stated that
“[draft] Article 46 [now Article 51 of the Additional Protocol I] widens the scope of
protection for the civilian population and individual civilians, who under no
circumstances shall be the object of attack. In particular, paragraph 2 [of draft Article
46 = now Article 51 of the Additional Protocol I] explicitly prohibits acts or threats of
violence the primary purpose of which is to spread terror among the civilian population;
this is in line with the generally recognized rules of international law, which lay down
that Parties to the conflict shall not make the civilian population an object of attack.”208
203. The Ukrainian delegation thus agreed that the prohibition of 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.
204. This distinction is also reflected in the grave breaches provisions of the Geneva Conventions
and its Additional Protocol I, as being reflective of customary international law. It is particularly
noteworthy that Article 85(3) of Additional Protocol I requires not only a wilful commission of the
acts, as they are defined in sub-articles (a) to (f) thereof, in order for such acts to constitute a grave
breach. Rather, and leaving to one side the general requirement of a wilful violation of international
207 ICRC Customary Law Study, Rule 14, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule14.
208 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian
Law Applicable in Armed Conflicts, Geneva (1974-1977), Vol. VI, Statement of the Ukrainian Soviet Socialist Republic,
pp. 200-201 (emphasis added).
56
humanitarian law and the causation of death or serious injury, in addition, different standards of mens
rea apply as far as concerns the direct targeting of civilians on the one hand (Article 85(3)(a) of
Additional Protocol I), and excessive attacks on the other (Article 85(3)(b) of Additional Protocol I).
205. In particular, prohibited direct attacks under Article 85(3)(a) of Additional Protocol I are only
those where the perpetrator is “making the civilian population or individual civilians the object of
attack”.209 Yet, making civilians or a civilian population the object of an attack, an element which is
also inherent in the requirement of intending to cause death to civilians in Article 2(1)(b) of the
ICSFT, necessarily requires a deliberate decision and the will of the perpetrator to select, determine
and orient the attack against such civilians or against a civilian population.
206. The direct intended targeting of civilians on the one hand, and the causation of excessive
collateral damage to civilians on the other, must therefore be carefully distinguished,210 as confirmed
by this distinction made in Article 85(3) of Additional Protocol I.
207. Yet, Article 2(1)(b) of the ICSFT does not deal with a situation of balancing between the
expected loss of civilian life and an anticipated military advantage but, as per its wording, solely with
the intended causation of death or serious bodily injury to civilians. The provision thus addresses a
situation akin to that one covered by Article 85(3)(a) of Additional Protocol I (i.e. direct attacks
against civilians), rather than the situation addressed in Article 85(3)(b) of Additional Protocol I (i.e.
a particularly severe form of indiscriminate attack). It follows that Article 2(1)(b) of the ICSFT, just
like the rule of international humanitarian law to which it is related, requires a considered decision
and the determination of the perpetrator deliberately to attack civilians.
208. The fact that international humanitarian law does indeed distinguish between intention-based
acts on the one hand, and knowledge-based forms of acting, on the other, is further confirmed by
other provisions that have deliberately differentiated between these two concepts.
209. Notably, where less stringent forms of mens rea are meant to be included, international
humanitarian law explicitly and unequivocally refers to standards other than direct intent. Article
35(3) of Additional Protocol I, as well as Article 55(1) of Additional Protocol I, serve as striking
examples. Article 35(3) of Additional Protocol I states explicitly that
209 Text of Article 85(3)(a): “In addition to the grave breaches defined in Article 11, the following acts shall be regarded
as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and
causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of
attack”; ICRC Commentary, para. 1932; https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8
ec12563fb0066f226/5e5142b6ba102b45c12563cd00434741.
210 ICTY, Prosecutor v. Kordić & Čerzkez, Case No. IT-95-14/2-A, Appeals Chamber, Judgment of 17 December 2004,
para. 396.
57
“[i]t is prohibited to employ methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the natural
environment.”211
210. Similarly, Article 55(1) of Additional Protocol I also provides for the obligation to protect the
environment, which obligation includes
“a prohibition of the use of methods or means of warfare which are intended or may be
expected to cause such [widespread, long-term and severe] damage to the natural
environment and thereby to prejudice the health or survival of the population.”212
211. Accordingly, with regard to these provisions both direct intent (“intended”), as well as indirect
intent (“may be expected”) falls within the scope of the respective provision. A contrario, when a
provision such as Article 2(1)(b) of the ICSFT, which is closely related to relevant standards
developed for purposes of international humanitarian law, specifically requires intent, it means that a
mere knowledge-based standard (“or knowledge”), or a standard based on the expectation of a certain
outcome to occur (“may be expected”), is not encompassed.
212. Otherwise, the drafters of Article 2(1)(b) of the ICSFT would have had to define the relevant
acts as those:
“intended to cause, or which may be expected 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” (emphasis added).
213. Yet, the drafters of Article 2(1)(b) of the ICSFT decided not to choose such language, while
being fully aware of the above-mentioned obvious examples where such formula had previously been
used. Accordingly, against the background of the ICSFT’s object and purpose and in light of
international humanitarian law, Article 2(1)(b) of the ICSFT must be understood as encompassing, in
a situation of an armed conflict, intentional attacks on civilians only. This however is only the case
where the perpetrator acts with the direct intent to cause death or serious bodily injury to civilians,
i.e. the perpetrator voluntarily and explicitly wanted the consequence to be effectuated.
D. NEITHER INTERNATIONAL CRIMINAL LAW NOR THE DOMESTIC CASE INVOKED BY UKRAINE
SUPPORT UKRAINE’S POSITION
214. In furtherance of its suggested overbroad interpretation of Article 2(1)(b) of the ICSFT, Ukraine
relies on the Rome Statute to support its claim. Apart from the fact that neither Ukraine nor Russia
are State parties of the Rome Statute, it has also to be noted that terrorism has been deliberately
excluded from its scope, and thus it can have no direct bearing on this question.213 Besides, the Rome
211 Emphasis added.
212 Emphasis added.
213 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, Rome, 15 June – 17 July 1998, Annex I, Resolutions Adopted by the United Nations Diplomatic
58
Statute deals exclusively with individual criminal responsibility, which constitutes yet another reason
why it has no direct relevance for the case at hand which deals with matters of State responsibility.
215. It is thus Russia’s position that the Rome Statute does not provide an answer as to the necessary
mental element needed under Article 2(1)(b) of the ICSFT in order for a specific belligerent act to
constitute an act of terrorism.
216. However, even if one were to assume arguendo that it might have some relevance, neither the
text of the Rome Statute, nor its interpretation support Ukraine’s case.
217. Notably, in the Rome Statute, intent and knowledge are two terms that are kept separate.214
Since Article 2(1)(b) of the ICSFT only uses one of those terms, i.e. intention, this term may not be
conflated with the other. This is even more true so where, as in Article 2 of the ICSFT, both terms
appear in different parts of the same provision, and the treaty thereby confirms their different
meanings.
218. It is also important to note that the ICSFT and the Rome Statute were negotiated almost in
parallel, and that the ICSFT was adopted by the General Assembly less than two years after the
adoption of the Rome Statute. Hence, the drafters of the ICSFT were obviously aware of the intensive
debate leading to the adoption of the definition of intent contained in Article 30 of the Rome Statute.
Yet, Article 2(1)(b) of the ICSFT makes no reference to knowledge or otherwise suggests that
knowledge could be sufficient to establish the requisite intention. Had the drafters of the ICSFT
wanted to include forms of intent other than direct intent there would have thus been the need to do
so expressly.
219. International criminal tribunals, and especially the ICTY, that have dealt with the crime of
spreading terror, have confirmed the requirement of direct intent for terrorism. The specific structure
and requirements of the mental elements for the war crime of spreading terror were brought out by
the ICTY Appeals Chamber in the Milošević case. It defined the specific crime of spreading terror as
“[…] consist[ing] of the intent to make the civilian population or individual civilians not
taking direct part in hostilities the object of the acts of violence or threats thereof, and of
the specific intent to spread terror among the civilian population”.215
220. Thus, as stated by the Tribunal, there must – in line with international humanitarian law216 –
exist an intent that is directed at making civilians the very object of the respective acts of violence or
Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Doc. A/CONF.183/10, 17 July
1998, Res E.
214 See Article 30 (1) of the Rome Statute of the International Criminal Court, 17 July 1998, UNTS, vol. 2187.
215 ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Appeal Chamber, Judgment of 12 November 2009,
para. 37 (Annex 467 to MU), referring to ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Appeals Chamber,
Judgment of 30 November 2006, para. 104 (emphasis added).
216 See above, paras. 204.-206..
59
threats, rendering direct intent necessary. In addition, there must also be evidence of the specific
intent to spread terror.217
221. Lastly, in its Memorial, Ukraine relies upon the Italian case of Abdelaziz to support the inclusion
of dolus eventualis into the mental element for terrorism.218 Apart from the fact that such a single
domestic decision cannot be said to provide for an established interpretation of the ICSFT, the case
referred to by Ukraine does not even support its proposition.
222. In confirming the possibility that a terrorist attack might also take place in the context of an
armed conflict, and by providing the example of bombing a market place, it is worth noting that the
Italian decision found that
“certainty (and not mere possibility or probability) of serious harm inflicted on civilians
shows unequivocally that the committing of an intentional and specific act marked by an
intent to engage in the action and achieve the particular results that constitute terrorist
purposes.”219
223. The judgment thus confirms that only where there is certainty as to the damage to civilians, and
where accordingly it can be concluded that the perpetrator had the will to cause such consequence,
i.e. acted with direct intent, could the act be regarded as having been committed with the required
intent.
E. THE MENTAL ELEMENT OF INTENT CANNOT SIMPLY BE INFERRED FROM THE MERE OCCURRENCE
OF A PARTICULAR ACT
224. Finally, in order to establish the necessary mental element of direct intent, Ukraine contends
that the Court may simply draw inferences from the occurrence of a particular act.220 Yet, such an
approach was explicitly rejected by the Court in the Croatian Genocide case, in which Serbia had
claimed that the acts committed by Croatia constituted the act of killing civilians. The Court rejected
the assumption that those acts were undertaken with the intent to cause the death of civilians, despite
the fact that shelling of towns took place by Croatian forces. The Court expressly stated that
“it is unable to find that there was any indiscriminate shelling of the Krajina towns
deliberately intended to cause civilian casualties.”221
217 See below Section II.
218 Supreme Court of Cassation, Italy, Final Appeal Judgement, No. 1072, 17 January 2007 (Italy v. Abdelaziz and others)
(Annex 473 to MU).
219 Ibid., p. 12 (emphasis added).
220 MU, para. 207.
221 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, para. 472 (emphasis added).
60
225. The Court in its reasoning thereby followed the decision of the ICTY in the Gotovina case, in
which the ICTY’s Appeals Chamber had clarified that no general rule can be established under what
circumstances an attack might be deemed indiscriminate.222 The ICTY had therefore emphasized the
importance of “targets of opportunity” when analysing an attack,223 and had in particular required a
careful determination as to impact sites in that they were not “the result of shelling aimed at targets”
that were legitimate224 in order to eventually, and if at all, draw any inference from certain acts as to
the underlying intent.
226. Despite the fact that the ICTY’s Appeals Chamber confirmed that evidence had established that
“individual units of the HV [Croatian Army] aimed artillery in the general direction of the Four Towns
rather than at specific targets”, it nevertheless still found such evidence to be inconclusive in order to
establish an indiscriminate attack.225 Thus, notably in case of involvement of lawful military targets,
a first step of the analysis would be “a concrete assessment of [a] comparative military advantage”
before making any finding as to the indiscriminate nature of such an attack.226
227. This result is also in line with the Court’s approach in the Bosnian Genocide case, in which the
Court had concluded that
“[…] [t]he acts [constituting the objective elements for genocide], in the words of the
ILC, are by their very nature conscious, intentional or volitional acts”.
228. Accordingly, the Court concluded that
“[…] ‘Killing’ must be intentional, as must ‘causing serious bodily or mental harm’.”227
F. CONCLUSION
229. In sum, direct intent is therefore required as far as the first mental element of Article 2(1)(b) of
the ICSFT, i.e. causing death or serious bodily injury of a civilian or other persons not taking an
active part in hostilities, is concerned.
230. Beyond establishing this first mental element of intent, in addition a second, additional and
distinct mental element also needs to be present, namely that of a specific purpose.
222 ICTY, Prosecutor v. Ante Gotovina &, Mladen Markač, Case No. IT-06-90-A, Appeals Chamber, Judgment of 16
November 2012, para. 61.
223 Ibid., para. 63.
224 Ibid., para. 64.
225 Ibid., paras. 65-67.
226 Ibid., para. 82.
227 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, para. 186.
61
231. It is therefore to this second mental element that Russia will now turn to and show that this
requirement renders the act as one for which dolus specialis is necessary, subsequently laying out the
appropriate standard for establishing such dolus specialis.
II. The Required Purpose of the Act Qualifies Terrorism as a Special Intent Crime
232. Pursuant to Article 2(1)(b) of the ICSFT, the act of causing death to a civilian or other person
not taking an active part in the hostilities in the situation of an armed conflict only falls within the
scope of this provision provided also that
“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.”228
233. Although Ukraine cannot but acknowledge that the drafters of the ICSFT included this
additional mental element into Article 2(1)(b) of the ICSFT “so as to exclude ordinary crimes”229
from the definition of terrorism, Ukraine fails to draw the appropriate conclusions from this insight,
namely that terrorism thereby expressly requires a special intent. Hence, apart from the general
requirement of intent, the perpetrator must have also acted with the primary purpose of spreading
terror.
234. Ukraine, recognising the lack of evidence in this case for any such specific intent, suggests that
this required purpose may simply be inferred from the nature and context of an act. However, it does
so without applying the appropriate standard for any such inference, or sufficiently taking into
consideration the context of the armed conflict prevailing in Eastern Ukraine.230 This lack of
contextualisation results in an incorrect interpretation as to the required element of intimidation or
compulsion, which Ukraine again fails to interpret in light of applicable standards of international
humanitarian law.
235. In the following sub-sections, Russia will demonstrate that Article 2(1)(b) of the ICSFT was
designed as a specific intent crime, establishing the appropriate standard for such specific intent or
dolus specialis, before turning to the requisite specific purpose of intimidation or compulsion of a
government.
A. TERRORISM REQUIRES A SPECIFIC INTENT
236. It is well established that certain crimes and prohibited acts require a special intent, meaning
they require the proof of an
228 Emphasis added.
229 MU, para. 208
230 MU, paras. 213-216.
62
“additional subjective requirement that complements the general intent and goes beyond
the objective elements of the offence definition”.231
237. With regard to such acts, an additional intent characterizes the offence and distinguishes it from
other crimes, in which the mens rea merely reflects the objective elements of a crime.232 This
additional mental element is usually referred to as “specific intent” or “dolus specialis”.233
238. A number of other international crimes have been designed as such “specific intent crimes”,
including but not limited to genocide,234 apartheid,235 extermination,236 persecution,237 torture,238
killing and wounding treacherously,239 pillaging,240 forced pregnancy241 and enforced
disappearance.242
231 K. Ambos, “What does ‘intent to destroy’ in genocide mean?”, International Review of the Red Cross, Volume 91,
Number 876, December 2009, p. 935; see also O. Triffterer, “Genocide, its particular intent to destroy in whole or in part
the group as such”, Leiden Journal of International Law (LJIL), No. 14, 2001, pp. 399 at pp. 402-403.
232 K. Ambos, “What does ‘intent to destroy’ in genocide mean?”, International Review of the Red Cross, Volume 91,
Number 876, December 2009, p. 935.
233 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, para. 187.
234 Article 3 of the Genocide Convention; “with intent to destroy” has been interpreted as a dolus specialis element in
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, para. 187; see also ICTY, Prosectuor v. Goran Jelisić, Case No.
IT-95-10-A, Appeals Chamber, Judgment of 5 July 2001, para. 45; ICTY, Prosecutor v. Radoslav Brđanin, Case No. IT-
99-36-T, Trial Chamber II, Judgment of 1 September 2004, para. 695; with regard to Article 6 of the Rome Statute of the
International Criminal Court this element has been described as an “additional subjective element”, “specific intent” or
“dolus specialis” requirement in the ICC, see Prosecutor v. Omar Al Bashir (Decision on Application for an Arrest
Warrant), ICC-02/05-01/09-3, Pre-Trial Chamber I, 4 March 2009, paras. 134 and 139.
235 See for the description of the crime as defined in Article II of the International Convention on the Suppression and
Punishment of the Crime of Apartheid below, para. 240.; see also Article 7(1)(j) and (2)(h) of the Rome Statute according
to which the crime of apartheid is only committed if the acts are committed “with the intention of maintaining” a racist
regime.
236 According to Article 7(1)(b) and (2)(b) of the Rome Statute, the crime of “extermination” is committed if the acts
were “calculated to bring about the destruction of part of a population”.
237 According to Article 7(1)(h) and (2)(g) of the Rome Statute, the element “by reason of the identity of the group or
collectivity” has been identified as dolus specialis/specific intent in ICC, Prosecutor v. Omar Al Bashir (Decision on
Application for an Arrest Warrant), ICC-02/05-01/09-3, Pre-Trial Chamber I, 4 March 2009, para. 141.
238 In Article 8(2)(c)(i) of the Rome Statute identified as a “specific intent” requirement, in ICC, Prosecutor v. Jean-
Pierre Bemba Gombo (Confirmation Decision), ICC-01/05-01/08, Pre-Trial Chamber II, 15 June 2009, para. 294.
239 See Article 8(2)(b)(xi) in conjunction with Article 8(2)(b)(ix) of the Rome Statute.
240 See Article 8(2)(b)(xvi) in conjunction with Article 8(2)(e)(v) of the Rome Statute. This element has been defined as
a specific intent element in ICC, Prosecutor v. Jean-Pierre Bemba Gombo (Confirmation Decision), ICC-01/05-01/08,
Pre-Trial Chamber II, 15 June 2009, para. 320 and in ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui
(Confirmation Decision), ICC-01/04-01/07, Pre-Trial Chamber I, 30 September 2008, para. 332.
241 Article 7(1)(g) in conjunction with Article 7(2)(f) of the Rome Statute, see Werle/Jessberger, Völkerstrafrecht (4th ed.
2016), p. 489, para. 489.
242 Article 7(1)(i) in conjunction with Article 7(2)(i) of the Rome Statute.
63
239. What characterizes these crimes is that, according to their respective wording, the crime’s aim
or goal extends beyond the actual act. For example, in order for e.g. a killing to constitute an act of
genocide, there must not only be an intent to kill but also the intent to “destroy a group as such”.243
240. Similarly, only provided certain acts are committed “for the purpose of establishing and
maintaining domination by one racial group of persons over any other racial group of persons and
systematically oppressing them” will they qualify as amounting to the crime of apartheid.244
241. In the same vein, Article 1(1) of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment requires the infliction of pain or suffering “for such purposes as
obtaining from him or a third person information or a confession”245 in order for an act to constitute
torture.246
242. The same holds true for the ICSFT where the phrase “when the purpose of such act”, as
contained in Article 2(1)(b) of the ICSFT, brings the required act of terrorism in line with those other
special intent crimes.
243. The crime of terror has in fact consistently been referred to as a specific intent crime by different
courts and tribunals and notably by the ICTY,247 this specific element having been described as the
“distinguishing feature of the crime of terror”.248
244. That result is confirmed by the drafting history of Article 2(1)(b) of the ICSFT. The initial 1998
draft convention prepared by France followed a different approach, simply referring to certain acts
including causing or threatening to cause the death of or causing serious injury to civilians or
extensive destruction of property.249 At this stage, no reference had yet been made as to the purpose
of these acts. France then changed its approach in order to include, apart from the acts specifically
listed in the conventions to be included in an annex, the offence of what has accurately been described
243 F. Jessberger in: P. Gaeta (ed.), The UN Genocide Convention – A Commentary, 2009, p. 105 et seq.
244 Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid.
245 Emphasis added.
246 See in: M. Nowak, M. Birk, G. Monina (eds.), The United Nations Convention Against Torture and its Optional
Protocol: A Commentary (2nd Edition, forthcoming), Article 1, para. 107, “the requirement of a specific purpose seems
to be the most decisive criterion which distinguishes torture from cruel or inhuman treatment”.
247 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Trial Chamber I, Judgment of 5 December 2003,
paras. 128 and 136; ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Appeals Chamber, Judgment of 30
November 2006, para. 104; ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Appeals Chamber,
Judgment of 12 November 2009, para. 37 (Annex 467 to MU).
248 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Trial Chamber I, Judgment of 5 December 2003, paras. 72
and 78 (Annex 464 to MU).
249 Draft international convention for the suppression of terrorist financing (as prepared by the French delegation), 4
November 1998, UN Doc. A/C.6/53/9, p. 3.
64
as “murder with terrorist purpose”250 that would otherwise not have been covered by the mere
reference to the conventions to be included in the envisaged annex.
245. The subsequent working document submitted by France then used the formulation “constitutes
a means of intimidating a government or the civilian population” in order to give expression to the
particular terrorist purpose.251
246. This formulation was criticised by a number of delegations as providing for a mere objective
evaluation as to whether or not a specific act “constitute[s] a means” to intimidate a government or a
civilian population.252
247. In response to intense debates on the definition of terrorism in Article 2(1)(b) of the ICSFT,
ranging from changing the wording to deleting the entire paragraph, the next working paper presented
by France used the different formulation “designed to” in order to expressly incorporate a mental
element for an act to qualify as terrorism.253
248. Yet, this amended text still did not garner sufficient support. By way of reaction to this
continued lack of support for what was still considered by many States involved in the negotiations
to be too low a threshold for the mental element, the revised text prepared by the Friends of the
Chairman then included in the text of draft Article 2(1)(b) of the ICSFT the additional mental element
that the alleged terrorist act had to be committed for a specific purpose (“vise à”), namely the purpose
to intimidate a population, or to compel a government or an international organization to do or to
abstain from doing any act, as was later adopted.254
249. In light of its wording, context, object and purpose, as well as the drafting history deliberately
including the element of “purpose” into the provision, one cannot therefore but conclude that Article
2(1)(b) of the ICSFT requires that the alleged acts in question require special intent, in line with other
crimes that provide for such specific mental element and using the same or a similar wording.
250 Diaz-Panigua, Carlos Fernando, Negotiating Terrorism: The Negotiation Dynamics of Four UN Counter-Terrorism
Treaties, 1997-2005 (2011), p. 461 et seqq.
251 Draft international convention for the suppression of the financing of terrorism, Working document submitted by
France, 11 March 1999, UN Doc. A/AC.252/L.7 (emphasis added).
252 See especially the Proposal submitted by Germany (UN Doc. A/AC.252/1999/WP.26, 18 March 1999): “The exact
meaning of the words ‘constitutes a means of intimidating a government’ is unclear to the German delegation”, p. 2 (see
the same in UN Doc. A/54/37, p. 39 (Annex 5 to PORF)).
253 Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, UN Doc.
A/54/37, 5 May 1999, p. 12 (Annex 5 to PORF); see on this very formulation already above paras. 184.-185. in the context
of the first subjective element.
254 Revised text prepared by the Friends of the Chairman, UN Doc. A/C.6/54/L.2, p. 5.
65
B. A SPECIFIC INTENT CRIME REQUIRES AN ADDITIONAL MENTAL ELEMENT OF DOLUS SPECIALIS
250. When establishing such specific intent, international courts and tribunals, including the Court
itself, have in particular meticulously distinguished such specific intent from other reasons and
motives of the perpetrator.
251. Notably, it was the Court itself that in the Bosnian Genocide case stressed the importance of
this element when elaborating, with regard to the crime of genocide, that
“[i]t is not enough that the members of the group are targeted because they belong to that
group, that is because the perpetrator has a discriminatory intent. Something more is
required. The acts listed in Article II must be done with intent to destroy the group as
such in whole or in part.”255
252. Applying this holding of the Court to the purpose-requirement contained in Article 2(1)(b) of
the ICSFT means that it is not sufficient that death or serious bodily injury was caused. Something
more is required. The alleged acts must also have been committed with the specific intent to intimidate
a population or to compel a government to do or to abstain from any act. Thus, the mental element in
question is fulfilled, and fulfilled only, provided the perpetrator desired the act for the requisite
specific purpose, i.e. either to provide for intimidation or compulsion.
253. Inherent in this understanding of a particular aim or goal that is specifically desired by the
perpetrator is the result that lesser forms of mens rea than direct intent are not sufficient to fulfil this
special intent requirement. Thus, indifference or mere acceptance of a certain result is not sufficient
to establish that the perpetrator acted with intent in relation to the purpose of his or her act. It is
therefore not enough if the perpetrator merely intended that fear be created that might in turn
intimidate the civilian population or the government in question. Rather, such instigation of fear and
such intimidating effect must have constituted the very purpose for committing the respective act.
254. This point was emphasized by the ICTY’s Trial Chamber in the Galić case with respect to
Article 51(2) of Additional Protocol I,256 and was confirmed by the ICTY’s Appeals Chamber. The
latter referred to the drafting history of Additional Protocol I and, on that basis, accepted that
“[t]he prohibition of ‘acts or threats of violence which have the primary object of
spreading terror’ is directed to intentional conduct specifically directed toward the
spreading of terror”,257
255 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, para. 187.
256 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Trial Chamber I, Judgment of 5 December 2003,
para. 136: “[the prohibition of spreading terror] is to be understood as excluding dolus eventualis or recklessness from
the intentional state specific to terror”.
257 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Appeals Chamber, Judgment of 30 November 2006,
para. 103 referring to Travaux préparatoires, Vol. XV, p. 274, cited at paragraph 101 of the Trial Judgement (emphasis
added).
66
which in turn therefore
“excludes terror which was not intended by a belligerent and terror that is merely an
incidental effect of acts of warfare which have another primary object”.258
255. Two important consequences follow from this, namely first that the creation of terror that was
not intended would not fulfil the mental element of the offence of terrorism and, second, that terror
must be specifically caused by the respective act and not just constitute a general consequence of the
overall situation of armed conflict. In particular, the feeling of terror inherent in acts of warfare as
such does not qualify the underlying acts as acts of terror.
256. Due to the special role of the mental element of purpose for the crime of terrorism, according
to the ICTY Trial Chamber in Galić, the party claiming the commission of acts of terror
“is required to prove not only that the Accused accepted the likelihood that terror would
result from the illegal acts – or, in other words, that he was aware of the possibility that
terror would result – but that that was the result which he specifically intended. The crime
of terror is a specific-intent crime.”259
257. This was confirmed by the ICTY’s Appeals Chamber in Galić,
“[t]he mens rea of the crime of acts or threats of violence the primary purpose of which
is to spread terror among the civilian population is composed of the specific intent to
spread terror among the civilian population.”260
258. Given its character as a specific-intent provision, the same must also hold true for the offence
defined in Article 2(1)(b) of the ICSFT.
C. THE SPECIFIC INTENT TO CREATE TERROR MUST FORM THE PURPOSE OF THE ACT
259. According to the text of Article 2(1)(b) of the ICSFT, the reference to the purpose of the act
indicates that creating an effect of intimidation or compulsion must have been the reason to commit
the respective act. This is brought out by the fact that Article 2(1)(b) of the ICSFT refers to “the
purpose” in the singular, rather than to “a purpose” to intimidate a population, or to compel a
government or an international organization to do or to abstain from doing any act.
260. This direct link between the intent to commit the act and the purpose of spreading terror has
also been emphasized by the ICTY:
“[t]he fact that other purposes may have coexisted simultaneously with the purpose of
spreading terror among the civilian population would not disprove this charge, provided
258 Ibid. (emphasis added).
259 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Trial Chamber I, Judgment of 5 December 2003, para. 136
(emphasis added).
260 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Appeals Chamber, Judgment of 30 November 2006,
para. 104.
67
that the intent to spread terror among the civilian population was principal among the
aims.”261
261. This understanding of the importance of the terrorist purpose is supported by both Article 51(2)
sentence 2 of the Additional Protocol I and Article 13(2) sentence 2 of the Additional Protocol II
which in the context of an armed conflict both explicitly provide that
“[a]cts or threats of violence the primary purpose of which is to spread terror among the
civilian population are prohibited.”262
262. Thus, international humanitarian law makes it clear that an act only constitutes terror in the
context of an armed conflict, if the primary purpose of an act was to spread terror among the civilian
population. This is reflective of the fact that even lawful acts of warfare necessarily frighten the
civilian population in the context of an armed conflict, and therefore spread fear and anxiety that were
however not intended, or at least not primarily intended.263 There is nothing in Article 2(1)(b) of the
ICSFT to suggest any different standard was intended, and it would have been confusing and
anomalous to introduce such a different standard.
263. Thus Ukraine, as the claimant, is required to establish that the acts it relies upon were committed
with the specific purpose of intimidating the population or compelling a government in order to
establish an offence as one falling under Article 2(1)(b) of the ICSFT, thus possibly giving rise to the
treaty obligations arising for other State parties of the ICSFT.
D. REFERENCE TO THE NATURE AND CONTEXT WAS NOT MEANT TO REPLACE THE MENTAL
ELEMENT OF PURPOSE
264. Ukraine, not only in the provisional measures phase, but also in its Memorial, has failed to
provide any convincing direct evidence that would establish the required dolus specialis regarding
the acts it incorrectly denotes as acts of “terrorism”.264 Rather, it simply attempts to rely on the nature
and context, suggesting that the Court may infer the existence of the required mental element of dolus
specialis from the fulfilment of certain objective elements.265
265. Yet, it must be noted that the drafters did not mean to set aside the necessity to prove the required
dolus specials. The submission by Ukraine that
261 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Appeals Chamber, Judgment of 30 November 2006,
para. 104 (emphasis added); confirmed in ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Appeal
Chamber, Judgment of 12 November 2009, para. 37 (Annex 467 to MU).
262 Emphasis added.
263 See on this particular aspect Section E below.
264 See Chapter VII.
265 MU, para. 208.
68
“[t]his language [of nature and context] was included in the final version of the
Convention specifically to ensure that ‘proof of the perpetrator’s subjective state of mind’
would not be required”266
does not withstand scrutiny. This statement, taken from the Informal Summary of the discussion in
the Working Group, prepared by the Chairman, constitutes a mere summary reflecting the intense
debate that had taken place with regard to this particular element. While some delegations had
suggested deleting the reference to nature and context, some other delegations had explicitly opposed
such deletion.267
266. The formula now contained in Article 2(1)(b) of the ICSFT, referring to the purpose, while
taking into consideration the nature and context, therefore constitutes a compromise that was reached
between the generally approved necessity to include a specific mental element (“when the purpose of
such act”/ “cet acte vise à”) on the one hand, and the heavily disputed possibility to infer such mental
element from the nature and context on the other.268
267. In fact, the stand-alone function and importance of this mental element has been stressed by this
Court already in its Order of 19 April 2017, where the Court noted that Ukraine had failed to submit
a plausible case as far as the required purpose to intimidate a population, or to compel a government
or an international organization to do or to abstain from doing any act is concerned.269
268. The Court also unequivocally stated that while Ukraine had made reference to acts giving rise
to the death and injury of a large number of civilians, Ukraine had not been able in addition to adduce
evidence as to the presence of the “other elements set out in Article 2, paragraph 1, such as […] the
element of purpose specified in Article 2, paragraph 1 (b)”.270
E. IN ANY EVENT, THE NATURE AND CONTEXT OF THE ACT MUST ALLOW A CONCLUSION THAT
TERROR WAS ACTUALLY INTENDED
269. Ukraine additionally fails properly to contextualise the situation in its assessment of the nature
and context of an ongoing armed conflict. In that regard, it is to be noted that such alleged acts of
terrorism are, as far as their objective elements are concerned, composed of acts that constitute other
criminal offences. Yet, this is exactly the reason why tribunals concerned with the crime of terrorism
have repeatedly reiterated that the special intent element underlying the crime of terrorism needs to
be proven, as it is this subjective element that distinguishes an act of terrorism from other crimes that
266 MU, para. 208, fn. 484.
267 Measures to eliminate international terrorism, Report of the Working Group, Annex III, Informal summary of the
discussions in the Working Group, prepared by the Chairman, UN Doc. A/C.6/54/L.2, 26 October 1999, para. 87 and 88.
268 Diaz-Panigua, Carlos Fernando, Negotiating Terrorism: The Negotiation Dynamics of Four UN Counter-Terrorism
Treaties, 1997-2005 (2011), pp. 465-466; see on the element of nature and context below, Section E.
269 Order of 19 April 2017, para. 75.
270 Ibid.
69
share the same objective elements and which therefore, be it only at first glance, seem to be identical
in nature.
270. This aspect has been stressed by the ICTY Trial Chamber in the Galić case when stating that
“[t]he legal elements [for the crime of terror and for the war crime of directing attacks
against civilians] are the same except that the crime of terror contains the distinct material
element of ‘primary purpose of spreading terror.’ This makes it more specific than the
crime of attack on civilians.”271
271. One must therefore be careful in establishing the specific intent, as was emphasized by this
Court in the Bosnian Genocide case, in which the Court explicitly stated that
“[t]he specific intent is also to be distinguished from other reasons or motives the
perpetrator may have. Great care must be taken in finding in the facts a sufficiently clear
manifestation of that intent.”272
272. The Court further confirmed in the Croatian Genocide case that where there is no evidence as
to the required dolus specialis, this specific intention may only be deduced from a pattern of conduct
if this constitutes the only inference that could reasonably be drawn from the acts in question.273
273. In fact, and in contrast to what Ukraine is now suggesting,274 the Court in DRC v. Uganda
emphasized that even if there was
“credible evidence sufficient to conclude that the UPDF troops committed acts of killing,
torture and other forms of inhumane treatment of the civilian population, destroyed
villages and civilian buildings, failed to distinguish between civilian and military targets
and to protect the civilian population in fighting with other combatants, incited ethnic
conflict and took no steps to put an end to such conflicts, was involved in the training of
child soldiers, and did not take measures to ensure respect for human rights and
international humanitarian law in the occupied territories”,275
it still did not agree that these acts constituted acts of terror, as claimed by the DRC.276
274. Thus, in contrast to Ukraine’s suggestion, it is especially in the circumstances of an armed
conflict, in which one or even several acts may fulfil the objective elements of terrorism, that these
271 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Trial Chamber I, Judgment of 5 December 2003, para. 162
(emphasis added).
272 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, para. 189.
273 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, para. 148.
274 MU, para. 209.
275 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005, para. 211.
276 Ibid., para. 212.
70
acts may still not be found to have been accompanied by the specific intent of terrorising the civilian
population, requiring in turn evidence and proof of such specific intent.
275. Ukraine fails properly to contextualise the situation in its assessment of the nature and context.
In fact, belligerent acts in wartime often possess an intimidating effect on the civilian population.
This is due to the fact that, unfortunately, the risk of causing collateral damage to civilians is generally
inherent in modern warfare, and is in particular prevalent in urban warfare.
276. It has thus, due to the overall frightening situation of an armed conflict especially for civilians,
been stressed that
“[t]he prohibition of spreading terror among a civilian population must […] always be
distinguished from the effects that acts of legitimate warfare can have on a civilian
population.”277
because
“a certain degree of fear and intimidation among the civilian population is present in
nearly every armed conflict.”278
277. Hence,
“the closer the theatre of war is to the civilian population, the more it will suffer from fear
and intimidation. This is particularly the case in an armed conflict conducted in an urban
environment, where even legitimate attacks against combatants may result in intense fear
and intimidation among the civilian population, but to constitute terror, an intent to instill
fear beyond this level is required. 279
278. It is also for these reasons that:
“the circumstances of a particular armed conflict must be taken into account in
determining whether the crime of terror has been committed, or whether the perpetrators
intended to ‘spread terror among a civilian population.’”280
279. In the context of an armed conflict with ongoing military activities, for an act of terror to exist
the effects on the population must thus extend beyond the usual detrimental effects of a war scenario
for the population, i.e. must cause “extreme fear”.281 Even more explicit, “terror” in its ordinary
meaning denotes, as it has been put by the ICTY, a
277 ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Trial Chamber III, Judgment of 12 December 2007,
para. 888 (Annex 466 to MU).
278 Ibid.
279 Ibid. (emphasis added).
280 Ibid. (emphasis added).
281 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Trial Chamber I, Judgment of 5 December 2003,
para. 593.
71
“ ‘[…] state of being terrified or greatly frightened; intense fear, fright or dread’ or the
‘action or quality of causing dread; terrific quality or terribleness’.”282
280. The requirements for such a finding have thus been described by the ICTY as follows, namely
that such state of terror
“ ‘[…] has to be of the highest intensity. It has to be long-term. It has to be direct. And it
has to be capable of causing long-term-consequences’.”283
281. In an armed conflict, factors for establishing such purpose might be the “nature, manner, timing
and duration”,284 including an assessment as to the overall “theatre of war” setting. This would include
the nature and context of any shelling incidents, including in turn factors such as the position of the
respective front lines of conflict, the location of military targets (or objects which have been treated
by both sides to the conflict as military targets), and the question of whether there have been similar
or recent attacks from the opposing side and/or whether such are anticipated.
282. The nature and context of the acts in question must thus be of a kind to allow the only reasonable
conclusion that terror has intentionally been inflicted upon a civilian population, taking into
consideration the overall context of the ongoing armed conflict in Eastern Ukraine.
F. INTIMIDATION AND COMPELLING OF A GOVERNMENT SIMILARLY REQUIRE CONTEXTUALISATION
283. Lastly, the purpose of the alleged act of terrorism must explicitly be to intimidate a population
or compel a government. This element must similarly be interpreted in light of the ongoing
circumstances and, similarly to as already described above,285 in light of the laws of armed conflict.
284. In order to establish this particular purpose, Ukraine claims that “these acts occurred as the DPR
and LPR demanded greater autonomy from Ukraine’s central authorities”.286 Yet, this is not a purpose
over and above the overall context in which the entire armed conflict is taking place, and cannot
therefore be pertinent for establishing the offence of terrorism with regard to particular acts fulfilling
the purpose to intimidate the civilian population or to compel a government.
285. The purpose of any lawful act in any armed conflict will always, and indeed inevitably, be to
compel a government to do or to abstain from doing any act, i.e. to achieve military objectives and
ultimately to bring about surrender by the other party to the conflict and translate a military victory
into political gains. The purpose of the entire conflict in Eastern Ukraine and with it each and every
282 ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Trial Chamber III, Judgment of 12 December 2007,
para. 884 (Annex 466 to MU).
283 Ibid., para. 883.
284 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Appeals Chamber, Judgment of 30 November 2006,
para. 104; ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Trial Chamber III, Judgment of 12
December 2007, para. 881 (Annex 466 to MU).
285 See Section B above.
286 MU, para. 215.
72
act committed in that context, according to Ukraine’s suggestion, would thus serve the purpose of
spreading terror.
286. Thus, following Ukraine’s interpretation would lead to the consequence that whenever an armed
conflict has started, the requisite specific purpose will always be established because, in Ukraine’s
view, the purpose would ipso facto be to compel a given government to do or to abstain from doing
any act.
287. It is therefore required to interpret this element against the background of the overall ongoing
armed conflict, and it may not be equated with the whole panoply of military aims and goals that can
be legitimately pursued in accordance with international humanitarian law.
288. The broad interpretation of the purpose requirement contained in Article 2(1)(b) of the ICSFT,
as suggested by Ukraine, would even provide a disincentive for non-state actors engaged in an armed
conflict to abide by their obligations under international humanitarian law since all of their acts aimed
to “force” the respective territorial State to accept their political goals, be it autonomy, be it
independence, or be it some other political goal, could without exception be qualified as acts
committed with a terrorist purpose.287
289. It is therefore required to show that either the specific purpose of the acts under consideration
has been to intimidate the population, or that the alleged intended compulsion of the Ukrainian
government related to something beyond the overall goal of the armed conflict as such. Ukraine also
has to provide evidence that the insurgents’ alleged acts were committed for the purpose of something
more than trying to achieve military advantages, even if such military advantages, if gained, would
then exercise pressure upon the Ukrainian government.
G. SELECTED DOMESTIC CASES DO NOT SUPPORT UKRAINE’S CASE
290. In order to seek support for its broad assumption that “attacks on civilian areas will, by their
nature or context, generally be regarded as having the requisite purpose”,288 Ukraine relies upon a
number of domestic cases that are however not supportive of its claim.
291. The first is the Danish Supreme Court decision in the so called Fighters and Lovers Case,289
where the statement on which Ukraine relies, namely that the use of “imprecise mortar shells in
civilian areas” would always constitute terrorism, has been taken out of context.290
287 A. Cassese, Should rebels be treated as criminals? Some modest proposals for rendering internal armed conflicts less
inhumane, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford University Press, 2012), at
p. 519.
288 MU, para. 209.
289 Supreme Court of Denmark, Fighters and Lovers Case, Case 399/2008, Press release, 25 March 2009, pp. 1-2 (Annex
476 to MU); see also above para. 144 (b).
290 See above, para. 144 (b).
73
292. The Danish Supreme Court, when making this particular statement, was concerned with the
armed conflict in Colombia and with certain operations by the FARC.291 The Court relied upon a
broad range of measures by this group of “having murdered civilians, subjected civilians to gross acts
of violence, carried out kidnappings, including kidnappings of politicians and a presidential
candidate, and used imprecise mortar shells in civilian areas, in which civilians became victims” that
were then cumulatively regarded by the Danish Supreme Court as allowing to qualify the FARC as a
terrorist organisation. Apart from the fact that the decision thus took into account acts committed by
the FARC outside the theatre of war, and that it looked at all of those acts in a holistic manner, it also
made a finding as to the character of the FARC as a terrorist organization.292 This however, as is selfevident,
is a finding different from the question now before this Court, in which acts of organisations,
namely the DPR and LPR, that no one except Ukraine is considering terrorist organisations, require
an evaluation of their individual nature in the specific context of an armed conflict.
293. The Fighters and Lovers Case is thus of no instructive value for the case at hand due to a lack
of findings as to the terrorist nature of specific acts.
294. The same holds true for the decision of the Italian Supreme Court (Abdelaziz) that Ukraine has
also relied upon for its interpretation of the intent element of the crime of terrorism.293 The Italian
Supreme Court held that a peculiar and concrete factual situation might allow for a finding as to the
terrorist purpose of a particular act.294 The Italian Supreme Court, did not, however, provide more
specific guidance on when this could actually be the case, as it had relied on a hypothetical situation
in order to counter the approach taken by the Court of Milan.
295. Finally, in relation to Ukraine’s reference to the Russian Supreme Court,295 it should first be
noted that Ukraine’s reference to the guidelines adopted by the Russian Supreme Court is misplaced.
Ukraine refers to the 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”. The relevant paragraph is a comment on article 205 of the Russian Criminal
Code that provides for the intimidation of the population as a mandatory objective element of the
crime of terrorism along with other grave consequences such as risk to human life or significant
damage to property.
296. Ukraine once again fails properly to distinguish between the objective and mental elements of
the crime of terror. While the Russian Supreme Court has indeed provided a list of examples to
establish the objective criteria for the crime of terror, it is still required that the mental elements
291 Fuerzas Armadas Revolucionarias de Colombia.
292 Supreme Court of Denmark, Fighters and Lovers Case, Case 399/2008, Press release, 25 March 2009, pp. 1-2 (Annex
476 to MU).
293 See sbove, paras. 221-223.
294 Supreme Court of Cassation, Italy, Final Appeal Judgement, No. 1072, 17 January 2007 (Italy v. Abdelaziz and others)
at 4.1 (Annex 473 to MU).
295 MU, para. 209 and fn. 485.
74
necessary for the act to constitute terrorism, including direct intent to intimidate the population, must
be established.296 There is thus, contrary to what Ukraine is claiming, no automatic inference to be
drawn as to intent from the objective elements of a certain act.297
H. CONCLUSION
297. In light of all of the foregoing, it is established that Article 2(1)(b) of the ICSFT constitutes a
special intent offence. It thus requires a careful assessment of the overall armed conflict in order to
establish that the alleged acts have indeed been committed, with the specific purpose of intimidation
or coercion beyond the coercive element inherent in each and every military operation not prohibited
by rules of international humanitarian law applicable in situations of armed conflicts.
296 Commentary on Article 205, in Article-by-Article Commentary on the Criminal Code of the Russian Federation: in
Four Volumes, Special Part, Section IX, Volume 3, Editor-in-Chief V.M. Lebedev, Urait, 2017 (Annex 95); Commentary
on Article 205, in Article-by-Article Commentary on the Criminal Code of the Russian Federation: in Two Volumes,
Volume 2, 2nd Edition, Edited by A.V. Brilliantov, Prospekt, 2015 (Annex 94).
297 Commentary on Article 205, in Article-by-Article Commentary on the Criminal Code of the Russian Federation: in
Four Volumes, Special Part, Section IX, Volume 3, Editor-in-Chief V.M. Lebedev, Urait, 2017 (Annex 95).
75
CHAPTER VI
UKRAINE HAS FAILED TO ESTABLISH THE OFFENCE OF TERRORISM
FINANCING WITH RESPECT TO FLIGHT MH17
298. Ukraine has made the appalling loss of life caused by the shooting down of Flight MH17 on 17
July 2014 the centrepiece of its ICSFT case. It alleges that Russian State officials (and Russian
nationals) supplied the weapon used to shoot down Flight MH17 with the intention that it be used to
shoot down a civil aircraft or in the knowledge that it was to be used in this way.298
299. The Court is aware of the ongoing Dutch criminal proceedings (Russia is not a party) and the
proceedings before the ECtHR (where Russia is a party) within which, various allegations have been
made as to the weapon that shot down Flight MH17 being supplied by Russia. Such allegations are
vigorously denied by Russia. However, as already noted in the previous phases of the current
proceedings, these are not matters that are necessary to determination of Ukraine’s claims before the
Court since they do not concern whether the specific elements of an act of terrorism financing as defined
in Article 2(1) of the ICSFT have been established.
300. Even leaving aside the fact that the provision of “funds” does not include the supply of weapons
(see Chapter II above), Ukraine’s claim falls at the next hurdle. There is still no material evidence before
the Court, credible or otherwise, that whoever provided the weapon used to shoot down Flight MH17
did so with the requisite 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 or under Article 2(1)(b) of the ICSFT.
301. The evidence that Ukraine relies on, if it were accepted, shows that:
a. Whoever (allegedly) supplied the weapon (allegedly) used to shoot down Flight MH17 was
acting in response to a series of armed strikes by Ukraine’s military aircraft, and was
responding to a request for assistance to be used to defend against such military strikes.
b. The person who allegedly requested the weapon made that request for the purpose of
defending against military air strikes and expressed shock at the shoot down of a civil
aircraft.
302. It follows from this that, even if the evidence that Ukraine relies on were to be accepted, it would
show that whoever provided the 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, and moreover that Flight MH17
was shot down in a tragic error. Thus, even taking Ukraine’s evidence at its highest, the requisite
intention or knowledge under the chapeau to Article 2(1) of the ICSFT would be absent.
303. Further, it is untenable for Ukraine to contend that any person providing a BUK to the DPR/LPR
knew or should have known that the DPR/LPR would use that weapon to shoot down civil aircraft flying
298 See CR 2019/12, 7 June 2019, p. 40, para. 49 (Cheek).
76
at cruising altitude over eastern Ukraine299 when, at the time, Ukraine itself did not even see this as a
risk – although it knew of the possible use of high powered weapon systems to shoot down Ukrainian
military aircraft at high altitude in the days prior to 17 July 2014 (see below). Indeed, it was, and is,
wholly inconceivable that there would be an intentional targeting of a civil aircraft within the armed
conflict in Eastern Ukraine.
I. The Alleged Request for and Provision of a BUK for the Purpose of Defending against
Ukrainian Air Attacks
304. As at the provisional measures and preliminary objections phases, the evidence put forward by
Ukraine principally concerns the alleged delivery of a weapon by the Russian Federation, and Ukraine
relies on reports of the Dutch Safety Board (“DSB”) and the Joint Investigation Team (“JIT”). However,
the contents of the alleged telephone intercepts to which the JIT refers and the passage of the JIT’s
presentation are of central relevance to the current claim and these support Russia’s position.300
305. As to the background to the shooting down of Flight MH17, the DSB Report states:
“[I]t is clear that between April and July, the armed conflict in the eastern part of Ukraine
was continuing to extend into the air. Ukrainian armed forces aeroplanes and helicopters
conducted assault flights and transported military personnel and equipment to and from the
conflict area. The armed groups that were fighting against the Ukrainian government
attempted to down these aeroplanes. In May 2014, mainly helicopters were downed, while
in June and July also military aeroplanes were downed, including fighter aeroplanes.”301
306. The DSB Report details that:
“During the period between the conflict breaking out in the eastern part of Ukraine in April
2014 and the day of the crash of flight MH17 on 17 July, a number of Ukrainian military
aircraft were shot at (mostly from the ground). The Ukrainian authorities officially
confirmed some of these incidents although specific details, such as the weapons used or
the altitude at which the incident occurred, were not always revealed. […] It cannot be ruled
out that, during the period mentioned, other incidents also occurred. Therefore, no verified
overview of the total number of incidents can be provided.”302
307. More specifically, in the days leading up to the shoot down of Flight MH17, two of Ukraine’s
military aircraft were shot down: an Antonov An-26 military transport aeroplane on 14 July, flying at
299 MU, para. 287.
300 Russia does not accept the authenticity of any of alleged intercepts produced by Ukraine’s Security Service and any
reference to intercepts in this Chapter is without prejudice to this position.
301 Dutch Safety Board, Report “Crash of Malaysia Airlines Flight MH17, Hrabove, Ukraine, 17 July 2014”, October 2015
(the “DSB Report”), p. 185 (Annex 38 to MU).
302 DSB Report, p. 181 (Annex 38 to MU).
77
an altitude of 6,500 metres,303 and a Sukhoi Su-25 fighter aeroplane on 16 July, flying at an altitude of
8,250 metres.304
308. The DSB Report also found that, while military aircraft at high altitude were being targeted, a risk
to civil aviation arose from the potential for “errors and slips”.305
309. On 17 July 2014, the National Security and Defense Council of Ukraine provided the following
account of the situation as at 12:00, referring to airstrikes by the Ukrainian Armed Forces and to the
aircraft carrying out such operations being targeted:
“After a forced break, yesterday the aircraft of the Armed Forces of Ukraine resumed
combat missions in the area of the anti-terrorist operation. Fighter planes of the UAF struck
several precision strikes at “Grad” multiple launch rocket systems, checkpoints, strong
points, accumulations of manpower and equipment of mercenaries. […]
During the day, 12 flights of Air Force aircraft and 17 flights of helicopters of the Army
Aviation of the Ground Forces were made in order to strike at the positions of militants,
deliver humanitarian supplies and search and rescue support.
Yesterday at about 13:00, using a portable anti-aircraft missile system the terrorists
damaged a Su-25 aircraft that was performing a combat mission. […]
Fighting near Marynivka has not stopped since yesterday. Ukrainian servicemen beat off 4
powerful enemy attacks. The militants attacked under the cover of 5 tanks and several
armoured personnel carriers. Our military destroyed 3 tanks, 2 APCs [armoured personnel
carriers], and 3 terrorist vehicles, which were delivering militants to the battlefield.”306
310. This is consistent with a social media post on the evening of 16 July 2014 claiming to be a
“Message from Igor Ivanovich Strelkov” (a pseudonym of I. Girkin, a senior member of the DPR),
stating: “Heavy fighting continues near Marinovka. The village was bombed twice from high
altitude”.307
303 Flight MH17 was flying at an altitude of around 10,000 metres when it was destroyed.
304 Ukraine later revised its position with respect to these incidents, informing the DSB that the Antonov An-26 was flying
at 6,300 metres and the Sukhoi Su-25 at 6,250 metres: see Dutch Safety Board, Report “Crash of Malaysia Airlines Flight
MH17, Hrabove, Ukraine, 17 July 2014”, October 2015, fig. 77 at p. 182 (Annex 38 to MU).
305 DSB Report, p. 207 (Annex 38 to MU).
306 Latest information from the Information and Analysis Center of the National Security and Defence Council of Ukraine,
17 July 2014, https://www.rnbo.gov.ua/ua/Diialnist/1738.html (Annex 53).
307 VKontakte page “Reports from the Novorossiya’s militia”, post “16.07.14 19:42 Message from Igor Ivanovich Strelkov”,
at https://vk.com/wall-57424472?day=16072014&w=wall-57424472_7094%2Fall, 16 July 2014 (Annex 146). See also a
further post on the same social media group page stating that: “Aviation (with the loss of two Su-25) carried out attacks on
Saur[-Mogila]. In spite of this, the militia, with difficulty, are tightening the encirclement”, VKontakte page “Reports from
the Novorossiya’s militia”, post “16.07.14. A big review of the combat situation in the most important fighting locations
over the past day”, 16 July 2014 at https://vk.com/wall-57424472?day=16072014&w=wall-57424472_7148%2Fall, 16 July
2014 (Annex 147).
78
311. With respect to the provision of the weapon allegedly used to shoot down Flight MH17, the JIT
report found that:
“In July 2014, heavy fighting was going on in the area southeast of Donetsk. The pro-
Russian fighters were engaged in an offensive to force a passage to the border with the
Russian Federation south of the conflict zone. During these fights, the Ukrainian army
carried out many air strikes in order 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 defence systems to defend themselves against these air strikes. In
this respect, a BUK was discussed explicitly.”308
312. The relevant intercept of a call between “Khmuryi” (allegedly Mr Dubinsky) and “Sanych” on 16
July 2014 contains the following key passage, which Ukraine has not drawn to the Court’s attention:
“Khmuryi: […] Screw it, Sanych, I don’t even know if my men will be able to hold there
today or not. They start coming down on them with Grads, I’ll be left without my
reconnaissance battalion and the spetsnaz company. This sh*t is f**ked up. Oh crap… […]
And there’s nothing we can do about it… Now, Grads are something we can ****ing bear
with, but if Sushkas [slang term for Sukhoi fighter aeroplanes] strike in the morning… If I
can receive a Buk in the morning and send it over there that’d be good. If not, things will
go totally f**ked up. […]
Sanych: Well, look here, Nikolayevich, if you need…, we’ll send it…over to your
area…”309
313. Moreover, Ukraine has chosen not to put before the Court certain other relevant intercepts of
conversations which were previously published by its Security Service. These additional intercepts
expressly refer to a request for a BUK for the purpose of defending against high altitude air attacks.
314. First, on 16 July at 18:12, around one hour before the alleged conversation between “Khmuryi”
and “Sanych”:
“Dubinskiy: […] I’ll send you three tanks, ok?
Pulatov: What’s the point? They’ll just be burnt here. They really are irrelevant here.
Dubinskiy: In principle, you don’t need tanks there yet, right?
308 Joint Investigation Team, Presentation Preliminary Results Criminal Investigation MH17, Openbaar Ministerie, 28
September 2016 (Annex 39 to MU). Transcript available at: https://www.prosecutionservice.nl/topics/mh17-planecrash/
criminal-investigation-jit-mh17/jit-presentation-first-results-mh17-criminal-investigation-28-9-2016.
309 Intercepted conversation between “Khmuryi” and “Sanych” (19:09:20), 16 July 2014 (Annex 394 to MU).
79
Pulatov: No, we don’t need tanks. What we need is long-range artillery and decent air
defense. Because the plane worked at high altitude. Meaning, virtually no system was able
to reach it.”310
315. Second, around two hours later (at 20:13):
Dubinskiy: […] if a Buk-M is brought here tonight it will be taken to you directly. Aha?
Pulatov: Got it.
Dubinskiy: That Buk is our only hope. There is nothing else we can do. Right?
Pulatov: Yes.”311
316. Third, a Dutch broadcaster published an intercept of a conversation which took place at 00:17 on
17 July 2014:
“Dubinskiy: “The thing is that they went to the top [started flying high]. Before that, all
casualties… my reconnaissance battalion took Marinovka with only three three-hundredths
[wounded]. And then Sushkas [Ukrainian military aircraft] started working from five
kilometers and I have ten two-hundredths [killed] straight away. I have ... at night Buk-M
should come. In principle, all the problems will go …”312
317. Notably, Ukraine’s own Security Service stated shortly after the tragic shooting down of Flight
MH17 that the weapon had been supplied in order to take part in a military operation in response to the
combat operations of the Ukrainian Armed Forces (including air warfare). In four Notices of Suspicion
issued by Ukraine’s Security Service on 18 June 2019, which Ukraine has 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
310 Emphasis added. Intercepted conversation between Dubinskiy and Pulatov, at 18:12 on 16 July 2014, published at:
https://app.nos.nl/op3/mh17-tapes/#/hoofdstuk2?overlay=audiotape-3 (Annex 246). Dutch Prosecutor referred to this
conversation on 26 July 2020 (“‘a decent air-defence system [was] needed’, because an aircraft attacked them that day from
high altitude and no available air-defence system could reach it”. See Excerpts from the presentation of the public prosecutors
on 26 July 2020, https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-session-26-june-
2020). For “original” Russian version with translation see No. 1 in Transcripts of certain publicly available alleged intercepts
concerning the shoot down of Flight MH17, 16-17 July 2014 (Annex 251).
311 Excerpts from the presentation of the public prosecutors on 26 July 2020,
https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-session-26-june-2020. Audio
available at YouTube channel of Nieuwsuur, “A reconstruction of the MH17 disaster: tapes of thousands of overheard
conversations”, 11 April 2021, https://youtu.be/iUQk6i31fBc?t=159 2:39-2:51 (Annex 243). For “original” Russian version
with translation see No. 3 in Transcripts of certain publicly available alleged intercepts concerning the shoot down of Flight
MH17, 16-17 July 2014 (Annex 251).
312 Intercepted conversation between Skiff and Dubinskiy, at 00:17 on 17 July 2014, published at:
https://app.nos.nl/op3/mh17-tapes/#/hoofdstuk2?overlay=audiotape-5 (Annex 247). For “original” Russian version with
translation see No. 4 in Transcripts of certain publicly available alleged intercepts concerning the shoot down of Flight
MH17, 16-17 July 2014 (Annex 251).
80
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, during the night of 16 to 17 July 2016 the 53rd Anti-Aircraft Missile
Brigade’s BUK TELAR […] was illegally transported across the state border between
Ukraine and the Russian Federation”.313
318. This shows the view of Ukraine’s Security Service that the BUK was supplied for the purpose of
“air defense” and, it follows, that Flight MH17 was shot down in error, not intentionally targeted as a
civil aircraft.
II. Ukraine’s Intercept Evidence Concerning the Shooting Down of Flight MH17
319. Ukraine also contends (and the evidence it relies on, if it were to be accepted, shows) that the
persons allegedly responsible for shooting down Flight MH17 believed that they had targeted and
destroyed a military aircraft.
320. As a preliminary observation, it is noted that all of the intercepts which were provided to the DSB,
the JIT and to the Dutch prosecution authorities originate from Ukraine’s Security Service.314 The
further intercepts which were recently published by Dutch broadcasters are also understood to originate
from Ukraine’s Security Service.315
321. Ukraine has relied in this case on the transcript of an intercept said to refer to the downing of
Flight MH17. But it has not drawn the Court’s attention to the passage of the intercept which shows that
the same individual (“Khmuryi”, who Ukraine alleges is a Mr Dubinskiy) lacked the specific intent to
use the weapon to shoot down a civil aircraft for the requisite specific purpose:
“Khmuryi: […] What happened yesterday was messed up [swearing]. I am speechless.”316
322. Nor has Ukraine put into evidence the four Notices of Suspicion issued by its Security Service on
18 June 2019 or the documents referred to therein. These Notices record that:
313 Security Service of Ukraine, Notices of suspicion to L. Kharchenko, I. Girkin, S. Dubinskiy and O. Pulatov, 18 June
2019 (Annex 76), p. 5 (emphasis added), accessible at: https://web.archive.org/web/20190717084427
/https://ssu.gov.ua/uploads/Harchenko_eng.pdf, https://web.archive.org/web/20190630185956/https://ssu.gov.ua/uploads/
Girkin_eng.pdf, https://web.archive.org/web/20190717084258/https://ssu.gov.ua/uploads/Pulatov_eng.pdf,
https://web.archive.org/web/20190717084303/https://ssu.gov.ua/uploads/Dubinskiy_eng.pdf.
314 See e.g. Summary of the speaking notes of the Prosecutor, The Hague Court session of 8 June 2020,
https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-sessions-june-2020/investigationon-
telecommunications.
315 See e.g. Nieuwsuur, “Thousands of secret MH17 tapes provide insight into the situation before, during and after the
disaster”, 11 April 2021, https://nos.nl/nieuwsuur/artikel/2376243-duizenden-geheime-mh17-tapes-geven-inzicht-insituatie-
voor-tijdens-en-na-ramp (Annex 143) and NOS op 3, “MH17-Tapes”, “Responsibility”, 15 April 2021,
https://app.nos.nl/op3/mh17-tapes/#/intro?overlay=verantwoording (Annex 144).
316 Intercepted conversation between “Krot” and “Khmuryi” (07:41:06), 18 July 2014 (Annex 399 to MU).
81
“Thereafter, at 16:48 hours on 17 July 2014, L. V. Kharchenko reported to S.N. Dubinsky
that ‘they are at the spot and have already downed one sushka [slang term for Sukhoi fighter
aeroplane]’.
At 16:37, 16:41, 16:50 and 17:16 hours (Kyiv time) on 17 July 2014, posts about the
downing of the AN-26 aircraft near Torez appeared on I. V. Girkin’s Twitter and Vkontakte
pages on behalf of Igor Ivanovich Strelkov and the so called ‘militia’.”317
323. In particular, Ukraine has omitted to adduce the documents referred to in the passage quoted
above, comprising: (i) an intercept in which the DPR officers state that “they are at the spot and have
already downed one sushka [slang term for Sukhoi fighter aeroplane]”, and (ii) a social media post
published by a DPR representative on 17 July 2014 referring to the shoot down of an “AN-26 [military]
aircraft”.318
324. In order to provide the Court with a more complete picture of what emerges from the relevant
intercepts and social media posts, these two bodies of material (which Ukraine’s Security Service rely
on in the Notices of Suspicion) are examined in turn below.
III. Relevant Intercepts Not Produced by Ukraine
325. Ukraine has elected not to produce many intercepts of conversations which took place on the day
of the incident, all of which were allegedly obtained by its Security Service and some of which were
previously published by its Security Service. Such intercepts show that the DPR believed that a BUK
had been used to shoot down a Ukrainian military aircraft (“a sushka”). Certain of the intercepts which
Ukraine has omitted also record an understanding on the part of those speaking that this Ukrainian
military aircraft shot down Flight MH17.
326. The first relevant intercept is of a call at 16:48 on 17 July 2014, which was presented to the Dutch
court by the Dutch public prosecutors. This states that the DPR were “on the spot” and had “brought
down one Sushka”, and also contains a direction to cover and guard “the BUK”:
“Kharchenko: We are on the spot. We’ve already brought down one Sushka.
Dubinskiy: Well done! Attaboys! Well... You’ve brought down one Sushka. Well done!
Lionia, tell me....
[…]
Dubinskiy: What do you do there? I’ll put a question tonight. Obviously you will come
here. Well, you’ll leave one company there to cover the BUK and you’ll probably go here,
317 Security Service of Ukraine, Notices of suspicion to L. Kharchenko, I. Girkin, S. Dubinskiy and O. Pulatov, 18 June
2019 (Annex 76), p. 10.
318 Ibid.
82
you know? You will leave one assault [brigade]. What there is for you to do there? You
have enough work here. Giurza will come here too.”319
327. The second relevant intercept is of a call around one hour later, at 17:42 on 17 July 2014, in which
Dubinskiy states: “We also just shot down a Sushka, over Saur-Mogila. We got a Buk-M” and also
refers to the shooting down of two “Sushkas” on the previous day.320
“Botsman: […] A plane was shot down near us. I have to go there now and pick up the
boxes. I’ll hand them over to you, just in case … and then you can pass them on afterwards,
right?
Dubinskiy: Who got shot down?
Botsman: What’s that?
Dubinskiy: I won’t be in the city for another two hours or so. I’m in Marinovka now, as I
said. We also just shot down a Sushka, over Saur-Mogila. We got a Buk-M, so […]
[…]
Botsman: Have you had heavy losses?
Dubinskiy: Very heavy. So …
Botsman: Jeez.
Dubinskiy: We captured … Yesterday, the reconnaissance battalion captured Marinovka,
and the spetsnaz group took three hills. The infantry was deployed, and together we held
our position, and after that, another infantry group came, and we only left this morning, and
the infantry was completely crushed by the Grads, and we had to deploy another damn
reconnaissance battalion in Marinovka. And now they are f***** firing Grads at us again.
[…]
Dubinskiy: They’re trying to flee Zelenopillya, but their only way out is through me [my
position], do you follow? So that sucks. Yesterday two Sushkas were shot down, and another
one today. Thank God the Buk arrived this morning. That’ll be a big help. But of course,
things will still be difficult. They’re not letting any bloody tanks through, not nothing. They
plainly have 5 Grads batteries firing and 3 batteries of SAU [self-propelled artillery]. In
short, we are having fun here, f***.”321
319 Intercepted conversation between Kharchenko and Dubinskiy, at 16:48 on 17 July 2014, published at:
https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-session-26-june-2020
(Annex 217). For “original” Russian version with translation see No. 5 in Transcripts of certain publicly available alleged
intercepts concerning the shoot down of Flight MH17, 16-17 July 2014 (Annex 251).
320 Intercepted conversation between Botsman and Dubinskiy, at 17:42 on 17 July 2014, published at:
https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-sessions-12--13-november-
2020/court-session-13-november-2020 (Annex 241).
321 Ibid., for “original” Russian version with translation see No. 6 in Transcripts of certain publicly available alleged
intercepts concerning the shoot down of Flight MH17, 16-17 July 2014 (Annex 251).
83
328. The third relevant intercept, of a call at 18:20 on 17 July 2014, which was published by a Dutch
broadcaster on 11 April 2021, records that Dubinsky repeated that: “Our guys shot down a plane over
Saur-Mogila, near Marinovka. Our guys shot down a Sushka”; and that he stated that he was “not aware”
that a “Boeing” had “crashed”:
Unknown caller: And another question I have. I'm getting calls from the press, like NTV.
They say a Boeing crashed in the vicinity of Donetsk. About 80 kms from Donetsk. Is it
true?
Dubinskiy: You mean there’s a battle [‘boi’ in Russian] going on?
Unknown caller: BOE-ING. A plane crashed.
Dubinskiy: Ah, yes! Our guys shot down a plane over Saur-Mogila, near Marinovka. Our
guys shot down a Sushka.
Unknown caller: [inaudible] Sushka, Sushka… But people say a Boeing crashed.
Dubinskiy: There are talks that some plane crashed somewhere around Khartsyzk, between
Khartsyzk and Gorlovka. But I don’t know the details of this yet. Our guys shot down
“Sushka” near...
Unknown caller: Yes, I know that. But I’m interested in that Boeing.
Dubinskiy: Igor, I’m not aware. I’m saying this frankly, I am not aware.
Unknown caller: Okay.
Dubinskiy: Aha.
Unknown caller: Fine, sorry. Yeah. Over.”322
329. The fourth relevant intercept, of a call at 19:01 on 17 July 2014, repeats that a militant has “shot
down Sushka that had - just a minute before that - shot down that civilian plane”:
Koreets: Have you called, brother?
Pulatov: Yes, sure. You have been worried and here I am informing you. Look, your “blood
brother” has shot down Sushka that had - just a minute before that - shot down that civilian
plane. So, he is just a f****** hero of…, a f****** hero of everything. You understand?
Koreets: Good job!
Pulatov: The Chinese didn’t even have time to flare up and they f****** got it. I am going
to go look for that f****** captive now.
322 Audio with English subtitles available at Nieuwsuur, “A reconstruction of the MH17 disaster: tapes of thousands of
overheard conversations”, 11 April 2021, https://youtu.be/iUQk6i31fBc?t=159, at 06:52 - 7:37 (Annex 243). For “original”
Russian version with translation see No. 7 in Transcripts of certain publicly available alleged intercepts concerning the shoot
down of Flight MH17, 16-17 July 2014 (Annex 251).
84
Koreets: F***** as****e. They say it crashed somewhere behind the mine.
Pulatov: Yes, yes. Somewhere in that area.
Koreets: I got you, little brother, thank you for the good news.
Pulatov: That’s all, that’s that. Everything is fine, he did a great f****** job.
Koreets: So long, So long.
Pulatov: And f***, so soon he [inaudible], and he was caught straight away. This is crazy
s***.
Koreets: Awesome.
Pulatov: Ok then.
Koreets: Ok then.”323
330. The fifth relevant intercept, of a call at 19:52 on 17 July 2014, records that a DPR superior officer
(“Dubinskiy”) interrogated, in an agitated tone, a subordinate on the cause of the shooting down of
Flight MH17. The speakers confirm their understanding that it was “the ‘sushka’ [Ukrainian military
aircraft] that blew the Boeing away”:
“Dubinskiy: It was a Sushka that blew the Boeing away, right?
Pulatov: Yes, yes, yes.
Dubinskiy: Okay, I got this. And you saw it happening, you observed it?
Pulatov: They observed it from the ground. I myself was in Marinovka.
Dubinskiy: Aha. And who observed it among ours, whose people?
Pulatov: Our [people] observed it from practically all posts.
Dubinskiy: That is, they saw how the Sushka downed the Boeing and then…
Pulatov: They saw how the Sushka downed the Boeing, they saw it from Snezhnoye. The
Sushka went further and then the Buk downed it.
Dubinskiy: Buk, right?
Pulatov: Right.
323 An intercept played during the interview of Pulatov, “Full interviews MH17 defendant Oleg Pulatov”, 59:14-1:01:07,
at https://youtu.be/csrPZdVj99w?t=3668 (Annex 242). For “original” Russian version with translation see No. 8 in
Transcripts of certain publicly available alleged intercepts concerning the shoot down of Flight MH17, 16-17 July 2014
(Annex 251).
85
Dubinskiy: Understood, understood, , I got it all.”324
331. The sixth relevant intercept, of a call immediately after (at 19:54) between Dubinsky and Girkin,
repeats the same account that “Sushka ****ing hit [the] Boeing and then … ours hit the Sushka the
second time it was coming around and a lot of people saw this”, stating that this was “good news”:
“Dubinskiy: So, people from Snezhnoye and our people saw ... so the point is that Sushka
****ing hit Boeing and then when Sushka was making the approach … the second one …
circle-wise … ours hit the Sushka with the Buk. And ****ing lots of people saw this. Giurza
has reported on this.
Girkin: So, this is the way how it happened. I got it. Good.
Dubinbskiy: Sushka ****ing hit Boeing and our people ****ing hit Sushka with a Buk.
Girkin: Uh-huh.
Dubinskiy: Good news, Igor?
Girkin: Well, I don’t know. Frankly speaking, I don’t believe in this much, but ...
Dubinskiy: They’ll put the blame on us regardless, you know.
Girkin: I understand this much.”325
332. This is consistent with the seventh relevant intercept, of a call at 19:59 on 17 July 2014, which
was published by a Dutch broadcaster on 15 April 2021:
“Kharchenko: Nikolaevitch, should we let the OSCE onto the crash site?
Dubinskiy: Of course, you should, let them in! Are you sure that you observed it being
downed by a Sushka, or was it actually us?
Kharchenko: Ah? Not us, Nikolaevitch, not us.
Dubinskiy: It was the Sushka, right?
Kharchenko: The Sushka. There was one parachute.
Dubinskiy: Aha. And then the Sushka [was downed] by our Buk, right?
324 Intercepted conversation between Dubinskiy and Pulatov, at 19:52 on 17 July 2014, published at:
https://app.nos.nl/op3/mh17-tapes/#/hoofdstuk5?overlay=audiotape-12 (Annex 244). For “original” Russian version with
translation see No. 9 in Transcripts of certain publicly available alleged intercepts concerning the shoot down of Flight
MH17, 16-17 July 2014 (Annex 251).
325 Intercepted conversation between Dubinskiy and Girkin, at 19:54 on 17 July 2014, published at:
https://www.prosecutionservice.nl/topics/mh17-plane-crash/prosecution-and-trial/court-session-26-june-2020 (Annex 240).
For “original” Russian version with translation see No. 10 in Transcripts of certain publicly available alleged intercepts
concerning the shoot down of Flight MH17, 16-17 July 2014 (Annex 251).
86
Kharchenko: Right… Well, there was one blow in the air, and then our blow took place.”326
333. It follows that the relevant intercepts that Ukraine has elected not to put before the Court (although
emanating from Ukraine’s Security Service) are likewise inconsistent with the case that it is now putting
on Flight MH17.
IV. Relevant Social Media Posts Not Produced by Ukraine
334. The Notices of Suspicion published by Ukraine’s Security Service also refer to four social media
posts, made at 16:37, 16:41, 16:50 and 17:16 on 17 July 2014. Ukraine has not produced any of these
documents notwithstanding the reliance of its Security Service upon them. In the absence of any further
information from Ukraine, Russia is unable to identify with any certainty the relevant posts. However,
two social media posts which match the time stamp given by Ukraine’s Security Service, appear to be
relevant.
335. The two relevant social media posts (both messages apparently re-posted on Twitter containing
links to a social media website) state: “Message from the militia. / / An ‘AN-26’ has just been taken
down in the area of Snizhne” (at 16:41 Kiev time; 17:41 Moscow time327) and “Message from the
militia. / / In the Torez region an AN-26 has just been shot down” (at 17:16 Kiev time; 18:16 Moscow
time328). A later message published on the same social media page stated that the relevant information
had been obtained from an online forum where locals and members of the militia converse.329
V. Air Restrictions Imposed by Ukraine and by Russia as of 17 July 2014
336. In its Memorial Ukraine alleges that, one day before the shooting down of Flight MH17, Russia
deliberately restricted its airspace in an area bordering eastern Ukraine below 53,000 feet (FL530) for
civil aircraft. Ukraine points to the fact that Ukraine had restricted its airspace up to 32,000 feet (FL320)
only and asserts that this discrepancy demonstrates that Russia had “guilty knowledge of the dangers of
operating a Buk in civilian-trafficked skies”.330
326 Intercepted conversation between Dubinskiy and Kharchenko, at 19:59 on 17 July 2014, published at:
https://app.nos.nl/op3/mh17-tapes/#/hoofdstuk5?overlay=audiotape-14 (Annex 245). For “original” Russian version with
translation see No. 11 in Transcripts of certain publicly available alleged intercepts concerning the shoot down of Flight
MH17, 16-17 July 2014 (Annex 251).
327 VKontakte page “Reports from Strelkov Igor Ivanovich”, post of 17 July 2014, 17:41 (Moscow time) containing a
message from 17:37 (Moscow time) (Annex 148).
328 VKontakte page “Reports from Strelkov Igor Ivanovich”, post of 17 July 2014, 18:16 containing a message from 17:50
(Moscow time) (Annex 149).
329 VKontakte page “Reports from Strelkov Igor Ivanovich”, post of 17 July 2014, 22:00 (Annex 150).
330 MU, para. 289.
87
337. This allegation rests on a gross misinterpretation of the relevant Russian Notice to Airmen
(“NOTAM”)331 published on 16 July 2014 (V6158/14).332 This NOTAM did not introduce any
restriction or closure of the airspace for civil aviation up to FL530, as is evident from flight data for
civil aircraft operating in the area at the time including Flight MH17. Rather, it restricted specified
segments of certain air routes up to FL320 and additionally contained directions for aircraft arriving and
departing at the Rostov-on-Don aerodrome to use specified entry and exit air routes at FL330 or FL340
and above.
338. Contemporaneous flight plan data for 17 July 2014 confirms that the relevant area of Russian
airspace was not closed between FL320 and FL530 because it demonstrates that civil aircraft, including
Flight MH17, operated at this altitude. As an illustrative example:333
a. The TAMAK waypoint was the planned point of entry into Russian airspace for which
Flight MH17 had been cleared along air route A87. The flight plan shows that the MH17
was to fly at FL350 to the TAMAK waypoint and then continue at the same altitude along
the A87 air route.334 After coordination between Ukrainian and Russian civil aviation
authorities, Flight MH17 was cleared to cross the border around 45 nautical miles southeast
of the TAMAK waypoint and south of the planned airway and to proceed directly to
the RND waypoint.335 Neither the Ukrainian nor the Russian authorities directed Flight
MH17 to rise to a higher altitude in order to comply with the Russian NOTAM. The DSB
Report confirms that “the automatic flight plan used by Malaysia Airlines accepted the
[Russian] NOTAM” and that the reference to FL530 “did not lead to a route change”.336
331 The issuance and format of NOTAMs is explained in ICAO, Aeronautical Information Services Manual, ICAO Doc
8126/AN/872 (Sixth Edition 2003), chapter 6 (available at:
https://www.bazl.admin.ch/dam/bazl/en/dokumente/Fachleute/Regulationen_und_Grundlagen/icao-annex/ICAO%20doc%
208126%20Aeronautical%20Information%20Services%20Manual%20%20.pdf.download.pdf/ICAO%20Doc%208126%2
0Aeronautical%20Information%20Services%20Manual.pdf). See also chapter 5 of ICAO, International Standards and
Recommended Practices: Aeronautical Information Services, Annex 15 to the Convention on International Civil Action.
332 NOTAM V6158/14, 16 July 2014 (Annex 36). NOTAM V6158/14 is part of series V, which is defined in the AIP
(Aeronautical Information Publication), Russian Federation, GEN 3.1 “Aeronautical information services of the Russian
Federation” (Annex 32), at para. 3.5.1, as NOTAMs which “contain information about temporary restrictions (prohibited,
danger and restricted areas, restrictions on ATS routes, navigation warnings)” in certain segments of the airspace of the
Russian Federation, including the Rostov FIR (URRV).
333 See Schedule of flights that used the TAMAK waypoint to enter the airspace of the Russian Federation on 17 July 2014
(Annex 250).
334 See the DSB Report, p. 212 (Annex 38 to MU).
335 See the DSB Report, pp. 26 and 43 (Annex 38 to MU).
336 The DSB Report, p. 218 (Annex 38 to MU).
88
b. Four other civil aircraft operating international flights were to enter Russian airspace at the
TAMAK waypoint and proceed along the A87 air route.337 In each instance, the flight plan
specifies that the aircraft would fly to the TAMAK waypoint at FL330, FL350 or FL370.338
c. A sixth civil aircraft entered Russian airspace at the TAMAK waypoint, proceeded along
the A712 air route, descended and landed at the Rostov-on-Don aerodrome near the
border.339
d. A seventh and eighth civil aircraft, one of which was operated by a Ukrainian airline, were
to enter Russian airspace at the TAMAK waypoint and proceed along a segment of the
B947 air route at FL350 and FL390, respectively.340
339. As follows from the above, the Ukrainian and Russian civil aviation authorities and the operators
of numerous aircraft (including a Ukrainian airline) correctly interpreted the Russian NOTAM as not
closing the Russian airspace between FL320 and FL530.
340. As to the details:
a. As the DSB Report observed (in a passage which Ukraine seeks to gloss over): “The
[Russian] NOTAMs effectively imposed the same altitude restrictions as the Ukrainian
NOTAMs (FL320) did”.341 Contrary to Ukraine’s suggestion, the DSB Report did not make
a positive finding that the Russian airspace was in fact closed up to FL530, “effectively
closing civilian airspace”.342 Indeed, as explained in paragraph 338 above, there was no
such closure and multiple aircraft were operating below FL530.
b. FL530 is the highest altitude at which aeronavigation services are provided to civil aviation
and at which civil aircraft are permitted to operate at any time on any of the segments of
the air routes specified in the Russian NOTAM, including on the A87 air route which was
337 These were: (a) Jet Airways Flight JAI119 from London (LHR) to Mumbai (BOM); (b) Singapore Airlines Flight SIA323
from Amsterdam (AMS) to Singapore (SIN); (c) Air Astana Flight KZR904 from Amsterdam (AMS) to Atyrau (GUW);
and (d) Singapore Airlines Flight SIA25 from Frankfurt (FRA) to Singapore (SIN).
338 See Nos. 1 to 4 in Schedule of flights that used the TAMAK waypoint to enter the airspace of the Russian Federation on
17 July 2014 (Annex 250).
339 Austrian Airlines Flight AUA659 from Vienna (VIE) to Rostov-on-Don (RVI), see No. 5 in Schedule of flights that used
the TAMAK waypoint to enter the airspace of the Russian Federation on 17 July 2014 (Annex 250).
340 Dniproavia Airlines Flight UDN703 from Kharkov (HRK) to Yerevan (EVN); Emirates Flight UAE242 from Toronto
(YYZ) to Dubai (DBX), see Nos. 6 and 7 in Schedule of flights that used the TAMAK waypoint to enter the airspace of the
Russian Federation on 17 July 2014 (Annex 250).
341 DSB Report, p. 180 (Annex 38 to MU).
342 Cf. MU, para. 289 referring to DSB Report, p. 180 (Annex 38 to MU). Rather, in the passage cited the DSB Report
characterised the reference to FL530 in the Russian NOTAM as an “internal contradiction”.
89
used by Flight MH17.343 Hence, restricting the air route up to FL530 would have meant
closing it entirely.
c. On 16 July 2014, the Russian civil aviation authorities published two NOTAMs for the
Rostov Flight Information Region (“FIR”), an area of Russian airspace that borders the
Dnepropetrovsk area of eastern Ukraine (NOTAMs V6158/14 and A2681/14).344 Both of
these NOTAMs entered into force on 17 July at 00.00. The process leading to the issuance
of NOTAM V6158/14 was initiated by the regional civil aviation authority, the Rostovbased
Southern Interregional Territorial Department (the “SITD”) of the Federal Air
Transport Agency of Russia (“FATA” or “Rosaviation”).345
d. Whereas the Ukrainian NOTAMs contained no reasons (see para. 344 below), the Russian
NOTAMs stated that the restrictions were introduced: “Due to combat actions on the
territory of the Ukraine near the state border with the Russian Federation and the facts of
firing from the territory of the Ukraine towards the territory of the Russian Federation, to
ensure intl flt [international flight] safety”.
e. Russian NOTAM V6158/14 closed specified segments of air routes up to FL320 in the area
of the Rostov FIR. Most of the relevant segments are continuations of air routes that run
through the airspace of eastern Ukraine and cross the border, including the A87 air route
which was to be used by Flight MH17.346
f. The restricted segments started from specified compulsory navigation waypoints, primarily
located at the border with the Dnepropetrovsk FIR in Ukraine. One of these waypoints,
“TAMAK”, is located on the three air routes (A87, B947 and A712).
341. If Russia’s closure of airspace had indeed been motivated by a perceived threat caused by the use
of a BUK, then airspace on the relevant air routes would have been closed for civil aviation up to the
altitude that could be affected by this weapon. In practical terms, however, many civil aircraft (including
the Boeing 777, i.e. the Flight MH17 aircraft) have a maximum cruising altitude of around 43,000 feet
(FL 430).347
343 See Aeronautical Information Publication, AIP, ENR 3.1.1 “International airways of the Russian Federation” (Annex
33), pp. 3.1.1-3, 3.1.1-7, 3.1.1-9, 3.1.1-16, 3.1.1-63, 3.1.1-141, 3.1.1-234, 3.1.1-286, 3.1.1-330, 3.1.1-345. 3.1.1-486, 3.1.1-
406, 3.1.1-447, 3.1.1-486.
344 The International NOTAM Center of the Center of Aeronautical Information is the body responsible for providing
aeronautical information to users of the airspace of the Russian Federation through NOTAMs. All issued NOTAMs are
published in the Aeronautical Information Publication (“AIP”).
345 Telegram from the Southern Interregional Territorial Department of FATA, 12 July 2014 (Annex 34) and Submission
of a NOTAM to the Federal State Unitary Enterprise “State Air Traffic Management Corporation of the Russian Federation”
for Issuance, 16 July 2014 (Annex 35).
346 These routes are A87, A102, A225, A712, B493, B947, G118, G534, G904, and R114. Routes A100, B145 and G247
run in the Russian airspace along the border. See the Graphic scheme of the air routes and segments restricted by NOTAM
V6158/14 (Annex 260).
347 See page on Boeing 777-200/777-200ER at SKYbrary: https://www.skybrary.aero/index.php/B772 (“Ceiling FL430”).
90
342. The process leading to the issuance of the Russian NOTAM also confirms that no restriction up
to FL530 was intended.
a. On 12 July 2014, the SITD sent a telegram to the State Air Traffic Management Corporation
of the Russian Federation (“State ATM Corporation”), suggesting that “Due to a tense
situation near the border with Ukraine and to the fact that the Ukrainian Armed Forces use
various weapons”: (i) flight crews be informed about “a possible risk to flight operations”
on specified air route segments,348 and (ii) “to ensure flight safety, not to use the flight level
0 to 200 (up to 6,100 metres)” on specified air route segments349.350
b. On 16 July 2014, 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 tо combat actions on the territory of the Ukraine near the State
border with the Russian Federation (Moscow and Rostov FIRs) and the facts of firing from
the territory of the Ukraine towards the territory of Russian Federation”. The submission
proposed a NOTAM containing the following information: (i) closure of all air route
segments in the Rostov FIR “from ground level to FL320 (9,750 M), (ii) directions for
arrival/departure at the Rostov aerodrome, including a direction to use FL330 or FL340
and above on specified air route segments,351 and (iii) “closure of all air routes in the
Moscow FIR “from ground level to FL200 (6,100 M)”.352
c. The Russian authorities were faced with a need to respond urgently to a highly unusual
situation involving combat operations in a neighbouring country. By including the
information regarding the restrictions on the air routes and the directions concerning the
Rostov-on-Don aerodrome in a single NOTAM, the Russian authorities sought to provide
operators with complete information regarding the measures taken in the Rostov FIR.
d. Since the Russian NOTAM concerned restrictions on flying below FL320 as well as
directions for arrival/departure at the Rostov-on-Don aerodrome at above FL330/340,
348 The specified air route segments were B145, B947, G118, G534, R114, A87, A100, A102, A235.
349 The specified air route segments and waypoints were A87 Tamak – Sarna, A100 Mimra – Rostov-na-Donu (RND), A102
Ablog – Nalem, A225 Gukol – Odeta, A712 Tamak – Sambek, B145 Mimra – Gekra, B493 Fasad – RND, B947 Tamak –
RND, G118 Ramog – Bagayevskiy (BA), G534 Mimra – Toros, G904 Sambek – Fasad, R114 BA – Derib.
350 Telegram from the Southern Interregional Territorial Department of FATA, 12 July 2014 (Annex 34). The telegram also
suggested that the SITD be immediately informed of all breaches and failures in flight operations and navigation services.
351 The relevant part of the submission states:
“Dep fm/arr to Rostov-Na-Donu AD [aerodrome] to/fm FIR carried out along ATS RTE G128 (Konstantinovsk Ndb (KA)
– Morozovsk Vor/DME (MOR) And R11 Morozovsk Vor/DME (MOR) – Butri on assigned FL.
Dep fm Rostov-Na-Donu AD to Dnepropetrovsk FIR carried out along ATS RTE A102 (Konstantinovsk Ndb (KA) – Nalem
on FL340 and above
Arr to Rostov-Na-Donu AD fm Dnepropetrovsk FIR carried out along ATS RTE A712 (Tamak – Sambek Ndb (SB) then
Dct Konstantinovsk (KA)) on FL330 and above.”
352 Submission of a NOTAM to the Federal State Unitary Enterprise “State Air Traffic Management Corporation of the
Russian Federation” for Issuance, 16 July 2014 (Annex 35).
91
viewed as a whole, the NOTAM was concerned with the use of airspace above FL320 up
to the maximum altitude. The issuing authority therefore included reference to FL530, the
highest operating altitude for the specified air route segments in the Rostov FIR in fields Q
and G (indicating the limits of application) of the Russian NOTAM. An additional benefit
of this was the wider dissemination of the information contained in the Russian NOTAM,
including the notification of the existence of the armed conflict and ongoing hostilities.
This is because civil aircraft operators using the airspace (including Flight MH17353) who
had automatically filtered out NOTAMs concerning altitudes below their planned flight
routes would still receive the Russian NOTAM as part of the pre-flight bulletin even if (as
with the flights referred to above) there was no need to change the flight plan in order to
comply with the NOTAM.354
343. As explained above and noted by the DSB, the approach of the Russian civil aviation authorities
was to mirror in the area near the border the airspace restrictions introduced by Ukraine. Thus, if Ukraine
had conducted a complete risk assessment and introduced additional restrictions in response to the
shooting down of the Antonov An-26 and the Sukhoi Su-25 military aircraft on 14 and 16 July by
closing the airspace at least up to, for example, FL330 (the altitude of Flight MH17), there is every
indication that the same restrictions would have been adopted by the Russian authorities. Although this
is not relevant to Ukraine’s claim with respect to Flight MH17, the matter has been put in issue by
Ukraine through the regrettable allegations that it is now making with respect to the restrictions
introduced in Russia’s airspace.
344. In this connection, it is noted that the Ukrainian NOTAMs did not include any reasons about the
nature of the threat to civil aviation which Russian aviation authorities might have independently
assessed.355 They contained no mention of the existence and the extent of armed hostilities, or of the
recent shooting down of Ukrainian military aircraft or of any concern about possible ground-to-air
attacks using high powered weapons. The DSB Report finds that: “Due to the fact that so-called ‘State
aircraft’ were excluded [from some of the Ukrainian NOTAMs] and that exercise areas are intended for
military aircraft, it can be deduced that airspace restrictions were related to Ukrainian air force
activities.”356
353 See DSB Report, p. 180: “Since flight MH17 also flew over the Rostov FIR, the Russian NOTAMs concerned were also
part of the briefing package for flight MH17. […] The cited information in the NOTAM on the conflict is not automatically
obvious from the selection, but it becomes apparent if someone studies the NOTAMs package in detail”.
354 See e.g. DSB Report, p. 218 noting that: “Whether the reference to the armed conflict [in the Russian NOTAMs] was
picked up by Malaysia Airlines is unknown”.
355 DSB Report, pp. 207 and 209 (Annex 38 to MU).
356 DSB Report, p. 179 (Annex 38 to MU). See also Ukraine’s position as recorded at pp. 194 and 196.
92
VI. Ukraine’s Expert Evidence Is of No Assistance to It
345. Ukraine also contends that whoever allegedly supplied the BUK without its control centre knew
that it could be used to shoot down a civil aircraft because they knew that the weapon provided “could
not be used in a manner distinguishing civilian from military targets”.357 As to this:
a. Even if it were correct, this would not be sufficient to establish actual knowledge or actual
intention that the alleged “funds” are to be used to commit a terrorist act under Article
2(1)(a) of the ICSFT.
b. Moreover, Ukraine’s expert also testifies that even if a BUK had been operated with the
control module, there would still have been a risk that a civil aircraft might be shot down
in error. Similarly, in its Memorial, Ukraine states that “a TELAR operator acting under
intense time pressure would not be able to make sophisticated judgments about the air
situation”.358 Thus, Ukraine’s position is that the supply of the control centre merely “would
have lessened the danger to civil aviation”, not eliminated that danger.359 Russia recalls that
there are of course well-known incidents (such as the shooting down of Iran Air Flight 655
by the USS Vincennes in 1988) in which weaponry which is (or should be) capable of
distinguishing between civil and military aircraft has nonetheless been used to shoot down
civil aircraft in error without such incidents being characterised as terrorist acts.
c. It is anyway factually incorrect since a person providing such a weapon would also know
that the operator could use other methods to distinguish between civilian and military
aircraft. Indeed, Ukraine’s position in its Memorial is that anyone with access to the internet
could have been following the flightpath of Flight MH17.360 Further, Ukraine’s expert notes
that in “modern practice” the BUK-M1 TELAR is commonly used in autonomous mode in
“close coordination with the command centre of the Armed Forces, including cooperation
with radio-technical troops of the Air Force with the use of modern communication
solutions”.361 Dr Skorik also states that “[a]n experienced Buk-M1 TELAR commander
and operator can fairly accurately identify the target based on its parameters (dimensions,
jet engines, if any). […] The altitude and speed of different types of aircraft […] are
additional identification factors”. His further observation that these factors are unlikely to
be taken into account in highly stressful combat situations identifies the potential for human
error, rather than the allegedly inherently indiscriminate nature of the BUK system.362
357 MU, para. 288.
358 MU, para. 287.
359 MU, para. 288.
360 MU, paras. 71-72.
361 Report by Dr Anatolii Skorik (Annex 12 to MU), para. 28.
362 Report by Dr Anatolii Skorik (Annex 12 to MU), para 24.
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VII. Ukraine Has Failed to Establish the Existence of a “Terrorist” Act under Article 2(1)(a)
of the ICSFT
346. It follows from Ukraine’s failure to establish the elements of terrorism financing under the
chapeau of Article 2(1) that the Court also does not need to consider the separate question of whether
the shooting down of Flight MH17 was a terrorist act within the meaning of Article 2(1) of the ICSFT.
For completeness, however, Ukraine has failed to establish the existence of a terrorist act under Article
2(1)(a).
347. Ukraine’s case rests on a strained interpretation of the offence under Article 1(1)(b) of the
Montreal Convention, which should be rejected (see above). Ukraine has also been unable to evidence
any general support for the case that the shooting down of Flight MH17 has been recognised as entailing
an offence under Article 1(1)(b) of the Montreal Convention.363 It is Ukraine alone that has characterised
the shoot down of Flight MH17 as an act of “terrorism” while, moreover, the Notices of Suspicion
referring to the alleged offences under Ukrainian law were issued by its Security Service after this
dispute was submitted to the Court. Ukraine has been unable to evidence any support for the case that
the shooting down of Flight MH17 has been recognised as a “terrorist” act.364
363 Cf. also, e.g., the absence of any reference to a violation of Article 1(1)(b) Montreal Convention in ICAO Resolution 17
July 2014. Note also that, whereas the second preambular paragraph of UN Security Council resolution 2166 (2014)
“reaffirm[s] the rules of international law that prohibit acts of violence that pose a threat to the safety of international civil
aviation”, operative paragraph 1 “condemns in the strongest terms the downing” without stating that this entailed an offence
under Article 1(1)(b) of the Montreal Convention.
364 Cf. UN Security Council resolution 2166 (2014), which contains no reference to “terrorism”.
CHAPTER VII
THE SHELLING INCIDENTS
I. Reported Indiscriminate Shelling
A. GENERAL OBSERVATIONS
348. The further central element to Ukraine’s case concerns the alleged financing by Russian state
officials365 and other Russian nationals of shelling during the armed conflict in Eastern Ukraine. It is
recalled that, in its Order of 19 April 2017, the Court found that Ukraine had failed to establish even
a plausible offence of terrorism financing.
349. Before turning to the details of each of the four individual events of shelling – at Volnovakha,
Mariupol, Kramatorsk and Avdiivka – that are said by Ukraine to constitute acts of terrorism, Russia
makes six general observations.
350. First, the critical context for the current allegations is the armed conflict, and particularly the
shelling within the conflict, that has resulted in an appalling loss of civilian life on both sides (i.e.,
Ukraine and the DPR/LPR). The causes of the armed conflict are multiple and complex, and it is
neither necessary nor appropriate to enter into these in any detail. As background to the armed
conflict, the OHCHR has recognised (in a report that Ukraine relies on) that “many of the concerns
that led to the Maidan events and the crisis in the east are systemic ones, rooted in a weak rule of law
and the absence of effective checks and balances” in Ukraine.366 Russia notes that large parts of the
population of Eastern Ukraine strongly opposed what they perceived as a coup d’État and an unlawful
constitutional upheaval in 2014. This led to independence referenda and to the formation of the DPR
and the LPR, which became de facto State-like entities and parties to an armed conflict opposing
Ukrainian governmental forces. Further, Ukraine imposed a blockade and other restrictions on access
to the territory under the control of the DPR and the LPR which, as the OHCHR has recorded, gave
rise to a severe need for humanitarian aid.367
365 Ukraine’s claims with respect to Russia’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. MU, para. 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, Russia denies that it has ever exercised control over the DPR/LPR and that it had insight into their
military plans and actions.
366 OHCHR, Report on the Human Rights Situation in Ukraine, 15 July 2014, para. 87 (Annex 296 to MU).
367 See e.g. OHCHR, Report on the Human Rights Situation in Ukraine, 15 June 2014, para. 147 (Annex 764 to MU);
OHCHR, Report on the Human Rights Situation in Ukraine, 15 July 2014, para. 129 (Annex 296 to MU); OHCHR, Report
on the Human Rights Situation in Ukraine, 16 August 2019,
https://www.ohchr.org/Documents/Countries/UA/28thReportUkraine_EN.pdf, para. 3; OHCHR, Report on the Human
Rights Situation in Ukraine, 15 June 2014, https://www.ohchr.org/Documents/Countries/UA/
HRMMUReport15June2014.pdf, paras. 147, 251-252 (including requests to UN agencies).
95
351. As to the armed conflict that ensued, the OHCHR and OSCE have repeatedly recorded that the
indiscriminate shelling of populated areas by all parties to the conflict has occurred in a context in
which all parties have placed military objectives in (and engaged in hostilities from) residential areas,
in violation of the IHL principle of precaution, and all parties have then targeted such areas.368 This
is particularly true of mobile military materiel which may be relocated quickly, such as mortars, tanks
and multi-launch rocket systems (MLRS). In this last respect, it is to be emphasised that Ukraine’s
shelling of populated areas in territory under the control of the DPR/LPR includes using MLRS of
the same type said to have been used by the DPR/LPR in the shelling episodes that Ukraine relies on
in this case (i.e., BM-21 Grad, BM-27 Uragan and BM-30 Smerch), as well as the use of rockets
equipped with incendiary weapons and cluster munitions.369
352. Second, as Russia demonstrated at the provisional measures stage, and as noted in Chapter I
above, on the basis of the reports of the OHCHR, the OSCE and the ICRC (which Ukraine relies on),
Ukraine is equally, if not more, responsible than the forces of the DPR and the LPR for the loss of
civilian life in the armed conflict as a result of reported indiscriminate shelling. This matters because
it enables the Court to put Ukraine’s current claims into a truer perspective. If the multiple reported
incidents of indiscriminate shelling in Easter Ukraine were in fact acts of terrorism (they are not), as
would follow from Ukraine’s incorrect and over-expansive reading of Article 2(1) ICSFT, Ukraine
itself would be engaged in such terrorism. For example:370
a. The reports of the OHCHR record that civilian casualties caused by the reported
indiscriminate shelling of populated areas have consistently been greater in territory
controlled by the DPR and the LPR, i.e. through shelling by Ukrainian governmental
forces. This can be seen from the figures stated in the OHCHR report for the period May
to August 2015,371 and from the OHCHR maps showing civilian casualties caused by
368 See, e.g., OHCHR, “Report on the human rights situation in Ukraine 1 December 2014 to 15 February 2015” (Annex
309 to MU), para. 21; OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2015” (Annex
769 to MU), para. 193 (b); OHCHR, “Report on the human rights situation in Ukraine 16 November 2015 to 15 February
2016” (Annex 314 to MU), para. 25.
369 See Table 3 in Appendix A: Examples of Ukraine’s documented use of MLRS and other heavy weapons in populated
areas.
370 No specific data is available on this point in the OHCHR report for the period December 2014 to February 2015. It is,
however, clear that shelling by Ukraine caused civilian deaths in territory controlled by the armed groups during this
period. For example, on 22 January 2015 (two days before the shelling of Mariupol), 8 civilians were killed and 13 were
injured when a trolley bus was hit by mortar or artillery rounds in Kuprina Street in Donetsk City. The OSCE assessed
that the shells had been “fired from a north-western direction”, i.e., from government-controlled territory: see OSCE
SMM, “Spot report by the OSCE Special Monitoring Mission to Ukraine (SMM), 22 January 2015: Shelling Incident on
Kuprina Street in Donetsk City”, 22 January 2015, https://www.osce.org/ukraine-smm/135786 (Annex 7).
371 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2015”, paras. 29 and 32 (Annex 769
to MU): Government-controlled territory, 165 civilian casualties, including 41 killed; DPR/LPR-controlled territory, 244
civilian casualties, including 69 killed.
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shelling between November 2015 and February 2016,372 February and May 2016,373 and
May and August 2016.374 For each period, OSCE crater analysis assessed that specific
episodes of the shelling of the DPR/LPR-controlled areas had come from the north or
west, i.e., the direction from which shelling by Ukrainian armed forces would come.375
b. In October 2016, the OHCHR “recorded eight times more civilian casualties in armed
group-controlled territories than in Government-controlled areas of the conflict zone,
indicating that civilians in territories controlled by the armed groups continue to be
particularly at risk of injury and death.”376 This pattern can also be seen from the OHCHR
map showing civilian casualties caused by shelling between August and November 2016,
which shows far greater casualties on the DPR/LPR right-hand side of the red contact
372 OHCHR, “Report on the human rights situation in Ukraine 16 November 2015 to 15 February 2016”, map at p. 5
(Annex 314 to MU).
373 OHCHR, “Report on the human rights situation in Ukraine 16 February to 15 May 2016”, map at p. 5 (Annex 771 to
MU).
374 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2016”, map at p. 4 (Annex 772 to
MU).
375 For the period between May and August 2015 see e.g., OSCE, “Latest from OSCE Special Monitoring Mission (SMM)
to Ukraine based on information received as of 19:30 (Kyiv time), 27 May 2015”, 28 May 2015”, available at
https://www.osce.org/ukraine-smm/160611; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30hrs (Kyiv time), 12 June 2015”, 13 June 2015, available at
https://www.osce.org/ukraine-smm/164141; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine
based on information received as of 19:30 hrs (Kyiv time), 19 July 2015”, 20 July 2015, available at
https://www.osce.org/ukraine-smm/173666; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine
based on information received as of 19:30 hrs (Kyiv time), 30 July 2015”, 31 July 2015, available at
https://www.osce.org/ukraine-smm/175591; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine
based on information received as of 19:30 (Kyiv time), 2 August 2015”, 3 August 2015, available at
https://www.osce.org/ukraine-smm/175736; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30 hrs (Kyiv time), 11 August 2015”, 12 August 2015, available at
https://www.osce.org/ukraine-smm/176961. For the period between November 2015 and February 2016 see e.g. OSCE,
“Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv
time), 7 February 2016”, 8 February 2016, available at https://www.osce.org/ukraine-smm/221171. See also OSCE,
“Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv
time), 8 February 2016”, 9 February 2016, available at https://www.osce.org/ukraine-smm/221436. For the period
between February and May 2016 see e,g. OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30 hrs (Kyiv time), 23 February 2016”, 24 February 2016, available at
https://www.osce.org/ukraine-smm/224136; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30 hrs (Kyiv time), 1 April 2016”, 2 April 2016, available at
https://www.osce.org/ukraine-smm/231261; OSCE, “Spot Report by the OSCE Special Monitoring Mission to Ukraine
(SMM): Shelling in Olenivka”, 28 April 2016, available at https://www.osce.org/ukraine-smm/236936. For the period
between May and August 2016 see e.g. OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based
on information received as of 19:30 hrs (Kyiv time), 25 May 2016”, 26 May 2016, available at
https://www.osce.org/ukraine-smm/243031; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30 hrs (Kyiv time), 26 June 2016”, 27 June 2016, available at
https://www.osce.org/ukraine-smm/248801; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30 hrs (Kyiv time), 1 August 2016”, 2 August 2016, available at
https://www.osce.org/ukraine-smm/257516.
376 OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2016”, para. 4 (Annex 773 to
MU) (emphasis added). See also para. 23.
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line.377 The origin of the shelling as territory under the control of Ukraine is supported
by OSCE analysis of specific shelling incidents.378
c. The same pattern is repeated for the OHCHR maps showing civilian casualties caused
by shelling for the period November 2016 to February 2017,379 and for February to May
2017380 (i.e., the period that includes the shelling at Avdiivka and the period immediately
after the Court’s Order of 19 April 2017), as well as for later periods.381
353. Ukraine has not engaged with this point beyond a bare denial of the facts and a bald assertion
that Russia’s position is unsupported by evidence.382 It has presented no contrary documentary
evidence and in fact relies on the OHCHR’s reports where it considers that these support its case.
354. On the logic of Ukraine’s case, Ukraine would have also committed terrorist acts and the
offence of terrorism financing (through the provision or collection of funds with the intention that
they should be used or the knowledge that they are to be used to carry out such shelling), yet that is
certainly not its case.
355. Third, around 80% of these civilian casualties occurred prior to the adoption of the Minsk
“Package of Measures” in February 2015, which was endorsed by the UN Security Council.383 As
part of the Minsk “Package of Measures” of 12 February 2015, Ukraine gave an undertaking to
“ensure pardon and amnesty ... of persons in connection with the events that took place in certain
areas of the Donetsk and Luhansk regions of Ukraine”.384 That commitment postdates and
encompasses the specific events at Volnovakha (13 January 2015), Mariupol (24 January 2015) and
Kramatorsk (10 February 2015) that Ukraine now focuses on, and it is hardly conceivable that
377 OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2016”, map at p. 4 (Annex 773
to MU) (emphasis added).
378 See OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received
as of 19:30, 9 October 2016”, 10 October 2016, https://www.osce.org/ukraine-smm/273756 (Annex 12); OSCE SMM,
“Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30, 11
October 2016”, 12 October 2016, https://www.osce.org/ukraine-smm/274286 (Annex 13); OSCE SMM, “Latest from
OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30, 28 October 2016”, 29
October 2016, https://www.osce.org/ukraine-smm/278046 (Annex 14).
379 OHCHR, Report on the Human Rights Situation in Ukraine, 16 Nov. 2016 to 15 Feb. 2017, map at p. 4 and para. 28
(recording three times as many civilian casualties in territory controlled by the DPR/LPR), available at
https://www.ohchr.org/Documents/ Countries/UA/UAReport17th_EN.pdf.
380 OHCHR, Report on the Human Rights Situation in Ukraine, 16 Feb. to 15 May 2017, map at p. 6 (Annex 774 to MU).
381 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2017”, map p. 6 and table at para. 33
(Annex 775 to MU); OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2017”, map
at p. 6 and table at para. 27 (Annex 776 to MU); OHCHR, “Report on the human rights situation in Ukraine 16 November
2017 to 15 February 2018”, map at p. 5 and para. 19 (Annex 779 to MU); OHCHR, “Report on the human rights situation
in Ukraine 16 February to 15 May 2018”, map at p. 5 and para. 18, available at
https://www.ohchr.org/Documents/Countries/UA/ReportUkraineFev-May2018_EN.pdf.
382 See CR 2017/3, 8 March 2017, p. 16, para. 13 (Koh, referring to what “any fair-minded observer of the eastern Ukraine
situation knows”); CR 2019/10, 4 June 2019, p. 40, para. 53 (Cheek).
383 Security Council Resolution 2202 (2015).
384 PORF, para. 100.
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Ukraine would have agreed to pardon and amnesty if it had considered these to have been “terrorist”
acts. Ukraine’s only response at the preliminary objections stage was to say that it has not in fact
granted amnesty to the perpetrators of the shellings at Volnovakha, Mariupol and Kramatorsk and
that it now regards them as terrorist acts.385 But this fails to engage with the point that, unlike the
shooting down of Flight MH17, Ukraine did not exclude those acts from the scope of the commitment
to grant amnesty when it agreed to the Minsk Package of Measures.
356. Fourth, as noted in Chapter I above, it is Ukraine alone that has characterised such acts of
shelling as acts of “terrorism”. By contrast, the OHCHR, OSCE and ICRC have consistently
characterised such acts (including the specific episodes relied on by Ukraine) as indiscriminate
shelling in breach of IHL, but never as a breach of the IHL prohibition on spreading terror.386 Those
organisations are looking at the armed conflict through the prism of IHL and, as explained above, that
body of law contains separate prohibitions on direct attacks,387 indiscriminate attacks388 and the
spread of terror among the civilian population.389 These organisations are making characterisations
of acts within the armed conflict in full knowledge of the applicable legal framework, and are
describing acts and making recommendations accordingly.390
385 CR 2019/12, 7 June 2019, para. 41 (Cheek).
386 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2015”, para. 193 (b) (Annex 769 to
MU); OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2015”, para. 185 (b) (Annex
312 to MU); OHCHR, “Report on the human rights situation in Ukraine 16 November 2015 to 15 February 2016”,
para. 214 (b) (Annex 314 to MU); OHCHR, “Accountability for killings in Ukraine from January 2014 to May 2016”,
p. 3 (Annex 49 to MU); OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2016”, para. 209
(b) (Annex 772 to MU); OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2016”,
para. 224 (d)-(f) (Annex 773 to MU); ICRC, “Ukraine crisis: ICRC calls on all parties to spare civilians”, 20 January
2015, available at https://www.icrc.org/en/document/ukraine-crisis-icrc-calls-all-parties-spare-civilians; ICRC, “Ukraine
crisis: Intensifying hostilities endanger civilian lives and infrastructure”, 10 June 2016, available at
https://www.icrc.org/en/document/ukraine-crisis-intensifying-hostilities-endanger-civilian-lives-and-infrastructure;
ICRC, “ICRC warns of deteriorating humanitarian situation amid intensifying hostilities in eastern Ukraine”, 2 February
2017, available at https://www.icrc.org/en/document/icrc-warns-deteriorating-humanitarian-situation-intensificationhostilities-
eastern-ukraine.
387 Article 51(2) of Additional Protocol I, Article 13(2) of Additional Protocol II; ICRC, Study on Customary
International Humanitarian Law: Rule 1. The Principle of Distinction between Civilians and Combatants, IHL database,
available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule1.
388 Article 51(4)-(5) of Additional Protocol I.
389 Article 51(2) of Additional Protocol I, Article 13(2) of Additional Protocol II; ICRC, Study on Customary
International Humanitarian Law: Rule 2. Acts or threats of violence the primary purpose of which is to spread terror
among the civilian population are prohibited, IHL database, available at https://ihl-databases.icrc.org/customaryihl/
eng/docs/v1_rul_rule2.
390 Cf. OSCE, “Kosovo/Kosova, as seen, as told, An analysis of the human rights findings of the OSCE Kosovo
Verification Mission, October 1998 to June 1999”, 1999, executive summary, referring to “intent to apply mass killings
as an instrument of terror” (available at https://www.osce.org/odihr/17772?download=true). Cf. also 26th International
Conference of the Red Cross and Red Crescent, Geneva, 3-7 December 1995, Resolution II, “Protection of the civilian
population in period of armed conflict”, 7 December 1995, preamble, expressing deep alarm at “the serious violations of
international humanitarian law in internal as well as international armed conflicts by acts or threats of violence the primary
purpose of which is to spread terror among the civilian population” (available at
https://www.icrc.org/eng/resources/documents/resolution/26-international-conference-resolution-2-1995.htm).
99
357. Fifth, as in relation to Flight MH17, it appears that Ukraine has been very selective in the
evidence which it has chosen to put before the Court. Unlike Ukraine, Russia has no access to the
primary evidence and was, of course, not in a position to conduct its own investigations of the shelling
episodes occurring on Ukraine’s territory. Likewise, unlike Ukraine, Russia does not have full
information regarding the location of Ukraine’s military positions, the deployment and movement of
Ukraine’s military materiel, or the operations (both aggressive and defensive) conducted by Ukraine’s
forces – information that must exist and that would show the extent of military activities in the
relevant areas.
358. Ukraine’s military expert, General Brown, is also reliant upon the information that Ukraine
chooses to provide with respect to the shelling episodes. Ukraine, however, does not appear to have
shared with its expert relevant evidence, including:
a. Contextual information regarding military operations (by both the DPR/LPR and
Ukraine) in the area of the episodes of the shelling relied on and around the day of those
episodes, including the shelling of other positions of the Ukrainian forces by DPR/LPR
forces;
b. Contemporaneous documentation which must exist recording the location of Ukraine’s
military positions and military equipment (including mobile military materiel) on and
around the days of the shelling episodes and the location of all relevant impact sites. For
example, Ukraine has not put into evidence (or even acknowledged) documents
recording the movement and activities of tanks which it had located in a residential area
in Avdiivka at the relevant time.
c. Additional intercept evidence, all of which it is understood originates from Ukraine’s
Security Service, which has been published or which is referred to in Ukrainian criminal
court documents.391
359. The materials available to Russia do not contain such information, i.e. official reports and press
reporting, witness accounts from interviews and social media cannot provide the necessary details.
With a view to helping fill this evidentiary gap, Russia has requested that the OSCE provide
documents relevant to its inspections for each of the shelling episodes, but the OSCE declined.392
Publicly available satellite imagery relevant to the specific shelling episodes Ukraine relies on is also
limited. In principle, if it were available, satellite imagery might help to verify Ukraine’s account,
although it provides only a very high-level and fragmentary snapshot of the situation on the ground.
391 As in relation to the shooting down of Flight MH17, Russia does not accept the validity of the alleged intercepts
obtained by Ukraine and it is for Ukraine to prove this. Reference to the intercept evidence and what it shows is without
prejudice to this position.
392 Letter of Alexander Lukashevich, Permanent Representative of the Russian Federation to the OSCE, to the Secretary
General of the OSCE of 13 May 2020 No. 261 and Letter of the Secretary General of the OSCE to Alexander Lukashevich,
Permanent Representative of the Russian Federation to the OSCE, of 6 July 2020 (Annex 45).
100
360. Sixth, Ukraine’s position with respect to the “military justification” for each of the shellings
also conflates the existence of a military objective with the proportionality of an attack against that
object (an assessment of which would require consideration of the anticipated military advantage in
relation to the expected harm to civilians and civilian objects). However, even if an attack were
disproportionate or indiscriminate, this would not without more establish that it was a terrorist act.
361. Against the backdrop of these general observations, Russia turns to each of the individual
instances of shelling relied on by Ukraine.
B. THE SHELLING CLOSE TO THE CHECKPOINT NEAR VOLNOVAKHA
362. Ukraine has failed to show that the loss of life resulting from shelling impacts close to the
checkpoint near Volnovakha (the “Buhas checkpoint”) on 13 January 2015 was caused by an act of
terrorism within the meaning of Article 2(1)(b) of the ICSFT.
363. It is Ukraine alone that has characterised this shelling as a “terrorist” act. Notwithstanding
Ukraine’s very public position, the OHCHR, the ICRC or the UNSC have not adopted that
characterisation.
1. The Character of the Buhas Checkpoint and Military Advantage
364. Ukraine repeatedly refers to the Buhas checkpoint as a “civilian checkpoint”393 which “played
no role in the ongoing armed conflict”.394 This is central to Ukraine’s unilateral characterisation of
the shelling as a terrorist act under Article 2(1)(b) of the ICSFT, including the alleged existence of
the requisite intention and terrorist purpose.395
365. However, 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 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.”396
366. General Brown refers to a “civilian-vehicle checkpoint”397 and states:
“It is difficult to argue that the checkpoint was taking an active part in hostilities, or that
its destruction gave the DPR any military advantage. The function of the Volnovakha
checkpoint appears to have been a continuation of its long-standing civilian role of
checking vehicles, albeit reinforced by armed personnel in order both to provide a greater
degree of protection to the police forces manning the checkpoint and also to extend the
393 MU, paras. 2, 77, 226, 229, 230 and 291.
394 See WSU, para. 253.
395 See MU, paras. 227, 230-231.
396 Witness Statement of Maksym Anatoliyovych Shevkoplias, 4 June 2018 (Annex 4 to MU), paras. 5, 8 and 10.
397 Expert Report of Lieutenant General Christopher Brown (“Brown Report”) (Annex 11 to MU), para. 20.
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role of the checkpoint to include checks for the movement of weapons and separatist
personnel. There is no evidence to suggest that the checkpoint played any offensive role;
indeed, its size and number of personnel manning it suggest it could not even have
conducted any effective defensive role against anything more than attacks by individuals
with small arms. While the checkpoint could undoubtedly warn Ukrainian Armed Forces
of any impending attack along the road to Volnovakha, any advantage of a conventional
military attack on the checkpoint, either by direct assault or by indirect fire, would in my
opinion be outweighed by its waste of resources and a loss of surprise if it were a
precursor to a larger attack”.398
367. In the above passage, General Brown appears to be conflating the separate questions of whether
the Buhas checkpoint was a purely civilian objective and, if not, whether any attack would have been
proportionate or served military logic.
368. As to the first question (i.e., the status of the checkpoint), Ukraine does not mention in its
Memorial, and does not appear to have asked General Brown to consider,399 the following:
a. Documents produced by Ukraine,400 as well as the OSCE, describe the location as a
checkpoint of the Ukrainian Armed Forces.401
b. 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
2014.402 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.403 The opensource
information also indicates that the Kyiv-2 battalion engaged in reconnaissance
operations in the area of Volnovakha, Olenivka and Dokuchayevsk.404 There are also
suggestions that the Kyiv-2 battalion became a part of,405 or at least cooperated with, the
398 Brown Report (Annex 11 to MU), para. 27.
399 Cf. WSU, para. 253 stating that General Brown considered “all relevant circumstances”.
400 Annex 87 to MU.
401 OSCE SMM, “Spot report by the OSCE Special Monitoring Mission to Ukraine, 14 January 2015: 12 civilians killed
and 17 wounded when a rocket exploded close to a civilian bus near Volnovakha”, 14 January 2015 (Annex 323 to MU);
OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of
18:00 (Kyiv time), 13 January 2015”, 14 January 2015 (Annex 320 to MU).
402 112.ua, “Kyiv-2 has been relocated to Donetsk Region and is at a checkpoint in Volnovakha as ordered by Ministry
of Internal Affairs, battalion commander says”, 10 October 2014, https://112.ua/glavnye-novosti/kiev-2-
perebazirovalsya-po-prikazu-mvd-v-doneckuyu-oblast-i-nahoditsya-na-blokpostu-v-volnovahe-kombat-127627.html
(Annex 97).
403 Ukraine, Svyatoshinsky District Court of Kyiv, Case No. 759/13012/18, Decision, 26 December 2018,
https://reyestr.court.gov.ua/Review/79393757 (Annex 75).
404 See Expert Report of Major General Valery Alexeevich Samolenkov (“Samolenkov Report”) (Annex 2),
Addendum 1, para. 9 referring to Facebook page ‘Kyiv’, post at:
https://www.facebook.com/044.Kyiv/posts/736355026412539, 17 November 2014 (Annex 153).
405 The suggestion is apparently based on witness accounts. See Centre for Civil Liberties, “In search of justice:
Investigation of crimes related to violation of the right to life, the right to liberty and security of person, freedom from
102
72nd brigade406 of the Ukrainian Armed Forces. Ukraine has not put before the Court
contemporaneous documentation recording the activities of the Kiev-2 battalion at and
around the Buhas checkpoint.
c. As is explained in the Bobkov Report, contemporaneous satellite imagery and CCTV
footage of the Buhas checkpoint show a number of military features, including
observation posts and trenches for personnel and dug-out positions for military
equipment.407 Photographs reportedly taken at the checkpoint (and verified by Expert
Bobkov) show firing positions for a machine gun and an RPG-7 on the roof of a
shelter.408
d. The Bobkov Report also concludes that open-source information shows that mobile
military equipment (including an anti-tank gun) was observed at the Buhas checkpoint,
although the dates of the relevant photographs are unclear.409
e. Russia’s military expert, General Samolenkov explains that the degree of fortification
and protection indicates that the road was considered by Ukraine to have military value
and that the checkpoint did not perform purely civilian functions.410
f. The Buhas checkpoint was located on a section of the H-20411 public road connecting
Donetsk and Mariupol. As General Samolenkov explains, it is reasonable to assume that
the road would have also been used to redeploy military equipment and men and to bring
ammunition and supplies to various Ukrainian military positions, including those closer
to Dokuchayevsk.412 Ukraine has not put into evidence any contemporaneous
torture committed in the anti-terrorist operation zone: shortcomings of the work of investigative bodies and
recommendations of human rights activists”, 2016, http://ccl.org.ua/wpcontent/
uploads/2016/06/Spravedluvist_CCL_MF_Weblow-1.pdf (Annex 82).
406 See Glavnoe, “If there were no war: Arsen Karapetyan, Kherson (photo)”, 11 April 2016,
https://glavnoe.ua/news/n267407 (Annex 117).
407 Expert Report of Alexander Alekseevich Bobkov (“Bobkov Report”) (Annex 1), paras. 35-46.
408 See Blog of Andrey Skaternoy, “Volnovakha-Donetsk checkpoint “Buhas”. The one”, post at:
http://asket.in.ua/?p=977, 20 January 2015 (Annex 186).
409 Bobkov Report (Annex 1), paras. 39-46. See also a video report by Mariupol TV filmed at “the checkpoint in
Volnovakha” and published on 1 November 2014, which features interviews with the Kiev-2 Batalion which the journalist
says is “based there” and demonstrating a BRDM-2 (amphibious armoured patrol car) and an installed machine gun at
the checkpoint: YouTube channel Mariupol TV, “2014-10-30 How do our soldiers live under constant shellings? (MTV
story)”, available at: https://www.youtube.com/watch?v=C706hvRXm3c&t=27s, 1 November 2014 (Annex 222).
410 Samolenkov Report (Annex 2), paras. 44-52. See also Instruction on the procedure for implementing the norms of
international humanitarian law in the Armed Forces of Ukraine approved by the Order of the Ministry of Defence of
Ukraine No. 164, 23 March 2017, https://zakon.rada.gov.ua/laws/show/z0704-17#Text (Annex 50), Article 11 defining
military objectives which may lawfully be attacked as including “objects (buildings, houses, positions, barracks,
warehouses, and others) used or prepared to be used for military purposes”.
411 While the correct transliteration may be “N-20” (with Latin “N” standing for Cyrillic “Н” in the original), the “H-20”
reference will be preserved for consistency with Ukraine’s Memorial (para. 78).
412 Samolenkov Report (Annex 2), para. 48.
103
documentation recording the movements of troops and military materiel on this road,
including at or near the checkpoint, on and around 13 January 2015.
g. As General Samolenkov also explains, the Buhas checkpoint could be used as a
defensive position in the event of a ground assault by the DPR, in particular, to repel any
advance towards Volnovakha or any attempt to gain control of the road.413
369. As follows from the above, and as confirmed by the view of General Samolenkov,
notwithstanding the fact that Ukraine has not put before the Court all of the essential information, it
is clear that the Buhas checkpoint was not a purely civilian object.
370. Turning specifically to the day of the shelling, Ukraine has not put into evidence the
contemporaneous logbooks and other reports in its exclusive possession which would help to analyse
the deployment and movement of military materiel at and around the Buhas checkpoint on or around
13 January 2015. Moreover, although Ukraine has provided video footage taken by a camera located
at the Buhas checkpoint at the time of the shelling and immediately before, this is limited to around
one hour in duration (between around 2 pm and 3 pm).414 It does not show the situation at the Buhas
checkpoint earlier in the day. It appears that this footage and information about persons who crossed
through the checkpoint was also not provided to the Ukrainian investigators.415
371. As regards the separate question of whether there would be a military advantage to shelling the
Buhas checkpoint (or the road nearby), as General Samolenkov explains, this question also must be
considered in context.416
372. First, it is necessary to look at the location of Ukraine’s military positions in the area between
the Buhas checkpoint and the territory which was under the control of the DPR to the northeast and
to consider the relationship between such positions and the Buhas checkpoint.417 General Brown’s
Report contains no such consideration and Russia assumes that Ukraine provided no such information
to him.
413 Samolenkov Report (Annex 2), paras. 51-52.
414 Footage from a Surveillance Camera at the Checkpoint, 10 January 2015 (video) (Annex 695 to MU).
415 See National Police, Main Donetsk Regional Administration of the National Police Letter No. 1812/04/18-2016 to the
Main Military Prosecutor’s Office, Prosecutor General’s Office of Ukraine, 18 March 2016 (Annex 147 to MU), emphasis
added: “It will not be possible to send the Prosecutor General’s Office of Ukraine video recordings from the fixed video
surveillance camera located on the roof of fixed post No. 5 of the State Traffic Inspectorate Administration of the Main
Donetsk Regional Directorate of the Ministry of Internal Affairs of Ukraine for the period from 8:00 a.m. to 4:00 p.m. on
January 13, 2015, due to the fact that the Kyiv-2 Special-purpose battalion was stationed at th[at] fixed post. All of the
video surveillance cameras and recordings made by them belong to and are being held by the leadership of that battalion.
The same applies to information concerning persons who crossed, in either direction, the temporary checkpoint controlled
by the Kyiv-2 special-purpose battalion” (emphasis added).
416 Samolenkov Report (Annex 2), para. 9.
417 Samolenkov Report (Annex 2), para. 56.
104
373. The Buhas checkpoint was the last Ukrainian checkpoint on the H-20 road between territory
controlled by Government and territory under the control of the DPR. The contact line appears to
have run north of Novotroitske (around 14-15 km from the Buhas checkpoint).418
374. The Bobkov Report contains an analysis of contemporaneous satellite imagery showing
Ukraine’s military positions in this area at around 11 am on 13 January 2015.419 Based on this wider
context, General Samolenkov explains that the Buhas checkpoint most likely held an important place
in supporting these other military positions through controlling the road behind them.420 He considers
that it is reasonable to conclude that the Buhas checkpoint formed part of the Ukrainian system of
combat positions.421 While civilian vehicles wishing to travel on this section of the road had to pass
the Buhas checkpoint, the function of the checkpoint was not limited to this activity.
375. Second, it is relevant that all parties to the armed conflict have treated checkpoints located on
public roads which are manned by armed forces as military targets, and it is regularly recorded in the
reports of the OSCE that shelling impact sites are at or near checkpoints controlled by both parties to
the conflict.422 That the Ukrainian Armed Forces targeted checkpoints is also supported by opensource
material reporting comments made by members of the Kyiv-2 Battalion.423 As General
Samolenkov explains:
“I understand that, during the military conflict in Eastern Ukraine, warfare extended to
various checkpoints situated on critical roads. This is normal since vehicular checkpoints
were likely part of the system of combat positions, meaning that they were equipped and
used for military purposes. Road positions guard critical movement routes that the enemy
may use for potential attacks. Unprotected roads would allow the attacker to gain control
over the fastest channel for transporting personnel and materiel with minimal effort. On
the other hand, if the road is taken under control, this can also disrupt the supply of the
enemy’s positions. In view of this, checkpoint positions on roads are typically fortified to
some extent, although their particular features may vary.”424
376. For example, on 27 April 2016, Ukraine’s armed forces shelled an area in the vicinity of a DPR
checkpoint located nearby on the same H-20 road in the village of Olenivka (around 25 km from the
418 Samolenkov Report (Annex 2), para. 11.
419 Bobkov Report (Annex 1), paras. 53-54.
420 Samolenkov Report (Annex 2), para. 48.
421 Samolenkov Report (Annex 2), paras. 56-57.
422 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM) based on information received as
of 18:00 (Kyiv time), 27 October 2014”, 28 October 2014, https://www.osce.org/ukraine-smm/126103 (Annex 5); OSCE
SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30,
13 July 2017”, 14 July 2017, https://www.osce.org/special-monitoring-mission-to-ukraine/329496 (Annex 30); OSCE
SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30,
7 May 2017”, 8 May 2017, https://www.osce.org/special-monitoring-mission-to-ukraine/315996 (Annex 28).
423 See Samolenkov Report (Annex 2), Addendum 1, para. 3 referring to YouTube channel of Radio Liberty Ukraine,
“Battle in the vicinity of Volnovakha, Separatists Lost Firing Positions”, available at:
https://www.youtube.com/watch?v=rKAO9JGw_TA, 9 November 2014 (Annex 224).
424 Samolenkov Report (Annex 2), para. 44.
105
Buhas checkpoint), killing four civilians and injuring eight more. The OHCHR report for that period
records that: “According to OSCE crater analysis, the mortar rounds were fired from the west-southwesterly
direction. This indicates the responsibility of the Ukrainian Armed Forces. The checkpoint
is routinely ⎯ both during day and night time ⎯ surrounded by passenger vehicles waiting to cross
the contact line”.425
a. Even Ukraine’s own expert emphasises the similarities between the checkpoints near
Volnovakha and Olenivka.426 Ukraine attempts to distinguish the shelling near the
Olenivka checkpoint on the basis that the OSCE found “firing positions” in the vicinity
but Ukraine omits to mention that the OSCE referred specifically to “small arms firing
positions”427 and that the Buhas checkpoint also featured small arms firing positions not
merely in the vicinity but at the checkpoint itself (see above).
b. Ukraine also emphasises that it appears that artillery guns, not BM-21 Grad, were used
in the attack on the Olenivka checkpoint, but this is immaterial to the question of the
similarities between the checkpoints and whether they were treated as military
objectives.428
377. Third, it is necessary to consider the context of the active hostilities in the wider area at the
relevant time.429 Although the full details of the situation on the ground are not known and Ukraine
has not put into evidence the necessary information in this regard (see above), some general
observations may be made.
a. Open-source material indicates that the Ukrainian Armed Forces fired from a position at
Buhas and that the DPR “returned fire at Buhas” on 7 January 2015.430 Moreover, it
appears that the Ukrainian Armed Forces used the Buhas checkpoint as an artillery firing
position on 12 January 2015.431
425 OHCHR, “Report on the human rights situation in Ukraine 16 February to 15 May 2016”, para. 20 (Annex 771 to
MU). See also OSCE SMM, “Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in
Olenivka”, 28 April 2016, https://www.osce.org/ukraine-smm/236936 (Annex 10).
426 Brown Report (Annex 11 to MU), para. 32.
427 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), Based on Information Received
as of 19:30 hrs, 29 April 2016”, 30 April 2016 (Annex 3 to WSU).
428 Cf. WSU, para. 253.
429 See Samolenkov Report (Annex 2), para. 9.
430 VKontakte page Reports from the Novorossiya’s militia, available at: https://vk.com/wall-
57424472?day=07012015&w=wall-57424472_38207, 7 January 2015 (Annex 225), referring to DPR having “returned
fire at Buhas”.
431 VKontakte page Reports from the Novorossiya’s militia, post at: https://archive.md/0SASD, 12 January 2015 (Annex
168), stating that “volleys were fired from the Volnovakha area (from the traffic police post) towards Dokuchaevsk and
Starobeshevo”. See also Twitter page Ridnа_Vilnа 33%, post at:
https://twitter.com/ua_ridna_vilna/status/554520877283692544, 12 January 2015 (Annex 169). See also Samolenkov
Report (Annex 2), para. 63.
106
b. The Bobkov Report identifies evidence of intensive exchanges of fire in the area between
Volnovakha and Dokuchayevsk.432 This is consistent with open-source contemporaneous
reporting between late November 2014 and mid-January 2015 of shelling (including the
use of BM-21 Grad MLRS) by the Ukrainian Armed Forces of Dokuchayevsk from the
direction of Novotroitske and Volnovakha and shelling by DPR forces of Ukrainian
military positions, including at Buhas (around 3 km from the Buhas checkpoint).433
c. According to information contained in Ukrainian court judgments (which Ukraine has
not put into evidence), there were active hostilities and movements of military equipment
in the vicinity of the Buhas checkpoint in the period around the shelling.434 For example:
(a) on 5 December 2014, a howitzer self-propelled artillery battery came under fire near
Blyzhne (around 2 km from the Buhas checkpoint),435 (b) on 26 December 2014, military
equipment was observed moving in Volnovakha and Buhas (around 1 km from the Buhas
checkpoint),436 and (c) on 22 January 2015, Ukrainian military equipment was located
in Blyzhne, as well as in Rybynske (around 6 km from the Buhas checkpoint).437
d. The maps produced contemporaneously by Ukraine’s Information Analysis Centre of the
National Security and Defence Council for the period between 7 and 14 January 2015
appear to show that the DPR captured substantial territory to the northeast of Volnovakha
between 13 and 14 January 2015, suggesting that there was a ground offensive in this
area pushing towards the general direction of the Buhas checkpoint and Volnovakha.438
432 See Bobkov Report (Annex 1), para. 54, Figure 24. See also Samolenkov Report (Annex 2), para. 16.
433 See Samolenkov Report (Annex 2), para. 13 referring to VKontakte page Reports from the Novorossiya’s militia, post
at: https://vk.com/wall-57424472?day=05122014&w=wall-57424472_32801%2Fall, 5 December 2014 (Annex 158);
VKontakte page Reports from the Novorossiya’s militia, available at: https://vk.com/wall-
57424472?day=07012015&w=wall-57424472_38207, 7 January 2015 (Annex 225); VKontakte page Reports from the
Novorossiya’s militia, post at: https://vk.com/wall-57424472?day=14012015&w=wall-57424472_38414, 9 January 2015
(Annex 159); VKontakte page Reports from the Novorossiya’s militia, post at: https://vk.com/wall-
57424472?day=14012015&w=wall-57424472_38757, 11 January 2015 (Annex 164); VKontakte page Reports from the
Novorossiya’s militia, post at: https://vk.com/wall-57424472?day=14012015&w=wall-57424472_39071, 13 January
2015 (Annex 173); VKontakte page Reports from the Novorossiya’s militia, post at: https://vk.com/wall-
57424472?day=09012015&w=wall-57424472_38467%2Fall, 9 January 2015 (Annex 161); VKontakte page Reports
from the Novorossiya’s militia, post at: https://vk.com/wall-57424472?day=14012015&w=wall-57424472_39241, 14
January 2015 (Annex 179).
434 See Samolenkov Report (Annex 2), para. 15.
435 Ukraine, Oktyabrsky District Court of Mariupol, Case No. 263/574/15-k, Ruling, 15 January 2015,
https://reyestr.court.gov.ua/Review/45424002 (Annex 57).
436 Ukraine, Volnovakha District Court of the Donetsk Region, Case No. 221/1370/15-k, Judgment, 20 May 2015,
https://reyestr.court.gov.ua/Review/44277498 (Annex 60).
437 Ukraine, Volnovakha District Court of the Donetsk Region, Case No. 221/1556/15-k, Judgment, 23 September 2015,
https://reyestr.court.gov.ua/Review/51123690 (Annex 62).
438 Information and Analysis Center of the National Security and Defence Council of Ukraine, “The Situation in the
Eastern Regions of Ukraine – 14.01.15”, 14 January 2015, http://mediarnbo.org/2015/01/14/the-situation-in-the-easternregions-
of-ukraine-14-01-15/?lang=en (Annex 56); Information and Analysis Center of the National Security and
Defence Council of Ukraine, “The Situation in the Eastern Regions of Ukraine – 13.01.15”, 13 January 2015,
107
378. As to the intercepts produced by Ukraine:
a. General Samolenkov explains that, based on his military understanding of the terms
used, the intercepts of calls between DPR members refer to active hostilities involving
artillery guns, howitzers, tanks, mortars and close combat weapons, but not BM-21 Grad
MLRS.439
b. These intercepts expressly mention two targets: a “checkpoint” between Berezove and
Dokuchayevsk (“down from Berezov[e], the first turn-off […] to Dokuchayevsk”) and a
target near Slavne (at the “beginning of Slavne”, around 25 km from the Buhas
checkpoint).440 As is explained in the Bobkov Report441 and by General Samolenkov,442
neither of these descriptions refer to the Buhas checkpoint. However, the context is
significant in showing the existence of hostilities in the general area on the same day and
in showing that other checkpoints were targeted by DPR forces.
2. Contradictions and Other Deficiencies in Ukraine’s Evidence with respect to DPR’s Alleged
Responsibility for the Attack
379. General Brown’s conclusion that the DPR was responsible for the shelling rests on his
acceptance of the findings of the Ukrainian investigators, particularly the crater analysis performed.
i. Inconsistent assessment of the dispersal pattern of impact sites
380. General Brown notes that one method that can be used to assess the direction and range of fire
is to draw an ellipse around the main impact sites and to measure the vertical and horizontal axis. It
also follows that where the direction of fire and angle of incidence are known, one can calculate the
shape and measurements of the expected dispersal ellipse.443
381. General Brown assumes as correct the crater analysis of the Ukrainian investigators with respect
to the direction of fire and the angle of incidence.444 Using the data in the firing table for M-21OF
projectiles, General Brown describes the fall of shot pattern created by 122 mm rockets at a range of
19.6 km.445 He also includes a diagram (Figure 1), which is reproduced below, showing an oval ellipse
measuring 784 m along the deduced line of fire and 1304 m perpendicular to the deduced line of fire.
http://mediarnbo.org/2015/01/13/the-situation-in-the-eastern-regions-of-ukraine-13-01-15/?lang=en (Annex 55). See
also Samolenkov Report (Annex 2), para. 17.
439 Samolenkov Report (Annex 2), para. 27.
440 Translation of the transcripts of the Intercepted Conversations of Yuriy Shpakov (16 September 2016) contained in
Annex 430 to the Memorial of Ukraine (Annex 257), conversation no. 2, at 11:07:43 on 13 January 2015.
441 Bobkov Report (Annex 1), paras. 47-50.
442 Samolenkov Report (Annex 2), paras. 22-24.
443 Ibid., para. 84 referring to Brown Report (Annex 11 to MU), para. 13.
444 Ibid., para. 84 referring to Brown Report (Annex 11 to MU), paras. 25-26.
445 Brown Report (Annex 11 to MU), paras. 29. See also para. 26.
108
The probable error for range is stated as 90 m and the probable error for direction is stated to be 163
m. General Samolenkov agrees that this shows the expected ellipse for this range.446
Figure 1. Diagram (to scale) showing fall of shot pattern created by 122mm Rockets at
19.6 km range, using Firing Table data (Figure 1 of Brown Report)
382. However, as to the facts of the current incident, General Brown states that an image taken by
an OSCE UAV and the Ukrainian analysis “exhibit a spread of shot approximately 640 metres [cf.
his expected figure of 784 m] along the deduced line of fire and 580 metres perpendicular to the
deduced line of fire [cf. his expected figure of 1304 m]”.447 Although General Brown states that “[t]his
is consistent with the firing pattern of BM-21 using standard high explosive projectiles”,448 referring
to paragraphs 29-30 of his Report, there is plainly an inconsistency between the two sets of
measurements; they cannot both be correct.449
446 Samolenkov Report (Annex 2), para. 86.
447 Brown Report (Annex 11 to MU), para. 23.
448 Ibid.
449 Samolenkov Report (Annex 2), para. 88.
109
383. General Samolenkov explains that this is an important inconsistency. It follows from the impact
map in Annex 89 to the Memorial that the impact area is elongated in the direction of the shelling and
narrower perpendicular to that direction.
a. This broadly conforms with the measurements suggested by General Brown, but not with
the ellipse measurements referred to in paragraphs 29 and 30 of his report.
b. General Samolenkov further explains that this shape of the impact pattern is consistent
with a range of fire below 13-14 km (or even 9-10 km with spoiler rings – a device used
to reduce the velocity and range of BM-21 rockets). That is confirmed by the data in the
Firing Tables.450
c. This creates uncertainty as to the correct placement of the firing position, which may
have been on either side of the contact line or in the grey area (i.e., no man’s land).
General Samolenkov states on this basis that it would be impossible to reach a clear
conclusion as to which party was responsible for the shelling.451
ii. Failure to collect fragments from all craters
384. General Brown also relies on the analysis of fragments collected from the impact sites by the
Ukrainian investigators. With respect to his assessment of the likely range of fire, General Brown
states that: “There is no evidence that debris from safety ring spoilers was found at the site of the
attack”.452 This can only refer to the question of whether evidence of safety ring spoilers was found
among the fragments of the rockets collected from impact sites. General Samolenkov agrees that this
is an important question:
“To accurately determine the shelling conditions, it is important not only to examine the
craters in detail, but also to collect projectile fragments. This makes it possible to reliably
identify the type of ammunition used (including its specific modification and the type of
fuze, the use of spoiler rings).”453
385. However, General Brown does not appear to have considered the fact that the Ukrainian
inspection reports refer to the collection of fragments from three craters only.454 General Samolenkov
explains that “even in those cases there is no clarity as to where exactly the fragments were collected
and no photographs of the fragments on the site”.455 In the absence of more complete evidence of the
450 Ibid., para. 88.
451 Ibid., para. 89.
452 Brown Report (Annex 11 to MU), para. 26.
453 Samolenkov Report (Annex 2), para. 80.
454 Ibid.
455 Ibid.
110
fragments, it is not possible to express any firm view on whether safety ring spoilers were used or on
the range of fire deduced by Ukraine’s investigation.456
iii. Insufficient explanation contained in Ukraine’s inspection reports
386. There are additional reasons why Ukraine’s crater analysis, which General Brown has relied on,
is to be approached with caution. As General Samolenkov explains, the inspection reports do not
contain sufficient detail to allow the reader to understand precisely how the crater was measured
(including, for example, where the wooden stick was placed and whether or how the ground
surrounding the crater was levelled), although in any event unsuitable equipment was used.457 As a
result, the Court can have no confidence that the angles were measured accurately. This is significant
because, as General Samolenkov explains, such analysis is very sensitive to mistakes: “Even an error
of 5 degrees in determining the angle of descent will cause an error of 1 kilometre in determining the
range of firing”.458 In these circumstances, it becomes particularly important to corroborate the crater
analysis by reference to the ellipse of dispersion.
iv. Ukraine’s witness statements are of no assistance to the Court
387. The Court is also not assisted by the witness evidence put forward by Ukraine in which civilians
with no military training who observed or overheard the shelling purport to have somehow established
(some of them under extreme pressure) such technical details as the launch site, the direction of fire,
the number of firing launchers, the type of projectiles used, and/or the angle the projectiles struck the
ground.459 This is not credible.
v. Ukraine’s intercept evidence
388. The context provided by Ukraine’s intercept evidence shows that a senior DPR officer reacted
to the result of the shelling negatively, asking the DPR officer who Ukraine says was in charge of the
Grad unit:460
456 In the absence of post-mortem reports, it is also not possible to verify Ukraine’s claims that certain fragments were
extracted from the bodies of individuals killed in the shelling.
457 See Samolenkov Report (Annex 2), paras. 68-76.
458 Ibid., para. 70.
459 Signed Declaration of Oleksandr Pavlenko, Witness Interrogation Protocol (23 January 2015) (Annex 209 to MU);
Signed Declaration of Artem Kalus, Witness Interrogation Protocol, 17 January 2015 (Annex 204 to MU); Signed
Declaration of Anton Fadeev, Witness Interrogation Protocol, 16 December 2015 (Annex 244 to MU).
460 Based on the language used in the intercepts, General Samolenkov believes it is unlikely that the artillery used in that
battle was MLRS: see Samolenkov Report (Annex 2), para. 27.
111
“Who is it that f****** Batyushka who shelled Volnovakha from Dokuchayevsk today,
that ****”?461
389. Neither Ukraine, in its Memorial, nor its expert appear to have considered this passage of the
intercept. This is the only passage in the intercepts which appears to relate to the Buhas checkpoint
and it strongly indicates that the civilian harm was not actually intended. It is also noted that, on 13
January 2015, the DPR issued a statement denying responsibility for the attack.462
390. Ukraine contends that two other statements in the intercepts concerning an attack against a
checkpoint refer specifically to (and, indeed, celebrate) the shelling at the Buhas checkpoint.463
a. First, at 14:29 on 13 January, “Yust” allegedly stated: “[We] blew a Ukropian [Ukrainian]
checkpoint to hell”.464
b. Second, at 10:51 on 14 January, “Yust” directed “Opasny” to: “Sound the alarm for three
crews, take the main firing position and pound the checkpoint that we worked on
yesterday … [at the] intersection”.465
391. Ukraine is incorrect. Both of these statements are understood to refer to the Ukrainian Armed
Forces checkpoint at an intersection on the road between Berezove and Dokuchayevsk, which was
expressly identified as a target in other intercepts.466 As is evident from the satellite imagery, the
Buhas checkpoint is not located at an intersection between two roads or at the first turn left from
Berezove,467 and it was hardly damaged. Since they do not refer to the Buhas checkpoint, the passages
Ukraine relies on are of no assistance to it.
392. Further, the other intercepts show that the DPR took steps to protect civilians. Although
Ukraine’s position is that these intercepts relate to the shelling of the Buhas checkpoint, it does not
appear to have provided them to General Brown and they are not considered in his Report. While
these intercepts in fact concern different military operations conducted against Ukraine’s forces
461 Intercepted conversations of Yuriy Shpakov, 16 September 2016 (Annex 430 to MU), conversation no. 31 at 16:54:08
on 13 January 2015.
462 Donetsk News Agency, “DPR Ministry of Defence denounces DPR militia involvement in shelling attack on a route
taxi van near Volnovakha as disinformation”, 13 January 2015, https://dan-news.info/defence/v-minoborony-dnr-nazvalidezinformaciej-
prichastnost-opolcheniya-dnr-k-vystrelu-po-marshrutke-pod-volnovaxoj.html (Annex 99).
463 See MU, para. 88.
464 Translation of the transcripts of the Intercepted Conversations of Yuriy Shpakov (16 September 2016) contained in
Annex 430 to the Memorial of Ukraine (Annex 257), conversation no. 28, at 15:29:09 on 13 January 2015.
465 Ibid., conversation no. 33, at 10:51:01 on 14 January 2015.
466 See Bobkov Report (Annex 1), paras. 47-50. See also VKontakte page Reports from the Novorossiya’s militia, post
at: https://vk.com/wall-57424472?day=12012015&w=wall-57424472_38862%2Fall, 12 January 2015 (Annex 171),
reporting that the DPR forces attacked a checkpoint in the area of Berezove on 11 January 2015.
467 This location is suggested in Translation of the Conversations of Yu. Shpakov (Annex 257), conversation no. 2 at
11:07:43 on 13 January 2015.
112
located between Berezove and Dokuchayevsk and near Slavne on the same day, they still provide
relevant context with respect to the DPR’s aims and the tactics it employed as part of its offensive.
a. The DPR operators sought clarification of their assigned targets after realising that the
coordinates they had been given were located in a residential area.468
b. The DPR forces who Ukraine alleged were in control of a BM-21 Grad unit (but who
General Samolenkov explains, based on the language they used, appear to have been
using conventional artillery guns and mortars469) used ranging shots,470 and spotters,471
while also adjusting fire away from a populated area.472
3. Ukraine Has Failed to Establish the Requisite Intent and Terrorist Purpose
393. In its Memorial, Ukraine relies on a passage in Milošević which refers to the intimidation
resulting in that case from the sustained targeting of “sites well-known to be frequented by [civilians]
during their daily activities, such as … public transport”.473 Ukraine’s reliance on the very different
facts of Milošević is, however, misplaced. A single attack on an armed checkpoint or the road nearby
is manifestly not analogous to the fourteen-month campaign of continuous sniping and shelling
directed against the civilian population of Sarajevo.474
394. Ukraine argues that the requisite actual intent to kill or seriously harm civilians may be inferred
from the fact that the Buhas checkpoint “did not play any role in the ongoing conflict, and there was
no military reason to attack it”.475 This is factually incorrect (see above).
395. Ukraine also contends that indirect intent to kill civilians is to be inferred on the basis that the
BM-21 Grad is an area weapon, which is unsuitable for targeting an objective such as a checkpoint.476
However, Article 2(1)(b) requires actual intent (see above).
396. Ukraine contends that the requisite terrorist purpose (dolus specialis) to intimidate the civilian
population should be inferred from the nature of the so-called “civilian checkpoint” as a site well-
468 Ibid.
469 Samolenkov Report (Annex 2), paras. 27, 30.
470 Translation of the Conversations of Yu. Shpakov (Annex 257), conversation no. 15 at 12:24:19 on 13 January 2015.
471 Ibid., conversation no. 15 at 12:24:19 on 13 January 2015 and conversation no. 19 at 13:55:14 on 13 January 2015,
referring to “eyes out front” and “the second [pair of] eyes”.
472 Ibid., conversation no. 20 at 14:02:14 on 13.01.2015: “Now wait, it went close to the town, you need to put them
further away”.
473 MU, para. 231 referring to ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Trial Chamber
Judgment, pp. 290‒91, para. 881 (12 December 2007) (Annex 466 to MU).
474 See ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgment, 12 Nov. 2009, para. 38. See also
paras. 245 and 254.
475 MU, para. 227.
476 Ibid., para. 229.
113
known to be frequented by civilians, the timing of the attack and the use of the BM-21 Grad.477 As to
these factors:
a. The characterisation of the Buhas checkpoint as a “civilian checkpoint” is incorrect (see
above) and, in any event, the road section it protected was of military significance.
b. The likely presence of civilians at or near the checkpoint is relevant to an assessment of
proportionality, but even if there were a disproportionate attack (i.e., launching an attack
in the expectation that the incidental harm to civilians would be excessive in relation to
the anticipated military advantage), this could not be conflated with attacking for the
specific purpose of spreading terror. That specific purpose is either established or it is
not (it is not).
c. The contention that the timing of the attack was designed to cause maximum harm to
civilians is contradicted by contemporaneous satellite imagery showing that there was a
much greater volume of traffic at around 9 am on 13 January 2015 than is shown in the
video footage of the shelling at around 2.30 pm.478
d. While a BM-21 Grad would not have been an efficient choice of weapon for directed
attack against a specific military objective of the size of the Buhas checkpoint,479 this is
relevant only to an assessment of whether the attack was indiscriminate under
international humanitarian law. Even if the attack were to be characterised as
indiscriminate (quod non), this would not suffice to establish the requisite specific intent
to terrorise the civilian population.
397. Ukraine also speculates, but has not put forward any documentary evidence, that the DPR/LPR
may have intended to target civilian residents of territory controlled by the DPR/LPR who were
travelling to Government-controlled territory “to collect pension and social benefit payments”.480
398. Finally, Ukraine also speculates that the shelling could have been part of a campaign to obtain
political concessions.481 However, no evidence in support of this allegation has been provided.
C. MARIUPOL
399. Ukraine has also failed to establish that the shelling at Mariupol on 24 January 2015 was a
terrorist act within the meaning of Article 2(1)(b) of the ICSFT.
400. As explained in greater detail below, General Samolenkov concludes that:
477 Ibid., paras. 230-231.
478 See Bobkov Report (Annex 1), para. 35(2). See also Samolenkov Report (Annex 2), para. 60.
479 See Samolenkov Report (Annex 2), para. 58.
480 MU, para. 232.
481 Ibid., para. 234.
114
“Based on the information provided to me, it appears likely that the residential areas of
the Vostochniy micro-district of Mariupol were not the target of the attack(s). Rather it is
likely that the artillery attacks were conducted in support of the announced and intended
offensive operation aimed at capturing Mariupol.
It also appears likely that the civilian damage occurred by mistake, as is strongly
suggested by the intercept evidence. I do not agree with General Brown’s conclusion that
the attackers intended or anticipated the damage to civilian areas. It is unclear whether
more accurate weapons or targeting methods were available to the DPR in this situation.
It is plausible that civilian facilities of the Vostochniy micro-district could have been hit
because of errors in the information about coordinates of intended military targets and/or
errors in the aiming of the launchers and/or incorrect technical preparation of the
launchers or even technical defects of the same. This could also be due to ‘human error’:
incorrect interpretation of received orders (commands), meteorological data or
coordinates.”482
401. Once again, it is Ukraine alone that has characterised the shelling as a “terrorist” act.
Notwithstanding Ukraine’s very public position, the OHCHR, the ICRC, the UNSC and the UN
Secretary-General483 have not adopted that characterisation.
1. The Context of the Shelling Impacts at the Vostochniy District of Mariupol
402. General Samolenkov explains that when assessing a given combat operation, its potential aims
and its consequences, it is essential to consider the context. That obviously includes the parties’
military positions and activities, the territory under their control and hostilities in the surrounding
area at the relevant time.484
403. The relevance of such contextual information appears to be common ground. Thus, in its oral
submission on Preliminary Objections, Ukraine made the point that Mariupol is “not near the contact
line”.485 This, however, was an inaccurate statement.
404. First, Ukraine omitted to inform the Court (and, it appears, also its expert) that one day prior to
the shelling of 24 January 2015, the DPR had announced a major offensive with the aim of recapturing
Mariupol, a port city with great strategic value.486 According to a statement from a then
external adviser to the Ministry of Internal Affairs of Ukraine on 24 February 2015, the industrial
482 Samolenkov Report (Annex 2), paras. 188-189.
483 United Nations Secretary-General, “Statement Attributable to the United Nations Secretary-General on Ukraine”, 24
January 2015 (Annex 306 to MU).
484 Samolenkov Report (Annex 2), para. 98.
485 CR 2019/12, 7 June 2019, pp. 40-41, para. 50 (Ms. Cheek).
486 The DPR previously controlled Mariupol until June 2014.
115
capability located in Mariupol was needed for Ukraine to be able to produce armour for military
vehicles, and the DPR forces were expected to persist in attempting to re-capture the city.487
a. On 23 January 2015, the leader of the DPR was reported as announcing: “We will fight
until we reach the Donetsk region border”, and this was interpreted as “indicating [that]
the rebels plan to seize the region’s western and southern territories which include the
Ukrainian-held port city of Mariupol”.488
b. On the same day, the Commander of the Kiev-1 battalion published a statement that:
“After Zakharchenko’s statement about his intention to capture Mariupol, the [DPR]
began a tank advance in regions adjacent to the city.”489
c. On 24 January 2015 (the day of the shelling), the leader of the DPR stated “today we
have started our advance at Mariupol”.490
405. General Brown does not appear to have been asked to consider any of these materials. His
analysis relies on the fact that “no ground assault was forthcoming”, but in assessing the probable
intentions of the DPR it is necessary to consider not only what happened but also the evidence of
what was planned.491 General Samolenkov concludes that the evidence suggests that the DPR did
indeed intend to advance into the territory controlled by Ukraine in the direction of Mariupol and
that:492
“In this situation, shelling all Ukrainian positions defending the city would be a logical
preparatory phase of the offensive […] The planned “ground assault” on the city may not
have happened for a variety of reasons (including tactical considerations and priorities in
other areas of active fighting).”493
487 See Facebook page of Anton Gerashchenko, post at:
https://www.facebook.com/anton.gerashchenko.7/posts/816004235153092?_rdc=2&_rdr, 24 February 2015 (Annex
194). From March 2014 to November 2014 Mr Gerashchenko was an external adviser to the Minister of Internal Affairs
of Ukraine Arsen Avakov: see Liga.Dossier, “Gerashchenko Anton, Deputy Minister of Internal Affairs of Ukraine”, 9
February 2021, https://file.liga.net/persons/gerashchenko-anton (Annex 142).
488 Newsweek, “Civilians Caught in Crossfire as Ukraine Separatists Make Gains”, 23 January 2015,
https://www.newsweek.com/pro-russian-rebels-mount-new-offensive-ukraine-held-territory-301514 (Annex 104). The
leader of the DPR was earlier reported as stating that the DPR intended to recapture Mariupol as early as October 2014:
see e.g. Interfax, “Head of the DPR Promised to Capture Kramatorsk, Slovyansk, and Mariupol”, 23 October 2014,
https://www.interfax.ru/world/403434 (Annex 98).
489 Facebook page of Evgeniy Deidei, coordinator of the Kyiv-1 battalion, post at:
https://www.facebook.com/evgeniy.deidei/posts/742959402462277, 23 January 2015 (Annex 190). This statement was
also reported: see Newsweek, “Civilians Caught in Crossfire as Ukraine Separatists Make Gains” (Annex 104).
490 YouTube channel Russian Dialogue.ru, “Zakharchenko on the beginning of the offence on Mariupol”, available at:
https://www.youtube.com/watch?v=ShOHb-aHJHw, 24 January 2015 (Annex 229).
491 Brown Report (Annex 11 to MU), para. 49. Note that General Brown refers in this context to Ministry of Interior of
Ukraine, Main Department of the National Guard of Ukraine Letter No. 27/6/2-3553 to the Ministry of Foreign Affairs
of Ukraine, 31 May 2018 (Annex 183 to MU), which is silent on this point.
492 Samolenkov Report (Annex 2), para. 114-115, 121-122.
493 Ibid., para. 121.
116
406. Ukraine has also omitted to mention that, after the shelling, the Mariupol authorities reportedly
stated that security measures in the city had been strengthened and that all units were “fully battle
ready”.494 As General Samolenkov points out, this indicates that the authorities at the very least
regarded a ground assault as a possibility.495
407. Second, Ukraine relies on a map which indicates that the contact line on 24 January 2015 was
around 10 km to the north-east and east of Mariupol.496 This is, however, contradicted by a map
published more recently by the former Head of the Criminal Police of the National Guard of Ukraine,
which shows that, at the time of the shelling, and consistent with the announced offensive, the DPR
controlled significantly more territory to the east of Mariupol (including the settlement of
Lebedynske, which is around 4 km from Mariupol).497 It appears that Ukraine has not provided this
map to its expert. A statement of Ukraine’s Ministry of Internal Affairs dated 25 January 2015
likewise indicates that Lebedynske was controlled by the DPR at the time of the shelling.498
408. Third, Ukraine has also omitted to mention (and does not appear to have informed its expert)
that, even before the announcement of the DPR offensive to capture Mariupol, between 19 and 22
January 2015 there was an escalation in DPR military operations in the area around Mariupol. The
OHCHR report for the relevant period describes the area around Mariupol as a “major flashpoint”.499
Unlike Ukraine, Russia does not have complete information about these events. However, it is clear
that Ukraine has provided the Court with an inaccurate picture. For example:
a. According to open-source information, on 19 January 2015, the positions of the
Ukrainian Armed Forces were attacked near Hnutove, Orlivske (around 15 km to the
north-north-east of Mariupol), Chermalyk (around 20 km to the north-north-east of
494 Associated Press, “Police: 10 Killed in Mariupol Shelling in Ukraine”, 24 January 2015,
http://web.archive.org/web/20150124110035/http://abcnews.go.com/International/wireStory/10-reported-killed-rocketfire-
mariupol-ukraine-28447614 (Annex 107).
495 Samolenkov Report (Annex 2), para. 120.
496 MU, Map 4 at p. 54. Ukraine also relies on a statement of the U.N. Under-Secretary for Political Affairs that the city
“lies outside the immediate conflict zone”: see para. 92, referring to U.N. Security Council, Official Record, 7368th mtg.,
U.N. Doc. S/PV.7368 (26 January 2015), p. 2 (statement of Jeffrey Feltman, U.N. Under-Secretary-General for Political
Affairs) (Annex 307 to MU).
497 Facebook page of Vyacheslav Abroskin, post at:
https://www.facebook.com/Vyacheslav.Abroskin/posts/2156580624634600, 15 August 2019 (Annex 215). See also
Samolenkov Report (Annex 2), para. 109. For background on Mr Abroskin see: Liga.Dossier, “Vyacheslav Abroskin,
Rector of the Odessa University of Internal Affairs, former First Deputy Head of the National Police of Ukraine”, 19
April 2021, https://file.liga.net/persons/abroskin-vyacheslav (Annex 145). Even earlier, on 7 November 2014, Ukraine
passed Order of the Cabinet of Ministers of Ukraine “On the approval of the list of localities on the territory of which the
state authorities temporarily do not exercise or do not fully exercise their authority”, No. 1085-r, 7 November 2014,
https://zakon.rada.gov.ua/laws/show/1085-2014-%D1%80#Text (Annex 49).
498 Donetsk Region Main Directorate of the Ministry of Internal Affairs of Ukraine, All Necessary Measures Being Taken
to Deal with the Consequences of Militants’ Shelling of Mariupol (25 January 2015) (Annex 91 to MU).
499 OHCHR, “Report on the human rights situation in Ukraine 1 December 2014 to 15 February 2015”, para. 21 (Annex
309 to MU).
117
Mariupol), and Pavlopil (around 16 km to the north-north-east of Mariupol), using
mortars, artillery, grenade launchers and anti-tank missile systems.500
b. On 20 January 2025, the BBC reported that Ukrainian troops had recorded 11 artillery
attacks in the area of Mariupol.501
c. On 21 January 2015, a representative of Ukraine’s “Anti-Terrorist Operation” was
reported as stating that positions of the Ukrainian Armed Forces near Hnutove (around
11 km to the north-north-east of the eastern outskirts of Mariupol), Pavlopil and in
Talakivka were attacked.502 Open-source material published on the same day states:
“The intensity of the fighting for this seaport town and its isolation are increasing every
day. The epicentre of the fighting is currently located near the eastern and north-eastern
outskirts of Mariupol … the Ukrainian command is in fact unable to hold Mariupol for
long”.503
d. On 21 and 22 January 2015, open-source information indicates that the positions of the
Ukrainian Armed Forces in the area around Mariupol were heavily shelled and that it
was understood that the attacks on 22 January were carried out in order to prepare for
further advances.504
e. On 23 January 2015, an official spokesperson for Ukraine’s “Anti-Terrorist Operation”
stated that the DPR was intensively shelling the positions of the Ukrainian forces in the
outskirts of Mariupol.505
409. Taking into account the above information, General Samolenkov concludes that: “it appears
likely that the shellings conducted at least since 19 January were aimed at suppressing the UAF
positions around the city” (of Mariupol).506
500 Facebook page Defence of Mariupol, post at:
https://www.facebook.com/mariupol.oborona/posts/565411070262497?__tn__=-R, 19 January 2015 (Annex 184).
501 BBC News Russia, “Fighting breaks out again in Eastern Ukraine”, 20 January 2015,
https://www.bbc.com/russian/international/2015/01/150120_ukraine_donetsk_airport_fighting (Annex 101).
502 Radio Svoboda, “Hostilities continue in the area of the Donetsk Airport - ATO headquarters”, 21 January 2015,
https://web.archive.org/web/20201127053625/https://www.radiosvoboda.org/a/26806294.html (Annex 102).
503 VKontakte page Reports from the Novorossiya’s militia, post at: https://vk.com/wall-
57424472?day=21012015&w=wall-57424472_40651%2Fall, 21 January 2015 (Annex 188).
504 See the social media posts of Mr Tymchuk, who appears to be a private Ukrainian commentator on military operations:
Facebook page of Dmitry Tymchuk, former member of the Ukrainian Parliament, Ukrainian military expert and blogger,
post at: https://www.facebook.com/dmitry.tymchuk/posts/624786844316641, 21 January 2015 (Annex 187) and
Facebook page of Dmitry Tymchuk, former member of the Ukrainian Parliament, Ukrainian military expert and blogger,
post at: https://www.facebook.com/dmitry.tymchuk/posts/625257450936247, 22 January 2015 (Annex 189).
505 UNIAN, “ATO Headquarters: the militants are not attacking Mariupol, but they are intensively shelling its outskirts”,
23 January 2015, https://www.unian.net/war/1035588-shtab-ato-boeviki-ne-nastupayut-na-mariupol-no-intensivnoobstrelivayut-
ego-okrestnosti.html (Annex 103).
506 Samolenkov Report (Annex 2), para. 115.
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410. Finally, Ukraine has also not drawn the attention of the Court or its expert to a judgment of its
criminal court finding that the defendant (Mr Kirsanov, a person who Ukraine claims features
prominently in the telephone intercepts) provided details concerning the location of military
equipment of the Armed Forces of Ukraine in and around Mariupol between 17 and 24 January 2015,
including at Talakivka, Primorske and Vynohradne (south-east of the Vostochniy microdistrict of
Mariupol).507 The judgment also refers to telephone intercepts on 17 January and on 24 January 2015
at 1.31 pm concerning the results of shelling near the checkpoint of the Ukrainian Armed Forces in
Vynohradne.508 This is consistent with the evidence that the DPR intended to advance upon Mariupol.
Further, the map published by the then Head of the Criminal Police of the National Guard of Ukraine
appears to indicate that these positions were shelled at 09.15 and 09.20 am on 24 January 2015.509
411. It follows that the shelling at Mariupol in fact took place in the context of a significant escalation
of hostilities near the contact line, including near Mariupol. It is this, rather than Ukraine’s speculation
that the attack could be part of a campaign to obtain political concessions,510 that provides the
essential background. As General Samolenkov concludes: “In view of the overall military situation
… I believe that the shelling that impacted Mariupol on 24 January 2015 is most likely to be seen in
the context of an overall assault against the UAF positions in the area and the planned advance at the
city. [That] is also supported by the events of 24 January”.511
2. Relevant Military Objects Which the DPR May Have Been Targeting
412. Ukraine’s evidence identifies five specific Ukrainian positions in and around Mariupol,512 and
four of them are considered as objectives by General Brown.513 Two of the positions mentioned by
Ukraine are of particular relevance:
a. A checkpoint at the junction of the two main routes entering Mariupol from the east,
which was manned by up to 100 National Guard officers armed with automatic small
arms and armoured personnel carriers (Checkpoint No. 4014).514 General Brown refers
to this object as the “northern checkpoint”. The OSCE reports refer to this object as the
“Vostochny checkpoint” and repeatedly state that it was located around 300 m from
certain shelling impacts.515 This object is shown as position No. 20 in the Bobkov
507 Ukraine, Primorsky District Court of Mariupol, Case No. 265/4773/15-k, Judgment, 18 June 2019,
https://reyestr.court.gov.ua/Review/82431956 (Annex 77).
508 Ibid.
509 Vyacheslav Abroskin Facebook post on 15 August 2019 (Annex 215).
510 MU, para. 244.
511 Samolenkov Report (Annex 2), para. 123.
512 Letter No. 27/6/2-3553 of the Ministry of Interior of Ukraine (Annex 183 to MU).
513 See Brown Report (Annex 11 to MU), para. 48.
514 Letter No. 27/6/2-3553 of the Ministry of Interior of Ukraine (Annex 183 to MU).
515 OSCE SMM, “Spot report by the OSCE Special Monitoring Mission to Ukraine (SMM), 24 January 2015: Shelling
Incident on Olimpiiska Street in Mariupol, 24 January 2015” (Annex 328 to MU); OSCE SMM, “Latest from OSCE
119
Report.516 Ukraine has not drawn to the Court’s attention the fact that the OSCE observed
that soon after shells hit the Vostochniy district, this checkpoint was shelled at around
13.00 or 13.20 (on 24 January 2015).517 This point is also not mentioned by General
Brown, who states that Checkpoint No. 4014 “suffered no damage from the shelling”.518
b. A strongpoint of the National Guard (Company Position 4013), which Ukraine states was
staffed by up to 100 servicemen who it is assumed were also armed.519 This military
object, which is not considered by General Brown, is shown as position No. 17 in the
Bobkov Report.520 It is located on the road around 1.7 km from the nearest residential
buildings to the south-west. As explained in the Bobkov Report, there is evidence that
this object was shelled in September 2014 and video footage of this episode was
uploaded under a title which referred to the “vostochniy checkpoint”.521
413. Neither Ukraine nor its expert appear to dispute 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. Instead, as in the context of the Volnovakha episode, their focus is on the
question of whether attacking these objects served an apparent military advantage (i.e., the issue of
proportionality).522
414. As to Checkpoint No. 4014, General Brown states that this “was effectively in the front line and
the National Guard posted there would have warned the Ukrainian Armed Forces of, and resisted to
the best of their ability, any attack by DPR forces”.523 Further, the Bobkov Report identifies that at
Special Monitoring Mission (SMM) to Ukraine based on information received as of 18:00 (Kyiv time), 25 January 2015”,
26 January 2015, available at https://www.osce.org/ukraine-smm/136421 (Annex 32 to PORF). Earlier in the conflict the
OSCE raised concerns that the “Vostochniy checkpoint” (apparently the object) was located near residential buildings
and had observed that Ukrainian Armed Forces had located military vehicles at the Vostochniy checkpoint and had used
the area 500m to the north as a firing position, leading to return fire from the DPR/LPR at the Vostochniy checkpoint
and another checkpoint located to the north: see OSCE SMM, “Spot report by the OSCE Special Monitoring Mission to
Ukraine (SMM), 5 September 2014: The Situation in Mariupol”, 6 September 2014, https://www.osce.org/ukrainesmm/
123254 (Annex 3). See also LB.ua, “Microdistrict ‘Vostochny’ in Mariupol is under shelling again”, 24 January
2015, https://lb.ua/society/2015/01/24/293182_mikrorayon_vostochniy_mariupole.html (Annex 105).
516 See Bobkov Report (Annex 1), Fig. 27, 28, 31 and Table 6.
517 OSCE SMM, Spot Report: Shelling Incident on Olimpiiska Street in Mariupol (Annex 328 to MU). See also Facebook
page Defence of Mariupol, post at:
https://www.facebook.com/mariupol.oborona/photos/a.492952414175030/567460703390867, 24 January 2015 (Annex
191). Cf. MU, para. 97, n. 172: “This checkpoint was not damaged in the shelling attack”.
518 Brown Report (Annex 11 to MU), para. 48(d), n. 61.
519 Letter No. 27/6/2-3553 of the Ministry of Interior of Ukraine (Annex 183 to MU), referring to this position as
Company Position 4013.
520 See Bobkov Report (Annex 1), Fig. 27, 28, 37, 45 and Table 6.
521 Ibid., paras. 80-92. See also Samolenkov Report (Annex 2), para. 159. The word “vostochniy” means “eastern” in
Russian.
522 MU, para. 238; Brown Report (Annex 11 to MU), paras. 50, 58.
523 Brown Report (Annex 11 to MU), para. 49.
120
least on 13 January 2015 an armoured vehicle was present in a dug-out position at Checkpoint No.
4014.524
415. As to Company Position 4013, General Brown does not specifically consider whether there
would be a military advantage in attacking this object. However, based on its location and function,
it follows that he would likewise regard this position as located on the front line and that it too would
have played an important defensive role against any ground assault. Further, the Bobkov Report
identifies that at least on 13 January 2015 a tank and two armoured vehicles were present in dug-out
positions at Company Position 4013.525 According to a press report, it appears that Company Position
4013 was shelled by BM-21 fire on 12 February 2015 without the residential area being impacted.526
416. General Samolenkov agrees that these positions, as well as some of the other objects identified
in the Bobkov Report (see below), likely comprised a system of fortified defensive positions of the
city.527
417. General Brown reasons that there would have been military advantage in attacking this object
only “if followed up immediately by a ground assault”.528 Yet, Ukraine has not provided General
Brown with the evidence which indicates that this is what the DPR had planned (see above).529
418. Moreover, Ukraine’s account of relevant military objectives is materially incomplete. For
example, according to the judgment of the Ukrainian criminal court in the Kirsanov case, the
Headquarters of Ukraine’s “Anti-Terrorist Operation” sent encrypted telegrams about the locations
of the units and other military matters of the Ukrainian Armed Forces and other military formations
and the shellings to which they were subjected.530 Yet, Ukraine has put none of these reports before
the Court. Further, Ukraine has not put into evidence the contemporaneous documents, such as
logbooks, recording the movement and location of military vehicles and materiel at and around
Company Position 4013 and Checkpoint No. 4014 on 24 January 2015.
419. Having analysed the publicly available satellite imagery for 13 January 2015,531 the Bobkov
Report shows that in the wider area of Mariupol, it appears that there was a line of Ukrainian defensive
524 Bobkov Report (Annex 1), Fig. 26 and Table 7 referring to position No. 20.
525 Ibid., Fig. 26 and Tables 7 referring to position no. 17. See also Fig. 27 and Table 8 identifying one tank and one
armoured vehicle in imagery of 13 February 2015.
526 0629.ua, “Grad shells exploded In Mariupol near the checkpoint on Vostochny. There are battles for Sakhanka
(UPDATE + PHOTO + VIDEO)”, 12 February 2015, https://www.0629.com.ua/news/737920/v-mariupole-navostocnom-
vozle-blokposta-vzorvalis-snarady-grada-idut-boi-za-sahanku-dopolnaetsafotovideo (Annex 113). See also
Bobkov Report (Annex 1), para. 84, Figure 45.
527 Samolenkov Report (Annex 2), para. 169.
528 Brown Report (Annex 11 to MU), para. 49.
529 The intercept evidence also suggests that ground assaults were carried out in the area: see Samolenkov Report (Annex
2), paras. 115, 119, 121-122, 127.
530 Kirsanov Judgment (Annex 77).
531 As Expert Bobkov explains, satellite imagery of Mariupol was available for 13 January and 23 February 2015 only:
see Bobkov Report (Annex 1), paras. 55-56 and see Addendum Annex 2.
121
positions running parallel to the Vostochniy district from Hnutove in the north to Vynohradne in the
south.532 This is part of the context in which the DPR offensive on 24 January 2015 is to be seen.
General Samolenkov explains that:
“I understand from the Bobkov Report that the city appears to have been protected by a
system of military positions. There are three roads that could have been used to attack
from the east: highways M-14 and T0519, and a section of road С051236 from the
direction of Vynohradne. Each of these roads appears to have been protected by defensive
positions, such as company (platoon) strong points and checkpoints.533 In between the
positions, the area was also apparently reinforced. Had the above positions been cleared
of the UAF forces, this could have enabled the DPR to approach Mariupol from these
directions without impediment.”534
420. The Bobkov Report also shows that Checkpoint No. 4014 was not an isolated checkpoint
located “at the junction of the two main routes running into Mariupol”,535 as is suggested by Ukraine
and assumed by General Brown.536 Notably, unlike for the other positions which are referred to in
Ukraine’s Annex 183, no coordinates are specified for the location of “Checkpoint No. 4014”. In fact,
the checkpoint on the road, at which Ukraine says around 100 armed servicemen were based, appears
to have formed part of a larger military object in front of the Vostochniy neighbourhood which also
comprised protective trenches (Nos. 19 and 21), trenches for personnel and dug-out positions for
armoured vehicles (Nos. 22, 23, 25).537
421. That these positions should be understood as part of the same military object is supported by
the judgment of the Ukrainian criminal court in the Kirsanov case, which quotes a telegram of the
Headquarters of Ukraine’s “Anti-Terrorist Operation” as stating the location of “company strongpoint
No. 4014 of the Operational Regiment of the National Guard of Ukraine” by reference to coordinates
that correspond to position No. 25 identified by Expert Bobkov, rather than the checkpoint on the
road (position No. 20).538 The natural inference is that the 100 or so armed servicemen based at the
checkpoint were also deployed to man the connected military positions.
422. The true nature of the objects comprising Checkpoint 4014 / Company Strongpoint 4014 is
important. The existence of trenches for personnel and dug-out positions for armoured vehicles
532 Bobkov Report (Annex 1), paras. 58-66. See also Samolenkov Report (Annex 2), para. 102.
533 See detailed information about them below.
534 Samolenkov Report (Annex 2), para. 154.
535 See Bobkov Report (Annex 1), Fig. 35 and Table 6.
536 See Brown Report (Annex 11 to MU), para. 48(d), referring to the Letter No. 27/6/2-3553 of the Ministry of Interior
of Ukraine (Annex 183 to MU), which identifies the northern checkpoint as position No. 4014.
537 See also Samolenkov Report (Annex 2), paras. 154, 167-169. Expert Bobkov also identifies what appear to be antitank
ditches with a total length of more than 4,800 m located in front of the defensive positions comprising Checkpoint
No. 4014.
538 Kirsanov Judgment (Annex 77), p. 11: “Point No.6 (В=47 °07 '09,34", L=37 °42 '08,30"), 23.01.15, company
strongpoint No. 4014 of the 18th Operational Regiment of the National Guard of Ukraine, a BM-21 shelling was recorded
on 23.01.15, no casualties”. See Bobkov Report (Annex 1), paras. 67, 69.
122
disproves Ukraine’s attempt to suggest that there was nothing but a “National Guard” checkpoint
close to the Vostochniy residential area.539 Moreover, some of these positions are in close proximity
to the Vostochniy residential area, in places as close as around 250 m, 450 m and 600 m (positions
Nos. 22, 23 and 25 in the Bobkov Report, respectively). Based on the location of these objects, 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.540
539 MU, para. 97.
540 See Samolenkov Report (Annex 2), paras. 168.
123
Figure 2. Location of the UAF positions and forces in the area of Mariupol and Vynohradne
on 13 January 2015 (Fig. 27 in the Bobkov Report)541
One armoured vehicle
Tank and two armoured vehicles
13.01.2015 WorldView-1 Spacecraft
Mariupol
Vynohradne
Three armoured vehicles
- UAF positions
124
423. General Samolenkov explains:
“If the shelling occurred from the north-eastern or eastern direction against positions 20-
25, and the shells overflew the target (as suggested in the Kirsanov intercept), it is possible
that the residential area behind was hit in that attack. The main well-documented impact
area around the Kievskiy market is about 1.2 km from position 25 which is broadly
consistent with the statement in the intercept evidence which Ukraine attributes to Mr
Kirsanov.
It appears that the line of reinforcements from position 20 to position 25 (as well as
position 24, and the other positions visible in front of the city in the satellite images542
was important for the city defence, especially if Lebedynske had already been captured
by the militia.543 Therefore, artillery shelling of these positions would have been a
reasonable step in preparation of the planned ground offensive.”544
424. Moreover, Ukraine has also omitted to mention that, according to the same telegram of its “Anti-
Terrorist Operation” referred to in the judgment of the criminal court, “company strong point No.
4014 of the Operational Regiment of the National Guard of Ukraine” (corresponding to position No.
25) came under BM-21 shelling on 23 January 2015.545 This is significant because it shows that one
day before the shelling at the Vostochniy district, it was the military object that was targeted and
actually attacked, not the residential area.
425. Against the above background, General Samolenkov concludes that, although it is not possible
to say whether or what Ukrainian forces and military materiel were present at these positions on 24
January 2015,546 given the impact sites in the residential area, the closest potential military targets
could have been positions Nos. 20-25 identified in the Bobkov Report.547
426. Consistent with the evidence relating to the shelling of military objects near Vynohradne (see
above), the Bobkov Report identifies that there were two strong points in this area (Nos. 29 and 30)
which featured fighting holes and trenches as well as dug-out positions for armoured vehicles.548 The
Bobkov Report also identifies that at least on 13 January 2015 three armoured vehicles were present
at one of these positions (No. 29).549 Again, this is relevant context in indicating that the targets of
the shelling on 24 January 2015 were military objects, not the residential area located behind them.
542 Bobkov Report (Annex 1), para. 64, Figure 26.
543 See para. 106 above.
544 Samolenkov Report (Annex 2), paras. 168-169.
545 Kirsanov Judgment (Annex 77), p. 11: “Point No.6 (В=47 °07 '09,34", L=37 °42 '08,30"), 23.01.15, company
strongpoint No. 4014 of the 18th Operational Regiment of the National Guard of Ukraine, a BM-21 shelling was recorded
on 23.01.15, no casualties”.
546 Samolenkov Report (Annex 2), para. 167.
547 Ibid., para. 155.
548 Bobkov Report (Annex 1), Table 6.
549 Ibid., Fig. 26.
125
3. Ukraine’s Intercept Evidence
427. It is also clear that Ukraine has been selective in its choice of intercepts to put before the Court.
It has not even included the full set of intercepts referred to in the judgment of its criminal court in
the case against a person who Ukraine claims provided the DPR with information about the location
of Ukrainian military equipment in and around Mariupol and the results of shelling on 23-24 January
2015.550 All of the calls referred to in the judgment of the criminal court, including those concerning
Mariupol, are stated to concern the targeting of military objects and reports on the shelling of those
military objects. Contrary to Ukraine’s current position, Ukraine’s own criminal court did not
approach the 24 January 2015 shelling as a situation involving the intentional targeting of the
residential area of Mariupol. The criminal court characterised the intentions of the defendants as being
to assist the DPR “in the implementation of their malicious intentions to commit crimes against the
military units of the Armed Forces of Ukraine and other military formations of Ukraine involved in
the anti-terrorist operation, and to create conditions that promote this criminal activity”.551
428. While Russia is limited to commenting on the intercepts which Ukraine has produced, these do
not support Ukraine’s position. Rather, these intercepts are consistent only with the absence of the
requisite specific intent and purpose. The alleged DPR/LPR fighters responsible for the attack: (a)
discuss targeting a checkpoint which is around 1.5 km from the residential area, which is referred to
as the “Vostochniy” checkpoint; (b) refer to the purpose of the attack as being to facilitate a ground
assault; and (c) express shock and horror at the civilian casualties that resulted from the shells overshooting
the targeted checkpoint.552
429. Ukraine553 and General Brown554 rely heavily on an intercept of a call on the evening of 23
January 2015 (the day before the shelling) as evidence that the target of the shelling was the
Vostochniy residential area:
“Ponomarenko S.L. - F****** crush it, I f****** asked you, that one, f******
Vostochniy.
Evdotiy O.M. (“Pepel”) - Well…
Ponomarenko S.L. - There is a f****** long distance to the houses, little brother!
Evdotiy O.M. (“Pepel”) - I will, I’ll do Vostochniy tonight as well, don’t worry.
Ponomarenko S.L. – So that I can f****** come in there and f****** clean it up. […]
550 Kirsanov Judgment (Annex 77), see especially at pp. 6-7. The defendant referred to as “Person 1” is understood to be
Mr Kirsanov.
551 Kirsanov Judgment (Annex 77), p. 2.
552 Cf. MU, para. 237 contending that the intercept evidence supports an inference of the requisite actual intention to harm
civilians.
553 MU, para. 93.
554 Brown Report (Annex 11 to MU), para. 39(c) and fn. 60.
126
Ponomarenko S.L. – […] Come on, I’m waiting for it tonight.
Evdotiy O.M. (“Pepel”) – Okay, okay.”555
430. This transcript is, however, inconsistent with Ukraine’s position in three respects.
c. Based on the fact that the protagonists say that “Vostochniy” is “a f****** long distance
to the houses”, it appears that “Vostochniy” is not being used to refer to the residential
area as a target.
d. There is apparent agreement that this target will be shelled “tonight” (i.e., on 23 January
2015).
e. It is also implied that the purpose of the attack is to facilitate a planned ground assault
(“so I can … come in there and … clean it up”).
431. Moreover, Ukraine has not put into evidence (and does not appear to have provided to its own
expert) another intercept between the same two individuals before the shelling on 24 January 2015,
which Ukraine (directly or indirectly) has published online:556
“Ponomarenko S.L. – F***, pound the “Vostochniy” well, do it right one f****** time.
Evdotiy O.M. (“Pepel”) – F***, bro, there are nine-storey buildings there.
Ponomarenko S.L. – Hey, bro, they [the buildings] are really f****** far. Really f******
far [from the checkpoint]. Pound the checkpoint itself, on the highway... The nine-storey
buildings are some f****** 1.5 kilometres away, I believe…”
432. Consistent with the intercept on the previous evening, this conversation refers to the target as
“Vostochniy” but also more specifically “the highway … the checkpoint itself”, and, in response to
a concern about the possible presence of civilian buildings, it is stated that these are some distance
away (“The nine-storey buildings are some f****** 1.5 kilometres away”). It follows that, as in the
earlier intercept, “Vostochniy” does not refer to the residential area, and the apparent intention is to avoid
shelling of the residential area.
433. The reference to a checkpoint at a distance of around 1.5 km from the residential area is
consistent with the location of Company Position 4013, which Ukraine states was staffed by up to
100 of its servicemen.557 This object, which is shown as position No. 17 in the Bobkov Report (see
paragraph 412(b) above), is located on the highway around 1.7 km from the nearest residential
555 Translation of the transcripts of the Intercepted Conversation between Evdotiy (“Pepel”) and Ponomarenko (18:00:22,
23 January 2015) contained in Annex 418 to the Memorial of Ukraine (Annex 252) (emphasis added).
556 YouTube channel of the Security Service of Ukraine, “SBU intercepted conversation of terrorists which is proof of
their involvement in attacks of Mariupol”, available at: https://www.youtube.com/watch?v=H1a_KkguBlg, 24 January
2015 (Annex 228) (emphasis added). Cf. MU, para. 237.
557 Letter No. 27/6/2-3553 of the Ministry of Interior of Ukraine (Annex 183 to MU), referring to this position as Platoon
Position 4014A.
127
buildings to the south-west. It is plainly not what the OSCE in its reports on the shelling referred to
as the “Vostochniy checkpoint” located around 300 m from certain impact sites,558 which General
Brown refers to as the “northern checkpoint”. The OSCE also reported, however, that this checkpoint
was shelled at around 13.00 or 13.20.559
434. At 10.36, the DPR member who Ukraine claims had been ordered to target the Vostochniy
residential area was, according to Ukraine’s intercepts, informed that the shelling had overshot:
Valeriy Kirsanov - Alexander, well... Too far, too far, too far - overdid it.
Evdotiy O.M. (“Pepel”) - Tell me, what’s going on there?
Valeriy Kirsanov - What’s going on? Long story short, everything flew over, and it went
on houses... on houses, on nine-story buildings, on private residences, the Kievskiy
market, in short. […]
Evdotiy O.M. (“Pepel”) – I don’t f****** understand”.560
435. A further intercept of a call immediately after, at 10.38, records the DPR member who Ukraine
claims gave the order to target the Vostochniy residential area being informed of the result of the
shelling by the alleged lookout:
“Valeriy Kirsanov: Look what Aleksander has done.
Ponomarenko S.L.: Yes.
Valeriy Kirsanov: It’s a totally f****** disaster here.
Ponomarenko S.L.: What?
Valeriy Kirsanov: The damn market, nine storey high-rise buildings, private houses. All
the s*** was f***** up.
Ponomarenko S.L.: Are you serious?
Valeriy Kirsanov: It f****** overflew. Overflew by approximately a kilometre.
Ponomarenko S.L.: To Vostochniy?
Valeriy Kirsanov: Yes, yes. The Kievskiy market, school No. 5, nine-storey high-rise
buildings, right into the courtyards, f***, the boiler house. They even f****** landed on
what-you-may-call-it, on Olimpiyskaya. F****** f***. Basically, they overflew the
entire Vostochniy.
558 OSCE SMM, Spot Report: Shelling Incident on Olimpiiska Street in Mariupol (Annex 328 to MU).
559 Ibid. See also Defence of Mariupol Facebook post on 24 January 2015 (Annex 191).
560 Intercepted conversation between Evdotiy (“Pepel”) and Kirsanov (10:36:40), 24 January 2015 (Annex 413 to MU)
(emphasis added).
128
Ponomarenko S.L.: Oh, f****** s***.
[…]
Ponomarenko S.L.: Oh, the ukrops will do good PR now.
[…]
Valeriy Kirsanov: I f****** called him. He is totally f****** shocked. […]
Ponomarenko S.L.: No injured people, right?
Valeriy Kirsanov: There are, why not? Dead bodies are laying f****** everywhere.
[…]
Ponomarenko S.L.: This is f****** awful f*** […]”.561
436. Consistent with the earlier intercept which specifically identifies a checkpoint on the highway
as the target, the DPR member who is alleged to have ordered the attack asked specifically about
damage to “the checkpoint”:
“Ponomarenko S.L.: How about the checkpoint?
Valeriy Kirsanov: Untouched motherf*****!
Ponomarenko S.L.: It sucks!”562
437. Ukraine ignores the above intercepts which are plain in their meaning, preferring instead to
focus in isolation on a vague reference in a single line of a later intercept of a call between the same
two individuals which Ukraine characterises as “celebrat[ing] the terror”.563 This is key to Ukraine’s
contention that the requisite intention and terrorist purpose should be inferred.564 The transcript of the
intercept that Ukraine relies on reads (in full):
“Ponomarenko S.L. - So the Ukrop column is heading toward Hnutove [10km northeast
of Mariupol565].
Valeriy Kirsanov - Yes, to meet them.
[…]
Ponomarenko S.L. - Well, they’re shooting. You can hear it.
[…]
561 Translation of the transcripts of the Intercepted Conversation between Kirsanov and Ponomarenko (10:38:14, 24
January 2015) contained in Annex 414 to the Memorial of Ukraine (Annex 255) (emphasis added).
562 Ibid.
563 MU, para. 99. See also Brown Report (Annex 11 to MU), para. 48(c), which refers to the statement regarding
overshoot but not to the reference to the checkpoint or to the apparent shock and surprise of the DPR members.
564 MU, paras. 99, 241.
565 See OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received
as of 18:00 (Kyiv time), 17 September 2014”, 18 September 2014, https://www.osce.org/ukraine-smm/123746 (Annex
4).
129
Valeriy Kirsanov - Yeah. Talakivka [8-9 km north east of Mariupol566] unleashed a
bombardment first thing in the morning.
Ponomarenko S.L. - I know.
Valeriy Kirsanov - And then Vostochniy.
Ponomarenko S.L.: - Let the f****** b****** be more afraid.567
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!”568
438. Contrary to Ukraine’s contention, this intercept does not come close to supporting the existence
of the requisite intent to harm civilians or terrorist purpose:
a. The intercept is to be read in the context of the earlier intercepts. As in the case of the
earlier intercepts, Ukraine asserts that the word “Vostochniy” refers to the residential
area.569 However, the DPR members used this word in those other intercepts to refer to
a checkpoint located some distance from the residential area (see above).
b. The context of the comment that Ukraine portrays as celebrating 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.570
439. There are two further intercepts on 24 January 2015 which mention the shelling at Mariupol,
both of which Ukraine has ignored.
566 See OSCE SMM, Daily Report as of 17 September 2014 (Annex 4).
567 The accurate translation of this statement is: “Let them d*** be more afraid, f***”. The word that literally translates
as “b****” is used but not with reference to addressees but as a gap-filler. See Translation of the transcripts of the
Intercepted Conversation between Kirsanov and Ponomarenko (11:04:12, 24 January 2015) contained in Annex 415 to
the Memorial of Ukraine (Annex 254).
568 Translation of the transcripts of the Intercepted Conversation between Kirsanov and Ponomarenko (11:04:12, 24
January 2015) contained in Annex 415 to the Memorial of Ukraine (Annex 254).
569 MU, para. 99.
570 The fact that civilians were able to leave Mariupol by choice also does not support the existence of the requisite
terrorist purpose: Cf. MU, para. 243.
130
a. A call at 11.21 records the commander of a unit being instructed to check “every vehicle”
and to “check everything” because the “morons” that are their “friends” have “shelled
the city”.571
b. At 13.23, a DPR commander is instructed to target a firing position at “[Kichiksu] station
behind Kalchik” from where “Grads are f****** shelling Mariupol”.572
440. None of the other intercepts produced by Ukraine refer to “Vostochniy” or to a checkpoint in
this area. As General Samolenkov observes, it appears that at least 11 targets are discussed (each by
number only) and the shelling operations commenced at around 08.00 and continued for several
hours.573
441. Ukraine has also not translated other intercepts of a call in which DPR members are recorded
as discussing not only the fact that shelling has overshot, but also the resultant need to cancel targets
and check the targeting of the weapon systems in use. In doing so, it is said that there is a need to
keep away from buildings and houses. All of this is completely inconsistent with the alleged terrorist
intent. Thus:
a. A call at 09.55, shortly after the shelling, directs the commander of a unit to “abandon
[two] targets” and to check the targets, stating “you overshot it a lot” and need to “fire
closer”.574 In a call at 10.18, the same two individuals discuss the target coordinates and
the commander of the unit is instructed: “to keep away from buildings” and to be
removed “further away from large houses”.575
b. At 13.26, a commander of a unit receives an order to fire.576 Around 10 minutes later, he
is informed that “one of your vehicles is overshooting a lot” and asked whether vehicles
have been checked for accuracy.577 The commander is also instructed to “shift further to
the right, some one hundred and fifty metres”.
442. In light of the above, General Samolenkov concludes – and this Court can safely determine –
that Ukraine’s own intercept evidence indicates that the DPR forces tried to avoid civilian
casualties.578
571 Translation of the transcripts of the Intercepted Conversations of Maxim Vlasov (23–24 January 2015) contained in
Annex 408 to the Memorial of Ukraine (Annex 253), conversation no. 160, at 11:21:44 on 24 January 2015.
572 Ibid., conversation no. 185 at 13:23:44 on 24 January 2015. The transcript refers to “Pichiksu Station” and this is
understood to be a reference to Kichiksu Station.
573 Samolenkov Report (Annex 2), para. 129, 132.
574 Translation of the Conversations of M. Vlasov (Annex 253), conversation no. 138, at 09:55:58 on 24 January 2015.
See also conversation no. 140 at 10:01:30 on 24 January 2015, referring to overshoot.
575 Ibid., conversation no. 144 at 10:18:48 on 24 January 2015.
576 Ibid., conversation no. 186 at 13:26:23 on 24 January 2015.
577 Ibid., conversation no. 188 at 13:35:56 on 24 January 2015.
578 See Samolenkov Report (Annex 2), paras. 173-184.
131
443. General Samolenkov also explains that, contrary to General Brown’s view,579 it appears likely
that the shelling was intended to target the military positions in front of the city.580 The closest
positions that General Bobkov was able to identify pertain to Checkpoint No. 4014 (including the
connected objects such as No. 25 which is located around 1-2 km from some major impact sites).581
At the same time, the intercept evidence shows that Company Position 4013, which is further away
from the residential area impacted, was targeted. Consistent with the references in the intercepts to
the need to check every vehicle, the overshoot could have happened due to incorrect calibration of
the BM-21 MLRS, insufficient time for complete fire preparation, a mistake on the part of the operator
or an equipment malfunction.582
444. The intercept evidence also indicates that observers were used by the DPR to adjust fire closer
to the targets,583 and that the DPR tried to use ranging points.584
4. Ukraine’s Interrogation Evidence
445. Ukraine has not drawn the Court’s attention (or, it appears, its own expert’s attention585) to the
following facts concerning the interrogation evidence obtained by its own authorities:
a. The Ukrainian authorities’ interrogation of the individual alleged to have acted as a
“spotter” for the DPR/LPR proceeded on the basis that the target of the attack was
“Ukrainian roadblocks”.586
b. That suspect stated that he was asked to provide DPR with “the locations of the
Ukrainian Armed Forces”, and confirmation that he did so but “always intentionally gave
[…] wrong coordinates”.587
c. That suspect also stated that on 21 and 22 January 2015588 he “provided coordinates for
the sites in Taganrogskaya Street and Marshala Zhukova Street”, which is a reference to
the location of Checkpoint No. 4014, and that “those coordinates were wrong”.589 The
579 Brown Report (Annex 11 to MU), para. 48(c).
580 Samolenkov Report, para. 188 (Annex 2).
581 See Bobkov Report (Annex 1), Fig. 31 and Table 6. Samolenkov Report (Annex 2), paras. 154, 167-169, 171(с).
582 Samolenkov Report (Annex 2), paras. 171.
583 Translation of the Conversations of M. Vlasov (Annex 253), conversation no. 153 at 11:05:54 on 24 January 2015.
584 Ibid., conversation no. 31 at 17:59:51 on 23 January 2015: “Max ‘Yugra’: Well, I always create ranging points, I
don’t fire for no reason. All the time with (inaudible word)”.
585 Brown Report (Annex 11 to MU), para. 48(d), stating that it is more plausible that the residential district was targeted
because the shelling cannot be explained by “gross incompetence alone”.
586 Signed Declaration of Valerii Kirsanov, Witness Interrogation Protocol, 25 January 2015 (Annex 213 to MU).
587 Ibid. (emphasis added).
588 Note that the document refers to “2014”, and this is assumed to be a mistake.
589 Signed Declaration of Valerii Kirsanov, Witness Interrogation Protocol, 25 January 2015 (Annex 213 to MU).
132
document does not record why incorrect coordinates were provided or the coordinates
which were actually provided.
446. The evidence that the incorrect coordinates were provided for the shelling at around 09.15 is
consistent with the fact that Checkpoint No. 4014 was actually hit by shelling at around 13.00.
5. The Timing of the Shelling
447. In its Memorial, Ukraine emphasises that the Vostochniy neighbourhood was shelled at around
09.15, 11.00, 13.02 and 13.21. The alleged shelling at 11.00 is of particular significance to Ukraine
because it contends that the timing demonstrates the perpetrator’s intention to target first responders
to the 09.15 shelling.590 However, Ukraine has failed to establish that the Vostochniy neighbourhood
was shelled at around 11.00.
448. The OSCE reports state that the area was shelled at around 09.15 and that the OSCE, who were
at that stage on the scene, heard shelling at around 13.02 and 13.21, at which time Checkpoint No.
4014 close to the Vostochniy residential area was shelled.591 The report also confirms that the OSCE
were present at 10.20, counting impact craters and conducting crater analysis, a process which is
likely to have taken more than forty minutes.592 Yet, the OSCE reports contain no mention of any
shelling of the area at 11.00. It is inconceivable that the OSCE specialists would not have observed
or heard such shelling if it had occurred. It is likewise inconceivable that the OSCE would not have
included any such shelling in its report. It is far more likely that untrained civilians mistakenly thought
that the later shelling of Checkpoint No. 4014 which they heard was shelling at the residential area.
449. In this respect, Ukraine’s claim (and the conclusion of its investigators) that the neighbourhood
was shelled at around 11.00 rests on the evidence of a single witness and a video taken by a car
dashboard camera.593
a. The witness statement is of no material assistance. The witness does not claim to have
observed shelling after 09.00, but rather to have heard a second episode of shelling at an
unspecified time after 09.00.594 The actual impact of this shelling is also unclear and it
590 See MU, para. 242.
591 OSCE, Spot Report: Shelling Incident on Olimpiiska Street in Mariupol (Annex 328 to MU).
592 Cf. MU, para. 95 which does not mention when the “OSCE monitors arrived in the Vostochniy neighbourhood to
investigate”. Additionally, the map published by the former Head of the Criminal Police of the National Guard of Ukraine
refers to shelling of the micro-district at 09.25 only: see Vyacheslav Abroskin Facebook post on 15 August 2019 (Annex
215).
593 See Witness Statement of Igor Evhenovych Yanovskyi (31 May 2018) (Annex 5 to MU), para. 13, referring to signed
testimony of Oleksiy Oleksandrovych Demchenko, Record of victim questioning (30 January 2015) (Annex 216 to MU)
and Video of the shelling of Mariupol (24 January 2015) (Annex 697 to MU).
594 Translation of the Signed Declaration of Oleksiy Oleksandrovich Demchenko, Victim Interrogation Protocol (30
January 2015) contained in Annex 216 to the Memorial of Ukraine (Annex 256). Note that the translation of Annex 216
provided by Ukraine is of the incorrect document.
133
is possible that the shelling was not of the residential area but of the military objects
nearby, such as Company Position 4013 or Platoon Position 4014A.
b. As to the dashboard camera video, the time recorded may well have been incorrect.
Indeed, the dashboard camera video of the shelling at the Buhas checkpoint, which
occurred at around 14.30, that Ukraine has put into evidence incorrectly states the time
as 20.09.595
6. Use of BM-21 Grad MLRS
450. Ukraine contends that the requisite intention and terrorist purpose should be inferred from the
use of BM-21 Grad weapon systems to attack Checkpoint No. 4014.596
451. With respect to an intention to harm civilians, Ukraine’s position is limited to indirect intent,
which is insufficient under Article 2(1)(b) ICSFT.597
452. In any event, Ukraine does not contend that BM-21 would be incapable of damaging Company
Position 4013 without hitting the residential areas around 1.7 km away. Similarly with regard to
Checkpoint No. 4014, General Brown focuses on the question of whether more precise accurate
weapons (i.e., tanks, infantry or artillery guns) could feasibly have been used by the DPR.598
However, as General Samolenkov observes, this is to assume that such options were in fact reasonably
available to the DPR when this is far from clear.599 Additionally, the intercepts do suggest that
observed fire was used in some cases (see above).600 As explained above, there is also considerable
evidence that the Ukrainian Armed Forces themselves used BM-21 (as well as more powerful weapon
systems) against civilian areas in territory controlled by the DPR.601
D. KRAMATORSK
453. The shelling impacts at the residential areas of Kramatorsk on 10 February 2015 were also not
an act of terrorism within the meaning of Article 2(1)(b) of the ICSFT.
454. Once again, it is Ukraine alone that has characterised the shelling as a “terrorist” act (i.e. not
the OHCHR, the ICRC or the UN Security Council).
595 Dashboard Camera Footage of Shelling on 13 January 2015 (video) (Annex 696 to MU).
596 MU, paras. 239, 240-242. See also Brown Report (Annex 11 to MU) paras. 50-51.
597 See Chapter V.
598 Brown Report (Annex 11 to MU), paras. 53-54.
599 Samolenkov Report (Annex 2), para. 189.
600 See para. 444. above.
601 See Table 3 in Appendix A: Examples of Ukraine’s documented use of MLRS and other heavy weapons in populated
areas.
134
455. It is common ground 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. The airfield was not only
the site of the headquarters of the Anti-Terrorist Operation of the Ukrainian Armed Forces but also
the site of a BUK air defence missile system and a helicopter base, as well as other military units
(including radar stations, support units and a field camp).602 In total, at least 26 military units were
located on the territory of the airfield.603
456. It is also undisputed that these military objects were in fact attacked. Ukraine’s evidence states
that eight of its servicemen from six different military units were killed,604 33 servicemen were
injured, including high ranking military officers,605 and military equipment was damaged.606 Opensource
information also suggests that the helicopter base was damaged.607
457. At the time, 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
Anti-Terrorist Operation at the airfield.608 Ukraine now contends, however, that the shelling of the
airfield must have been separate to the shelling that landed on the residential areas, such that the
residential areas was directly attacked.609 General Brown states that: “Based on the dispersion of the
bomblets in the residential neighbourhood, it is highly unlikely that these bomblets were targeted at
the airfield”.610
458. However, as General Samolenkov explains, Ukraine has not put before the Court the necessary
evidence which would allow for him to assess whether the shelling at the airfield is properly to be
considered as separate to the shelling on the same day at the residential areas behind the airfield.611
602 Brown Report (Annex 11 to MU), para. 66; Signed Declaration of Denys Hoyko, Victim Interrogation Protocol, 20
August 2015 (Annex 239 to MU); Signed Declaration of Oleksandr Bondaruk, Victim Interrogation Protocol, 20 August
2015 (Annex 240 to MU).
603 Brown Report (Annex 11 to MU), para. 66. See also Bobkov Report (Annex 1), paras. 85-90 interpreting the available
satellite imagery showing the position as at 8 January 2015.
604 Headquarters of the Antiterrorist Operation Letter No. 1696 og, 12 February 2015 (Annex 102 to MU). According to
Human Rights Watch quantity of losses among military personnel were slightly higher: 12. See: Human Rights Watch,
Ukraine: More Civilians Killed in Cluster Munition Attacks, 19 March 2015 (Annex 449 to MU).
605 Headquarters of the Antiterrorist Operation Letter No. 778 og, 16 February 2015 (Annex 107 to MU).
606 Signed Declaration of Oleksandr Bondaruk, Victim Interrogation Protocol, 20 August 2015 (Annex 240 to MU).
607 YouTube channel Mazut Sdeshnyy, “MLRS SMERCH - Kramatorsk airfield”, available at:
https://youtu.be/0DKsJ9hbHas, 10 February 2019 (Annex 238); Militaryaviation.in.ua, “Damaged Mi-24P helicopters as
a result of the shelling of Kramatorsk on 10 February 2015”, 11 February 2019,
http://militaryaviation.in.ua/uk/2019/02/11/poshkodzheni-gelikopteri-mi-24p-vnaslidok-obstrilu-kramatorska-10-02-
2015-r/ (Annex 140). See further Bobkov Report (Annex 1), paras. 91-99.
608 Los Angeles Times, “Missiles strike eastern Ukrainian town, killing at least 15”, 10 February 2015,
https://www.latimes.com/world/europe/la-fg-ukraine-rocket-attack-20150210-story.html (Annex 110).
609 See e.g. MU, paras. 245-246.
610 Brown Report (Annex 11 to MU), para. 73.
611 Samolenkov Report (Annex 2), para. 208.
135
Indeed, Ukraine has focused exclusively on the latter and, remarkably, it has provided no details of
the former.
459. Ukraine’s Memorial does not mention such essential facts concerning the shelling at the airfield
as: (a) the number of shelling attacks, (b) the number and location of the tail pieces, other fragments
and sub-munition impact sites at or near the airfield, including between the airfield and the residential
area beyond,612 and (c) the weapon which was assessed to have been used, the number of rockets
which were assessed to have impacted the airfield.
460. It is inconceivable that the shelling at the airfield would not have been the subject of precisely
such detailed investigation by Ukraine.613 A press report of the incident states that a spokesperson for
Ukraine’s so-called Anti-Terrorist Operation referred to the existence of a military intelligence
report614 and Ukraine has put into evidence a witness interrogation protocol showing that it
interrogated witnesses of the shelling at the airfield.615
461. As to the timing, the shelling at the airfield appears to have occurred at the same time as the
shelling at the residential areas beyond. Ukraine states that the latter was: “Approximately five
minutes later” at around 12.30 pm.616 Likewise, both a report of the press centre of Ukraine’s Anti-
Terrorist Operation and Ukraine’s witness evidence state that the shelling at the airfield occurred at
around 12.30 pm.617 According to the OSCE reports, the residential areas were also impacted at
around 12.30 pm.618 This does not suggest that the residential areas were damaged in a separate
attack.619 Some thirty minutes before both the airfield and the residential areas beyond were impacted,
a UAV was reportedly shot down near the airfield, suggesting that this was the target under
reconnaissance.620
612 This detail is not apparent from Map 5 at page 58 of MU.
613 See also Samolenkov Report (Annex 2), para. 208.
614 Ukraine Crisis Media Center, “Andriy Lysenko: OSCE identifies the direction from which Kramatorsk was shelled”,
11 February 2015, https://uacrisis.org/en/17677-andrijj-lisenko-35 (Annex 112). See also Los Angeles Times, “Missiles
Strike eastern Ukrainian town” (Annex 110).
615 Signed Declaration of Oleksandr Chorniy, Witness Interrogation Protocol, 12 February 2015 (Annex 219 to MU).
616 MU, para. 102. See also Witness Statement of Kyrylo Ihorevych Dvorskyi (4 June 2018) (Annex 3 to MU): “Based
on the results of the investigative activities, my team determined that on 10 February 2015, at 12:30 p.m. and 12:35 p.m.,
members of the DPR carried out the artillery shellings of the residential neighborhood of the city of Kramatorsk and the
military airport located two kilometers from the city.”
617 Ukraine Crisis Media Center, “Pro-Russian militants attacked Kramatorsk airport”, 10 February 2015,
https://uacrisis.org/en/17542-zajava-pres-centru-ato (Annex 111); Signed Declaration of Oleksandr Chorniy, Witness
Interrogation Protocol (12 February 2015), p. 2 (Annex 219 to MU); Signed Declaration of Vitaly Hrynchuk, Witness
Interrogation Protocol (19 August 2015), p. 1 (Annex 237 to MU); Signed Declaration of Denys Goiko, Witness
Interrogation Protocol (20 August 2015), p. 1 (Annex 238 to MU); Signed Declaration of Denys Hoyko, Witness
Interrogation Protocol (20 August 2015), p. 1 (Annex 239 to MU).
618 OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as
of 18:00 (Kyiv time), 10 February 2015”, 11 February 2015, https://www.osce.org/ukraine-smm/140056 (Annex 9).
619 Cf. MU, para. 102.
620 See Brown Report (Annex 11 to MU), para. 62 referring to Signed Declaration of Oleksandr Chorniy, Witness
Interrogation Protocol (12 February 2015) (Annex 219); Signed Declaration of Denys Goiko, Witness Interrogation
136
462. Unlike for the shelling episodes near Volnovakha and at Mariupol, Ukraine has also not put
forward any evidence of telephone intercepts.
463. General Brown assesses a bearing from the firing position of between 325 and 330.621 On
Ukraine’s position that the shelling came from a general south-east direction, General Samolenkov
observes, the rockets that fell in the city must have flown further from the launch site, perhaps even
broadly in the same direction as the main shelling of the airfield.622
464. General Brown does not believe that any errors could explain how the rockets targeted at the
airport could hit the residential areas 5 km away.623 As General Samolenkov explains, however,
General Brown does not appear to have considered the possibility that the rockets may have
malfunctioned and overflown or deviated:
“[J]ust 2-4 rockets opened above the residential areas. One BM-30 can launch 12 rockets
without recharging. It seems unlikely that these rockets were fired separately at the city
and opened about 1.7 km from each other. It appears more likely that these rockets may
have malfunctioned and overflown the target (they may have also somewhat deviated by
direction). As General Brown correctly points out, BM-30 rockets can adjust the pitch
and yaw for the active part of the trajectory. Such complex electronics and internal
organisation of the rocket make it more vulnerable to malfunctioning. I understand that
the rockets were old [i.e., manufactured in 1991 according to Ukraine’s investigation]. I
do not know whether maintenance was performed […] to enable them to function
correctly. […] If such munition is stored without due protection and/or maintenance, it is
at the greater risk of various malfunctions. In any event, even proper storage conditions
for the MLRS rockets of this type do not exclude malfunctions, in particular,
malfunctioning or failure of the on-board range adjustment equipment, making it possible
that some rockets may have significantly overflown.”624
465. General Samolenkov also points out that even the records of the sub-munitions’ impact sites
provided by Ukraine are not consistent with the working assumption that 2-4 rockets impacted the
city.625 While the sub-munitions seem to have impacted a large area, far beyond the impact pattern of
one rocket, the total number of impact sites is not sufficient to account for even one rocket. Ukraine
has suggested that the total number of impact sites in the airfield and the residential areas both from
sub-munitions and from other fragments was 58;626 however, just one BM-30 cluster rocket carries
Protocol (20 August 2015) (Annex 238). General Samolenkov explains that it is not possible to define the angle of bearing
with such precision: see Samolenkov Report (Annex 2), paras. 212-215.
622 Ibid., para. 212.
623 Brown Report (Annex 11 to MU), paras. 72-73.
624 Samolenkov Report (Annex 2), paras. 224-227.
625 Ibid., para. 211.
626 MU, para. 102.
137
72 bomblets. This inconsistency in the Ukrainian claims (based on the deficiency in its investigation)
further complicates any meaningful analysis at this stage.
E. AVDIIVKA
466. The shelling of Avdiivka between late January and February 2017 was also not an act of
terrorism within the meaning of Article 2(1)(b) of the ICSFT.
467. The area around Avdiivka was subject to intense shelling between late January and March 2017
as both sides to the conflict fought for advantage along this sector of the front line. A source Ukraine
relies on characterises the situation as involving a “full scale battle”627 for “control over a stretch of
major highway connecting rebel-held Donetsk City with Horlivka” and notes that more than twice as
many DPR fighters were reportedly killed than members of the Ukrainian Armed Forces.628
468. As General Samolenkov notes, on some days the OSCE reported that its observers had recorded
hundreds or even thousands of explosions.629 Yet, Ukraine’s contention that the militants directly
attacked residential areas rests on a comparatively far smaller number of impact sites, and it appears
to be accepted that the vast majority of the shelling attacks were directed against military targets.630
It is, once again, Ukraine alone that has characterised the shelling that is at issue as a “terrorist” act.
Notwithstanding Ukraine’s very public position, the OHCHR, the ICRC or the UNSC have not
adopted that characterisation.
469. In a report covering the period between November 2016 and February 2017, the OHCHR stated:
“OHCHR observed the continued use of civilian property by Ukrainian Armed Forces
with military positions in many residential areas along the contact line, endangering
civilians in these populated areas [including Avdiivka and Mariupol]. … OHCHR
627 International Partnership for Human Rights, Attacks on Civilian Infrastructure in Eastern Ukraine (2017), para. 31
(Annex 454 to MU).
628 Ibid., para. 39.
629 Samolenkov Report (Annex 2), para. 252. See e.g. OSCE SMM, “Latest from the OSCE Special Monitoring Mission
to Ukraine (SMM), based on information received as of 19:30, 30 January 2017”, 31 January 2017,
https://www.osce.org/ukraine-smm/296721 (Annex 17); OSCE SMM, “Latest from the OSCE Special Monitoring
Mission to Ukraine (SMM), based on information received as of 19:30, 31 January 2017” (Annex 343 to MU).
629 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 1 February 2017” (Annex 344 to MU); OSCE SMM, “Latest from the OSCE Special Monitoring Mission to
Ukraine (SMM), based on information received as of 19:30, 3 February 2017”, 4 February 2017,
https://www.osce.org/ukraine-smm/297646 (Annex 19); OSCE SMM, “Latest from the OSCE Special Monitoring
Mission to Ukraine (SMM), based on information received as of 19:30, 16 February 2017”, 17 February 2017,
https://www.osce.org/ukraine-smm/300761 (Annex 21); OSCE SMM, “Latest from the OSCE Special Monitoring
Mission to Ukraine (SMM), based on information received as of 19:30, 17 February 2017”, 18 February 2017,
https://www.osce.org/ukraine-smm/300816 (Annex 22); OSCE SMM, “Latest from the OSCE Special Monitoring
Mission to Ukraine (SMM), based on information received as of 19:30, 24 February 2017”, 25 February 2017,
https://www.osce.org/ukraine-smm/301841 (Annex 23); OSCE SMM, “Latest from the OSCE Special Monitoring
Mission to Ukraine (SMM), based on information received as of 19:30, 2 March 2017”, https://www.osce.org/ukrainesmm/
302791 (Annex 27).
630 Samolenkov Report (Annex 2), para. 253.
138
collected consistent testimony from residents that Ukrainian Armed Forces had fired from
positions inside villages and towns, often attracting return fire. Such conduct put civilians
in the line of fire, and runs contrary to the obligation of the Ukrainian Armed Forces to
take all feasible measures to spare civilians from harm.”631
470. Just as for the other specific shelling episodes upon which it relies, Ukraine does not appear to
have informed its expert of the essential military context to the shelling at Avdiivka, including the
fact that a key cause of the escalation of hostilities in January 2017 was Ukraine’s so-called “creeping
offensives” and the heavy presence of Ukrainian Armed Forces both positioned in and moving
through residential areas (see subsection (1) below).
471. In addition to omitting information about its “creeping offensives”, Ukraine has also not put
into evidence any of the documentation that General Samolenkov explains may reasonably be
assumed to exist which would help to establish the true position on the ground.632 For example,
Ukraine has not provided the Court with:
a. Confirmation from the agencies involved of the positions of the Ukrainian Armed Forces
in and around Avdiivka at the relevant time;
b. Reports and other communications (such as telegrams and letters) prepared by the
headquarters of its so-called Anti-Terrorist Operation and units on the ground in the
relevant areas on the location of military materiel and shelling;
c. Logbooks, orders and instructions showing the deployment and movement of military
materiel, including tanks, mortar units and artillery, in and around Avdiivka for the
relevant period, including in or through residential areas;
472. This is especially significant in light of the fact that open-source information demonstrates that
the unverified account of Ukraine’s military positions which it has provided in Annex 28 to its
Memorial is inaccurate. Ukraine has omitted to mention that it positioned tanks in a residential area,
behind high rise apartment buildings (see subsection (2) below). Further, it appears that many of the
impact sites in residential areas are located on roads through residential areas which it appears may
have been used to transport military vehicles and materiel to the frontline positions of the Ukrainian
Armed Forces (see subsection (3) below).
473. Ukraine has also not put forward any evidence of telephone intercepts. Yet, as is to be expected,
Ukrainian criminal court judgments demonstrate that Ukraine was obtaining intercepts and that these
were later relied on as evidence against defendants who were found to have provided information to
the DPR about the location of Ukrainian military positions in Avdiivka.633 For example, a ruling dated
631 OHCHR, “Report on the human rights situation in Ukraine 16 November 2016 to 15 February 2017”,
https://www.ohchr.org/Documents/Countries/UA/UAReport17th_EN.pdf (Annex 25), paras. 19-20.
632 Samolenkov Report (Annex 2), paras. 254, 269.
633 Ukraine, Dobropilsky City Court, Case No. 227/431/16-k, Judgment, 14 December 2017,
https://reyestr.court.gov.ua/Review/71062044 (Annex 72); Ukraine, Dobropilsky City Court, Case No. 227/431/16-k,
139
8 April 2017 states that an investigation has found that the defendants used their telephones to inform
the DPR about the location of military equipment of the Ukrainian Armed Forces in Avdiivka on 1,
5 and 10 February 2017. 634 Ukraine appears to be content to prevent Russia and the Court from
considering material that might shed light on the intentions and purposes of the militants, as well as
their methods including whether adjusted or observed fire were used.635
474. In light of the above, Russia is currently unable to respond to the details of Ukraine’s allegations
with respect to each of the specific shelling episodes at Avdiivka. In many cases, it is simply not
possible to assess where potential military targets were located, and whether such were likely being
targeted (as opposed to residential areas, as Ukraine contends).
1. The Reason for the Escalation of Hostilities in Late January 2017
475. Ukraine asserts that the escalation of hostilities in late January 2017 was part of a campaign by
the militants to obtain political concessions.636 This appears wholly inaccurate.
476. In late January 2017, repeating a tactic which it had earlier used successfully in other parts of
the contact line,637 Ukraine mounted a series of “creeping offensives” to seize certain sections of the
“grey zone” near the contact line in Avdiivka.638 The aim of these military operations was gradually
to expand the territory under the control of Ukraine, including areas of strategic value, and to establish
new military positions to be used for defensive and aggressive actions.639
Judgment, 24 January 2017, https://reyestr.court.gov.ua/Review/64246978 (Annex 67); Ukraine, Selydovsky City Court,
Case No. 242/3538/18, Judgment, 17 October 2018, https://reyestr.court.gov.ua/Review/77166094 (Annex 74).
634 Ukraine, Shevchenkivsky District Court of Chernivtsi, Case No. 727/3421/17, Ruling, 8 April 2017
https://reyestr.court.gov.ua/Review/65851811 (Annex 70).
635 Cf. Brown Report (Annex 11 to MU), para. 84 stating: “There is no suggestion in the reporting that any of the fire on
Avdiivka was observed and/or adjusted onto intended targets to ensure its accuracy”.
636 MU, para. 260.
637 See e.g. BBC News Ukraine, “What happened at the Svitlodarsk Bulge?”, 24 December 2016,
https://www.bbc.com/ukrainian/features-russian-38426404 (Annex 119); Eurasia Daily Monitor, “Crawling Advance’: A
New Tactic of Ukrainian Troops in Donbas”, Vladimir Socor, Volume 14, Issue: 16, 9 February 2017,
https://jamestown.org/program/crawling-advance-new-tactic-ukrainian-troops-donbas/ (Annex 137); Radio Free
Europe/Radio Liberty, “Anxious Ukraine Risks Escalation In ‘Creeping Offensive’”, 30 January 2017,
https://www.rferl.org/a/ukraine-russia-creeping-offensive-escalation-fighting/28268104.html (Annex 120); Novaya
Gazeta, “Fighting draw”, 31 January 2017, https://novayagazeta.ru/articles/2017/01/31/71352-boevaya-nichya (Annex
122).
638 See Samolenkov Report (Annex 2), paras. 240, 255.
639 Eurasia Daily Monitor, “Crawling Advance’: A New Tactic of Ukrainian Troops in Donbas”, Vladimir Socor, Volume
14, Issue: 16, 9 February 2017, https://jamestown.org/program/crawling-advance-new-tactic-ukrainian-troops-donbas/
(Annex 137).
140
477. The “Industrial Area” adjacent to a motorway, which Ukraine had captured in March 2016,640
continued to be a major flashpoint for conflict in January 2017.641 On 29 January 2017, the Press
Centre of the so-called “Anti-Terrorist Operation” stated that the DPR had mounted an intense attack
in this area with mortars being followed by a ground assault.642 Another report of the same date refers
to the DPR using artillery and tanks.643 Describing the situation in Avdiivka on 31 January 2017, the
BBC service in Ukraine emphasised that “the main fighting is … for the ‘Industrial Area, which opens
out upon the road leading from Donetsk to Horlivka”.644 Consistent with this, on 5 February 2017,
the OSCE reported a large number of artillery impact sites near the “Industrial Area” and that ten of
the twelve DPR howitzers located to the east and southeast of Avdiikva were in a firing position
pointed at the Industrial Area.645
478. Also in late January and February 2017, Ukraine launched two specific “creeping offensives”
in Avdiivka, as a result of which its forces seized a strong point known as “Almaz-2” near the
Industrial Zone which was previously under the control of the militants and an area of Avdiivka forest
near the Donetsk Filtration Station (the “DFS”).
a. Almaz-2 strong point:646 According to statements published by the Ukraine military,
Ukrainian forces captured the Almaz-2 strong point in a military operation on 29 January
2017.647 General Samolenkov explains that this was a position of strategic importance
including with respect to control over the adjacent motorway between two large cities in
territory controlled by the militants (Donetsk and Horlivka).648 The statements published
by Ukraine also record that, as a reaction to Ukraine’s operation and in an effort to regain
the Almaz-2 strong point, the militants engaged in “intense shelling” of the positions of
640 Official website of the Ministry of Defence of Ukraine, “Operation ‘Industrial Area’”, 22 April 2016,
https://www.mil.gov.ua/news/2016/04/22/operacziya-promzona--/ (Annex 65).
641 Samolenkov Report (Annex 2), paras. 249.
642 Facebook page of the Press Centre for the ATO headquarters (archived page), post at:
https://web.archive.org/web/20170504221814/https://www.facebook.com/ato.news/posts/1440712675939534, 29
January 2017 (Annex 200).
643 Facebook page of Yuriy Butusov, post at: https://facebook.com/butusov.yuriy/posts/1532030086837282, 29 January
2017 (Annex 201).
644 BBC News Ukraine, “Avdiivka: why is there an ongoing fighting for frozen trenches?”, 31 January 2017,
https://www.bbc.com/ukrainian/features-russian-38810871 (Annex 123).
645 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 5 February 2017”, 6 February 2017 (Annex 347 to MU).
646 Samolenkov Report (Annex 2), paras. 245-246.
647 Facebook page of the General Staff of the Armed Forces of Ukraine, post at:
https://www.facebook.com/GeneralStaff.ua/posts/732453826923877, 3 February 2017 (Annex 209); Official website of
the Ministry of Defence of Ukraine, “‘Now the situation in the ATO is difficult, but controlled’ - Minister of Defence of
Ukraine”, 29 January 2017, https://www.mil.gov.ua/news/2017/01/29/narazi-situacziya-v-ato-skladna-ale-kontrolovanaministr-
oboroni-ukraini/ (Annex 68); Facebook page of the Ministry of Defence of Ukraine, post at:
https://www.facebook.com/watch/?v=120155595981733, 29 January 2020 (Annex 216).
648 Samolenkov Report (Annex 2), para. 246.
141
the Ukrainian Armed Forces649 and that there was “fierce fighting” between the two sides
from 29 January until 6 February 2017.650
b. Positions in Avdiivka forest near the DFS: 651 In January and February 2017, the
Ukrainian Armed Forces also conducted an offensive with the aim of taking artillery
control of a motorway near the DFS that was used by the militants to supply their
positions.652 On 22 January 2017, the Deputy Head of the OSCE SMM stated that the
Ukrainian Armed Forces had established new positions at or near the DFS and drew
attention to the obvious risk to this critical civilian object.653 On 14 February 2017, it
was reported that the offensive had succeeded.654
479. Ukraine’s “creeping offensives” were a key reason for the escalation of hostilities in late
January 2017.655 For example, on 30 January 2017, the First Deputy Head of the OSCE SMM was
reported as stating: “The direct result of forward moves is escalation in tension, which often turns to
violence”.656 On 14 February 2017, a soldier of the Ukrainian Armed Forces from a unit deployed
near the Industrial Area was quoted in a press report as saying: “The Ukrainians had provoked the
rebel side into an aggressive response by seizing a small stretch of road. We knew exactly what to
do, and it worked perfectly”.657 Ukrainian military commentators reportedly expressed similar
views.658
649 General Staff of the Armed Forces of Ukraine Facebook post of 3 February 2017 (Annex 209).
650 Facebook page of the Ministry of Defence of Ukraine, post at:
https://www.facebook.com/watch/?v=120155595981733, 29 January 2020 (Annex 216).
651 Samolenkov Report (Annex 2), paras. 247-248.
652 See e.g. Dsnews, “Spontaneous counter-attack. The UAF take control over Avdiivka road junction (MAP)”, 30
January 2017, https://www.dsnews.ua/politics/spontannaya-kontrataka--30012017123000 (Annex 121).
653 YouTube channel of the Ministry of Information of the DPR, “Alexander Hug confirmed the presence of new dugouts
of the UAF near the DFS (press-conference 22.01.2017)”, available at: https://youtu.be/8tRDtK7ueho?t=806, 22 January
2017 (Annex 233) (13:26 – 14:31): “We have seen there also while at the water filtration station in Donetsk that on the
side controlled by the Ukrainian Armed Forces there are new positions being built. That leads to more fighting. And not
in an open field where there is nothing to damage. The Krutaya Balka or the water filtration station is in the middle of
these positions. We can count 1 and 1 together and we’ll know what the result will be if that is not being stopped.”
654 TSN, “In complete secrecy, the Ukrainian military took up new positions near a strategic highway in Donbas”, 12
February 2017, https://tsn.ua/ru/ato/ukrainskie-voennye-v-polnoy-sekretnosti-zanyali-novye-pozicii-vozlestrategicheskoy-
trassy-na-donbasse-803353.html (Annex 235).
655 See e.g. Ukrainskaya Pravda, “It became known how the aggravation began in Avdiivka”, 3 February 2017,
https://www.pravda.com.ua/news/2017/02/3/7134334/ (Annex 134): “According to UP’s source, now the militants are
trying to regain the strategic position captured by the ATO forces (the militants called the position “Almaz-2”- Ed.), since
the Donetsk-Lugansk and Donetsk-Horlivka roads are fully controlled from it.” See also Samolenkov Report (Annex 2),
paras. 241, 242, 252.
656 Radio Free Europe, “Anxious Ukraine Risks Escalation In ‘Creeping Offensive’” (Annex 120).
657 The Guardian, “Violence flares in war-weary Ukraine as US dithers and Russia pounces”, 14 February 2017,
https://www.theguardian.com/world/2017/feb/14/Avdiivka-frontline-ukraine-war-russia-backed-separatists (Annex
138).
658 Glavcom, “Dmytro Tymchuk: Transfer of regular Russian troops is observed in several directions at once”, 17
February 2017, https://glavcom.ua/interviews/dmitro-timchuk-perekidannya-regulyarnih-rosiyskih-viysksposterigajetsya-
odrazu-na-kilkoh-napryamkah-398955.html (Annex 139): “The rebels have been pounding away the
142
2. The Positions of the Ukrainian Armed Forces in Avdiivka
480. As follows from the above, the Ukrainian Armed Forces established frontline military positions
at the Industrial Area, the Almaz-2 strong point and the positions in Avdiivka forest near the DFS.
These were not the only military positions of the Ukrainian Armed Forces at the relevant time.
Although Ukraine has not confirmed the location of all such positions, it is clear that the account
depicted in Annex 28 to Ukraine’s Memorial is incomplete and inaccurate.
481. In the map produced as Annex 28 to its Memorial, Ukraine has indicated that the military objects
at or around 15 Vorobyov Street consisted of UAF sleeping quarters and a checkpoint only. This is
inaccurate. Open-source materials also report that Ukraine established military positions in residential
areas of Avdiivka, including at Vorobyov Street on the southern edge of the city.
482. According to a 2019 OHCHR report, the Ukrainian Armed Forces had a long-established
military position at the residential buildings on Vorobyov Street, which is located on the southern
edge of the city facing the direction of Donetsk airport:
“Since February 2015, residents at 15 Vorobyov Street in Avdiivka, in Governmentcontrolled
Donetsk region, were forced to leave their apartments due to safety and
security concerns stemming from the presence of Ukrainian Armed Forces and other lawenforcement
personnel. Tenants of the apartments reported that since 2014, the Ukrainian
military and law-enforcement forces have taken over empty apartments and asked the
remaining tenants to vacate their apartments. Those who remained suffered from serious
shelling.”659
483. The area was not, however, just used as sleeping quarters for the Ukrainian Armed Forces. As
follows from a large number of reports and photographs, Ukraine also positioned tanks next to these
high-rise residential buildings. Russia made this point at the provisional measures stage, although at
that stage it did not know the location shown in the photographs, and Ukraine has still not engaged
with it.
484. The OSCE reported that:
a. Between 29 and 31 January 2017, the Ukrainian Armed Forces moved four tanks to
Avdiivka.660
same strategy lately – moving the Ukrainian troops as far as possible. Today, the Ukrainian troops can control a large part
of DPR with the help of artillery. Clearly, the rebels are not fine with that”. See also BBC News Ukraine, “Avdiivka: why
is there an ongoing fighting for frozen trenches?” (Annex 123), quoting a Ukrainian military expert and retired colonel
of the Ukrainian Armed Forces as stated that the escalation “is some kind of a response to our actions”.
659 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2019”,
https://www.ohchr.org/Documents/Countries/UA/ReportUkraine16May-15Aug2019_EN.pdf (Annex 31), p. 10.
660 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 29 January 2017”, 30 January 2017, https://www.osce.org/ukraine-smm/296416 (Annex 16); OSCE SMM,
Daily Report as of 30 January 2017 (Annex 17); OSCE SMM, “Latest from the OSCE Special Monitoring Mission to
Ukraine (SMM), based on information received as of 19:30, 31 January 2017”, 1 February 2017 (Annex 343 to MU).
143
b. On 1 February 2017, “In violation of the respective withdrawal lines, in governmentcontrolled
areas the SMM observed […] four tanks (T-64) parked behind a building in
Avdiivka.”661
c. On 3 February, “In violation of the respective withdrawal lines the SMM observed the
following in government-controlled areas […] four tanks (T-64) in Avdiivka.”662
485. The presence of Ukrainian tanks at this location is confirmed by contemporaneous photographs
published by journalists.663 On 3 February 2017, Bellingcat (a source upon which Ukraine relies)
published an article finding that:
a. The DPR had published images that it claimed were taken from UAVs on 29 January and
2 February 2017, which showed multiple armoured vehicles at the location.664 Another
image taken by a UAV on 2 February 2017 showed three tanks behind the residential
building and a trench that was also visible in photographs from 2015, which Bellingcat
interpreted as evidence that the location “has long been a military position”.665
b. On 2 February 2017, artillery fire hit the apartment buildings next to where the Ukrainian
Armed Forces had positioned tanks, as well as nearby buildings.
661 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 1 February 2017”, 2 February 2017 (Annex 344 to MU).
662 OSCE SMM, Daily Report as of 3 February 2017 (Annex 19).
663 See Bellingcat, “Ukrainian Tanks in Avdiivka Residential Area”, 3 February 2017,
https://www.bellingcat.com/news/uk-and-europe/2017/02/03/ukrainian-tanks-avdiivka-residential-area/ (Annex 258).
See also Samolenkov Report (Annex 2), Addendum 2, paras. 13-18, where General Samolenkov assesses that these tanks
are model T-64BV. See also Bobkov Report (Annex 1), paras. 106-129 analysing the location of the relevant images and
footage.
664 General Samolenkov identifies these vehicles as (1) two multi-purpose light-armoured towing vehicles (in the central
part of the photograph), (2) an armoured personnel carrier (likely a BTR-60PB) and (3) an infantry fighting vehicle (likely
a BMP-2): see Samolenkov Report (Annex 2), Addendum 2, para. 14(c).
665 Bellingcat, “Ukrainian Tanks in Avdiivka Residential Area” (Annex 258). Additional photographs published on 3
February 2017 also show the tanks next to the same residential buildings, as well as images of what General Samolenkov
identifies as 122 mm high explosive fragmentation tank shells being loaded from a military truck into a tank: see
Samolenkov Report (Annex 2), Addendum 2, paras. 15, 16.
144
Figure 3. 2 February 2017 drone image from the Bellingcat article
Figure 4. A photograph of two T-64BV tanks from the Bellingcat article
486. Notably, a representative of the Ukrainian Armed Forces denied that tanks were being located
in residential areas, calling BBC news video footage in which the tanks were shown “fake”.666 This
is consistent with Ukraine’s current approach in failing to inform the Court of the matter, and in
666 Bellingcat, “Ukrainian Tanks in Avdiivka Residential Area” (Annex 258).
145
failing to give to the Court the details as to the movements of Ukrainian troops and military equipment
in Avdiivka.
487. In light of the omission of any mention of tanks at this location in the IPHR Report (on which
Ukraine relies extensively), this source is to be approached with caution.667 It is plain that the authors
of the report were basing their conclusions on materially inaccurate information.
488. General Samolenkov concludes:
“these tanks could fire at the DPR positions from various positions nearby. The tanks
were likely to change firing positions to avoid return fire and to use the nearby multistorey
buildings as a shield, including for the purposes of recharging. I believe that these
tanks were obvious military targets and that by positioning them in the residential areas
Ukraine has put the nearby residential buildings at grave risk. That risk would be
exacerbated, if the firing positions were also chosen in the residential areas around, but I
do not have information about that.”668
489. According to Ukraine’s map, there is a large concentration of shelling impacts around Vorobyov
Street.669
490. Annex 28 to Ukraine’s Memorial also does not mention that, as reported by the OSCE and other
organisations, its Armed Forces had a long-established position on Molodizhna Street where military
equipment had been observed.670 Instead, Ukraine’s map seeks to emphasise the presence of the
humanitarian aid distribution centre nearby. In order properly to assess the nature of these positions,
Ukraine would need to put into evidence the relevant documents concerning the presence of personnel
and military materiel at the relevant time. A number of the reported impact sites are located around
Molodizhna Street.
491. Nor has Ukraine mentioned a long-established military position at an abandoned brick factory
near 122 Zavodska Street, which is also not referred to in the IPHR Report.671 Ukrainian criminal
court judgments state that reports of the so-called Anti-Terrorist Operation and telephone intercepts
667 Cf. IPHR Report, para. 88 (Annex 454 to MU).
668 Samolenkov Report (Annex 2), Addendum 2, para. 18.
669 Annex 28 to MU.
670 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as
of 19:30, 6 September 2016”, 7 September 2016, https://www.osce.org/ukraine-smm/263091 (Annex 11); OSCE SMM,
“Thematic report, Hardship for conflict-affected civilians in eastern Ukraine”, February 2017,
https://www.osce.org/files/f/documents/4/0/300276.pdf (Annex 18), p. 17. See also Human Rights Watch, “Studying
Under Fire, Attacks on Schools, Military Use of Schools During the Armed Conflict in Eastern Ukraine”, 11 February
2016, https://www.hrw.org/sites/default/files/report_pdf/ukraine0216_web.pdf (Annex 83), pp. 37–38. Ukrainian court
judgments from 2018 and 2019 refer to this position as the location of the volunteer battalion “Right Sector”: Ukraine,
Selydovsky City Court, Case No. 242/3786/18, Ruling, 6 August 2018, https://reyestr.court.gov.ua/Review/75716048
(Annex 73); Ukraine, Ordzhonikidzevsky District Court of Mariupol, Case No. 265/6438/19, Ruling, 6 November 2019,
https://reyestr.court.gov.ua/Review/85528051 (Annex 78). See also Samolenkov Report (Annex 2), Addendum 2,
paras. 21-26.
671 Samolenkov Report (Annex 2), Addendum 2, paras. 27-35.
146
(neither of which type of evidence Ukraine has put forward with respect to the events in Avdiivka in
2017) state that in 2015 and 2016 defendants informed the DPR that this was a location of military
equipment of the Ukrainian Armed Forces,672 and in May 2016 a defendant informed the DPR that
this location was used as a mortar firing position.673 Some of the shelling impacts illustrated on Annex
28 to Ukraine’s Memorial are in the vicinity of this position. Ukraine has not provided any evidence
as to whether this was also used as a position by its Armed Forces between late January and March
2017.
492. Additionally, a Ukrainian court ruling refers to findings that defendants provided information
to the DPR on 1, 5 and 10 February 2017 regarding the location of military equipment of the
Ukrainian Armed Forces in Avdiivka.674 One of the locations referred to is 12 Turgeneva Street,
which is in the vicinity of a UAF firing position and impact sites marked on Ukraine’s map to the
south of the military positions at Vorobyov Street (Annex 28 to Ukraine’s Memorial). The list of
Ukraine’s military positions contained in the IPHR Report does not include a firing position to the
south of Vorobyov Street,675 and it is unclear whether the authors of the IPHR Report were aware of
this position since they do not specify which firing position was a certain distance from the impacts
at Turgeneva Street.676 The Ukrainian court judgment also refers to information being provided
regarding “the deployment of a large number of equipment and military personnel in the area of
‘Khimik’”, i.e. a residential area.677 The judgment is significant evidence that the DPR were
understood by Ukraine to be targeting military objects, not residential areas.
3. The Presence of Military Equipment Moving Through Residential Areas of Avdiivka
between January and March 2017
493. Notably, unlike for the other shelling episodes, Ukraine has produced no documentation from
its authorities confirming the location of its military positions in Avdiivka at the relevant time.
494. As General Samolenkov observes, and as already seen above, open-source material shows that
there was a significant military presence in Avdiivka between January and March 2017, including in
residential areas.
672 Ukraine, Dobropilsky City Court, Case No. 227/431/16-k, Judgment, 24 January 2017,
https://reyestr.court.gov.ua/Review/64246978 (Annex 67); Ukraine, Dobropilsky City Court, Case No. 227/431/16-k,
Judgment, 14 December 2017, https://reyestr.court.gov.ua/Review/71062044 (Annex 72); Ukraine, Selydovsky City
Court, Case No. 242/3538/18, Judgment, 17 October 2018, https://reyestr.court.gov.ua/Review/77166094 (Annex 74).
673 Selydovsky City Court Judgment of 17 October 2018 (Annex 74).
674 Ukraine, Shevchenkivsky District Court of Chernivtsi, Case No. 727/3421/17, Ruling, 8 April 2017
https://reyestr.court.gov.ua/Review/65851811 (Annex 70).
675 IPHR Report, pp. 43-44 (Annex 454 to MU).
676 IPHR Report, pp. 48-49 (Annex 454 to MU).
677 Shevchenkivsky District Court of Chernivtsi Ruling of 8 April 2017 (Annex 70).
147
495. From 31 January 2017, journalists reporting from the city regularly photographed and otherwise
reported tanks and other military vehicles moving through populated areas of Avdiivka, although the
exact locations cannot be identified (by Russia).678 This provides useful indication of the situation on
the ground, but it is reasonable to assume that the scale of such movements was much greater than
that reported.679 Ukraine (alone) has complete information about the movement of its military forces.
496. General Samolenkov explains that it would have been necessary for the Ukrainian Armed
Forces to move military vehicles and equipment through residential areas in order to supply the
frontline military positions, including the Industrial Area, the Almaz-2 strong point and the positions
near Avdiivka forest and the DFS.680 This need would have increased after Ukraine’s “creeping
offensives” and the resultant escalation of hostilities. Further, he explains that it is likely that the
DPR would have sought to identify such movements (through informants, reconnaissance groups
and/or UAVs) and to shell these military objects before they reached the frontline positions:
“in a situation of prolonged exchanges of fire between frontline positions, it is often
important to prevent supplies and strengthening of the enemy’s positions to, among other
things, seize the initiative in certain areas. It is also possible to assume with a high degree
of probability that – apart from military equipment necessary for direct support of combat
operations – military equipment of the second line (reserve) could have moved across the
residential areas with the purpose of strengthening and rotation of troops at the frontline.
It would, therefore, have been militarily important to prevent supply of troops and
munitions to the frontline positions, and it is likely that the DPR would have targeted the
reserve troops and supply vehicles en route to the positions.”681
497. In this connection it is noted that Ukrainian court judgments support the use of informants by
the DPR in Avdiivka in February 2017,682 and the DPR has published images of a residential area in
678 See Samolenkov Report (Annex 2), Addendum 2, paras. 1-8 referring to e.g. BBC News, “Ukraine: Avdiivka, the front
line of Europe’s ‘forgotten war’”, 31 January 2017, available at http://www.bbc.com/news/world-europe-38818543
(Annex 37 to PORF), at 00.34 showing a tank moving through a residential area; Krym.Realii, “From Avdiivka: ‘The
main thing is that the “Grads” stop “hammering” from Donetsk’”, 31 January 2017,
https://ru.krymr.com/a/28270453.html (Annex 126); Twitter page of Christopher Miller, photographer, post at:
https://twitter.com/ChristopherJM/status/826815510130069504, 1 February 2017 (Annex 206); Twitter page of
Christopher Miller, photographer, post at: https://twitter.com/ChristopherJM/status/826905101398896640, 2 February
2017 (Annex 207); Twitter page of Christopher Miller, photographer, post at:
https://twitter.com/ChristopherJM/status/827398463088242690, 3 February 2017 (Annex 210); Twitter page of
Christopher Miller, photographer, post at: https://twitter.com/ChristopherJM/status/827543299703599104, 3 February
2017 (Annex 212); European Pressphoto Agency, “Crisis in Ukraine”, 6 February 2017,
https://webgate.epa.eu/?16634349628007773501&MEDIANUMBER=53307517 (Annex 135) ; Al Jazeera, “Avdiivka,
evacuating again as fighting escalates”, 8 February 2017, https://www.aljazeera.com/features/2017/2/8/avdiivkaevacuating-
again-as-fighting-escalates (Annex 136); Vice, “Civilians flee East Ukraine town of Avdiivka as fighting with
Russian-backed separatists escalates”, 23 February 2017, https://www.vice.com/en/article/595vnd/civilians-flee-eastukraine-
town-of-Avdiivka-as-fighting-with-russian-backed-separatists-escalates (Annex 237).
679 See Samolenkov Report (Annex 2), Addendum 2, para. 8.
680 Ibid., paras. 268, 270.
681 Ibid., para. 272.
682 Shevchenkivsky District Court of Chernivtsi Ruling of 8 April 2017 (Annex 70).
148
Avdiivka which it claimed were taken by a UAV.683 Assuming that they were aware of such
movements, as General Samolenkov observes, the DPR “likely faced a choice on many occassions:
either to allow an unimpeded supply of the UAF frontline positions or attack military equipment when
it was moving towards these positions.”684
498. Given their location on the outskirts of the city and the demarcation of the contact line, the
frontline positions of the Ukrainian Armed Forces could be accessed only by the road entering
Avdiivka from the Government-controlled territory to the north-west.685 In order to reach the
frontline positions from this direction, the military equipment would have to travel through residential
areas. While it is impossible for Russia to know which routes were actually used for this purpose,
many of the shelling impacts at the residential areas are located along possible convoy routes.686
General Samolenkov concludes that: “The targeting of military equipment moving along these roads
may explain collateral damage to the civilian objects located nearby”.687 Possible routes are shown in
blue on the map below:
683 Bellingcat, “Ukrainian Tanks in Avdiivka Residential Area” (Annex 258).
684 Samolenkov Report (Annex 2), para. 273.
685 Ibid., para. 270.
686 Ibid., para. 271.
687 Ibid., para. 275.
149
Figure 5. The routes marked on a map presented by Ukraine
4. Specific Shelling Episodes Relied on by General Brown and Ukraine
499. In light of Ukraine’s failure to put into evidence much of the relevant information, which is in
its exclusive possession, Russia is not currently able to respond to the specific allegations concerning
each shelling impact at Avdiivka which is relied on by General Brown and Ukraine (see above).688
Ukraine’s approach does not allow for an assessment of the likelihood of whether the damage to
civilian buildings may be explained as collateral damage from targeting of military positions or
equipment, including mobile materiel which was likely moving through the city constantly.
500. It is, however, possible to make certain observations based on the limited evidence which is
before the Court.
688 See MU, para. 111; Brown Report (Annex 11 to MU), para. 81.
150
501. First, it is striking that Ukraine places particular reliance on the IPHR report.689 This is all the
more surprising given the approach taken in the IPHR report of grouping together various impact
sites across Avdiivka for a single day and referring to the use of particular weapons (such as BM-21)
without stating to which impact sites this refers.
502. Second, while it is clear that the authors of the IPHR report were unaware of the extent of
military objects placed by Ukraine within residential areas of Avdiivka, in a second report on the
shelling (which Ukraine has not put into evidence) they do still record the view that: “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.”690
503. Third, certain findings in the IPHR Report are contradicted by contemporaneous open-source
information. For example, contrary to Ukraine’s contention and General Brown’s assumption, there
is no evidence before the Court that a shelling impact at the Coke Plant was the cause of the power
outage on 30 January 2017.691
a. The reference to such impact in the IPHR Report692 is not supported by the reports of
either the OSCE693 or the OHCHR694 and, moreover, it is directly contradicted by the
contemporaneous statement of the Director of the Coke Plant:
“As of 6 p.m., the situation with the restoration of power supply in Avdiivka is as
follows: only a part of the power line has been examined, we understand that the
breakage occurred somewhere between the Krasnenky [pond] and the Horlivka
motorway, but it is not possible to clarify this due to active hostilities.”695
b. Consistent with this, the OSCE report for 31 January 2017 states that workers had been
“unable to locate the area where the power line was cut and that repair workers would in
689 See MU, para. 111, footnotes 204-212 referring to IPHR Report, pp. 49-50 (Annex 454 to MU), pp. 48-50.
690 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, https://truth-hounds.org/wpcontent/
uploads/2017/09/last-UA-eng-20.09-web.compressed.pdf (Annex 88) , p. 27. See also Kharkiv Human Rights
Publisher, “Armed conflict in the East of Ukraine: the damage caused to the housing of the civilian population”, 2019,
https://www.humanitarianresponse.info/sites/www.humanitarianresponse.info/files/documents/files/report_on_damage_
to_housing_of_the_civilian_population_in_the_eastern_ukraine_eng.pdf (Annex 90), pp. 21-22.
691 See Samolenkov Report (Annex 2), paras. 311-315.
692 Cf. MU, para. 111, n. 204, referring to IPHR Report, p. 46 (Annex 454 to MU).
693 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 31 January 2017” (Annex 343 to MU).
694 OHCHR Report (16 November 2016 - 15 February 2017) (Annex 25), para. 25: “In Donetsk region, shelling in
January and February 2017 cut off the power supply to four water filtration stations and damaged water pipes”. There is
no express mention of the Avdiivka Coke Plant.
695 Facebook page of Musa Magomedov, Director General of the Avdiivka Coke Plant, post at:
https://www.facebook.com/photo.php?fbid=1413352195341857&set=a.109001049110318&type=3, 30 January 2017
(Annex 202).
151
any case not be able to reach the area due to the security situation”.696 The OSCE also
reported that, on 1 February 2017, a ceasefire in the area around the DFS had to be
brokered to ensure safe access for the repair teams.697 General Samolenkov notes that
this suggests that the line was cut in the area of hostilities.698 It appears that this OSCE
report is mistakenly referred to in the IPHR Report as support for the fact that the power
outage was caused by shelling at the Coke Plant.
c. A published map of the power lines confirms that these cross the area of active
hostilities.699 Further, the power supply was not only for Avdiivka and Governmentcontrolled
territory but also for DPR-controlled territory nearby. As a result of the outage,
miners in a mine in the DPR-controlled territory were trapped700 and residents nearby
were without electricity or heating.701 General Samolenkov observes that it is therefore
unlikely that the DPR would deliberately target the power lines.
d. The Director of the Coke Plant stated that there were two impacts; one caused damage
to railway tracks and the other resulted in no damage.702 General Samolenkov explains
that a photograph showing damage to the railway tracks does not appear to have been
caused by BM-21 missiles because these do not have sufficient destructive power.703
504. Fourth, with respect to certain of the specific shelling episodes, there are also specific
inconsistencies with the evidence relied on by Ukraine and certain impact sites appear to have been
close to military targets.
a. Zavodska Street (27 January 2017): Ukraine’s contention that civilian residences on
Zavodska Street were shelled by BM-21 rockets on 27 January 2017 rests upon
inspection reports prepared by its authorities based on materials gathered almost a month
696 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 31 January 2017”, 1 February 2017 (Annex 343 to MU).
697 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 1 February 2017”, 2 February 2017 (Annex 344 to MU): “In order to restore electricity […] the SMM worked
together with Ukrainian and Russian Federation Armed Forces Representatives of the JCCC to facilitate the
reestablishment of the ceasefire in the area around the Donetsk water filtration station. […] [R]epair crews had been given
the green light to advance toward affected sections of the power lines.”
698 Samolenkov Report (Annex 2), para. 315.
699 Shelter Cluster Ukraine, Ukraine-Donbass Region, Shelter repairs in Avdiivka as reported to the Cluster as of
December 2016, 18 February 2017, https://reliefweb.int/sites/reliefweb.int/files/resources/reach_ukr_map_eastern_
ukraine_shelterrepairsinavdiivka_16feb2017_a0.pdf (Annex 85). See also Samolenkov Report (Annex 2), para. 313.
700 Interfax, “Due to the shelling, 203 miners were trapped in the Donetsk mine”, 31 January 2017,
https://www.interfax.ru/world/547735 (Annex 124).
701 62.ua (Donetsk city website), “In Donetsk, the Northern Water Supply Facility was de-energized - part of the Kyivski
District was left without electricity and heating”, 31 January 2017, https://www.62.ua/news/1529458/v-doneckeobestocen-
severnyj-vodouzel-cast-kievskogo-rajona-ostalas-bez-sveta-i-otoplenia (Annex 125).
702 YouTube channel of Metinvest, “Press briefing ‘Humanitarian situation in Avdiivka’”, available at:
https://youtu.be/ejjz9dsIQ_k?t=1952, 1 February 2017 (Annex 234).
703 Samolenkov Report (Annex 2), paras. 317-318.
152
later.704 There is no corroboration that the shelling occurred on this date and, by contrast,
the IPHR Report refers to shelling at this location on 1 February 2017.705 The civilian
buildings impacted are close to the possible military position at the brick factory on the
same street.
b. Komunalna Steet (31 January 2017): Ukraine’s contention that a civilian residence on
Komunalna Street was shelled by a BM-21 rocket on 31 January 2017, again, relies on
the IPHR Report.706 This report groups together different impacts across Avdiivka
(including at Tugeneva Street, Zelena Street and Kosolov Street, all of which the Report
notes were close to firing positions of the Ukrainian Armed Forces of which the authors
were aware) and it is unclear to which impacts the reference to BM-21 Grad rockets
relates. The “Scorching Winter” Report refers to the impact being caused by a single
shell707 and the materials put forward by Ukraine contain no reference to any other
impacts in the same residential area on the same day.708 Moreover, the documents
relevant to Ukraine’s investigation also do not contain evidence of the use of BM-21 in
the relevant area.709 Against this background (and noting the unavailability of evidence
referred to in the IPHR Report), General Samolenkov explains that is “unlikely”710 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.711 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.712
c. Zavodska Street (1 February 2017): Ukraine’s investigation reports concerning
shelling at Zavodska Street on 1 February 2017 merely refer to the fact of damage to
buildings.713 They contain no assessment of the type of weapon used or crater analysis.
704 See Annexes 167-171 to MU.
705 IPHR Report, p. 49 (Annex 454 to MU).
706 MU, para. 111, n. 205 referring to IPHR Report, p. 48 (Annex 454 to MU).
707 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, https://truth-hounds.org/wpcontent/
uploads/2017/09/last-UA-eng-20.09-web.compressed.pdf (Annex 88), p. 9
708 As General Samolenkov notes, Extract from Criminal Proceedings No. 12017050140000081, 6 February 2017 (Annex
164 to MU) refers to the inspection on 30 January 2017 (i.e., one day prior) of one other impact site recorded in the same
residential area as Komunalna Steet (around 400 m away on Budivelnykiv Kvartal), although it is unclear on what date
the impact occurred and whether the building hit was a civilian object and there is also no reference to the impact being
caused by BM-21: see Samolenkov Report (Annex 2), para. 325.
709 See Extract from Criminal Proceedings No. 12017050140000081 (Annex 164 to MU). See also Facebook page of
Pavlo Zhebrivskyi, Chairman of the Donetsk Regional Civilian-Military Administration, post at:
https://www.facebook.com/zhebrivskyi/posts/680461565469699, 31 January 2017 (Annex 203).
710 Samolenkov Report (Annex 2), para. 323.
711 Ibid., paras. 323-325.
712 Ibid., paras. 324, 328.
713 Record of Site Inspection, drafted by N. Protsyk, Senior Investigator (1 February 2017) (Annex 162 to MU); Record
of Site Inspection, drafted by Y. Ponomarenko, Senior Investigator (1 February 2017) (Annex 163 to MU); Record of
153
As such, they provide no support for the contention that the shelling was caused by BM-
21 rockets. Similarly, the relevant OSCE report also does not mention the specific
weapon used.714 The IPHR Report (which is relied upon by Ukraine and which is the
sole document relied upon by General Brown715) is of no greater assistance because, in
light of the grouping together of various shelling locations across Avdiivka (including
Turgenev Street, which is close to a Ukrainian Armed Forces firing position) it is
impossible to know whether the reference to BM-21 concerns the shelling at Zavodska
Street specifically (near a possible military position) and the other evidence referred to
is not before the Court.716
d. Soborna Street (3 February 2017): Ukraine relies on two sources as evidence for shelling
of a civilian residence at Soborna Street on 3 February 2017, namely an OSCE report
and the IPHR Report.717 Each source refers to a single impact site at this location
resulting from shelling on 3 February 2017. However, the reports are materially
contradictory. Whereas the OSCE report states that on 4 February 2017 the SMM
observed a 120 mm mortar round which had been fired from a south-western direction,718
the IPHR Report states that a shell hit the eastern side of the building (i.e., the direction
of fire was from the east, north-east or south-east).719 As General Samolenkov notes, the
territory to the south-west was under the control of Ukraine (indicating the responsibility
of the Ukrainian Armed Forces) and the territory to the east was heavily contested
(meaning that either side might be responsible).720 These matters are not considered in
General Brown’s Report, which assumes that the two reports refer to two different impact
sites,721 and records General Brown’s incorrect understanding that the DPR controlled
the territory to the south west.722
e. Gagarin Street and 9-Kvartal Street (16 February 2017): As support for its
contention that BM-21 shelling caused damage to civilian buildings on Gagarin Street
and 9-Kvartal Street on 16 February 2017, Ukraine relies on the IPHR Report.723 This
Site Inspection, drafted by A. Zaychik (1 February 2017) (Annex 161 to MU). See also Extract from Criminal Proceedings
No. 12017050140000085 (Annex 160 to MU).
714 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), Based on Information Received
as of 19:30, 2 February 2017”, p. 2 (Annex 1111 to MU).
715 See MU, para. 111, n. 206; Brown Report (Annex 11 to MU), para. 98(a).
716 IPHR Report, p. 49 (Annex 454 to MU).
717 See MU, para. 111, n. 208.
718 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 5 February 2017”, 6 February 2017 (Annex 347 to MU).
719 IPHR Report, p. 49 (Annex 454 to MU). The video evidence referred to is not before the Court.
720 Samolenkov Report (Annex 2), paras. 335-337.
721 Brown Report (Annex 11 to MU), para. 81(c)-(d).
722 Ibid., para. 81. See also para. 82.
723 MU, para. 111, n. 209.
154
report, however, is contradicted by a second report of the same NGO, which specifically
refers to tank fire,724 as well as the relevant OSCE report which assessed the actual
impact sites as caused by either artillery (without specific reference to BM-21 or to
MLRS generally725) or tank shells.726 Additionally, the statements issued by the
Ukrainian authorities concerning the shelling also does not mention BM-21.727 It also
appears that these impact sites were reasonably close to the military objects of the
Ukrainian Armed Forces located at Molodizhna Street (see above).
f. Molodizhna Street, Mendeleev Street and Gagarin Street (2 March 2017): These impact
sites, which the IPHR Report states were caused by tank shelling728 and which the OSCE
reports state were caused by tank or artillery shelling,729 were close to the military objects
of the Ukrainian Armed Forces located at Molodizhna Street (see above).
505. Ukraine has therefore failed to establish the requisite actual intention to harm civilians and the
requisite terrorist purpose under Article 2(1)(b) ICSFT. As explained above:
a. Avdiivka remained a major flashpoint of the armed conflict for over a month (having
been located on the contact line for much longer). Ukraine’s speculation that the
escalation of hostilities was part of a campaign by the militants to obtain political
concessions is unsupported and ignores the statements of its own authorities that the
escalation was a reaction to Ukraine’s “creeping offensives” (see above).730
b. The Ukrainian Armed Forces locating military objects in residential areas and
transporting military materiel through residential areas, and seemingly fired from those
724 Scorching Winter IPHR Report (Annex 88), p. 13. See further Samolenkov Report (Annex 2), para. 344.
725 General Samolenkov explains that both tube artillery and MLRS can have a caliber of 122 mm: see Samolenkov
Report (Annex 2), para. 347, n. 468.
726 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 19 February 2017” (Annex 349 to MU).
727 Facebook page of Pavlo Zhebrivskyi, Chairman of the Donetsk Regional Civilian-Military Administration, post at:
https://www.facebook.com/zhebrivskyi/posts/688914104624445, 16 February 2017 (Annex 213), referring to shells;
Facebook page of the Donetsk Regional Prosecutor's Office, post at:
https://www.facebook.com/don.gp.gov.ua/posts/2223122507913887/, 16 February 2017 (Annex 214), referring to
shelling.
728 IPHR Report, p. 49. The evidence referred to in this report is not before the Court. See also Scorching Winter IPHR
Report (Annex 88), at p. 14 referring to “tank shelling” but also to “rockets”. However, the Russian and English versions
of this report are not consistent in describing the munition used. The Russian uses the generic term “shell” not mentioning
the rockets. See International Partnership for Human Rights, Civic Solidarity Platform, Truth Hounds, “Scorching Winter
2016-2017. Analysis of the shellings of residential areas in Eastern Ukraine” (Russian language version), 2017,
https://truth-hounds.org/wp-content/uploads/2017/08/%D0%A1%D0%BF%D0%B5%D0%BA%D0%BE%D1%82%D0
%BD%D0%B0-%D0%B7%D0%B8%D0%BC%D0%B0-2016-2017.pdf (Annex 89).
729 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received
as of 19:30, 5 March 2017” (Annex 351 to MU).
730 Cf. MU, para. 260.
155
areas 731 and the DPR targeting those positions (including as returning fire), does not
establish the requisite actual intention or terrorist purpose.732
c. Whereas General Brown states that “[t]he weapon system used in the attack guaranteed
that civilian areas would be hit”,733 there is no clear evidence that a BM-21 weapon
system was used in the shelling at the Khimik area of Avdiivka at the relevant time (see
above).734 There is, however, considerable evidence that the Ukrainian Armed Forces
used BM-21 (as well as more powerful weapon systems) against civilian areas in territory
controlled by the DPR.735
d. Ukraine’s contention that the militants directly shelled the Avdiivka Coke Plant,
“resulting” in a humanitarian emergency is incorrect (see above).736 This is also a key
assumed fact for General Brown with respect to the alleged use of BM-21 at locations
far from military objects.737
e. Whereas Ukraine now seeks to portray civilians as having in fact been terrorised, in a
video report dated 31 January 2017, a BBC correspondent described the situation very
differently:
“[E]ven when the soundtrack of fighting swells, surreal normality persists as well
as resilience. […] You can see people just milling about going about their everyday
business here while gunfire, mortars and artillery just a short distance from here
[…] in the industrial area on the edge of this small city. There has been a violent
stalemate in Eastern Ukraine for two years. In that time, I have rarely witnessed
such a presence from the Ukrainian military.”738
II. Bombings and Killings/Ill-Treatment
A. BOMBINGS
506. Ukraine’s Application focuses on the bombing in Kharkov of 22 February 2015, killing three
people and wounding fifteen others.739 Ukraine claims there, without reference to any evidentiary
materials, that this bombing “was supported by the Russian Federation”. That is an allegation of
731 See OHCHR Report (16 November 2016 - 15 February 2017) (Annex 25), paras. 19-20.
732 Cf. MU, para. 259.
733 Brown Report (Annex 11 to MU), para. 96.
734 See Samolenkov Report (Annex 2), paras. 318-319, 323-325, 332, 344-345.
735 See Table 3 in Appendix A: Examples of Ukraine’s documented use of MLRS and other heavy weapons in populated
areas.
736 MU, para. 258.
737 Brown Report (Annex 11 to MU), para. 89.
738 BBC News, “Ukraine: Avdiivka, the front line of Europe’s ‘forgotten war’” (Annex 37 to PORF) (emphasis added).
739 Application, para. 72.
156
extreme gravity. All that was relied upon at the provisional measures stage was a single press report,
containing the comments of someone who claims to be the spokesman of the so-called Kharkov
Partisans. Notably, in that press report, the alleged spokesperson says that this bombing was not
carried out by the Kharkov Partisans.740
507. In its Memorial, Ukraine contends that “numerous Russian officials and private actors have
provided funds to groups engaged in terrorism in Ukraine”.741 The focus of this section of Ukraine’s
Memorial is very much on the alleged supply of funds to the DPR/LPR which is said to be relevant
to the shoot down of Flight MH17 and the episodes of indiscriminate shelling at Volnovakha,
Kramatorsk, Mariupol and Avdiivka. In relation to the bombings in Ukrainian cities, the case Ukraine
has put before this Court appears to be that Russian State officials have knowingly financed those
acts:
“Various military intelligence operatives supplied explosives and weapons to the
perpetrators of bombings in Kharkiv, Kyiv, and Odesa. Russian intelligence officers
provided, for example, the anti-personnel mine used against the Kharkiv unity march, and
the SPM limpet mine used against the Stena Rock Club. Eduard Dobrodeev, a GRU
officer, financed the attempted assassination of Anton Geraschenko.”742
508. Ukraine relies principally on transcripts of interrogations of suspects conducted by the State
Security Service. There are multiple reasons why such materials do not amount to evidence
establishing terrorism financing, not least because multiple international bodies (including OHCHR
and other UN bodies) have expressed deep concern about the pattern of torture and ill-treatment of
alleged separatists and collaborators (see further Section B below). Indeed, some of the individuals
whose testimony Ukraine now relies on have already sought to withdraw their statements on the basis
that they were obtained by torture or ill-treatment.743
B. KILLINGS AND ILL-TREATMENT
509. The evidence before the Court shows that all parties to the armed conflict have committed extrajudicial
killings, torture and ill-treatment of civilians. Such acts should be and are characterised as
serious violations of obligations under IHL and human rights law. However, there is no credible
evidence before the Court that they also amount to “terrorist” acts within the meaning of Article
2(1)(b) of the ICSFT.
740 CR 2017/1, 6 March 2017, pp. 46-47, para. 45 (Cheek), citing Simon Shuster, “Meet the Pro-Russian ‘Partisans’
Waging a Bombing Campaign in Ukraine”, Time, 10 April 2015, available at http://time.com/3768762/pro-russianpartisans-
ukraine/ (Annex 571 to MU).
741 MU, Chapter 5(A).
742 MU, para. 276.
743 See Chapter VIII below. Notably, Ukraine elected to bring the present case before the Court before it had concluded
criminal proceedings against the alleged perpetrators.
157
510. First, the OHCHR reports on Ukraine have repeatedly documented allegations of extra-judicial
killings, torture and ill-treatment by all parties to the conflict, including Ukraine (see further Table 5
in Appendix A). Ukraine’s use of torture has also been condemned by the UN Subcommittee on
Prevention of Torture, as well as by a source that Ukraine relies on in its Memorial.
511. By way of example, in a report published in May 2017, after Ukraine filed the present claims
with the Court, the Subcommittee on Prevention of Torture concluded that:
“34. The Subcommittee has received numerous and serious allegations of acts that, if
proven, would amount to torture and ill-treatment. Persons interviewed by the
Subcommittee in various parts of the country have recounted beatings, electrocutions,
mock executions, asphyxiations, acts of intimidation and threats of sexual violence
against themselves and their family members. In the light of all the work done and
experience gained during the visit, the Subcommittee has no difficulty in concluding that
these allegations are likely to be true.
35. Many of the above-mentioned acts are alleged to have occurred while the persons
concerned were under the control of the State Security Service or during periods of
unofficial detention. In such cases, detainees accused of crimes relevant to the armed
conflict in eastern Ukraine […] are alleged to have been tortured in order to extract
information regarding their involvement or that of their associates in “separatist”
activities and to identify armed groups’ military positions. The Subcommittee also
understands that, in some cases, acts were committed by private individuals or volunteer
battalions with the consent or acquiescence of public officials.
[…]
37. In addition, it appears that prosecutors and judges are not particularly sensitive or
sympathetic to complaints of torture and ill-treatment.”744
512. As with indiscriminate shelling, if Ukraine were correct that the acts of killing and ill-treatment
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.
513. Ukraine has also not put before the Court a 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.745
744 Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “Visit to
Ukraine undertaken from 19 to 25 May and from 5 to 9 September 2016: observations and recommendations addressed
to the State party”, UN Doc. CAT/OP/UKR/3, 18 May 2017, paras. 34-35 and 37 (emphasis added), available at
http://undocs.org/en/CAT/OP/UKR/3.
745 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group, Truth Hounds, “Unlawful
detentions and torture committed by the Ukrainian side in the armed conflict in Eastern Ukraine”, 2017, available at
http://truth-hounds.org/wp-content/uploads/2017/11/ZVIT-engl.pdf.
158
a. The report observes that “as of today, the instances of the similar violations, committed
by the Ukrainian side have not been analysed by the national human rights NGOs, and
are mainly brought to light by international institutions […] at the level of the Ukrainian
government and civil society, the topic of war crimes committed by the Ukrainian side
is swept under the carpet.”746
b. Based on the cases of 23 detainees, the report concludes that “Detainees were subjected
to torture, particularly during interrogation with the purpose of obtaining information
about alleged possession of weapons and support of the separatists. Under the pressure
of torture, detainees were forced to accept the responsibility for crimes they did not
commit. […] In some cases, detainees were used as human shields or were forced to
work in conditions that threatened their lives.”747 The report characterises these acts as
violations of international human rights law and IHL.
514. Secondly, such acts have generally been characterised by the OHCHR, OSCE and others as
violations of IHL and human rights law, rather than “terrorist” acts (see further Table 1 in Appendix
A).
a. While Ukraine states that “The OHCHR and OSCE also repeatedly concluded that
civilians were terrorized by DPR and LPR attacks”, it is able to put forward only two
references (both by the OHCHR) to “terror” or “terrorize” across the multiple OHCHR
reports spanning more than three years. Where the OHCHR has used those terms it has
done so to describe the effect on the population, rather than as part of its legal
characterisation of the relevant acts and, in context, the use of those terms certainly do
not establish the requisite terrorist intent.
b. Ukraine also relies on “OSCE interviews with internally-displaced persons from areas
under DPR and LPR control reveal[ing] that many fled these regions because of ‘[d]irect
experience or the witnessing of acts of violence […] as well as the perception by people
that these acts of violence could affect them also personally”.748 However, that passage
concerns not only the psychological effect of killings and ill-treatment but all acts during
the armed conflict, including episodes of indiscriminate shelling (which Ukraine treats
as separate “terrorist” acts) and acts not entailing serious bodily harm such as detention.
c. The July 2014 statement of the UN High Commissioner for Human Rights which
Ukraine relies on reports a written threat made by a DPR leader to “immerse [civilians]
in horror”.749 However, unlike the IHL prohibition on spreading terror, the definition of
746 Ibid., p. 3.
747 Ibid., p. 2.
748 MU, para. 213, quoting OSCE, “Thematic Report: Internal Displacement in Ukraine” (12 August 2014), pp. 5-6
(Annex 316 to MU).
749 MU, para. 213, quoting OHCHR, “Intensified Fighting Putting at Risk Lives of People in Donetsk and Luhansk –
Pillay”, 4 July 2014 (Annex 295 to MU).
159
a terrorist act under Article 2(1)(b) of the ICSFT does not encompass threats. Further,
the High Commission characterised that threat as “a clear violation of international
human rights law”, and not as a “terrorist” act.
515. Thirdly, 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.750 In particular, Ukraine has not explained
how those killings and acts of ill-treatment (and the accompanying psychological effect) rises beyond
so-called “ordinary crimes” so as to fall within the definition of “terrorist” acts.
750 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, p. 67, para. 148.
160
CHAPTER VIII
UKRAINE HAS FAILED TO ESTABLISH THAT RUSSIA BREACHED ITS
OBLIGATIONS UNDER ARTICLES 8-10, 12 AND 18 OF THE ICSFT
I. Introduction
516. The present Chapter responds to Chapter 6 of Ukraine’s Memorial and addresses specifically
the allegations that Russia did not comply with its obligations under Articles 8, 9, 10, 12 and 18 of
the ICSFT. Obligations under each of those provisions will be addressed separately to demonstrate
that Ukraine has failed to establish that Russia violated any of its obligations under the ICSFT.
517. As a preliminary point, Ukraine’s primary case under these provisions of the Convention is
based on the fundamentally incorrect allegation that the provision of support to the DPR or LPR, or
to the persons associated with them constitutes financing of terrorism under Article 2 of the ICSFT.
First, and as shown above in Chapter II, the alleged instances of material support (such as weapons
or training) for the DPR or LPR on which Ukraine almost exclusively relies do not amount to the
provision of “funds” within the meaning of the ICSFT. Second, and as further demonstrated in
Chapters VI and VII, Ukraine has failed to establish that any of the incidents it relies on with respect
to the alleged actions of the DPR or LPR constitute acts of terrorism even with the benefit of evidence
submitted in support of the Memorial. Nor had it established that there was financing of terrorism
meeting the mental elements established in Article 2(1) of the ICSFT.
518. It is also important to bear in mind that, as will be demonstrated in more detail below, when
sending communications concerning alleged financing of terrorism that – Ukraine now claims –
Russia should have investigated or pursuant to which Russia should have frozen funds, Ukraine did
not provide to Russia the evidence that it now attempts to rely on. Indeed, as part of the requests for
cooperation at issue, Ukraine did not provide any evidence or facts, and not even such as submitted
by Ukraine during the provisional measures stage of these proceedings (which in any case the Court
found did not make a plausible case of terrorism financing).751
519. It is, however, against the background of the information provided to the Russian Federation at
the relevant time that Russia’s compliance with its obligations under the ICSFT must be assessed. If
Ukraine had indeed considered at the relevant time that there were incidents of terrorism financing,
it ought to have provided the relevant available information and evidence at its disposal so as to
enable the Russian Federation to assess what action (if any) should be taken under the ICSFT, rather
than providing such information ex post facto and only after having commenced the present
proceedings.
751 Order of 19 April 2017, para. 75.
161
II. Russia Has Complied with Its Obligations under Article 8 of the ICSFT
520. Ukraine asserts that Russia has violated Article 8 of the ICSFT by failing to freeze funds of
certain individuals that Ukraine alleged had provided funding to the DPR or LPR or persons
associated with them. However, Article 8 applies solely to funds used or allocated to be used for the
commission of an offence under Article 2 of the ICSFT. Ukraine has failed to establish that any of
the funds it identifies fall within this category. This section will first address the proper interpretation
of Article 8 before then addressing Ukraine’s specific allegations.
A. THE PROPER SCOPE OF THE OBLIGATION UNDER ARTICLE 8 OF THE ICSFT
521. Article 8(1) of the ICSFT provides that
“Each State Party shall take appropriate measures, in accordance with its domestic legal
principles, for the identification, detection and freezing or seizure of any funds used or
allocated for the purpose of committing the offences set forth in article 2 as well as the
proceeds derived from such offences, for purposes of possible forfeiture.”752
522. For this provision to apply, the funds in question must therefore be “used or allocated for the
purpose of committing the offences set forth in article 2”, i.e. terrorism financing falling within the
scope of Article 2 of the ICSFT. According to the ordinary meaning of the words used in Article 8(1)
of the ICSFT, it does not suffice for another State Party merely to allege that the funds are allocated
for such purpose – under the Convention, the nature of the use or allocation of the funds for terroristic
purposes within the meaning of Article 2 of the ICSFT must be proven.
523. This interpretation – that Article 8 of the ICSFT requires State Parties to freeze funds provided
it has been verified (not merely alleged) that the funds are used or allocated for financing of terrorism
falling within Article 2 of the ICSFT – also follows from the context of the provision and the nature
of the obligation imposed by Article 8 of the ICSFT.
a. Unlike other provisions of the ICSFT, such as Articles 9 (“[…] a person who has
committed or who is alleged to have committed […]”)753 or 10 (“alleged offender”),754
Article 8 of the ICSFT does not use the word “alleged” or a similar expression to qualify
the “use” or “allocation” of the funds. Had the State Parties intended for the provision to
apply where it is merely “alleged” that the funds are to be used for a terrorist purpose,
they would have said so.
752 Emphasis added.
753 Emphasis added.
754 Emphasis added.
162
b. Freezing or seizure of assets constitutes a significant interference with the property rights
of a person which are protected under both international and domestic law and such
measures thus may not be ordered lightly on the basis of a mere allegation.
524. Ukraine contends that Article 8 of the ICSFT already applies where there is a “reasonable
suspicion” or “reasonable basis to believe” that the funds are used or allocated for terrorism financing.
Ukraine however offers no support for this interpretation.755 The two external documents it relies on
do not, on a proper reading, apply to the interpretation of the ICSFT and provide no support to
Ukraine’s position.
a. Ukraine relies on a 2002 letter of Mr Wainwright, Expert Advisor to the Chairman of the
UN Counter-Terrorism Committee. However, Mr Wainwright’s point is not that the State
Parties of the ICSFT are required as a matter of treaty law to freeze funds once there is
a reasonable suspicion that the funds are used for terrorism financing. Rather he suggests
that it is “appropriate” for States to consider adopting laws of general application
allowing the freezing of funds where there is reasonable suspicion. He offers no
argument however to support a proposition that the ICSFT obliges State Parties to freeze
funds where only a reasonable suspicion exists.756
b. Ukraine also relies on FATF Special Recommendation III: Freezing and Confiscating
Terrorism Assets. However, in its interpretative note to the recommendation FATF states
that the recommendation “is intended, with regard to [the requirement to freeze funds]
to complement the obligations in the context of the United Nations Security Council […]
resolutions […]”.757 The recommendation does not state that it purports to implement
obligations of States under relevant Security Council obligations and even less so under
the ICSFT when suggesting the “reasonable basis to believe” standard. To the contrary,
when discussing the States’ obligations under the ICSFT, the interpretative note to the
recommendation refers to the freezing of funds that countries “identify, detect, and verify,
in accordance with applicable legal principles, as being used by, allocated for, or being
made available to terrorists […]”.758 In other words, FATF does not appear to dispute
that, under the ICSFT, States are only required to freeze funds once it has been verified
that they are to be used or intended to be used for terrorism or terrorism financing.
755 MU, para. 320.
756 Letter from J.W. Wainwright, Expert Adviser to the Chairman of the Counter-Terrorism Committee, 12 November
2002 (Annex 281 to MU).
757 FATF, Special Recommendation III: Freezing and Confiscating Terrorist Assets, Text of the Special Recommendation
and Interpretative Note, October 2001, para. 3, emphasis added (Annex 360 to MU).
758 FATF, Special Recommendation III: Freezing and Confiscating Terrorist Assets, Text of the Special Recommendation
and Interpretative Note, October 2001, para. 8(c), emphasis added (Annex 360 to MU).
163
B. UKRAINE HAS FAILED TO ESTABLISH THAT RUSSIA BREACHED ITS OBLIGATIONS UNDER ARTICLE
8 OF THE ICSFT
525. Ukraine claims that Russia violated its obligations by failing to freeze certain accounts Ukraine
alleges were used to finance terrorism by providing funds to certain entities associated with the DPR
and LPR.759 This claim must fail. In the relevant communications, Ukraine did not provide any
evidence, let alone establish, that these funds were used or allocated to be used for commission of
offences under Article 2, let alone did Ukraine establish this.
526. Even if one were to accept, for the sake of argument, Ukraine’s standard for the applicability of
obligations under Article 8 of the ICSFT (i.e. that it would suffice that there exists a “reasonable
suspicion” that funds are used or intended to be used for terrorism financing under Article 2 of the
ICSFT), Ukraine has still failed to show that such reasonable suspicion existed with respect to any of
the instances of alleged breaches of Article 8 of the ICSFT.
527. In its Memorial, Ukraine invokes five instances where it provided information to Russia
concerning alleged use of certain bank accounts and other accounts to finance terrorism.760 In each
of these instances, Ukraine provided no information whatsoever as to: (i) how the alleged provision
of financing to the DPR or LPR or to the persons associated with them constitutes financing of
terrorism under Article 2 of the ICSFT, or (ii) how the alleged provision of financing to the specified
individuals constitutes the financing of the DRP or LPR.
528. Below, Russia addresses each of the five instances that Ukraine relies on.
529. First, Ukraine claims that certain individuals (Mr Melkov, Ms Pyleska, Ms Kutyumova, Mr
Yaralov and Ms Ovsyannikova) paid 150 million rubles to a Ms Saralpova, and that these funds
should have been frozen by the Russian authorities.761
a. Ukraine relies on the Note Verbale of 12 August 2014 which, however, fails to provide
any evidence that the unidentified “terrorist organizations” engage in acts of terrorism
falling within Article 2 of the ICSFT.762 The only evidence Ukraine relies on to establish
that the specific funds were allegedly used to finance terrorism is the claim that such
“information [is] available to the Ukrainian side”.
759 MU, paras. 188-189; Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry
of Foreign Affairs of the Russian Federation, 12 August 2014 (Annex 369 to MU); Note Verbale No. 72/22-620-2221 of
the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of the Russian Federation, 29 August 2014
(Annex 371 to MU).
760 MU, paras. 188-189.
761 MU, para. 188; Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of
Foreign Affairs of the Russian Federation, 12 August 2014 (Annex 369 to MU).
762 Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 12 August 2014 (Annex 369 to MU).
164
b. Moreover, according to the Note Verbale itself, the sum in question was transferred to
accounts in two Ukrainian banks763 between 1 March 2013 and 1 February 2014, i.e.
before the emergence of the DPR and LPR (in April 2014) or the commission of any of
the acts Ukraine now claims to constitute acts of terrorism (in July 2014 – 2017).764
Ukraine offers no explanation whatsoever why Russian authorities should have frozen
these funds in 2013 or early 2014, at the time of the alleged transfers.
c. Finally, and again according to the Note Verbale, the funds were withdrawn from the
accounts in the Ukrainian banks by Ms Saralpova, i.e. they were located in Ukraine.765
Notably, Ukraine did not assert that these funds had been returned to Russia after their
transfer to Ukraine by 1 February 2014. Hence, Russia had no opportunity or obligation
arising under the ICSFT to freeze them.
530. Second, on 12 August 2014, Ukraine notified Russia that an account with Sberbank of a Mr
Sergey Igorevich Khyzhnyak was used by the “Liberation Movement Russian Sector – Ukraine”.
Ukraine claims that Russia violated its obligations under Article 8 of the ICSFT by failing to freeze
the account.766 However, the relevant Note Verbale contains only an unsupported assertion that the
account is used “for the financing of terrorist organizations in the territory of Ukraine”,767 without
providing any explanation what organizations are referred to, why they are “terrorist organizations”,
or how the account is used to engage in an offence falling under Article 2 of the ICSFT.
531. Third, on 29 August 2014, Ukraine notified Russia that a Ms Tatiana Mikhailovna Azarova
used her accounts with PJSC “Subsidiary Bank of Sberbank of Russia” (Ukraine) and, apparently, an
account at OJSC “Sberbank of Russia” (the Russian Federation) “to raise funds used to finance
terrorist activities on the territory of Ukraine”.768 Ukraine again claims that by failing to freeze these
accounts Russia violated its obligations under Article 8 of the ICSFT. However, Ukraine does not
explain how Russia was required, or indeed able, to freeze accounts or funds in bank accounts with
PJSC “Subsidiary Bank of Sberbank of Russia” (a subsidiary of a Russian bank – Sberbank) which
is located and operating in Ukraine. In any event, Ukraine failed to provide any evidence concerning
the alleged terrorism financing perpetrated using these accounts.
763 In the Memorial Ukraine claims that the accounts of Ms Saralpova were “Russian banks accounts” (MU, para. 188).
Russia understands this to be a reference to accounts denominated in Russian rubles with Ukrainian banks, since both
banks identified in the Memorial and the note – Kredyt Dnipro and Terra bank – are Ukrainian banks.
764 Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 12 August 2014 (Annex 369 to MU).
765 Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 12 August 2014 (Annex 369 to MU).
766 MU, paras. 188-189.
767 Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 12 August 2014 (Annex 369 to MU).
768 Note Verbale No. 72/22-620-2221 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 29 August 2014 (Annex 371 to MU).
165
532. Fourth, on 29 August 2014, Ukraine notified Russia that a Mr Andrey Gennadievich Lazarchuk
used his bank account with OJSC Sberbank of Russia for “financing of terrorist activities”.769 As with
other incidents relied on by Ukraine, no information or evidence was provided to Russia concerning
the alleged terrorist activities or the use of the account for terrorism financing.
533. Finally, Ukraine notified Russia of a number of bank accounts with PJSC “Subsidiary Bank of
Sberbank of Russia” (Ukraine), OJSC Sberbank of Russia and electronic wallets with JSC NKO
Yandex Money that Ukraine alleged were associated with terrorism financing.770 Ukraine again fails
to explain how Russia was required to freeze accounts with a bank registered and located in Ukraine
– PJSC “Subsidiary Bank of Sberbank of Russia”. More fundamentally, as with the other incidents
relied on by Ukraine, no information or evidence was provided concerning the alleged terrorist
activities or the use of accounts for terrorism financing.
534. Remarkably, in several instances Ukraine thus requested Russia to freeze funds held in bank
accounts with banks registered and located in Ukraine.771 If Ukraine considered that these funds were
used for terrorism financing, Ukrainian authorities should have frozen the funds themselves. Yet,
apparently, they did not: otherwise Ukraine’s requests would presumably have been redundant. It is
of note that Ukraine has not submitted any documents confirming that the funds in these accounts
were frozen by the Ukrainian authorities.
535. In summary, Ukraine has failed to establish that the bank accounts and funds it identified were
used or allocated to be used for commission of an offence under Article 2 of the ICSFT (or that even
a reasonable suspicion existed in this respect). Accordingly, Russia had no obligation under Article
8 of the ICSFT to freeze these funds or accounts.
III. Russia Has Complied with Its Obligations under Article 9 of the ICSFT
536. The Russian Federation has at all times complied with its obligations under Article 9 of the
ICSFT. This section explains the scope of obligations under Article 9 of the ICSFT before turning to
Ukraine’s specific allegations of breach of this provision.
A. CORRECT INTERPRETATION OF ARTICLE 9 OF THE ICSFT
537. Article 9 (1) of the ICSFT provides that
“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
769 Note Verbale No. 72/22-620-2221 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 29 August 2014 (Annex 371 to MU).
770 Note Verbale No. 72/22-620-2221 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 29 August 2014 (Annex 371 to MU).
771 See paras. 533, 535 above.
166
concerned shall take such measures as may be necessary under its domestic law to
investigate the facts contained in the information”.
538. According to the ordinary meaning of the words used in Article 9(1) of the ICSFT, it contains
an obligation qualified by domestic law to investigate the “facts contained in the information”
provided to the State where the information discloses that a person “has committed […] or is alleged
to have committed an offence set forth in article 2” and information that the person “may be present
in its territory”.
539. Several conclusions follow from the ordinary meaning of the terms of this provision read in
their context.
540. First, as an obvious preliminary matter, the information provided to the State must identify a
person who may be present within the requested State’s territory.
a. Under Article 9 of the ICSFT the State has an obligation to investigate where it receives
information that a “person” (“l’auteur ou l’auteur présumé” in French) may be present
in its territory. The obligation does not apply generally to any allegations of terrorism
financing from the territory of the State. Rather a specific person must be identified and
this person must be specifically alleged to have committed an offence under Article 2 of
the ICSFT and said to be present in the territory of the requested State.
b. This is consistent with the purpose of the Convention to promote international
cooperation in the suppression of terrorism financing772 and, in particular, the application
of aut dedere, aut judicare principle. Indeed, Article 9 of the ICSFT is seen as a precursor
to the application of this principle, i.e. before deciding whether to prosecute or extradite
an alleged offender the State must undertake a preliminary investigation.773 It follows
that this provision applies only where a specific person is identified.
541. Second, the information provided must be sufficiently detailed to serve as a basis for an
investigation and must, accordingly, give rise to at least a reasonable suspicion that an offence under
Article 2 of the ICSFT has been committed.
542. The necessary threshold therefore is whether the information provided contains facts that the
person “is alleged to have committed an offence” of terrorism financing under Article 2(1) of the
ICSFT, i.e. the provision/collection of funds with the requisite intention or knowledge that the funds
were to be used to commit a terrorist act as defined, including the requisite actual intention and
772 ICSFT, Preamble, paragraph 13.
773 United Nations Office on Drugs and Crime, Guide for the Legislative Incorporation and Implementation of the
Universal Anti-Terrorism Instruments, 2006, p. 68, para. 351; Suppressing the Financing of Terrorism: A Handbook of
Legislative Drafting, IMF Legal Department, 2003, p. 11.
167
terrorist purpose. Contrary to Ukraine’s contention,774 it is not enough for the requesting State merely
to refer to the ICSFT or to assert that an offence of terrorism financing has been committed.
543. The information provided must give rise to a reasonable suspicion.
a. Ukraine does not clearly define the standard it proposes to apply to determine whether
the State’s obligation under Article 9 of the ICSFT is engaged. Ukraine accepts however,
that there must be a “reason to believe [that a person] may have committed an offense
under Article 2 of the ICSFT”,775 which appears consistent with the reasonable suspicion
standard.
b. Any broader reading of Article 9 of the ICSFT would mean that States would need to
investigate each and every allegation of terrorism financing no matter how unfounded.
This would drain important law enforcement resources of States. Furthermore, such
unfounded investigations, based on mere assertions by the requesting State, would
constitute inappropriate interferences with the human rights of those whose activities
would be reviewed by the investigating authorities.
c. Indeed, as a practical matter and as noted in the OSCE Practical Manual for Law
Enforcement Officers on Human Rights in Counter-Terrorism Investigation,
“On the basis of available information, a decision is taken whether to start an
investigation. This decision must be based on reasonable suspicion that a terrorismrelated
offence, as defined in domestic law, has been committed”.776
d. Moreover, when dealing with the State’s obligation to cooperate in conducting inquiries
concerning the identities and the whereabouts of persons alleged to be involved in
offences under Article 2 of the ICSFT Article 18 ICSFT states that such cooperation is
to be provided only where a “reasonable suspicion” exists. Interpreted in the context of
Article 18, Article 9 of the ICSFT which imposes on the requested State an obligation to
conduct investigations that may be more extensive and intrusive than merely identifying
the whereabouts of a person cannot be engaged where the information provided to the
requested State does not give rise to a reasonable suspicion that an offence under Article
2 of the ICSFT has indeed been committed.
774 MU, para. 324.
775 MU, para. 323.
776 OSCE, Human Rights in Counter-Terrorism Investigations: A Practical Manual for Law Enforcement Officers, p. 46
(emphasis added).
168
B. RUSSIA HAS COMPLIED WITH ITS OBLIGATIONS UNDER ARTICLE 9 OF THE ICSFT WITH RESPECT TO
THE SPECIFIC INCIDENTS RELIED ON BY UKRAINE
544. In its Memorial Ukraine identifies a number of instances where Russia has allegedly failed to
investigate information concerning alleged financing of terrorism.777 The specific incidents that
Ukraine relied on concern, or appear to concern, the alleged financing of the DPR or of the LPR. For
example, with respect to Mr Zhuchkovsky778 Ukraine claims that he “conducted acts aimed at
provision and collection of funds with the intention that they should be used […] to carry out terrorist
activity of DPR in the territory of Ukraine”.779
545. In an attempt to demonstrate that Ukraine provided information that should have led Russia to
undertake an investigation under Article 9, Ukraine relies on three Notes Verbales sent between
August and November 2014.780 These documents are of no assistance to Ukraine, since they do not
contain any “facts” alleging the commission of the offence of terrorism financing under Article 2 of
the ICSFT. As explained in greater detail below:
a. they do not contain any facts concerning the collection or provision of funds or
evidencing the requisite intent or knowledge to provide funds for the purpose of
financing terrorism;
b. they do not provide any facts concerning the specific recipients of the funds that
allegedly engage in terrorism, or the specific acts of terrorism allegedly committed by
the recipients which the alleged financier intended or knew would thereby be funded;
c. they do not contain any facts giving rise to a reasonable suspicion that the DPR or LPR
– the allegedly funded entities – engage in acts of terrorism.
546. More specifically,
a. In the Note Verbale of 12 August 2014, Ukraine dedicates just one paragraph to a mere
assertion that the DPR and the LPR “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
777 MU, para. 190. Ukraine claims that it “asked Russia to investigate more than 50 named individuals” without
specifying these individuals (MU, para. 325). Russia will wait for particulars of this allegation, including the identification
of individuals Ukraine claims Russia should have investigated, before responding to it in detail.
778 MU, para. 190. In the relevant Note Verbale of 12 August 2014 No. 72/22-620-2087, Annex 369 to MU, Ukraine
referred to a “Mr Zhukovsky” (“Жуковский”) (a different name) but Russia understands that Ukraine refers to Mr
Zhuchkovsky (“Жучковский”).
779 Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 12 August 2014 (Annex 369 to MU).
780 MU, para. 190; Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of
Foreign Affairs of the Russian Federation, 12 August 2014 (Annex 369 to MU); Note Verbale No. 72/22-620-2221 of the
Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of the Russian Federation, 29 August 2014
(Annex 371 to MU); Note Verbale No. 72/22-620-2717 of the Ministry of Foreign Affairs of Ukraine to the Ministry of
Foreign Affairs of the Russian Federation, 3 November 2014 (Annex 374 to MU).
169
administrative buildings”.781 There is no reference to any specific events that Ukraine
claimed to constitute terrorist acts within the meaning of the ICSFT, nor to any facts that
would have enabled the Russian authorities to assess whether they give rise to the
necessary reasonable suspicion of the financing of terrorism.
b. In the Note Verbale of 29 August 2014 Ukraine repeated the very same unspecific
allegations almost verbatim.782
c. In its Note Verbale of 2 November 2014, Ukraine once again repeated the same
allegations. However, Ukraine added two examples of alleged “terrorist attacks” by the
DPR and LPR in Ukraine, namely the shelling of Ukraine’s National Guard checkpoints
near Bakhmutka and the use of “magnetic resonance arms” near Debaltsevo.783 Notably,
these alleged instances of deployment of various weapons appear – from Ukraine’s own
description – to have taken place in the context of the armed conflict. Ukraine did not
assert that the persons alleged to be responsible acted with the requisite intention to cause
death or serious injury to civilians and/or acted with the requisite terrorist purpose under
Article 2 of the ICSFT. Russia also notes that these specific episodes are not even
included among those acts which Ukraine now puts before the Court as part of its case
that the DPR/LPR have committed terrorist acts.
547. It is further important to recall that these assertions were made by Ukraine in a context where
(as was already set out in more detail above):
a. no international organisation or State had (or have now) characterised the DPR or LPR
or their activities as “terrorism”;784
b. Ukraine has been using the reference to “terrorism” to justify an “Anti-Terrorist
Operation” to bypass its own domestic rules on the deployment of its armed forces; and
c. the relevant communications were sent, and the alleged financing took place, even before
any of the acts of shelling that Ukraine relies on as acts of terrorism allegedly carried out
by the DPR/LPR (in January 2015 – February 2017).
548. Moreover, Ukraine now appears to accept that its characterisation of the DPR and LPR as
allegedly constituting “terrorist organisations” does not assist in deciding whether an offence under
Article 2(1) of the ICSFT was committed. Rather, Ukraine itself now accepts that the inquiry must
781 Note Verbale No. 72/22-620-2087 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 12 August 2014 (Annex 369 to MU).
782 Note Verbale No. 72/22-620-2221 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 29 August 2014 (Annex 371 to MU).
783 Note Verbale No. 72/22-620-2717 of the Ministry of Foreign Affairs of Ukraine to the Ministry of Foreign Affairs of
the Russian Federation, 3 November 2014 (Annex 374 to MU).
784 See paras. 10, 356 above.
170
be whether the funds relate to terrorist acts.785 However, in the above communications, Ukraine had
provided no facts or information about any acts of terrorism falling under Article 2(1) of the ICSFT
that were allegedly financed by the persons Ukraine claims the Russian authorities should have
investigated.
549. In conclusion, the information provided by Ukraine was nowhere near sufficient for the
purposes of Articles 2(1) and 9 of the ICSFT. None of the allegations communicated by Ukraine gave
rise to a reasonable suspicion that a person located in the territory of the Russian Federation had
committed an offence under Article 2(1) of the ICSFT. The Russian Federation was therefore under
no duty to investigate. Accordingly, Ukraine has failed to establish that Russia’s obligations under
Article 9 of the ICSFT were engaged, much less that those obligations have been breached.
IV. Russia Complied with Its Obligations under Article 10 of the ICSFT
550. Ukraine has likewise failed to establish that Russia violated its obligations under Article 10 of
the ICSFT. Russia will first address the correct interpretation of Article 10 of the ICSFT, before then
turning to Ukraine’s specific claims.
A. CORRECT INTERPRETATION OF ARTICLE 10 OF THE ICSFT
551. Article 10(1) of the ICSFT states:
“The State Party in the territory of which the alleged offender is present shall, in cases to
which article 7 applies, if it does not extradite that person, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to submit the
case without undue delay to its competent authorities for the purpose of prosecution,
through proceedings in accordance with the laws of that State. Those authorities shall
take their decision in the same manner as in the case of any other offence of a grave nature
under the law of that State.”
552. Article 7 of the ICSFT, in turn, provides that
“Each State Party shall take such measures as may be necessary to establish its
jurisdiction over the offences set forth in article 2”.
This provision then defines the circumstances in which the State Party concerned shall take measures
to establish its jurisdiction and these where the State may establish its jurisdiction.
553. First, pursuant to the ordinary meaning of the words, Article 10(1) of the ICSFT applies only
where an “alleged offender” (i.e., a person who is alleged to have committed an offence of terrorism
financing as defined in Article 2) is present in the State Party’s territory. As in the case of Article 9
of the ICSFT, the obligation under Article 10 of the ICSFT is only triggered where, properly
785 WSU, paras. 192, 195.
171
understood, the information provided describes an offence of terrorism financing falling within
Article 2 of the ICSFT.
554. Second, Article 10 is a reflection of the aut dedere, aut judicare principle.786 It follows that
there is no absolute obligation; rather the prosecuting authorities may decide that there is no sufficient
basis for prosecution.787 This would notably be the case where “there was not sufficient evidence to
prosecute, at least at the time when the request to prosecute was made”.788
555. Finally, in the same way as Article 9 of the ICSFT,789 Article 10 of the ICSFT requires a specific
person, the “alleged offender”, to be identified before the case is submitted to prosecution.
B. UKRAINE HAS FAILED TO ESTABLISH THAT RUSSIA VIOLATED ITS OBLIGATIONS UNDER ARTICLE
10 OF THE ICSFT
556. As explained in paragraphs 544-549 above, Ukraine has failed to establish that even a
reasonable suspicion existed that the persons Ukraine identified had engaged in terrorism financing
under Article 9 of the ICSFT. Accordingly, Russia had no obligation under Article 10 to submit the
case for prosecution or to conclude that there was a basis for the Russian authorities to proceed with
the prosecution.
V. Russia Has Complied with Its Obligations under Article 12 of the ICSFT
557. In its Memorial Ukraine refers to twelve requests for mutual legal assistance (“MLA requests”)
that Ukraine claims Russia did not handle in accordance with its obligations arising under the
ICSFT.790
558. In this section, the Russian Federation will first outline the proper interpretation of Article 12
of the ICSFT before explaining how Ukraine has failed to establish that Russia violated its obligations
under this provision.
786 United Nations Office on Drugs and Crime, Guide for the Legislative Incorporation and Implementation of the
Universal Anti-Terrorism Instruments, 2006, p. 68, para. 351; Suppressing the Financing of Terrorism: A Handbook of
Legislative Drafting, IMF Legal Department, 2003, p. 11.
787 The Obligation to Extradite or Prosecute (aut dedere aut judicare), Final Report of the International Law Commission,
2014, Yearbook of the International Law Commission, 2014, vol. II, p. 10.
788 Committee against Torture, Suleymane Guengueng et al. v Senegal, Communication No. 181/2001,
CAT/C/36/D/181/2001, 19 May 2006, para. 9.8.
789 See para. 542 above.
790 In the Memorial Ukraine claims that it requested mutual legal assistance “[in] more than twenty requests under mutual
legal assistance treaties” (MU, para. 193), however, Ukraine only identifies 12 MLA requests. Russia will await further
particulars concerning the other requests Ukraine alleges were not handled in accordance with Russia’s obligations under
the ICSFT before responding to that allegation.
172
A. THE CORRECT INTERPRETATION OF ARTICLE 12 OF THE ICSFT
559. Under Article 12(1) of the ICSFT
“States Parties shall afford one another the greatest measure of assistance in connection
with criminal investigations or criminal or extradition proceedings in respect of the
offences set forth in article 2, including assistance in obtaining evidence in their
possession necessary for the proceedings.”
560. This provision is supplemented by Article 12(5) of the ICSFT which provides
“States Parties shall carry out their obligations under paragraphs 1 and 2 in conformity
with any treaties or other arrangements on mutual legal assistance or information
exchange that may exist between them. In the absence of such treaties or arrangements,
States Parties shall afford one another assistance in accordance with their domestic law.”
561. As follows from the ordinary meaning of the words of Article 12, State Parties are required to
afford each other the greatest measure of assistance provided several conditions are satisfied:
a. First, the request must relate to “criminal investigations or criminal or extradition
proceedings”. If the investigation and criminal proceedings have already been
concluded, Article 12 of the ICSFT does not apply to mutual legal assistance requests.
b. Second, the investigation or proceedings must be “in respect of the offences set forth in
Article 2”. It follows that it is insufficient for the requesting State simply to assert that a
person is involved in terrorism financing. Consistent with the scope of Articles 9 and 10
of the ICSFT, Article 12 is engaged only provided the relevant investigation or
proceedings are based on an allegation that, properly understood, amounts to the offence
of terrorism financing as defined in Article 2(1) of the ICSFT;
c. Finally, a State may deny a request to provide mutual legal assistance on one of the
grounds provided in the applicable treaty, if such grounds have not been rendered
inapplicable by the ICSFT (e.g. denial cannot be based on the concept of bank secrecy
or the notion of political offence).
B. UKRAINE HAS FAILED TO ESTABLISH THAT RUSSIA VIOLATED ITS OBLIGATIONS WITH RESPECT TO
ANY OF THE MLA REQUESTS RELIED ON
562. In its Memorial, Ukraine concentrates on certain alleged deficiencies in Russia’s provision of
mutual legal assistance. However, it fails to address the most important (and logically prior) question
that must be answered before even coming to the matters Ukraine deals with, namely whether
Ukraine’s MLA requests in fact concerned assistance with respect to investigations into offences
covered by Article 2 of the ICSFT.
563. Fundamentally, Ukraine’s claim based on Article 12 of the ICSFT fails because the MLA
requests it relies on do not concern financing of terrorism within the meaning of Article 2 of the
173
ICSFT. In any event, the way the Russian authorities handled the MLA requests was in compliance
with the ICSFT (even if the ICSFT had somehow applied to them in the first place).
1. Ukraine’s MLA Requests Do Not Relate to Investigations of Terrorism Financing under
Article 2 of the ICSFT
564. For Article 12 of the ICSFT to apply, the relevant investigation or proceedings must relate to
an offence under Article 2 of the ICSFT.791 The MLA requests that Ukraine refers to do not however
relate to such offences.
565. First, all twelve MLA requests792 that Ukraine relies on concern alleged interaction with, or the
financing of the DPR or the LPR. Yet, as established above,793 the provision of financing to the DPR
or LPR does not constitute an offence falling within Article 2 of the ICSFT. Therefore, Article 12 of
the ICSFT does not apply to these requests.
566. Second, none of the twelve MLA requests contains a single reference to the ICSFT or to the
investigation of an offence under Article 2 of the ICSFT.
a. This is particularly notable since all the requests expressly list the treaties that the
Ukrainian authorities invoke. For example, in the request dated 30 September 2014 the
Central Investigative Directorate of the Security Service of Ukraine “invokes the
Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal
Matters of January 23, 1993”.794 In the request dated 28 July 2015, the General
Prosecutor’s Office of Ukraine submitted a request for mutual legal assistance “on the
basis of 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”.795
b. Having made clear at the time of making the requests the legal instruments relied on,
Ukraine cannot credibly change course and invoke the ICSFT. When invoking a State’s
obligation under international law the State must identify either in general terms or
specifically the source of the obligation. Indeed, the choice may be deliberate where, for
example, the State believes that the request does not satisfy the requirements of a specific
convention or rule of customary international law but may satisfy the requirements of
another one. Here, the Ukrainian authorities, when making the request, chose to rely on
791 See para. 563 above.
792 Annexes 400, 401, 404, 405, 419-423, 427, 431, 433 to MU.
793 See Chapters VI-VII.
794 Ukrainian Request for Mutual Legal Assistance Concerning Case No. 220140500000000015 of 30 September 2014
(Annex 401 to MU).
795 Ukrainian Request for Mutual Legal Assistance Concerning Case No. 42014000000000457 of 28 July 2015 (Annex
423 to MU).
174
the 1993 Legal Assistance Convention and the 1959 European Convention rather than
the ICSFT. Hence, the MLA requests Ukraine relies on do not fall under the ICSFT.
567. Third, eleven of the twelve MLA requests that Ukraine relies on do not even concern
investigations into alleged terrorism financing under Ukrainian law (the twelfth request is addressed
separately below). For example,
a. according to Ukraine’s MLA request of 11 November 2014, Mr Sergey Mironov was
investigated for allegedly providing financing to “an extralegal armed group” (Article
260 of the Criminal Code of Ukraine),796 not for the financing of terrorism, which
constitutes a separate criminal offence falling under Article 258-5 of the Ukrainian
Criminal Code;
b. Mr Gennady Zyuganov was investigated in relation to allegations of committing the
same offence;797
c. according to Ukraine’s MLA request dated 3 July 2015, Mr Igor Bezler was investigated
for allegedly committing an act of terrorism (Article 258 of the Ukrainian Criminal
Code), creating a terrorist organization (Article 258-3 of the Ukrainian Criminal Code)
and organizing mass riots (Article 294 of the Ukrainian Criminal Code) but no
investigation into allegations of terrorism financing is relied on in the MLA request;798
d. another MLA request arose out of the investigation of Mr Alexander Boroday concerning
allegations that he was involved in the creation of a terrorist organization, as well in the
assault against the territorial integrity of Ukraine and the attempt to overthrow the
government by violent means (crimes enshrined in Articles 109, 110 and 258-3 of the
Ukrainian Criminal Code);799
e. several of Ukraine’s MLA requests concern Russian military servicemen investigated for
the alleged commission of terrorist acts (Article 258 of the Ukrainian Criminal Code),
the participation in a terrorist organization (Article 258-3 of the Ukrainian Criminal
Code), the planning and conduct of aggressive war (Article 437 of the Ukrainian
796 Ukrainian Request for Mutual Legal Assistance Concerning Case No. 12014000000000293 of 11 November 2014
(Annex 404 to MU).
797 Ukrainian Request for Mutual Legal Assistance Concerning Case No. 12014000000000291 of 3 December 2014
(Annex 405 to MU).
798 Ukrainian Request for Mutual Legal Assistance Concerning Case No. 22014000000000283 of 3 July 2015 (Annex
421 to MU). Similar allegations were investigated with respect to Mr Igor Girkin (Ukrainian Request for Mutual Legal
Assistance Concerning Case No. 22014000000000286 of 3 July 2015, Annex 422 to MU).
799 Ukrainian Request for Mutual Legal Assistance Concerning Case No. 22014000000000245 of 3 July 2015 (Annex
420 to MU).
175
Criminal Code) and the violation of laws and customs of war (Article 438 of the
Ukrainian Criminal Code).800
568. Ukraine relies on only one request, issued on 14 November 2017 – with respect to Mr Gleb
Kornilov – where the investigations specifically concerned allegations of terrorism financing under
Ukrainian domestic law (Article 258-5 of the Ukrainian Criminal Code).801 However, Article 12 of
the ICSFT does not apply to this request either, since the offence described in the request does not
fall under Article 2 of the ICSFT. According to the request, Mr Kornilov is investigated for allegedly
“committing acts aimed at delivering supplies to representatives of [terrorist organisations “Donetsk
People’s Republic” and “Luhansk People’s Republic]”; the request does not refer to the ICSFT, and
it does not identify any alleged terrorist acts falling under Article 2 of the ICSFT that Mr Kornilov is
alleged to have financed.
569. In summary, Article 12 of the ICSFT does not apply to the MLA requests that Ukraine has
invoked and, for this reason, Ukraine has failed to establish that Russia violated its obligations under
the ICSFT.
2. In Any Event, Russian Authorities Handled Ukraine’s MLA Requests Consistently with
Applicable Legal Assistance Treaties
570. Russia notes that, under Article 12(5) of the ICSFT, requests for mutual legal assistance must
be handled in accordance with applicable legal assistance treaties. The requesting State must comply
with the requirements these establish. Ukraine does not appear to dispute this general proposition.
Yet in the instances that Ukraine invokes, 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. For example,
a. Russian authorities requested Ukrainian authorities to supply a translation into Russian
of documents communicated to support the characterisation of the LPR as a terrorist
organisation.802 Ukraine claims that this response acknowledged that Ukraine’s request
“fulfilled Ukraine’s obligations”,803 yet no such acknowledgment can be found in the
document Ukraine relies on. To the contrary, Article 17 of the 1993 Legal Assistance
Convention expressly requires foreign language documents to be accompanied with a
translation into Russian. Notably, the Ukrainian authorities generally accepted that the
800 E.g. Ukrainian Request for Mutual Legal Assistance Concerning Case No. 42014000000000457 of 28 July 2015
(Annex 423 to MU); Ukrainian Request for Mutual Legal Assistance Concerning Case No. 42014000000000457 of 15
September 2015 (Annex 427 to MU); Ukrainian Request for Mutual Legal Assistance Concerning Case No.
2201505000000021 of 23 March 2017 (Annex 431 to MU).
801 Ukrainian Request for Legal Assistance Concerning Case No. 22015000000000001 of 14 November 2017 (Annex
433 to MU).
802 Letter of the Prosecutor General’s Office of the Russian Federation of 14 September 2016 No. 82/1-759-16 (Annex
429 to MU).
803 MU, para. 328.
176
documents submitted must be in Russian or translated into Russian. Indeed, all the MLA
requests that Ukraine relies on are in Russian and refer to attached documents that are in
Russian as well (such as extracts from the Ukrainian Criminal Code).804
b. Ukraine claims that the Russian authorities failed to handle the request with respect to a
Mr Starkov in accordance with Article 12 of the ICSFT.805 However, Ukraine failed to
inform the Court that, in 2016, before Ukraine commenced the present proceedings, the
Russian authorities had notified Ukraine that they cannot provide mutual legal assistance
since there was no ongoing investigation or proceedings with respect to Mr Starkov in
Ukraine itself. As a matter of fact Ukraine’s request was sent on 13 October 2015, while
Mr Starkov had already on been convicted on 25 September 2015.806 Yet, neither the
1993 Legal Assistance Convention, nor Article 12 of the ICSFT, provide for mutual legal
assistance with respect to cases that have already been brought to their end.
571. Ukraine takes particular issue with the level of explanation provided by the Russian authorities
when refusing to provide mutual legal assistance on the basis that such would represent a threat to
the sovereignty and security of the Russian Federation.807 As explained by Ukraine, under Article 19
of the 1993 Legal Assistance Convention, “[t]he request about granting legal aid may be rejected, if
granting such aid may inflict damage to the sovereignty or security, or contradicts the legislation of
the requested Contracting Party”.808
572. Importantly, Ukraine accepts, as it must, that the Russian authorities were entitled to refuse to
provide legal assistance on this basis.809 This is the only possible interpretation of the ICSFT, since
under Article 12(5) of the ICSFT legal assistance is to be provided in accordance with the terms of
the applicable mutual legal assistance treaties. Other provisions of the ICSFT such as Article 12(2),
as well as Articles 13 and 14 of the ICSFT preclude States from relying on certain grounds for
refusing legal assistance (bank secrecy, political and fiscal offences). States remain entitled to rely
on other grounds for refusing to provide legal assistance in accordance with the specific terms of
applicable MLA treaties.
573. Ukraine nevertheless alleges that Russia breached its obligations by failing to provide at the
very least a “brief further explanation” of the reasons for such refusal that would have allowed
804 See e.g. Ukrainian Request for Mutual Legal Assistance Concerning Case No. 42014000000000457 of 28 July 2015
(Annex 423 to MU); Ukrainian Request for Mutual Legal Assistance Concerning Case No. 2201505000000021 of 23
March 2017 (Annex 431 to MU).
805 MU, para. 197.
806 Letter of the Prosecutor General’s Office of the Russian Federation No. 82/1-6425-15, 13 September 2016 (Annex
41).
807 MU, paras. 198, 329.
808 MU, para. 329, fn. 687.
809 MU, paras. 329-330.
177
Ukraine to modify the request.810 To support this argument, Ukraine relies on the Judgment of the
Court in Djibouti v. France. However, that Judgment dealt with the France-Djibouti mutual legal
assistance treaty rather than the 1993 Legal Assistance Convention which is pertinently different in
this respect.
574. Specifically, pursuant to the rules of treaty interpretation codified in Article 31(3)(b) of the
Vienna Convention on the Law of Treaties, the relevant provision of the 1993 Legal Assistance
Convention must be interpreted in accordance with the subsequent practice of the Parties. With
respect to refusals to provide mutual legal assistance under Article 19 of the 1993 Legal Assistance
Convention the practice of both, Russia and Ukraine itself has been consistent in that no reasons for
such refusals were provided. As a matter of fact Ukraine’s own authorities have been consistent in
merely invoking Article 19 of the 1993 Legal Assistance Convention when requested by Russia for
legal assistance and gave no reasons or explanation when rejecting Russia’s requests. By way of
illustrative example,
a. in response to the Russian authorities’ MLA request with respect to Mr A.Yu. Korolev,
Ukraine simply stated that mutual legal assistance cannot be provided “on the grounds
provided in Article 19 of the 1993 Convention on Legal Aid and Legal Relations in Civil,
Family and Criminal Cases and Article 2 of the 1959 European Convention on Mutual
Assistance in Criminal Matters”, without giving any information about what these
grounds were;811
b. a similar response, which was limited to an invocation of the treaty provisions in the
mutual legal assistance treaties, was received in response to a number of other MLA
requests.812
575. In conclusion, the ICSFT does not apply to the MLA requests that Ukraine claims Russia failed
to deal with. In any event, Russia handled these requests in a manner consistent with the ICSFT.
VI. Russia Has Complied with Its Obligations under Article 18 of the ICSFT
576. Ukraine’s claim that Russia violated Article 18 of the ICSFT is based on an incorrect and overly
broad reading of this provision, as well as on a misinterpretation of the facts. In this section, Russia
will first address the correct interpretation of Article 18 before explaining why Ukraine failed to
establish that Russia violated any of its obligations under this provision.
810 MU, para. 329 (quoting Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment,
I.C.J. Reports 2008, p. 229, para. 145).
811 Letter from the Prosecutor General’s Office of Ukraine No. 14/1/1-25106-18, 20 November 2018 (Annex 42).
812 See e.g. Letter from the Prosecutor General’s Office of Ukraine No. 14/1/1-24350-19, 16 September 2019 (Annex
43), Letter from the Prosecutor General’s Office of Ukraine No. 14/1/1-25562-19, 26 December 2019 (Annex 44).
178
A. THE PROPER INTERPRETATION OF ARTICLE 18 OF THE ICSFT
577. Article 18 of the ICSFT provides:
“1. 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 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:
(a) Measures to prohibit in their territories illegal activities of persons and organizations
that knowingly encourage, instigate, organize or engage in the commission of offences
set forth in article 2;
(b) Measures requiring financial institutions and other professions involved in financial
transactions to utilize the most efficient measures available for the identification of their
usual or occasional customers, as well as customers in whose interest accounts are
opened, and to pay special attention to unusual or suspicious transactions and report
transactions suspected of stemming from a criminal activity. For this purpose, States
Parties shall consider:
(i) Adopting regulations prohibiting the opening of accounts the holders or
beneficiaries of which are unidentified or unidentifiable, and measures to ensure
that such institutions verify the identity of the real owners of such transactions;
(ii) With respect to the identification of legal entities, requiring financial
institutions, when necessary, to take measures to verify the legal existence and the
structure of the customer by obtaining, either from a public register or from the
customer or both, proof of incorporation, including information concerning the
customer’s name, legal form, address, directors and provisions regulating the
power to bind the entity;
(iii) Adopting regulations imposing on financial institutions the obligation to
report promptly to the competent authorities all complex, unusual large
transactions and unusual patterns of transactions, which have no apparent
economic or obviously lawful purpose, without fear of assuming criminal or civil
liability for breach of any restriction on disclosure of information if they report
their suspicions in good faith;
(iv) Requiring financial institutions to maintain, for at least five years, all
necessary records on transactions, both domestic or international.”
Followed by provisions encouraging States to consider further measures of cooperation as well as
requiring them to cooperate by exchanging certain information.
578. Contrary to Ukraine’s interpretation, Article 18 imposes a carefully drafted obligation to
cooperate in the prevention of terrorism financing. It is limited in two important respects. First, 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
179
steps aimed at hindering terrorism financing operations in their territories. Second, Article 18 imposes
obligations only with respect to cooperation in the prevention of the offences falling within Article 2
of the ICSFT.
1. Obligation to “Cooperate in the Prevention” under Article 18 of the ICSFT
579. Article 18 of the ICSFT is a carefully drafted provision. It lays down a specific obligation to
“cooperate in the prevention” of Article 2 offences by States taking “all practicable measures, inter
alia, by adapting their 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 those expressly listed in Article 18 of the ICSFT. It provides for an obligation of States to
create a regulatory framework, i.e. adopt a comprehensive set of regulatory measures, aimed at
blocking or hindering such operations (Article 18(1)-(2)), as well as obligations to cooperate through
information sharing (Article 18(3)-(4)). The obligation arising under Article 18 of the ICSFT to
cooperate in order to prevent certain things from happening is thus textually and structurally different
from a straightforward obligation to prevent certain things from happening as such.
580. The decision merely to provide in Article 18 of the ICSFT for a specific obligation to “cooperate
in the prevention of”, rather than for an obligation to prevent terrorism financing tout court, takes
into account the nature of the underlying financial transactions that may not be easy to identify, and
hence requires State Parties to cooperate in order to implement systems that aim to prevent suspicious
transactions. Article 18 also supplements the separate obligations of State Parties under Articles 8-10
of the ICSFT to freeze funds used or allocated to be used for terrorism financing, and investigate and
prosecute those allegedly engaged in terrorism financing.
581. Several factors, including the ordinary meaning of the words used in Article 18, as well as the
context of this provision and the underlying preparatory work confirm that Article 18 of the ICSFT
was not meant to be understood as an obligation to prevent the financing of terrorism as such, but
that it merely requires States parties to cooperate by taking steps that aim at the prevention of the
financing of terrorism.
582. The ordinary meaning of the words used in Article 18 of the ICSFT is inconsistent with the
claim that the provision lays down a general obligation to prevent as such. As the Court has confirmed
the content of a duty to prevent “varies from one instrument to another, according to the wording of
the relevant provisions.”813 The deliberate decision not to include in Article 18 of the ICSFT a general
obligation to prevent the financing of terrorist acts, but rather only an obligation to cooperate in the
prevention of such financing, must thus be taken seriously. Indeed, even within Article 18(1) itself,
the formula “shall cooperate in the prevention of” stands in sharp contrast to the precision then
supplied with respect to domestic legislation “by adapting their domestic legislation, if necessary, to
813 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. 220, para. 429; emphasis added.
180
prevent …”. Had State Parties of the ICSFT indeed intended to impose, as claimed by Ukraine, upon
State Parties a general obligation to prevent the financing of terrorist acts, they would plainly have
said so expressly rather than using the more limited “cooperate in the prevention of” formula.
583. Article 18 of the ICSFT thus stands in sharp contrast to the express “obligation to prevent” in
Article 1 of the Genocide Convention, with which the Court was specifically concerned in its 2007
Judgment in the Bosnian Genocide case. There, the Court found that even this more far-reaching
obligation to prevent does not constitute an obligation of result, but rather an obligation of conduct
only to employ all means reasonably available.814 Thus “[a] State does not incur responsibility simply
because the desired result is not achieved; responsibility is however incurred if the State manifestly
failed to take all measures to prevent genocide which were within its power, and which might have
contributed to preventing the genocide”.815 Accordingly even a full-fledged obligation to prevent does
not entail an obligation to be successful in preventing the outcome in question.816
584. Hence, the more specific obligation to cooperate to prevent enshrined in Article 18 of the
ICSFT must a fortiori constitute merely an obligation of conduct rather than one of result. It follows
that a State Party of the ICSFT, subject only to an obligation to cooperate in the prevention of, is thus
even less under an obligation to succeed in preventing the financing of alleged terrorist acts.
585. Put another way, this obligation of State Parties to the ICSFT to cooperate is fulfilled once a
State Party has taken all steps to cooperate that can be reasonably expected from it. A State Party of
the ICSFT does not incur responsibility under Article 18 of the ICSFT simply because the prevention
of financing of alleged terrorist acts is not achieved. Instead, in line with the standard developed by
the Court as to the materially different and stricter obligation to prevent,817 responsibility for a
violation of Article 18 of the ICSFT could only be incurred provided the State Party of the ICSFT
concerned manifestly failed to take the required steps laid down in Article 18 of the ICSFT in order
to try to thereby prevent such financing.
586. As to the context, this understanding of Article 18, as only encompassing a duty to cooperate,
is confirmed by the fact that it is located at the very end of the substantive provisions of the
Convention. Had Article 18 indeed sought, as claimed, to impose a general obligation to prevent the
financing of terrorism as such, one would have expected the provision to appear at the beginning of
the text of the treaty in the same way as Article I of the Genocide Convention.
587. In addition, the specific examples of the obligation to “cooperate in the prevention” provided
for in Article 18 of the ICSFT are consistent with an obligation to adopt a regulatory framework only,
rather than with a general obligation to prevent specific incidents. For example, States are required
814 Ibid., para. 430.
815 Ibid.
816 Ibid.
817 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. 220, para. 430.
181
(i) to ban opening accounts with unidentified or unidentifiable holders of beneficiaries,818 (ii) to
require financial institutions to obtain corporate information concerning legal entities,819 (iii) to
require financial institutions to report unusual transactions or complex of transactions.820 With respect
to organizations and persons that “engage in the commission of offences set forth in article 2”,821
States are required not to prevent these persons from operating, but to prohibit their operations.
588. This interpretation of what is now Article 18 of the ICSFT is confirmed by its drafting history.
When submitting the text of its draft convention, France explained the content of draft Article 17
(now Article 18 of the ICSFT) as follows:
“Des mesures préventives inspirées des principes généralement admis en matière de lutte
antiblanchiment (art. 17).[822] [now Article 18 of the ICSFT] […] cette convention
prévoit-elle plusieurs dispositions […] qui ont pour objectif d’encourager les États parties
à prendre des mesures internes faisant obligation aux institutions financières de mieux
identifier leurs clients habituels ou potentiels,[823] en particulier en proscrivant la tenue
de comptes anonymes, en identifiant formellement les titulaires des comptes, en
conservant pendant au moins cinq ans les pièces se rapportant aux transactions
effectuées.”824
“Preventive measures based on generally accepted principles followed in combating
money-laundering (art. 17).[825] [now Article 18 of the ICSFT]. […] this convention
includes a number of provisions […] which are designed to encourage States to adopt
domestic measures to require financial institutions to improve the identification of their
usual or occasional customers,[826] 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.”827
589. Article 18 is mutatis mutandis identical to the draft Article 17 submitted by France.
Accordingly, France as the main sponsor of the draft convention understood the obligation to
cooperate as being limited to requiring State Parties to oblige financial institutions operating on their
territory to strengthen the ability to identify their clients.
818 Article 18(1)(b)(i) of the ICSFT.
819 Article 18(1)(b)(ii) of the ICSFT.
820 Article 18(1)(b)(iii) of the ICSFT.
821 Article 18(1)(a) of the ICSFT.
822 Emphasis in the original.
823 Emphasis added.
824 Projet de convention internationale pour la répression du financement du terrorisme - Document de travail présenté
par la France, 11 March 1999, UN.Doc A/AC.252/L.7/Add.1, para. 10.
825 Emphasis in the original.
826 Emphasis added.
827 Draft International Convention for the Suppression of the Financing of Terrorism, Working Document submitted by
France, 11 March 1999, UN.Doc A/AC.252/L.7/Add.1, para. 10.
182
590. International and national bodies that have commented on Article 18 of the ICSFT or its
implementation in domestic legislation have similarly perceived the provision as being limited to
entailing an obligation to prevent the financing of terrorist activities through the creation of a
regulatory framework. For example:
a. The IMF has considered Article 18 as containing a limited number of mandatory
“preventive measures” “borrowed from the FATF 40 recommendations”.828 This
assessment is only consistent with Article 18 imposing a limited obligation to take certain
specific preventive measures, rather than with an understanding of Article 18 as
containing a general obligation to prevent.
b. UNODC in its Incorporation and Implementation Guide similarly interprets Article 18
of the ICSFT as an obligation to cooperate by implementing certain preventive measures.
The Guide notes that:
“[a] number of measures of cooperation are required under article 18 of the 1999
Financing of Terrorism Convention.”829
c. The Commonwealth Implementation Kit similarly notes that:
“Article 18 is entirely new since it is relevant only to financial offences. It contains
detailed provisions intended to encourage further practical co-operation between the
Parties to prevent and counter preparations for terrorist financing, whether inside or
outside their territory. The suggested measures are based on ‘The Forty
Recommendations’ of the Financial Action Task Force (FATF). Although expressed as
obligations, they are only obligations to ‘co-operate’. Furthermore, they are qualified by
phrases such as ‘shall consider’. Nevertheless, such measures, if adopted and properly
implemented, will be a valuable means of limiting the access of terrorists to funds.”830
591. Notably, both the IMF and the Commonwealth Implementation Kit refer to FATF’s forty
recommendations as the basis of Article 18 of the ICSFT. This is significant since those
recommendations encourage States to implement certain legislative and regulatory measures to
generally counter the financing of terrorism, rather than obliging them to prevent specific alleged acts
of terrorism financing.831
828 Suppressing the Financing of Terrorism: A Handbook of Legislative Drafting, IMF Legal Department, 2003, p. 12.
829 United Nations Office on Drugs and Crime, Guide for the Legislative Incorporation and Implementation of the
Universal Anti-Terrorism Instruments, 2006, p. 92, para. 484 (emphasis added).
830 Commonwealth Implementation Kits for the International Counter-Terrorism Conventions, p. 273, para. 35, emphasis
added and footnotes omitted. Available at:
https://thecommonwealth.org/sites/default/files/key_reform_pdfs/Implementation%20Kits%20for%20Terrorism%20Co
nventions_0.pdf.
831 The Forty Recommendations of the Financial Task Force on Money Laundering, 1990, available at https://www.fatfgafi.
org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%201990.pdf.
183
592. In sum, 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.
2. A Breach of Article 18 of the ICSFT Can Be Established Only Provided an Act of Terrorism
Financing under Article 2 of the ICSFT Has Been Committed
593. The wording of Article 18 of the ICSFT is clear: the obligation it imposes applies only with
respect to “offences set forth in article 2”. State Parties have no obligation to prevent acts that another
State Party merely alleges to constitute terrorism financing.
594. The Court’s finding in its Order on Provisional Measures in the case at hand supports this
interpretation when stating that:
“the obligations under Article 18 and the corresponding rights are premised on the acts
identified in Article 2”.832
595. Similarly, when addressing the obligation to prevent genocide the Court found in Bosnian
Genocide that
“a State can be held responsible for breaching the obligation to prevent genocide only if
genocide was actually committed”.833
596. Accordingly, to uphold Ukraine’s claim the Court will, first, need to make a determination that
there was an act of financing of terrorism, before considering whether Russia complied with an
obligation to prevent such act.
B. UKRAINE HAS FAILED TO DEMONSTRATE THAT RUSSIA HAS VIOLATED ITS OBLIGATIONS UNDER
ARTICLE 18 OF THE ICSFT
597. Ukraine claims that Russia violated its obligations under Article 18 of the ICSFT by failing to
designate the DPR and LPR as terrorist organisations,834 by failing to stop fundraising for the DPR
and LPR in Russia,835 by failing to police its borders to prevent transfer of weapons and resources to
the DPR and LPR,836 and because Russian officials engaged in financing the DPR and LPR.837
832 Order of 19 April 2017, para. 74.
833 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. 221, para. 431.
834 MU, para. 316.
835 MU, para. 317.
836 MU, paras. 314-315.
837 MU, para. 308.
184
598. However, these allegations do not demonstrate a breach of Article 18 of the ICSFT. First, as
previously shown, Ukraine failed to establish that the provision of funds to the DPR or the LPR
constitutes an offence under Article 2 838 and accordingly the ICSFT does not apply to such acts.
Second, Article 18 of the ICSFT does not apply to any alleged provision of weapons because, as
demonstrated in Chapter II, weapons do not constitute funds under the ICSFT.839 Third, Article 18
requires States to adopt a regulatory framework, rather than requiring them to prevent specific
incidents of terrorism financing and Ukraine has failed to identify any failure by Russia to adopt such
appropriate regulatory framework.
599. Ukraine attempts to use Article 18 primarily as a means of bringing before the Court its claims
that the Russian Federation has been supplying weapons to the DPR and LPR. As established
above,840 these allegations do not fall under the ICSFT and hence the Court lacks jurisdiction to
resolve them. For this reason, the Russian Federation does not address these untenable claims in
detail.
600. Finally, Ukraine contends that Russia violated Article 18 by failing to prevent the provision of
funds to the alleged perpetrators of the bombing incidents in Kharkov.841 Even if Article 18 were to
establish a general obligation to prevent the financing of terrorism, as asserted by Ukraine, and even
if, besides, the provision of weapons were to constitute the provision of funds within the meaning of
the ICSFT, quod non, Ukraine has still failed to establish that Russia violated its obligations under
Article 18 of the ICSFT with respect to these incidents.
601. This is due to the fact that any obligation to prevent requires a State to exercise due diligence
rather establishing an absolute obligation.842 Ukraine has not established that Russia violated this due
diligence obligation underlying Article 18 of the ICSFT, even assuming arguendo that Article 18
would otherwise be applicable.
602. First, Ukraine claims that Russia failed to prevent the alleged transfer of weapons to the
Kharkov Partisans through the Russian-Ukrainian border.843 However, Ukraine has failed to
demonstrate how Russia could have prevented the alleged transfer.
a. Contrary to what may be implied from its Memorial,844 Ukraine never informed Russia
about the alleged transfer.
838 See Chapters V and VI above.
839 See Chapter II.
840 See Chapters II-VII.
841 MU, para. 313.
842 See paras. 585-587 above.
843 MU, para. 313. Russian Federation notes that Ukraine does not appear to identify any transfer of funds and items other
than weapons through the border allegedly relating to the Kharkov Partisans that Russia should have prevented.
844 MU, para. 314.
185
b. To prove such alleged transfer, Ukraine relies primarily on the record of interrogation
of Mr Slitenko.845 According to this document, weapons were allegedly transferred
through a secret stash at the border between Russia and Ukraine in the Kharkov Region
of Ukraine, the territory being indisputably under the control of Ukraine at all relevant
times. Notably, the document does not suggest that Mr Slitenko saw either Russian or
Ukrainian border guards at the time of allegedly collecting the weapons. Ukraine fails
to explain how the Russian border guards should have prevented the alleged transfer
despite regular border controls having taken place in the area during the relevant time
(with such controls not implying that any State has complete ability to monitor and
prevent illegal crossing of the border at all places at all times). Russia further notes
that the Ukrainian border guards apparently failed to prevent the transfer either.
603. Second, Ukraine also appears to suggest, according to its interpretation of Article 18, that Russia
violated the obligation to prevent because Russian officials were purportedly involved in the alleged
transfers. However, Ukraine has failed to prove such involvement of any Russian officials.
604. The evidence relied on by Ukraine consists of records of interrogations. These records are
generally unreliable given the widely reported use of torture during interrogations and public
statements by some of the persons on whose statements Ukraine relies.846 In any event, they cannot
have any evidentiary weight with respect to the alleged involvement of Russian officials. In this
respect the records consist of hearsay, i.e. an interrogated person stating that he was told that
somebody met with “officers of the Central Intelligence Directorate”847 or mere speculations (“as far
as I could tell, he was an employee of the Russian FSB”848). As the Court has held, such evidence
does not carry much if any weight.849
605. The unreliability of Ukraine’s evidence in this respect is confirmed by the investigation into the
alleged “GRU officer” Ukraine identifies by full name – a certain Mr Eduard Dobrodeev.850 The
Russian investigative authorities have determined that only three persons by that name live or have
845 Record of Interrogation of Suspect, Mr Sergey Slitenko, 10 August 2015 (Annex 235 to MU). Russia notes that the
record of interrogation is not signed by either the interrogated person, his attorney or indeed, the investigator and cannot
serve as evidence. In addition, in the document itself the person purportedly interrogated refers to himself as Mr Mikhail
Viktorovich Reznikov. As such, the document cannot have any weight in supporting Ukraine’s case.
846 See para. 510 above.
847 E.g. Record of interrogation of Mr Maksim Mykolaichyk, 15 April 2015 (Annex 227 to MU); Record of Interrogation
of Suspect Mr Andrey Tyshchenko, 26 December 2015 (Annex 245 to MU) (Mr Tyshchenko being recorded stating that
he was told by Mr Sobchenko that Mr Sobchenko “had FSB handlers”).
848 Record of Interrogation of Suspect Mr Andrii Baranenko, 23 October 2014 (Annex 191 to MU).
849 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, p. 42, para. 68.
850 MU, para. 276.
186
lived in Russia one of them having already passed away in 2010,851 while two others have never had
any links with Russian State authorities or the events in question.852
606. In conclusion, Ukraine has failed to establish that the Russian Federation violated any of its
obligations under Article 18 of the ICSFT.
851 Ruling on the provision of the results of operative search activities to the body of inquiry, investigator, or court,
Criminal Case No. 201/837072-14, 26 March 2020 (Annex 38).
852 Record of Witness Interrogation of Eduard Ivanovich Dobrodeev, 9 October 2020 (Annex 39), Record of Witness
Interrogation of Irina Alekseevna Dobrodeeva, 16 February 2021 (Annex 40).
187
SUBMISSION
607. For the reasons set out in the present Counter-Memorial, and reserving its right to supplement
or amend this Submission, the Russian Federation respectfully requests the Court to dismiss all of the
claims made by Ukraine.
____________________
Dmitry A. LOBACH
____________________
Grigory E. LUKIYANTSEV
Agents of the Russian Federation
Moscow, 9 August 2021
188
189
190
191
APPENDIX A
TABLE OF CONTENTS
Table 1: Characterisation of indiscriminate shelling and presence of military objectives......... 192
Table 2: Greater civilian casualties caused by shelling attributed to Ukraine........................... 195
Map 1: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 November 2015 to 15 February 2016.................................................................................... 198
Map 2: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 February to 15 May 2016....................................................................................................... 199
Map 3: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 May to 15 August 2016.......................................................................................................... 200
Map 4: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 August to 15 November 2016................................................................................................ 201
Map 5: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 November 2016 to 15 February 2017.................................................................................... 202
Map 6: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 February to 15 May 2017....................................................................................................... 203
Table 3: Illustrative examples of reported use by Ukraine of MLRS and other heavy weapons
in populated areas in territory controlled by the DPR/LPR........................................................ 204
Table 4: Civilian casualties caused by shelling of populated areas of territory controlled by
the DPR/ LPR and attributable to Ukraine................................................................................. 239
Table 5: Killing and ill-treatment by all parties to the armed conflict....................................... 248
192
Table 1: Characterisation of indiscriminate shelling and presence of military objectives
Date Organisation Characterisation of indiscriminate shelling by
all parties to the armed conflict as “terrorism”?
All parties to the armed conflict locating military
objectives in populated areas?
December
2014 to
February 2015
OHCHR
No. Yes:
“In January 2015, usage of tanks, heavy artillery and
multiple launch rocket systems (MLRS) resumed and
spread to populated areas along or near the line of
contact.”1
January 2014
to May 2016 OHCHR
No:
“The vast majority of civilian casualties, recorded on
the territories controlled by the Government of
Ukraine and on those controlled by armed groups,
were caused by the indiscriminate shelling of
residential areas, in violation of the international
humanitarian law principle of distinction.”2
-
January 2015 ICRC
No:
With specific respect to Volnovakha: “We once
again call on all parties to refrain from harming
civilians and to comply with international
humanitarian law […] In particular, we remind them
that indiscriminate attacks are prohibited.”3
-
May to
August 2015 OHCHR
No:
Calls on “all parties involved in the hostilities in
Donetsk and Luhansk regions: […] Respect
international humanitarian law, particularly by
complying with the principles of distinction,
Yes:
Calls on “all parties involved in the hostilities […]
Respect international humanitarian law, particularly
by complying with the principles of distinction,
proportionality and precaution and, in any situation,
1 OHCHR, “Report on the human rights situation in Ukraine 1 December 2014 to 15 February 2015”, para. 21 (Annex 309 to Memorial).
2 OHCHR, “Accountability for killings in Ukraine from January 2014 to May 2016”, p. 3 (Annex 49 to Memorial).
3 ICRC, “Ukraine Crisis: ICRC calls on all parties to spare civilians”, 20 January 2015, available at https://www.icrc.org/en/document/ukraine-crisis-icrc-calls-allparties-
spare-civilians.
193
proportionality and precaution, and in any situation,
refraining from indiscriminate shelling of populated
areas”.4
refraining from indiscriminate shelling of populated
areas, and refraining from locating military objectives
within or near densely populated areas and damaging
objects indispensable to the survival of the civilian
population (i.e. water facilities), as well as protect
medical personnel, ambulances and facilities.”5
August to
November
2015
OHCHR
No:
“To all parties involved in the hostilities […]
Ensure the protection of civilians in conflict
affected areas in fully conformity with international
human rights and humanitarian law, including
complete avoidance of indiscriminate shelling by
populated areas.”6
“Recommendations made in OHCHR previous
reports […] that have not yet been acted upon or
implemented, remain valid.”7
November
2015 to
February 2016
OHCHR
No:
“To all parties involved in the hostilities […]
Respect international humanitarian law,
particularly the principles of distinction,
proportionality and precaution; in any situation,
refraining from indiscriminate shelling of
populated areas, and from locating military
objectives within or near densely populated areas”.8
Yes:
“Ukrainian armed forces and armed groups
maintained their positions and further embedded their
weapons and forces in populated areas, in violation of
their obligations under international humanitarian
law.”9
4 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2015”, para. 193 (b) (Annex 769 to Memorial) (emphasis added).
5 Ibid. (emphasis added).
6 OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2015”, para. 185 (b) (Annex 312 to Memorial).
7 Ibid., para. 185.
8 OHCHR, “Report on the human rights situation in Ukraine 16 November 2015 to 15 February 2016”, para. 214(b) (Annex 314 to Memorial).
9 Ibid., para. 25.
194
June 2016 ICRC
No:
“When conducting military operations, constant
care must be taken to spare the civilian population
and civilian property. Under international
humanitarian law, all those involved in the conflict
must do their utmost to verify that targets are indeed
military objectives”.10
-
10 ICRC, “Ukraine crisis: Intensifying hostilities endanger civilian lives and infrastructure”, 10 June 2016, available at https://www.icrc.org/en/document/ukrainecrisis-
intensifying-hostilities-endanger-civilian-lives-and-infrastructure. See also ICRC, “ICRC warns of deteriorating humanitarian situation amid intensifying
hostilities in eastern Ukraine”, 2 February 2017, available at https://www.icrc.org/en/document/icrc-warns-deteriorating-humanitarian-situation-intensificationhostilities-
eastern-ukraine.
195
Table 2: Greater civilian casualties caused by shelling attributed to Ukraine
Date Organisation
Greater civilian casualties caused by
indiscriminate shelling in territory controlled
by the DPR/LPR?
Attribution to UAF?
December
2014 to
February 2015
OHCHR/OSCE
No specific data Yes:
On 22 January 2015 (two days before the shelling
of Mariupol), 8 civilians were killed and 13 were
injured when a trolley bus was hit by mortar or
artillery rounds in Kuprina Street in Donetsk City.
The OSCE assessed that the shells had been “fired
from a north-western direction”, i.e., from
government-controlled territory. 11
May to August
2015 OHCHR/OSCE
Yes:
Government-controlled territory, 165 civilian
casualties, including 41 killed;
DPR/LPR-controlled territory, 244 civilian
casualties, including 69 killed.12
Yes:
OSCE crater analysis, which is of obvious use in
identifying the source of a given attack, shows how
indiscriminate shelling in the DPR/LPR-controlled
areas has come from the north or west, i.e., the
direction from which shelling by Ukrainian armed
forces would come. 13
11 OSCE, “Spot report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling incident on Kuprina Street in Donetsk City”, 22 January 2015, available
at https://www.osce.org/ukraine-smm/135786.
12 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2015”, paras. 29 and 32 (Annex 769 to Memorial).
13 See e.g., OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 19:30 (Kyiv time), 27 May 2015”, 28 May
2015”, available at https://www.osce.org/ukraine-smm/160611; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information
received as of 19:30hrs (Kyiv time), 12 June 2015”, 13 June 2015, available at https://www.osce.org/ukraine-smm/164141; OSCE, “Latest from OSCE Special
Monitoring Mission (SMM) to Ukraine based on information received as of 19:30 hrs (Kyiv time), 19 July 2015”, 20 July 2015, available at
https://www.osce.org/ukraine-smm/173666; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 19:30
hrs (Kyiv time), 30 July 2015”, 31 July 2015, available at https://www.osce.org/ukraine-smm/175591; OSCE, “Latest from OSCE Special Monitoring Mission
(SMM) to Ukraine based on information received as of 19:30 (Kyiv time), 2 August 2015”, 3 August 2015, available at https://www.osce.org/ukraine-smm/175736;
OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 11 August 2015”, 12 August
2015, available at https://www.osce.org/ukraine-smm/176961.
196
November
2015 to
February 2016
OHCHR
Yes: see Map 1 below14 Yes.15
February to
May 2016 OHCHR
Yes: see Map 2 below16
Yes:17
Supported by OSCE crater analysis of specific
shelling attacks on populated areas on the DPR/LPR
side of the contact line. For example, on 27 April
2016, four civilians were killed by shelling near a
DPR checkpoint near Olenivka. The OSCE assessed
the shells to have been fired from a west-south-west
direction, i.e., from the territory held by Ukrainian
armed forces.18
May to August
2016 OHCHR
Yes: see Map 3 below19 Yes:
Origin of the shelling is again supported by OSCE
analysis of specific shelling incidents.20
14 OHCHR, “Report on the human rights situation in Ukraine 16 November 2015 to 15 February 2016”, map at p. 5 (Annex 314 to Memorial).
15 For specific incidents see e.g., OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv
time), 7 February 2016”, 8 February 2016, available at https://www.osce.org/ukraine-smm/221171. See also OSCE, “Latest from OSCE Special Monitoring Mission
(SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 8 February 2016”, 9 February 2016, available at https://www.osce.org/ukrainesmm/
221436.
16 OHCHR, “Report on the human rights situation in Ukraine 16 February to 15 May 2016”, map at p. 5 (Annex 771 to Memorial).
17 See e.g., OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 23 February 2016”,
24 February 2016, available at https://www.osce.org/ukraine-smm/224136; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on
information received as of 19:30 hrs (Kyiv time), 1 April 2016”, 2 April 2016, available at https://www.osce.org/ukraine-smm/231261.
18 OSCE, “Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in Olenivka”, 28 April 2016, available at https://www.osce.org/ukrainesmm/
236936.
19 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2016”, map at p. 4 (Annex 772 to Memorial).
20 See OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 25 May 2016”, 26 May
2016, available at https://www.osce.org/ukraine-smm/243031; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information
received as of 19:30 hrs (Kyiv time), 26 June 2016”, 27 June 2016, available at https://www.osce.org/ukraine-smm/248801; OSCE, “Latest from OSCE Special
Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 1 August 2016”, 2 August 2016, available at
https://www.osce.org/ukraine-smm/257516.
197
August to
November
2016
OHCHR
Yes:
“In October, OHCHR recorded eight times more
civilian casualties in armed group-controlled
territories than in Government-controlled areas of
the conflict zone, indicating that civilians in
territories controlled by the armed groups continue
to be particularly at risk of injury and death.”21
See also Map 4 below.22
Yes:
Origin of the shelling is again supported by OSCE
analysis of specific shelling incidents.23
November
2016 to May
2017
OHCHR
Yes:
see Map 5 and Map 6 below24
Note that this period includes the shelling of
Avdiivka and the period immediately after the
Order of 19 April 2017. Note also that the same
pattern has continued to date.25
-
21 OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2016”, para. 4 (Annex 773 to Memorial) (emphasis added). See also para. 23.
22 Ibid., map at p. 4.
23 See OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 9 October 2016”, 10
October 2016, available at https://www.osce.org/ukraine-smm/273756; OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on
information received as of 19:30 hrs (Kyiv time), 11 October 2016”, 12 October 2016, available at https://www.osce.org/ukraine-smm/274286; OSCE, “Latest from
OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30 hrs (Kyiv time), 28 October 2016”, 29 October 2016, available at
https://www.osce.org/ukraine-smm/278046.
24 OHCHR, “Report on the human rights situation in Ukraine 16 November 2016 to 15 February 2017”, map at p. 4 and para. 28 (recording three times as many civilian
casualties in territory controlled by the DPR/LPR), available at https://www.ohchr.org/Documents/Countries/UA/UAReport17th_EN.pdf; OHCHR, “Report on the
human rights situation in Ukraine 16 February to 15 May 2017”, map at p. 6 (Annex 774 to Memorial).
25 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2017”, map p. 6 and table at para. 33 (Annex 775 to Memorial); OHCHR, “Report
on the human rights situation in Ukraine 16 August to 15 November 2017”, map at p. 6 and table at para. 27 (Annex 776 to Memorial); OHCHR, “Report on the
human rights situation in Ukraine 16 November 2017 to 15 February 2018”, map at p. 5 and para. 19 (Annex 779 to Memorial); OHCHR, “Report on the human
rights situation in Ukraine 16 February to 15 May 2018”, map at p. 5 and para. 18, available at https://www.ohchr.org/Documents/Countries/UA/ReportUkraineFev-
May2018_EN.pdf.
198
Map 1: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 November 2015 to 15 February 2016
199
Map 2: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 February to 15 May 2016
200
Map 3: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 May to 15 August 2016
201
Map 4: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 August to 15 November 2016
202
Map 5: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 November 2016 to 15 February 2017
203
Map 6: OHCHR Map showing civilian casualties caused by shelling along the contact line,
16 February to 15 May 2017
204
Table 3: Illustrative examples of reported use by Ukraine of MLRS and other heavy weapons in populated areas in territory controlled by the
DPR/LPR
(1) BM-21 “Grad” MLRS
Date Location Source Incident
12-21 July
2014 Donetsk
Human Rights Watch, Ukraine:
Unguided Rockets Killing
Civilians, 24 July 2014,
https://www.hrw.org/news/201
4/07/24/ukraine-unguidedrockets-
killing-civilians
Unguided Grad rockets launched apparently by Ukrainian government forces
and pro-government militias have killed at least 16 civilians and wounded many
more in insurgent-controlled areas of Donetsk and its suburbs in at least four
attacks between July 12 and 21, 2014 […] The use of indiscriminate rockets in
populated areas violates international humanitarian law, or the laws of war, and
may amount to war crimes. […]
Both Ukrainian government and insurgent forces have recently used Grad
rockets. Although Ukrainian government officials and the press service of the
National Guard have denied using Grad rockets in Donetsk, a Human Rights
Watch investigation on the ground strongly indicates that Ukrainian government
forces were responsible for the attacks that occurred between July 12 and 21.
The four attacks took place close to the front line between insurgent and
government forces. Impact craters on the ground and on buildings investigated
by Human Rights Watch were characteristic of rocket attacks, not shelling. In
all four cases, the angle and shape of the craters, and the fact that they were on
the side of buildings facing the front line, strongly suggests that the rockets came
from the direction of Ukrainian government forces or pro-Kiev armed groups.
The attacks’ proximity to the front line also makes it unlikely, and in some cases
impossible, that insurgent forces were responsible for the attacks. In two of the
attacks, rockets hit on or near insurgent bases and checkpoints at the same time
as they hit residential areas, indicating government forces were responsible.
In the July 21 attack, three civilians died when Grad rockets hit a residential
area near the Donetsk train station. Ongoing fighting made it difficult for Human
Rights Watch to determine whether there were additional casualties, but what
205
could be identified as Grad rockets by their distinctive sound could be heard
throughout the day.
On July 19, at least five rockets struck a residential area in the Kuibyshivskyi
district in western Donetsk, injuring at least four civilians.
Human Rights Watch documented multiple rocket impacts on July 12 on a
residential area in the Petrovskyi district on the western outskirts of Donetsk
that killed at least seven civilians.
Also on July 12, multiple rockets struck a residential area in Maryinka, a
village just outside of Donetsk, close to the Petrovskyi district, killing at least
six civilians.
Human Rights Watch was able to identify the rockets fired as unguided 122-
millimeter surface-to-surface Grad artillery rockets launched from multibarrel
rocket launchers with up to 40 launch tubes. Most Grad rockets have
a range of 1.5 to 20 kilometers. The rockets vary in length from 1.9 to 3.3 meters
and weigh 45 to 75 kilograms. […]
27 July
2014 Horlivka
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, p.335,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf.
[Unofficial translation]:
On 27 July 2014, the city of Horlivka came under three artillery attacks.
The first artillery attack came at 05:30 a.m., local time. The centre of the city
and the detached house suburbs in the village of Korolenka were damaged.
Residential buildings and a narcological dispensary’s laboratory in the centre of
Horlivka were damaged.
The second heavy artillery attack that day came at 12:30 p.m., local time.
The next artillery attack on Horlivka came at 07:00 p.m., local time. Buildings
and structures on Peremohy Avenue, Hertsena Street, Rudakova Street, Lenina
Street and others were damaged.
In total, on 27 July 2014, the artillery attacks on Horlivka killed 22 civilians,
while 43 people sustained wounds of various severity.
The majority of civilian casualties occurred as a result of the artillery attack at
12:30 p.m. Projectiles exploded near the Melodia public transport stop
(Peremohy Avenue); a pop-up market near an ATB shop (Peremohy Avenue);
206
in the Kommunarov Square, near School No. 85. 13 civilians died and more than
30 civilians were injured in the attack.
There were fragments near all impact sites that clearly indicated that MLRS
BM-21 Grad had been used in the attack. […] As follows from all
aforementioned data, the most probable version is that Horlivka was attacked
by MLRS BM-21 Grad using M-21OF high-explosive fragmentation
projectiles.
[…] [T]he entire area from which the 27 July 2014 attacks on the centre of
Horlivka most likely came was controlled by Ukrainian armed units. Further,
there was at least one MLRS BM-21 Grad in that area that belonged to the 93rd
Separate Mechanised Brigade of the Ukrainian Armed Forces […]
As for the units that were located in the relevant sector on 27 July 2014, it was
the aforementioned Artemovsk battalion, as well as the 93rd separate
mechanized brigade […] which employed BM-21 Grad MLRS. […]
28-29 July
2014 Donetsk
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine, based on
information received as of
18:00 hrs, 1 August 2014,
http://www.osce.org/ukrainesmm/
122189
The overall security situation in Donetsk remained tense. Shelling on the
outskirts of Donetsk city was more frequent than the previous day, with more
activity in the evening hours. The SMM visited areas affected by shelling,
located east and northeast of the city airport. These areas were exclusively
civilian localities, with neither military nor police installations nearby.
According to the inhabitants, the areas were shelled in the early hours of 28 and
29 July [2014]. The SMM observed damage caused by shrapnel. The SMM saw
a house in which the interior walls had large holes, making it uninhabitable.
According to neighbours, the occupants were not injured. Inhabitants whose
houses and property was damaged presented the SMM with the alleged
remnants of exploded Grad missiles, photographed by the SMM. The local
inhabitants told the SMM, that four families from the affected areas had already
left the city. Some other locals present voiced their intention to leave because of
fear and uncertainty, with artillery attacks threatening their safety. Local
residents appreciated the interest demonstrated by the SMM.
Somewhere
after 14 Ilovaisk
Human Rights Watch and
IHRC, Incendiary Weapons:
Recent Use and Growing
Evidence of new use of incendiary weapons in Ukraine in 2014 is especially
troubling. During field missions in August and October 2014, Human Rights
Watch researchers documented use of incendiary weapons in Ilovaisk, a town
207
August
2014
Opposition, November 2014,
p.6,
https://www.hrw.org/sites/defa
ult/files/related_material/Incen
diary%20Weapons_Recent%2
0Use%20and%20Growing%20
Opposition_Nov2014_final.pdf
30 kilometers southeast of Donetsk, and Luhanskoe, a small village south of
Donetsk. Residents of Ilovaisk told Human Rights Watch that weapons
resembling fireworks fell on the northwest part of their town over the course of
three nights and burned three homes. They could not pinpoint the date of the
attack although one resident said it was after August 14, and possibly during a
time when intense battles were taking place between Ukrainian forces and
Russia-supported rebels. Human Rights Watch researchers also found in a field
about 18 kilometers south-southwest of Ilovaisk an abandoned firing position
with several misfired 122mm Grad 9M22S rockets equipped with the 9N510
incendiary warhead that contains 180 hexagonal incendiary capsules, which
burn for two minutes.
Vice News, A Rain of Fire:
Ukrainian Forces Used Little-
Known Soviet-Era Incendiary
Weapons to Attack Ilovaisk, 13
November 2014,
https://www.vice.com/en_us/ar
ticle/a3894a/a-rain-of-fireukrainian-
forces-used-littleknown-
soviet-era-incendiaryweapons-
to-attack-ilovaisk
A subsequent investigation by VICE News, including an independent expert
analysis of retrieved rocket remnants by Armament Research Services
(ARES), showed that the "fireworks" were in fact thousands of incendiary
elements cascading out of a Soviet-era 9M22S rocket in mid-flight. […]
"They started firing Grad rockets shortly after, while we were still putting out
the fires. […] Bombardment was near constant at this point. We managed to
save four houses on this street but one burned down. After this fire attack I'd had
enough. I took my stuff and moved to the bomb shelter at about 4:30am that
morning."
That night at least eight houses were completely destroyed and dozens more
damaged by the "fire" that fell from the sky.
4
September
2014
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 5
September 2014,
http://www.osce.org/ukrainesmm/
123256
In Donetsk, while on patrol on the outskirts of Donetsk, in the “Oktyabrskiy”
area, the SMM heard intense shelling targeting the airport and originating from
both the east and the west. The SMM witnessed damage to several buildings,
which were reported to have occurred on 4 September and include direct hits on
the cultural house, five apartment buildings and a residential house with a total
of two deaths being reported. Furthermore two “Grad” missiles landed within
the Hospital complex causing three light casualties and some material damage.
The Hospital continues to function.
208
23
September
2014
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 24
September 2014,
http://www.osce.org/ukrainesmm/
124328
In Donetsk, during the night hours of 23 September, the SMM heard a series of
11 explosions consistent with GRAD shelling, but could not ascertain the
origin or the direction. On 24 September, between 18:00 and 18:42 hrs, the
SMM heard a series of 53 intermittent explosions, which appeared to be
consistent with mortar shelling and concentrated in the northern part of the city,
where the airport is located. The SMM could not verify the situation at the
airport area due to the security situation.
24
September
2014
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 25
September 2014,
http://www.osce.org/ukrainesmm/
124435
At around 18:55hrs on 24 September, the SMM heard what appeared to be
approximately 20 outgoing mortar rounds emanating from the north-western
suburbs of Donetsk city. The following morning at 8:50hrs, the SMM heard
more explosions, again in the northwest of the city. Later that day, from 18:00
to 18:35hrs, the SMM heard approximately 30 explosions in the northern
outskirts of the city, assessed to have been mortars and GRAD rockets.
Donetsk airport lies on the north-western outskirts of the city.
8 October
2014 Donetsk
Human Rights Watch,
Dispatches: The Ukraine
Ceasefire That Wasn’t, 9
October 2014,
https://www.hrw.org/news/201
4/10/09/dispatches-ukraineceasefire-
wasnt
At about 5 p.m. on October 8 [2014] several rockets simultaneously slammed
into a residential area in the Kuibyshevskyi district of Donetsk. They also hit a
supermarket, a sports complex, at least two residential buildings, and areas in
between. We counted eight impact sites, but there were likely more.
The attack killed two grocery store employees, women in their mid-forties, and
a customer. It injured at least nine other people in the supermarket, two severely.
The Donetsk city council reported that the attack killed five and injured 24.
Using explosive weapons with wide-area effect in populated areas is
problematic because of the high likelihood of injuring and killing civilians. The
rockets fired on October 8, so-called Grad rockets, are of particular concern
because they can’t be precisely targeted, so this attack violates the laws of war.
Human Rights Watch has documented and condemned previous use of Grad
rockets in eastern Ukraine, including attacks that killed and injured civilians. A
Kuibyshevskyi district official gave us a list of dozens of houses damaged in
attacks since the ceasefire announcement. A recent United Nations report said
209
that more than 300 people had been killed between the start of the ceasefire and
October 6.
The circumstances of most attacks we documented point to Ukraine government
forces’ responsibility. Craters and damage to buildings in the October 8 rocket
attack indicate that the rockets came from the northwest, where government
forces are 15 kilometers away.
15-20
October
2014
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 22
October 2014,
http://www.osce.org/ukrainesmm/
125834
The SMM spoke to inhabitants of the Kyivskyi district in Donetsk (3.5km southeast
of Donetsk airport). According to them there had been frequent shelling
between 15 to 20 October, which had been particularly heavy between 18 to 19
October. The interlocutors told the SMM that many houses had been seriously
damaged or completely destroyed, and that the area was without electricity,
water and gas, as the utility infrastructure had been damaged. The SMM
observed at least ten partly destroyed houses (damaged windows and roofs), and
four completely destroyed houses. According to the interlocutors there had not
been any casualties. Residents of the area told the SMM that the mortars had
come from Pisky (9km east of Donetsk airport). The SMM inspected a crater
which could have been caused by a Grad rocket. The SMM assessed that the
projectile had impacted from west north-west. The SMM also saw remnants of
exploded ordnance, probably fired from a Grad rocket artillery system.
Starting at 11:13 the SMM heard 10-20 explosions from intensive shelling
incoming from the west and landing about 1 km from the site where the SMM
was monitoring.
6-7
December
2014
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 8
December 2014,
http://www.osce.org/ukrainesmm/
130956
In Kuybishivskyi district (5.8 km west of Donetsk city centre), which is
controlled by the “Donetsk People’s Republic” (“DPR”), the SMM observed
material damage caused by what appeared to be explosive impacts. Several
residents, to whom the SMM spoke, said the area had been shelled during the
night between 6 and 7 December. The SMM observed that shelling had hit most
of the business facilities. A private domicile was also hit. In the entire area
observed, the SMM saw 20 craters appearing to have been caused by Grad
rockets, and two craters of mortars ranging from 82 to 120 mm. Extensive
material damage was caused to the buildings at all visited locations
210
(Kubyeshieva, Yuhoslavska and Olimpyeva Streets). According to residents,
there were no casualties.
8 December
2014 Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 9
December 2014,
http://www.osce.org/ukrainesmm/
131311
[The SMM] patrolled Donetsk city to follow up reports of shelling on 8
December, and observed substantial material damage consistent with the
reports. The SMM assessed that a civilian apartment complex located at 209
Kuybishev Street was hit by two Grad rockets and sustained extensive
structural damage. At 51-53 Slovatskaya Street another apartment complex
sustained heavy damage and most of its windows were shattered. There were
craters on both sides of the building, including one in the playground. Further
down the street, a rocket’s remnants lay in the middle of the road near the
Children’s Infectious Disease Clinic. The clinic itself suffered extensive
damage from a Grad rocket that detonated four meters from its walls,
shattering all windows on that side of the building as well as cracking walls
inside the building. A nearby shop at 213 Kuybisheva Street was also destroyed.
No injuries were reported. In all cases the residents informed the SMM that the
shelling occurred on 8 December from 18:00 to 18:30.
17-19
January
2015
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 19
January 2015,
http://www.osce.org/ukrainesmm/
135491
The SMM observed substantial damage of civilian infrastructure in “DPR”-
controlled Donetsk city and surroundings as a result of recent intensified
shelling over the last 48 hours. In the DPR-controlled districts of Kyivski (8 km
north-west of Donetsk), Kirovskyi (7 km south-west of Donetsk), Petroveski (9
km south-west of Donetsk) and Voroshilovski (1 km north of Donetsk) the
SMM observed damage to civilian buildings caused by recent shelling. […]
Damage to civilian infrastructure due to what appeared to be Smerch multiple
rocket launchers (300mm) and Grad (122mm) rocket strikes was observed
by the SMM.
8-9
February
2015
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 10
February 2015,
The SMM visited four sites of shelling In Donetsk city. In Leninskyi district at
Kuibysheva Street (2.7km south of Donetsk city centre, “DPR”-controlled), the
SMM went to an area that was shelled on 8 February and saw a crater impact it
assessed as having been caused by a Grad rocket strike. Crater analysis was
not possible as repairs were complete. […] According to “DPR” “police”, on 9
February one Grad rocket hit Petrovskyi bridge (10.7km south west of Donetsk
city centre, “DPR”-controlled) in Petrovskyi district and penetrated the road,
211
http://www.osce.org/ukrainesmm/
140056
destroying one lane. Based on its analysis of one impact, the SMM assessed the
direction of fire as being from the north-west. In Petrovskyi district on 9
February, two MLRS rockets struck near a gas station (10.6km south-west of
Donetsk city centre, “DPR”-controlled), according to “DPR” “police”. The
SMM crater analysis suggested that it was caused by Grad rocket fire from the
west. The “emergency services department” of the “DPR” told the SMM that on
9 February a residential area at 125 Petrovskaya street (10.6km south-west of
Donetsk city centre) was hit by MLRS shelling. The SMM conducted the crater
analysis, determining a westerly direction of fire.
12 February
2015 Luhansk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 13
February [2015],
http://www.osce.org/ukrainesmm/
140586
The SMM visited areas of Luhansk city (“LPR”-controlled) to assess the
damages of a shelling which it heard the previous evening at 21:15hrs. […] On
Richchya Peremohy Street, the SMM observed a severely damaged bakery,
which sustained a direct MLRS Grad rocket hit on its roof, as well the body
of another Grad rocket in the ground, which it estimated to have been fired
from the north-east. In Vostochnyi Kvartal a five storey residential building
sustained a direct hit, which destroyed two apartments on the top floor. Based
on fragments and the impact crater on the site, the SMM estimates that the
building was hit by a Grad, fired from north north east. The JCCC, the
“emergency services department” of the “LPR” and the local hospital told the
SMM that a woman was wounded as a result. On Dzerzhinskaya Street, the
SMM observed that a kindergarten had suffered a direct hit to the roof by what
the SMM estimates to have been a Grad rocket. The SMM observed that the
impact had destroyed part of the roof, at least one room of the facility and
shattered windows. On Klubnaya Street, the SMM observed remnants of a Grad
rocket on the tarmac, which the SMM assessed had caused damages to the walls
and roofs of nearby houses and shattered windows.
21 February
2015 Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 22
February 2015,
In the “DPR”-controlled Petrovskyi district of Donetsk city (13km west-southwest
of Donetsk city-centre), the SMM on 21 February observed 12 shelled
buildings. Local people told the SMM that the area had been shelled that day,
resulting in the death of one woman, whose apartment had sustained a direct
artillery hit. The SMM noted approximately 30 impacts in the area, caused by
Grad missiles, which the SMM assessed to have been fired from a location to
212
http://www.osce.org/ukrainesmm/
142351
the west-south-west. One of the buildings sustaining damage was a
kindergarten. A walled compound with concertina wire – with a tracked infantry
vehicle and a military truck parked and men in military fatigues present inside
– was also hit. While at the scene, the SMM heard the sound of 15 explosions
coming from a location approximately 20 kilometres to the north.
4 June 2015 Telmanove
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 19:30 (Kyiv time), 5 June
2015,
http://www.osce.org/ukrainesmm/
162611
The SMM visited Telmanove (“DPR”-controlled, 67km south-south-east of
Donetsk) in order to monitor and assess the damage and confirm the civilian
casualties caused by shelling on 4 June. The SMM analyzed 13 craters in an area
of 1 square kilometre. At seven of these impact sites, the SMM determined that
the shelling had originated from a westerly direction. At six impact sites, the
SMM could identify that the type of the weapon used was a multiple launch
rocket system (MLRS), and in two cases the SMM could specify the type of
MLRS as a BM-21 GRAD. The SMM visited the local hospital and spoke to
the deputy head doctor, who stated that a four-year-old boy was killed in his
home by the shelling. The SMM spoke to a “DPR” “policeman” who confirmed
this and further stated that three elderly female residents had also been injured
due to the shelling.
10 August
2015 Telmanove
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 11 August 2015,
http://www.osce.org/ukrainesmm/
176961
The SMM observed eight fresh craters in a residential area of Telmanove
(“DPR”-controlled, 67km south-east of Donetsk) and assessed that all of them
were caused by a multiple launched rocket system (MLRS) calibre 122mm
(BM-21 Grad type) fired from a westerly direction. In the village, the SMM
saw the funeral procession for a 62-year old woman from Telmanove, who was
hit by shrapnel during shelling on 10 August.
16 August
2015
Krasnyi
Partizan
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 19:30 (Kyiv time), 17
August 2015,
http://www.osce.org/ukrainesmm/
178011
In a roughly one-square-kilometre area in “DPR”-controlled Krasnyi Partizan
(22km north-north-east of Donetsk), the SMM observed 15 craters, carrying out
analysis on eight of them. It assessed that 122mm Grad multiple launch rocket
systems (MLRS) rockets – fired from the west-north-west – had caused the
craters. Residents told the SMM that the shelling had occurred at around
midnight on 16 August. They said there had been no casualties. The SMM
observed shattered windows in and shrapnel-damage to exterior walls of private
213
residences, a school and a kindergarten, and one completely destroyed private
dwelling and a garage.
16 August
2015 Telmanove
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 19:30 (Kyiv time), 16
August 2015,
http://www.osce.org/ukrainesmm/
177826
On 16 August the SMM visited “DPR”-controlled Telmanove (50km north-east
of Mariupol) to follow up on reports by representatives of the Ukrainian Armed
Forces at the JCCC that the village had been shelled in the early morning. The
SMM analysed 16 craters and concluded that they were caused by MLRS
(122mm BM-21 Grad) fired from a west-south-westerly direction. The SMM
observed that some houses were heavily damaged and a transformer providing
electricity to the village was destroyed.
17 June
2017 Starolaspsa
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine (SMM),
based on information received
as of 19:30, 18 June 2017,
http://www.osce.org/specialmonitoring-
mission-toukraine/
324026
On 17 June, led by “DPR” members, the SMM observed impact sites in “DPR”-
controlled Starolaspa (51km south of Donetsk). At 8 Lenina Street, the SMM
saw a fresh crater about 8m east of a house and 250m south-west of a “DPR”
checkpoint, assessed as caused by a multiple launch rocket system (MLRS)
(BM-21 Grad, 122mm) rocket fired from a south-westerly direction. A rocket
casing was visible inside the crater. The SMM also saw several metal fragments,
including a curved portion of a steel warhead, near the crater. The SMM
observed extensive shrapnel damage to the north-west-facing wall of the house
and its north-west-facing windows destroyed. Inside the house, the SMM saw
shrapnel damage to an interior wall in the bedroom opposite the broken
windows. Three residents of the house (one 34-year-old-man, two 26-and 28-
year-old women) told the SMM that they had been asleep, together with three
children under ten years old, in the bedroom the eastern part of the house at the
time of shelling at about 4:00 on 17 June, and that the 28-year-old woman had
sustained minor shrapnel wounds to her right forearm. The SMM saw minor
bruises and scrapes on her arm.
13-14
February
2018
Kadiivka
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine (SMM),
based on information received
as of 19:30, 14 February 2018,
https://www.osce.org/special-
On the evening and night of 13-14 February, while in Kadiivka (formerly
Stakhanov, non-government-controlled, 50km west of Luhansk), the SMM
heard around 445 undetermined explosions and 20 bursts of IFV (BMP-2)
cannon fire 10-20km west and south-west, as well as 39 explosions (15 assessed
as explosions of multiple launch rocket system rounds (BM-21 Grad,
122mm and the remainder undetermined), all 8-20km west and south-west.
214
monitoring-mission-toukraine/
372171
16 May
2018
Donetsk
Filtration
Station
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine (SMM),
based on information received
as of 19:30, 17 May 2018,
https://www.osce.org/specialmonitoring-
mission-toukraine/
382042
On the evening of 16 May, the SMM camera at Oktiabr mine (non-governmentcontrolled,
9km north-west of Donetsk) recorded, over a two-minute period, 21
muzzle flashes assessed as a salvo of outgoing multiple launch rocket system
(MLRS) (BM-21 Grad, 122mm) rounds as well as their subsequent projectiles
in flight from south-east to north-west 5-10km north-west. During the same
period of time, the SMM in Avdiivka (government-controlled, 17km north of
Donetsk) recorded 26 projectiles in flight from south to north assessed as rounds
of MLRS (BM-21), all 3-3.5km south-east. Immediately thereafter, the SMM
camera at the Donetsk Filtration Station (DFS) (15km north of Donetsk)
recorded 25 explosions assessed as impacts of rounds of MLRS (BM-21),
followed by two projectiles in flight from south-east and north-west, all 2-4km
west-south-west. (The SMM assessed that the three cameras above recorded the
same instance.)
(2) BM-27 “Uragan” MLRS
Date Location Source Incident
19-20
August
2014
Makiivka
Human Rights Watch,
Ukraine: Widespread Use of
Cluster Munitions.
Government Responsible for
Cluster Attacks on Donetsk,
20 October 2014,
https://www.hrw.org/news/20
14/10/20/ukraine-widespreaduse-
cluster-munitions
A local first responder in Makiivka, a rebel-controlled town bordering Donetsk
to the east, told Human Rights Watch that they had found remnants of
submunitions and rockets in at least three places.
He said that cluster munitions had killed two people on August 19 and 20 near
a train station in the town and that they had found submunitions remnants there.
A second cluster munition attack took place near a rebel checkpoint northeast of
the town, suggesting a government attack. Human Rights Watch observed the
cargo section of an Uragan cluster munition rocket at the checkpoint.
The third cluster munition attack in Makiivka took place in the village of
Khanzhenkovo, which was also controlled by rebel forces at the time of the
attack. Human Rights Watch visited the village and confirmed that it had been
struck by cluster munitions. Local residents showed Human Rights Watch
remnants of submunitions collected from the site.
215
2 October
2014 Donetsk
OSCE SMM, Spot report by
OSCE Special Monitoring
Mission to Ukraine (SMM), 2
October 2014: ICRC Staff
Member Killed in Shelling in
Donetsk City,
http://www.osce.org/ukrainesmm/
125044
From 17:15 to 18:00hrs, on 2 October, at intervals of every fifteen minutes, the
SMM heard very loud explosions somewhere in the north of Donetsk city. At
around 18:00hrs, the SMM heard a quick succession of five incoming rounds,
which it assessed to have been Uragan rockets, again in the north of the city.
Fifteen minutes later the head of the local branch of the International Committee
of the Red Cross (ICRC) in Donetsk, calling on the phone from Kyiv, told the
SMM that the ICRC office in Donetsk city had just been shelled and one staff
member had been killed.
5 October
2014 Donetsk
Human Rights Watch,
Ukraine: Widespread Use of
Cluster Munitions.
Government Responsible for
Cluster Attacks on Donetsk,
20 October 2014,
https://www.hrw.org/news/20
14/10/20/ukraine-widespreaduse-
cluster-munitions
In the morning of October 5, at least two Uragan cluster munition rockets
struck the fifth subdistrict of the Kyivskyi district in central Donetsk.
Submunitions from one rocket struck the intersection between Raduzhnaya street
and Zvyagilskogo street.
Human Rights Watch documented 11 submunition impact craters on
Zvyagilskogo street and fragment patterns on nearby fences consistent with the
use of Uragan cluster munition rockets. Human Rights Watch also found
remnants of submunitions at the site.
The attack injured a 37-year-old man who was working in his backyard. He is
still recovering from his injuries in a hospital.
6 October
2014 Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 6
October 2014,
http://www.osce.org/ukrainesmm/
125235
The SMM heard a total of six rounds – of an unspecified nature – impacting in
the north of Donetsk city at two separate times – at midday and in the late
afternoon. Residents of a north-eastern suburb of the city also told the SMM that
the area had been shelled the previous evening, consistent with what the SMM
had heard at the time (see Daily Report of 6 October 2014). The SMM visited the
area and noted some shrapnel damage, numerous craters, and what appeared to
be an Uragan rocket in the area. A number of residents told the SMM that a man
and woman had required hospitalization as a result of the shelling.
11 October
2014 Starobeshevo
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
On 11 October the SMM visited the town of Starobeshevo (40km south-east of
Donetsk) where it observed one “Uragan” type unexploded missile struck in
216
based on information received
as of 18:00 (Kyiv time), 12
October 2014,
https://www.osce.org/ukraine
-smm/125502
the ground between the street and pavement, with the impact area around 8 meters
away from an administrative building hosting the village council.
2015
(remnants
observed on
2 August
2017)
Debaltseve
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine (SMM),
based on information received
as of 19:30, 2 August 2017,
http://www.osce.org/specialmonitoring-
mission-toukraine/
333961
In “DPR”-controlled Debaltseve (58km north-east of Donetsk), the SMM
observed remnants of cluster munitions. The SMM observed old damage to a
shop (now shut) it assessed as caused by cluster sub-munitions fired from an
MLRS (either 9M27K, Uragan, 220mm or 9M55K Smerch, 300mm). Around
the building, the SMM observed the old remnants of cluster sub-munition (tails)
and rusted steel pellets, including cluster sub-munition bomblets (9N210 or
9N235). A number of residents (four women aged 30-60 years old and a man,
aged about 40) told the SMM that they think that the cluster sub-munitions date
back to 2015.
18-19
January
2015
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 19
January 2015,
http://www.osce.org/ukrainesmm/
135491
The SMM observed substantial damage of civilian infrastructure in “DPR”-
controlled Donetsk city and surroundings as a result of recent intensified shelling
over the last 48 hours. In the DPR-controlled districts of Kyivski (8 km northwest
of Donetsk), Kirovskyi (7 km south-west of Donetsk), Petroveski (9 km
south-west of Donetsk) and Voroshilovski (1 km north of Donetsk) the SMM
observed damage to civilian buildings caused by recent shelling. The SMM also
observed a crater with remnants of what appeared to be a (Uragan) multiple
launch rocket system that had resulted in damage to a number of buildings. The
SMM could not ascertain the direction from which the missile was fired.
1-2
February
2015
Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 2
February 2015,
http://www.osce.org/ukrainesmm/
138896
The SMM visited Donetsk city’s Petrovskyi and Voroshilovskyi districts
(respectively 1.7km north-west and 15km south-west of Donetsk city centre,
“DPR”-controlled) to monitor the effects of shelling reported by various sources.
The SMM visited six sites in the two districts where it observed damage to
infrastructure and residential properties. Local residents reported that Petrovskyi
district was shelled on 1 February at approximately 17:00hrs and that a young
girl was killed and two men wounded as a result. SMM crater analysis leads it to
conclude that one of the impacts in the district was caused by a mortar round
originating from the south-west and another impact was the result of an Uragan
217
rocket fired from the north-west. In Voroshilovskyi district local residents told
the SMM that shelling occurred on 2 February at approximately 07:45hrs and that
two adults, one woman and one man were killed. SMM crater analysis shows that
one building sustained a direct artillery hit originating from the north-west.
2 February
2015 Komsomolske
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 3
February 201[5],
http://www.osce.org/ukrainesmm/
139061
According to local residents of “DPR”-controlled Komsomolske (45km southeast
of Donetsk) the village had been affected by heavy shelling by MLRS on 2
February in the early morning hours, which had caused civilian casualties and
damage to civilian property and infrastructure. The residents said that shelling
was incoming from a westerly and south- westerly direction. The SMM examined
nine impacts caused by what appeared to be 220mm rockets which appear to have
been launched from a Uragan MLRS. The analysis suggested that the shelling
came from a south-western direction. Among the remnants from the rockets, the
SMM saw delivery casing which it assessed as evidence that anti-personnel
cluster munition had been used. According to the interlocutors one 37-year-old
woman was killed. A girl, 5 years old, and a man were allegedly seriously
wounded and brought to a hospital in Donetsk.
4 February
2015 Donetsk
OSCE SMM, Spot report by
the OSCE Special Monitoring
Mission to Ukraine (SMM):
Shelling in the Kirovskyi
district of Donetsk city on 4
February 2015,
https://www.osce.org/ukraine
-smm/139406
On 5 February, the SMM followed up on the shelling which reportedly struck the
Kirovskyi district in Donetsk city on 4 February from 11:40 to 11:45hrs. The
same shelling salvo reportedly hit the direct surrounding of the Kindergarten No.
381, a neighbouring street near the Kindergarten and Donetsk Hospital No. 27.
The SMM inspected the three aforementioned different sites located in the
Kirovskyi district on 5 February between 10:00 and 15:00hrs.
[...] Based on an analysis of the crater impact, the fuse diameter and the observed
damage, the SMM concluded that the shelling had come from a south-southwesterly
direction and was fired by a BM-27 Uragan MLRS. The SMM did not
find any remnants on the spot. A kindergarten employee told the SMM that
members of the “Donetsk People’s Republic” (“DPR”) “Vostok battalion” had
removed the remnants shortly after the shelling had occurred.
The SMM inspected a second impact crater located 500m south-east of the first
crater at the kindergarten. The second impact crater was located 20m west of the
sidewalk in front of Pintera Street 2. Based on the crater analysis, the SMM
assessed that the impact was also consistent with a BM-27 Uragan MLRS strike.
218
The SMM did not find remnants around the crater. The SMM could not specify
the bearing of the shelling as the crater on the sidewalk had been filled in with
dirt and stones. The SMM observed a large amount of congealed blood on the
sidewalk 20m from the impact site. A male individual – who claimed that he had
eye-witnessed the shelling on 4 February – said that the shelling at Pintera Street
2 had killed one man and injured two women. The SMM could not verify this
information. The interlocutor added that members of the “DPR” “Vostok
battalion” had removed the remnants shortly after the shelling had occurred.
At 11:15hrs, the SMM arrived at Donetsk Hospital No. 27. The SMM spotted
two impact craters, one located north-east and the second located north-west of
the hospital building facility. [...] Based on the analysis of both craters, the SMM
assessed that the shelling that had hit the hospital’s immediate surrounding came
from a south-south-westerly direction. The SMM found three small metal parts
around the north-eastern crater which the SMM assessed belong to the propellant
cylinder of a shell fired from a BM-27 MLRS Uragan rocket.
A nurse and a director employed at Hospital No. 27, who said that they had been
on duty on 4 February at 11:40hrs during the shelling, told the SMM that two
rockets hit the surrounding of the hospital. They added that the shelling had
immediately killed five men and left 26 other individuals injured. The
interlocutors explained that the aforementioned 26 wounded individuals had been
transferred to Hospitals Nos. 16 and 24 and Gusok Hospital. The SMM met a
nurse and a director employed at Hospital No. 24, who said that they had treated
14 wounded individuals belonging to the group of 26 injured on 4 February. The
interlocutors added that one injured individual from the group of 14 wounded had
later died at Hospital No. 24. Based on the statement from the personnel
employed at Hospitals Nos. 27 and 24, the SMM assesses that the shelling at
Hospital No. 27 left 6 individuals killed and 25 injured. At hospital No. 24, the
SMM spoke to a wounded woman who explained that she was hit by shrapnel
while working as a nurse at Hospital No. 27 during the shelling.
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
The SMM followed-up on the reported 4 February shelling in Kirovskyi District
of Donetsk city and assessed three different locations in the area. The SMM saw
damage to the wall of Kindergarten number 381 located at Pintera Street 10 and
219
based on information received
as of 18:00 (Kyiv time), 5
February 2015,
http://www.osce.org/ukrainesmm/
139391
at an apartment building nearby. The damage was consistent with shrapnel
impacts caused by a Multiple Launch Rocket System (MLRS) strike. A
pavement was also damaged by a shell impact. The SMM visited the site of the
shelling at Donetsk Hospital number 27 and noted the front of the building was
badly damaged. The SMM examined four impact craters at the three sites
(including two at the hospital), and assessed that they had all been caused by BM-
26 Uragan MLRS, based on the size and nature of the craters, and that they had
been fired from a south-south-western direction. The SMM were told by a doctor
and nurse at Hospital number 24 (where some of the injured were brought) that
five people had died instantly and 26 were injured when two shells hit close to
Hospital number 27. One of the wounded died later.
Fair Protection, Ukrainian
Crimes in Donbass
(Collection of Analytical
Materials). – Donetsk, 2019,
pp. 196, 212,
http://armiyadnr.su/sites/defa
ult/files/pictures/%D0%A1%
D0%B1%D0%BE%D1%80
%D0%BD%D0%B8%D0%B
A%2031.10.pdf
[Unofficial translation]:
page 196
On 4 February 2015, the Ukrainian Armed Forces (UAF) shelled districts of
Donetsk: between 11:40 a.m. and 11:45 a.m. – the Tekstilshchik microdistrict
(Kirovskyi district), where six people died, 25 people were injured; at around
05:00 p.m. – the Mariupol fork, where two civilians died, between 5 and 19
people were injured. The attacks were covered in the following mass media: the
website of Komsomolskaya Pravda in Ukraine, TVC television channel (Russia),
RIA Novosti Ukraine, Donetsk News Agency, and others [see references to
articles on p. 196 of the report]
[…]
page 212
[…] Having analysed open source information and documents, examined the
OSCE SMM report and versions proposed in the mass media, the Public
Committee for Documenting Military Crimes concluded that the Tekstilshchik
microdistrict and Mariupol fork of Donetsk were shelled on 4 February 2015
involving BM-27 Uragan MLRS which were part of the 27th Rocket Artillery
Regiment (currently – the 27th Separate Rocket Artillery Brigade) of the
UAF headed by colonel Valery Ismailov.
220
The [Committee’s] investigation established that the artillery fire had come from
the south-southwestern direction from the area to the north of Volnovakha, in a
triangle of residential settlements “Olginka – Novotroitske – Polne”. Having
analysed open source publications, the Committee established a set of officers
from the 27th Rocket Artillery Regiment of the UAF who could have been
involved in the above-mentioned artillery attack.
12 February
2015 Luhansk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 13
February [2015],
http://www.osce.org/ukrainesmm/
140586
The SMM visited areas of Luhansk city (“LPR”-controlled) to assess the damages
of a shelling which it heard the previous evening at 21:15hrs. At a house in
Volkhova Kvartal (6.7km east of Luhansk city centre) the SMM observed broken
windows and balconies caused by what it assessed to be the explosion of an
Uragan rocket from a Multiple Launch Rocket System (MLRS). The JCCC
office in Luhansk and the “emergency services department” of the “LPR”
confirmed the shelling and said that a woman had died as a result. At another
house in the same street, the SMM also observed broken windows and the
remains of an Uragan type MLRS rocket stuck in the ground, which it assessed
to have been fired from north north east.
(3) BM-30 “Smerch” MLRS
Date Location Source Incident
September
2014
(remnants
observed on
11 May
2016)
Rozsypne
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine,
based on information received
as of 19:30hrs, 11 May 2016,
http://www.osce.org/ukrainesmm/
239871
In “DPR”-controlled Rozsypne (56km north-east of Donetsk), the SMM
observed the unexploded remnants of an MLRS BM-30 Smerch rocket
(300mm) in the yard of a house. […] A resident told the SMM that the village
had been shelled with Smerch rockets in September 2014.
2015
(remnants
observed on
2 August
2017)
Debaltseve
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine (SMM),
based on information received
as of 19:30, 2 August 2017,
In “DPR”-controlled Debaltseve (58km north-east of Donetsk), the SMM
observed remnants of cluster munitions. The SMM observed old damage to a
shop (now shut) it assessed as caused by cluster sub-munitions fired from an
MLRS (either 9M27K, Uragan, 220mm or 9M55K Smerch, 300mm). Around
the building, the SMM observed the old remnants of cluster sub-munition (tails)
221
http://www.osce.org/specialmonitoring-
mission-toukraine/
333961
and rusted steel pellets, including cluster sub-munition bomblets (9N210 or
9N235). A number of residents (four women aged 30-60 years old and a man,
aged about 40) told the SMM that they think that the cluster sub-munitions date
back to 2015.
19 January
2015 Donetsk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 19
January 2015,
http://www.osce.org/ukrainesmm/
135491
The SMM observed substantial damage of civilian infrastructure in “DPR”-
controlled Donetsk city and surroundings as a result of recent intensified shelling
over the last 48 hours. In the DPR-controlled districts of Kyivski (8 km northwest
of Donetsk), Kirovskyi (7 km south-west of Donetsk), Petroveski (9 km
south-west of Donetsk) and Voroshilovski (1 km north of Donetsk) the SMM
observed damage to civilian buildings caused by recent shelling. […] Damage to
civilian infrastructure due to what appeared to be Smerch multiple rocket
launchers (300mm) and Grad (122mm) rocket strikes was observed by the
SMM.
22 January
2015 Donetsk
OSCE SMM. Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 25
January 2015,
http://www.osce.org/ukrainesmm/
136421
On Voziednannia Street [in Donetsk], the SMM observed four artillery impacts
which caused structural damage to roofs and windows in three houses on the
street. In Brusova Street, the SMM observed structural damage to four residential
houses allegedly caused by shelling on 22 January. The residents informed the
SMM that a woman had died and a man was wounded in the shelling. In Pavla
Popovycha Street, the SMM observed the casing of a BM30 series “Smerch”
rocket in a garage.
27 January
2015 Luhansk
OSCE SMM, Spot report by the
OSCE Special Monitoring
Mission to Ukraine (SMM), 3
February 2015: Civilians killed
and wounded in strike with
cluster munitions in Izvestkova
Street in Luhansk city,
http://www.osce.org/ukrainesmm/
138906
At approximately 18:15hrs and 22:45hrs on 27 January, the SMM, based in
Luhansk city centre (“Lugansk People’s Republic” –“LPR”-controlled), heard
intensive incoming shelling and impact explosions about 5km west of its location.
[…]
The SMM saw considerable damage caused by the impacts of rocket shelling,
such as broken windows, fences, gates and walls. The SMM assessed that some
of the damage to the buildings, e.g. a series of parallel rows of strike marks on a
gate and wall, were consistent with damage typically caused by shrapnel
elements from cluster munition. According to the SMM’s assessment, a hole in
222
a roof of a house was caused by the impact of what appears to be a bomblet, with
small calibre.
The SMM discovered parts of rockets, including engines, fins and cargo
compartments, in the front and backyards of several houses; the cargo
compartment in particular is typical of a rocket carrying cluster munitions. Some
parts sighted by the SMM at the impact site (1.5 cm white metal fragments, 6 by
3 cm black metal fragments of bomblets cases) are typical for cluster munition.
The SMM identified them as parts consistent with 9M55K model “Smerch”
rockets (calibre 300mm). The SMM observed a crater (diameter approximately
4m, depth approximately 3m) at the backyard of the house located at Dekabristiv
Street 106 which had been caused by the explosion of a “Smerch” rocket,
according to the SMM’s assessment.
[…]
Local residents of the impacted area of Artemivskyi district told the SMM during
its visit on 28 January to the site that one man was killed in his residence at
Korolenko Street 33. The JCCC and the “emergency services department” of the
“LPR” both confirmed the same casualty figures.
On 30 January, the SMM visited the central morgue in Luhansk city and met
representatives of the regional pathologist office, who stated that their postmortem
examination confirmed that two individuals had died as a result of the
shelling. The first individual died as a result of being struck in the chest and
abdomen by metal fragments. The second individual died from stress-related
heart-failure as a result of shelling.
The SMM met, on 30 January, the deputy head of the central regional hospital
who confirmed that two persons wounded on 27 January were still staying in
hospital for surgery and medical treatment. On 3 February the hospital confirmed
to the SMM the information previously received.
1 February
2015 Luhansk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
The head of the JCCC Luhansk office and the head of the demining group of the
“LPR” “emergency service” informed the SMM of two alleged rocket strikes on
the city the previous evening at approximately 21:00hrs and 23:00hrs, which
included a total of five rockets. […] On the second impact site the SMM observed
223
as of 18:00 (Kyiv time), 2
February 2015,
http://www.osce.org/ukrainesmm/
138896
the remains of a rocket, probably unexploded, in the backyard of a residential
house located on Serhei Tiulenin Street (7km north-west of Luhansk city centre,
“LPR”-controlled). The SMM assessed the rocket as 300mm calibre, fired from
a “Smerch” MLRS situated north-north-west from the point of impact.
12 February
2015 Luhansk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 12
February 2015,
http://www.osce.org/ukrainesmm/
140521
On 12 February the SMM visited in Luhansk city a number of areas affected by
shelling which occurred at 00:15hrs the same day. On Stara Mogila Street
(approximately 6km south-east of the city centre), the SMM spoke to a de-mining
team from the “ministry for emergency situations” of the “LPR” who said that
they had removed from a children’s playground what they said was the body of
a rocket fired by a Smerch MLRS. Based on the angle of the impact, which the
SMM measured, the SMM estimated that the firing had originated from a northwesterly
direction. On Oboronna Street the SMM observed the body of a rocket
in the soil. Based on the diameter of the rocket and its marking, the SMM assessed
it to be a Smerch and based on the angle of the impact, the SMM estimates that
the firing originated from a north-westerly direction. At the Luhansk municipal
bus company parking, located at Olega Koshevogo Street, the SMM observed the
empty cluster cargo compartment of what it assessed to be the same type of
rocket. The SMM observed damaged houses on Volgodonska Street. The damage
to the buildings (broken windows, roofs, fences) was estimated by the SMM,
based on the small size of the shrapnel and the high number of impacts on the
wall, to have been caused by explosions of bomblets from cluster munitions.
In Arkhticheska Street (approximately 1,2km east of the city centre) the SMM
observed nine impacts – small craters – in the yard and on the roofs of buildings.
Based on the small size of the impacts the SMM estimated that cluster munition
was used.
Remnants
observed on
23 February
2016
Makedonivka
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine,
based on information received
as of 19:30hrs, 23 February
2016,
On 23 February the SMM observed remnants of a multiple rocket launch
system (MLRS) projectile (BM-30 Smerch, 300mm) in a cemetery in “LPR”-
controlled Makedonivka (37km south of Luhansk). The entry trajectory of the
rocket suggested that it had been fired from the north-east. […] [the UXO]
seemed to have been present in the area for some time.
224
http://www.osce.org/ukrainesmm/
224136
31 May
2016 Rozsypne
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine,
based on information received
as of 19:30, 31 May 2016,
http://www.osce.org/ukrainesmm/
244231
Whilst in Rozsypne (“DPR”-controlled 60km north-east of Donetsk), the SMM
observed a piece of unexploded ordnance (UXO) stuck in the ground in the
garden of an abandoned house (from a distance it appeared to be a 300mm
Smerch rocket), close to an area populated by families with small children.
(4) Cluster munitions26
Date Location Source Incident
19-20
August
2014*
Makiivka
Human Rights Watch, Ukraine:
Widespread Use of Cluster
Munitions. Government
Responsible for Cluster Attacks
on Donetsk, 20 October 2014,
https://www.hrw.org/news/201
4/10/20/ukraine-widespreaduse-
cluster-munitions
A local first responder in Makiivka, a rebel-controlled town bordering Donetsk
to the east, told Human Rights Watch that they had found remnants of
submunitions and rockets in at least three places.
He said that cluster munitions had killed two people on August 19 and 20
near a train station in the town and that they had found submunitions remnants
there. A second cluster munition attack took place near a rebel checkpoint
northeast of the town, suggesting a government attack. Human Rights Watch
observed the cargo section of an Uragan cluster munition rocket at the
checkpoint.
The third cluster munition attack in Makiivka took place in the village of
Khanzhenkovo, which was also controlled by rebel forces at the time of the
attack. Human Rights Watch visited the village and confirmed that it had been
struck by cluster munitions. Local residents showed Human Rights Watch
remnants of submunitions collected from the site.
26 Some incidents reproduced in this and further tables have been mentioned in the foregoing tables on other types of weapons. Such incidents are marked with asterisk in the
“Date” column.
225
28-29
August
2014
Snizhne
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, p. 284,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf.
[Unofficial translation]:
During the night of 28 to 29 August 2014, at around 00:30 a.m., the detached
house suburbs of Snizhne came under a rocket attack.
Explosions damaged civilian facilities at the following addresses:
1) 49 Pryhorodna Street – the fence and gates of the house were damaged by
fragments;
2) 38 Vyshneva Street – the windows and façade of the building were damaged;
besides, the gates of the nearby garage were also damaged;
3) Paryzhskoi Komuny Street – the road pavement and the railroad tracks
nearby were damaged.
There is no information concerning any civilian casualties and injuries.
Missile parts identified as the carrier section of a missile launched by
Tochka-U systems operated by the Ukrainian Armed Forces were found in the
yard of the house at 214 Paryzhskoi Komuny Street.
The body of the carrier section had the following prefabricated imprinted
marking “9М79 0352000 Sh 89391179”.
This means that it was a 9M79M missile was used (its range is between 15 and
70 km).
Numerous simultaneous explosions taking place within a circle of a radius of
300 m indicate that a 9N123K cluster warhead was used.
4 September
2014 Khartsyzk
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, pp. 287-288,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf
[Unofficial translation]:
page 287
On 4 September 2014, at around 6:00 p.m., the Chekhov City Park of Culture
and Leisure in the city of Khartsyzk came under a rocket attack.
page 288
Explosions damaged civilian facilities at the following addresses:
1) The Stalekanatnyk stadium located on Adamtsia Street in the territory of the
Chekhov Park of Culture and Leisure of the city of Khartsyzk – the facilities,
road pavement and grass turf of the stadium were damaged;
2) Territory of the Chekhov Park of Culture and Leisure of the city of Khartsyzk
– the fences, road pavement and vegetation were damaged.
226
It is known that one civilian died and three civilians were injured:
1) Valentin Valentinovich Breev, born in 1977 – died; badly wounded at the
Stalekanatnyk stadium, passed away in the hospital;
2) A woman, born in 1975 – wounded at the Stalekanatnyk stadium;
3) A man, born in 1969 – wounded in the territory of the park of culture and
leisure near the Stalekanatnyk stadium;
4) A woman, born in 1978 – wounded in the territory of the park of culture and
leisure near the Stalekanatnyk stadium
5) A man, born in 1997 – wounded while at the Stalekanatnyk stadium.
Missile parts identified as the carrier section of a missile launched by
Tochka-U systems operated by the Ukrainian Armed Forces were found at a
distance of about 5–10 m from the southwestern section of the Stalekanatnyk
stadium’s fence.
[…]
The marking “9N123K”, numerous simultaneous explosions taking place
within a circle of a radius of 300 m, and distinct fragments of cluster munitions
discovered at the stadium, indicate that a 9N123K cluster warhead was used.
5 October
2014* Donetsk
Human Rights Watch, Ukraine:
Widespread Use of Cluster
Munitions. Government
Responsible for Cluster Attacks
on Donetsk, 20 October 2014,
https://www.hrw.org/news/201
4/10/20/ukraine-widespreaduse-
cluster-munitions
Ukrainian government forces used cluster munitions in populated areas in
Donetsk city in early October 2014, Human Rights Watch said today. The use
of cluster munitions in populated areas violates the laws of war due to the
indiscriminate nature of the weapon and may amount to war crimes.
During a week-long investigation in eastern Ukraine, Human Rights Watch
documented widespread use of cluster munitions in fighting between
government forces and pro-Russian rebels in more than a dozen urban and rural
locations. While it was not possible to conclusively determine responsibility for
many of the attacks, the evidence points to Ukrainian government forces’
responsibility for several cluster munition attacks on Donetsk. An employee
of the International Committee of the Red Cross (ICRC) was killed on October
2 in an attack on Donetsk that included use of cluster munition rockets.
[…]
227
In the morning of October 5, at least two Uragan cluster munition rockets
struck the fifth subdistrict of the Kyivskyi district in central Donetsk.
Submunitions from one rocket struck the intersection between Raduzhnaya
street and Zvyagilskogo street.
Human Rights Watch documented 11 submunition impact craters on
Zvyagilskogo street and fragment patterns on nearby fences consistent with the
use of Uragan cluster munition rockets. Human Rights Watch also found
remnants of submunitions at the site.
The attack injured a 37-year-old man who was working in his backyard. He is
still recovering from his injuries in a hospital.
[…]
A second cluster munition struck the residential area between Parkivska
street and Kosiora street, about 500 meters west of the first impact site.
Human Rights Watch identified several impact craters and local residents
showed Human Rights Watch submunition remnants they had found after the
attack. At least one civilian was injured in his leg by a fragment.
2015
(remnants
observed on
2 August
2017)*
Debaltseve
OSCE SMM, Latest from the
OSCE Special Monitoring
Mission to Ukraine (SMM),
based on information received
as of 19:30, 2 August 2017,
http://www.osce.org/specialmonitoring-
mission-toukraine/
333961
In “DPR”-controlled Debaltseve (58km north-east of Donetsk), the SMM
observed remnants of cluster munitions. The SMM observed old damage to a
shop (now shut) it assessed as caused by cluster sub-munitions fired from an
MLRS (either 9M27K, Uragan, 220mm or 9M55K Smerch, 300mm).
Around the building, the SMM observed the old remnants of cluster submunition
(tails) and rusted steel pellets, including cluster sub-munition
bomblets (9N210 or 9N235). A number of residents (four women aged 30-60
years old and a man, aged about 40) told the SMM that they think that the cluster
sub-munitions date back to 2015.
27 January
2015* Luhansk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 30
January 2015,
The SMM returned to the site of the 27 January shelling of the Artemivskyi
district in “LPR”-controlled Luhansk city (See SMM Daily Report 29 January)
where it observed that all windows of Kindergarten No.5, located at 31
Gaiovogo Street had been shattered during the shelling. The SMM also
observed and documented remnants of rockets including engines, fins and cargo
compartments, as well as remnants of cluster munitions.
228
http://www.osce.org/ukrainesmm/
138296
OSCE SMM., Spot report by
the OSCE Special Monitoring
Mission to Ukraine (SMM), 3
February 2015: Civilians killed
and wounded in strike with
cluster munitions in Izvestkova
Street in Luhansk city,
http://www.osce.org/ukrainesmm/
138906
At approximately 18:15hrs and 22:45hrs on 27 January, the SMM, based in
Luhansk city centre (“Lugansk People’s Republic” –“LPR”-controlled), heard
intensive incoming shelling and impact explosions about 5km west of its
location.
The SMM saw considerable damage caused by the impacts of rocket shelling,
such as broken windows, fences, gates and walls. The SMM assessed that some
of the damage to the buildings, e.g. a series of parallel rows of strike marks on
a gate and wall, were consistent with damage typically caused by shrapnel
elements from cluster munition. According to the SMM’s assessment, a hole
in a roof of a house was caused by the impact of what appears to be a bomblet,
with small calibre.
The SMM discovered parts of rockets, including engines, fins and cargo
compartments, in the front and backyards of several houses; the cargo
compartment in particular is typical of a rocket carrying cluster munitions.
Some parts sighted by the SMM at the impact site (1.5 cm white metal
fragments, 6 by 3 cm black metal fragments of bomblets cases) are typical for
cluster munition. The SMM identified them as parts consistent with 9M55K
model “Smerch” rockets (calibre 300mm). The SMM observed a crater
(diameter approximately 4m, depth approximately 3m) at the backyard of the
house located at Dekabristiv Street 106 which had been caused by the explosion
of a “Smerch” rocket, according to the SMM’s assessment.
[…]
Local residents of the impacted area of Artemivskyi district told the SMM
during its visit on 28 January to the site that one man was killed in his residence
at Korolenko Street 33. The JCCC and the “emergency services department” of
the “LPR” both confirmed the same casualty figures.
On 30 January, the SMM visited the central morgue in Luhansk city and met
representatives of the regional pathologist office, who stated that their postmortem
examination confirmed that two individuals had died as a result of the
229
shelling. The first individual died as a result of being struck in the chest and
abdomen by metal fragments. The second individual died from stress-related
heart-failure as a result of shelling.
The SMM met, on 30 January, the deputy head of the central regional hospital
who confirmed that two persons wounded on 27 January were still staying in
hospital for surgery and medical treatment. On 3 February the hospital
confirmed to the SMM the information previously received.
2 February
2015* Komsomolske
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 3
February 201[5],
http://www.osce.org/ukrainesmm/
139061
According to local residents of “DPR”-controlled Komsomolske (45km southeast
of Donetsk) the village had been affected by heavy shelling by MLRS on 2
February in the early morning hours, which had caused civilian casualties and
damage to civilian property and infrastructure. The residents said that shelling
was incoming from a westerly and south- westerly direction. The SMM
examined nine impacts caused by what appeared to be 220mm rockets which
appear to have been launched from a Uragan MLRS. The analysis suggested
that the shelling came from a south-western direction. Among the remnants
from the rockets, the SMM saw delivery casing which it assessed as evidence
that anti-personnel cluster munition had been used. According to the
interlocutors one 37-year-old woman was killed. A girl, 5 years old, and a man
were allegedly seriously wounded and brought to a hospital in Donetsk.
12 February
2015* Luhansk
OSCE SMM, Latest from
OSCE Special Monitoring
Mission (SMM) to Ukraine
based on information received
as of 18:00 (Kyiv time), 12
February 2015,
http://www.osce.org/ukrainesmm/
140521
On 12 February the SMM visited in Luhansk city a number of areas affected by
shelling which occurred at 00:15hrs the same day. On Stara Mogila Street
(approximately 6km south-east of the city centre), the SMM spoke to a demining
team from the “ministry for emergency situations” of the “LPR” who
said that they had removed from a children’s playground what they said was the
body of a rocket fired by a Smerch MLRS. Based on the angle of the impact,
which the SMM measured, the SMM estimated that the firing had originated
from a north-westerly direction. On Oboronna Street the SMM observed the
body of a rocket in the soil. Based on the diameter of the rocket and its marking,
the SMM assessed it to be a Smerch and based on the angle of the impact, the
SMM estimates that the firing originated from a north-westerly direction. At the
Luhansk municipal bus company parking, located at Olega Koshevogo Street,
the SMM observed the empty cluster cargo compartment of what it assessed
230
to be the same type of rocket. The SMM observed damaged houses on
Volgodonska Street. The damage to the buildings (broken windows, roofs,
fences) was estimated by the SMM, based on the small size of the shrapnel and
the high number of impacts on the wall, to have been caused by explosions of
bomblets from cluster munitions. In Arkhticheska Street (approximately
1,2km east of the city centre) the SMM observed nine impacts – small craters –
in the yard and on the roofs of buildings. Based on the small size of the impacts
the SMM estimated that cluster munition was used.
13-14
February
2015*
Ilovaisk
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, pp. 291-292,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf
[Unofficial translation]:
page 291
During the night of 13 to 14 February 2015, at around 00:05 a.m., a power
supply division of Ilovaisk came under a rocket attack.
Explosions hit civilian facilities at the addresses:
coordinates 47°54'44"N 38°11'55"E (the Ilovaisk power supply division of the
Donetsk railway) – structures, buildings, transformers, and other high-voltage
equipment were damaged. Ilovaisk and several other neighbouring villages
were cut off from the power supply.
It is known that one civilian was injured: a man, born in 1988 – an injury,
multiple wounds, he was at a checkpoint near the entrance to the power supply
division.
Missile parts that broke through the roof of the attic of the Railway Hospital of
Ilovaisk located at a distance of about 500 m to the east of the power supply
division, were identified as the carrier section of a missile launched by
Tochka-U systems operated by the Ukrainian Armed Forces.
page 292
The body of the carrier section had the following markings:
1) An inscription in black that reads: “9М721 01 20 000 I895521 Sh32”;
2) Below is another inscription also in black that reads: “9М79-1 0100000
ISh8939307’.
231
The marking “9M79-1” means that a 9M79-1 missile was used (its range is
between 20 and 120 km).
Numerous simultaneous explosions taking place within a circle of a radius of
300 m indicate that a 9N123K cluster warhead was used.
(5) Incendiary weapons
Date Location Source Incident
Somewhere
after 14
August
2014*
Ilovaisk
Human Rights Watch and
IHRC, Incendiary Weapons:
Recent Use and Growing
Opposition, November 2014,
p.6,
https://www.hrw.org/news/201
4/11/10/incendiary-weaponsrecent-
use-and-growingopposition
Evidence of new use of incendiary weapons in Ukraine in 2014 is especially
troubling. During field missions in August and October 2014, Human Rights
Watch researchers documented use of incendiary weapons in Ilovaisk, a town
30 kilometers southeast of Donetsk, and Luhanskoe, a small village south of
Donetsk. Residents of Ilovaisk told Human Rights Watch that weapons
resembling fireworks fell on the northwest part of their town over the course of
three nights and burned three homes. They could not pinpoint the date of the
attack although one resident said it was after August 14, and possibly during a
time when intense battles were taking place between Ukrainian forces and
Russia-supported rebels. Human Rights Watch researchers also found in a field
about 18 kilometers south-southwest of Ilovaisk an abandoned firing position
with several misfired 122mm Grad 9M22S rockets equipped with the 9N510
incendiary warhead that contains 180 hexagonal incendiary capsules, which
burn for two minutes.
Vice News, A Rain of Fire:
Ukrainian Forces Used Little-
Known Soviet-Era Incendiary
Weapons to Attack Ilovaisk, 13
November 2014,
https://www.vice.com/en_us/ar
ticle/a3894a/a-rain-of-fireukrainian-
forces-used-little-
A subsequent investigation by VICE News, including an independent expert
analysis of retrieved rocket remnants by Armament Research Services (ARES),
showed that the "fireworks" were in fact thousands of incendiary elements
cascading out of a Soviet-era 9M22S rocket in mid-flight. […]
“They started firing Grad rockets shortly after, while we were still putting out
the fires. […] Bombardment was near constant at this point. We managed to save
four houses on this street but one burned down. After this fire attack I'd had
enough. I took my stuff and moved to the bomb shelter at about 4:30am that
morning.”
232
known-soviet-era-incendiaryweapons-
to-attack-ilovaisk
That night at least eight houses were completely destroyed and dozens more
damaged by the "fire" that fell from the sky.
(6) OTR-21 Tochka (SS-21 Scarab) short range ballistic missile
Date Location Source Incident
July 2014 Unclear
CNN, U.S. Officials: Ukraine
Military Fired Short Range
Ballistic Missiles at Rebels, 29
July 2014,
http://edition.cnn.com/TRANS
CRIPTS/1407/29/cnr.03.html27
BARBARA STARR, CNN PENTAGON CORRESPONDENT: Officials
confirmed to me a short time ago that U.S. intelligence over the last 48 hours has
monitored the firing of several short range ballistic missiles from territory
controlled by Ukrainian government forces into areas controlled by the pro-
Russian separatists. Now this would be a significant escalation. Short range
ballistic missiles.
These are missiles that go perhaps 50 miles, but have warheads of up to 1000
pounds. We are talking maximum lethality. We are talking about a weapon that
can kill dozens of people at a time potentially when it hits. We do not have the
exact launch point. We don't have the exact impact point.
24 August
2014 Donetsk
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, p.279,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
[Unofficial translation]:
On 24 August 2014, at around 6:25 p.m., the Tekstilshchik district of Donetsk
came under a rocket attack.
The explosion damaged civilian facilities at the following addresses:
1) 18 Pintera Street – damaged windows;
2) 22 Pintera Street – damaged windows;
3) 6 Pintera Street – damaged windows.
27 Video record is available here: https://youtu.be/y9-8KvtfjZA. See also Global Research News, Kiev Fires Ballistic Missiles into Eastern Ukraine, 30 July 2014,
https://www.globalresearch.ca/kiev-fires-ballistic-missiles-into-eastern-ukraine/5393974: “CNN has reported that the regime in Kiev launched several short-range ballistic
missiles into eastern Ukraine – each missile containing warheads of up to 1,000 lbs (450 kg). The missiles fired were OTR-21 Tochka also known by their NATO reporting
name as SS-21 Scarabs and are considered far from “precision” weapons. While smaller than the infamous “Scud” missile, SS-21s are similarly inaccurate and their use in
combat against an enemy entrenched in populated areas is almost guaranteed to cause indiscriminate mass casualties.”
233
%BD%D0%B8%D0%BA%20
31.10.pdf
Two civilians are known to have been injured:
1) An elderly man who was walking at the back of house at 18 Pintera Street;
2) A young woman who was in her apartment at 18 Pintera Street (fragment
wound caused by glass).
Missile parts identified as fragments of the carrier section of a missile
launched by Tochka-U systems operated by the Ukrainian Armed Forces were
found at a distance of about 150 m to the east of the central area of the house at
18 Pintera Street. […]
28-29
August
2014*
Snizhne
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, p. 284,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf
[Unofficial translation]:
During the night of 28 to 29 August 2014, at around 00:30 a.m., the detached
house suburbs of Snizhne came under a rocket attack.
Explosions damaged civilian facilities at the following addresses:
1) 49 Pryhorodna Street – the fence and gates of the house were damaged by
fragments;
2) 38 Vyshneva Street – the windows and façade of the building were damaged;
besides, the gates of the nearby garage were also damaged;
3) Paryzhskoi Komuny Street – the road pavement and the railroad tracks nearby
were damaged.
There is no information concerning any civilian casualties and injuries.
Missile parts identified as the carrier section of a missile launched by
Tochka-U systems operated by the Ukrainian Armed Forces were found in the
yard of the house at 214 Paryzhskoi Komuny Street.
The body of the carrier section had the following prefabricated imprinted marking
“9М79 0352000 Sh 89391179”.
This means that it was a 9M79M missile was used (its range is between 15 and
70 km).
Numerous simultaneous explosions taking place within a circle of a radius of 300
m indicate that a 9N123K cluster warhead was used.
4
September
2014*
Khartsyzk
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, pp. 287-288,
[Unofficial translation]:
page 287
234
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf
On 4 September 2014, at around 6:00 p.m., the Chekhov City Park of Culture and
Leisure in the city of Khartsyzk came under a rocket attack.
page 288
Explosions damaged civilian facilities at the following addresses:
1) The Stalekanatnyk stadium located on Adamtsia Street in the territory of the
Chekhov Park of Culture and Leisure of the city of Khartsyzk – the facilities,
road pavement and grass turf of the stadium were damaged;
2) Territory of the Chekhov Park of Culture and Leisure of the city of Khartsyzk
– the fences, road pavement and vegetation were damaged.
It is known that one civilian died and three civilians were injured:
1) Valentin Valentinovich Breev, born in 1977 – died; badly wounded at the
Stalekanatnyk stadium, passed away in the hospital;
2) A woman, born in 1975 – wounded at the Stalekanatnyk stadium;
3) A man, born in 1969 – wounded in the territory of the park of culture and
leisure near the Stalekanatnyk stadium;
4) A woman, born in 1978 – wounded in the territory of the park of culture and
leisure near the Stalekanatnyk stadium
5) A man, born in 1997 – wounded while at the Stalekanatnyk stadium.
Missile parts identified as the carrier section of a missile launched by
Tochka-U systems operated by the Ukrainian Armed Forces were found at a
distance of about 5–10 m from the southwestern section of the Stalekanatnyk
stadium’s fence.
[…]
The marking “9N123K”, numerous simultaneous explosions taking place within
a circle of a radius of 300 m, and distinct fragments of cluster munitions
discovered at the stadium, indicate that a 9N123K cluster warhead was used.
13-14
February
2015
Ilovaisk
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, pp. 291-292,
[Unofficial translation]:
page 291
During the night of 13 to 14 February 2015, at around 00:05 a.m., a power supply
division of Ilovaisk came under a rocket attack.
235
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf
Explosions hit civilian facilities at the addresses:
coordinates 47°54'44"N 38°11'55"E (the Ilovaisk power supply division of the
Donetsk railway) – structures, buildings, transformers, and other high-voltage
equipment were damaged. Ilovaisk and several other neighbouring villages were
cut off from the power supply.
It is known that one civilian was injured: a man, born in 1988 – an injury, multiple
wounds, he was at a checkpoint near the entrance to the power supply division.
Missile parts that broke through the roof of the attic of the Railway Hospital of
Ilovaisk located at a distance of about 500 m to the east of the power supply
division, were identified as the carrier section of a missile launched by
Tochka-U systems operated by the Ukrainian Armed Forces.
page 292
The body of the carrier section had the following markings:
1) An inscription in black that reads: “9М721 01 20 000 I895521 Sh32”;
2) Below is another inscription also in black that reads: “9М79-1 0100000
ISh8939307’.
The marking “9M79-1” means that a 9M79-1 missile was used (its range is
between 20 and 120 km).
Numerous simultaneous explosions taking place within a circle of a radius of 300
m indicate that a 9N123K cluster warhead was used.
(7) Aerial bombs and air-to-surface missiles
Date Location Source Incident
2 June 2014 Luhansk
Human Rights Watch, Eastern
Ukraine: Questions and
Answers about the Laws of
War, 11 September 2014,
https://www.hrw.org/news/201
4/09/11/eastern-ukraine-
- In the early hours of June 2, following an intense nine-hour fight, the insurgents,
armed with machine guns and mine launchers, took control of a border-guard
outpost on the outskirts of Luhansk. Later that day, a Ukrainian military
aircraft shot an unguided air-to-surface missile at the Luhansk administration
building, which insurgents occupied. Several people inside were killed.
236
questions-and-answers-aboutlaws-
war
2 July 2014 Stanytsia
Luhanska
The Kharkiv Human Rights
Group, Report on the
Violations of Human Rights in
the Zone of Armed Conflict in
the Lugansk Region. Stanytsia
Luhanska area,
http://khpg.org/files/docs/1530
865045.pdf28
[Unofficial translation]:
page 4
[…] 9 people died and 11 people were injured in a Ukrainian aircraft’s
airstrike on 2 July 2014 in the village of Stanytsia Luhanska.
[…]
page 41
1. The applicant, Mr. G, a Ukrainian citizen, resided with his family (wife,
mother-in-law, and son with his wife) in a private house on Ostrovskoho Street
in the village of Stanytsia Luhanska.
On 2 July 2014, at around 10 a.m., a Su-25 military aircraft flew over the village
of Stanytsia Luhanska in the direction of the village’s centre. A local police
station and a district court on Moscow-Donbas Street were shelled.
After that, on its way back, the aircraft flew over Ostrovskoho Street. On hearing
the noise, many residents went outside to see what it was. The aircraft was flying
low from the direction of the Stara Kondrashevka station. There were 4 bombs
dropped from under one wing. One of the bombs directly hit the house that
belonged to the applicant, Mr G.
The applicant's wife was in the house at that time. The mother-in-law was on the
household’s territory. As a result of the explosion, the applicant's wife's leg was
torn off, after which she died in hospital 3 days later. The applicant's mother-inlaw
suffered multiple shrapnel injuries to her chest and other parts of her body
and died 20 days later after several operations. The applicant's house was
completely destroyed, along with all the property that was in it.
[…]
28 See also OHCHR, Report on the human rights situation in Ukraine, 15 July 2014, para. 32: “Human Rights Watch and Memorial, sometimes accompanied by Ukrainian
human rights defenders, have visited the town of Krasny Liman, and the villages of Stanista-Luganskaya and Staraya Kondrashovka to investigate the circumstances in which
civilians have been killed. In Stanista-Luganskaya and Staraya Kondrashovka, at least 11 people were killed including 2 children on 2 July […].”
237
2. Mr M resided with his wife and adult son in a private house on Ostrovskoho
Street. As a result of the airstrike on 2 July 2014, a projectile hit the applicant’s
house when his wife was inside. She died on the spot. The applicant’s house was
completely destroyed with all property inside.
15 July
2014 Snizhne
BBC, Ukraine conflict: Jet
bombs rebel-held town of
Snizhne, 15 July 2014,
https://www.bbc.com/news/wo
rld-europe-28309034
A warplane has attacked a rebel-held town with rockets in eastern Ukraine,
shattering homes and killing 11 people.
Rockets struck the town of Snizhne in Donetsk region around 07:00 (04:00
GMT), hitting a block of flats and a tax office.
The rebels blamed the attack on Ukraine's air force - a claim denied by Ukrainian
sources.
Security forces have been pushing the rebels back to the city of Donetsk.
Fighting has also raged in the neighbouring region of Luhansk, with rockets
hitting a southern suburb of Luhansk city on Monday.
Fair Protection, Ukrainian
Crimes in Donbass (Collection
of Analytical Materials). –
Donetsk, 2019, pp. 306, 332,
http://armiyadnr.su/sites/defaul
t/files/pictures/%D0%A1%D0
%B1%D0%BE%D1%80%D0
%BD%D0%B8%D0%BA%20
31.10.pdf
[Unofficial translation]:
page 306
In the early morning of 15 July 2014, at 06:30 a.m. (UTC +3), the centre of
Snizhne was attacked by a Su-25 ground-attack aircraft that dropped at least
eight aerial bombs identified as OFAB-100-120. Several buildings were
destroyed in the attack, including a residential building at 14 Lenina Street, a tax
office building, a bread factory, and a power substation. The bombing killed 12
civilians who died of injuries, wounds, and under debris, 10 people were injured,
including one child.
page 332
The centre of Snizhne was damaged by 8 exploded projectiles (reportedly OFAB-
100-120) lying in a straight line from north-west to south-east. Distinctive
impacts on destroyed buildings and impacts on the ground suggest that the
projectiles hit the targets moving vertically down. Such direction is mostly
typical of mortars and aerial bombs. However, the features of fragments that
remained at the scene rule out mortars and suggest that munitions of a larger
calibre were used (more than 200-mm).
238
[…]
According to witnesses, the Snizhne airstrike took place almost at the same time
as loud explosions were heard from the direction of Savur-Mohyla (10 km away
from Snizhne).
This implies that two Ukrainian Su-25 ground-attack aircraft carrying a load
of 100 kg bombs (OFAB-100-120) took off from the Chuguev aerodrome
(Kharkiv Region), dropped the bombs on Snizhne and Savur-Mohyla, and left the
bombing area.
239
Table 4: Civilian casualties caused by shelling of populated areas of territory controlled by the DPR/ LPR and attributable to Ukraine
In its Preliminary Objections, Russia has explained that the number of civilian casualties (including deaths) caused by shelling of populated areas
has been far greater on the DPR/LPR side of the contact line: see Preliminary Objections, para. 99 and Table 2 of Appendix A.
According to the SMM OSCE and OHCHR alone, there were numerous attacks on the DPR/ LPR-controlled territories as of the end of December
2017 that led to civilian casualties or damage to key civilian infrastructure.29
The following table presents representative examples of civilian casualties caused by shelling of the DPR-/LPR-controlled territories attributable
to Ukraine, as reported by the OSCE and OHCHR.30
Date Episode Organisation
reporting the attack Origin of fire: Ukraine-controlled territory
22 January
2015
“At 08:40hrs on 22 January, the “Emergency
Services Department” of the “Donetsk People’s
Republic” (“DPR”) informed the SMM of an alleged
shelling incident – involving multiple fatalities – at
42 Kuprina Street, 4.4km south-south-west of citycentre
Donetsk. […]
At 11:30hrs the SMM visited Donetsk Regional
Trauma Hospital, where the chief surgeon said that
13 people with injuries sustained in the incident on
Kuprina Street had been admitted.”
OSCE31
“At 11:00hrs the SMM conducted a crater analysis on
both craters, and determined that the rounds that caused
the two craters had been fired from a north-western
direction.”
29 For an indicative list of examples of OSCE and OHCHR reports covering respective attacks, including shelling attacks, see List of reports containing the examples
of attacks on the DPR-/LPR-controlled territories as of the end of December 2017 (Annex 30).
30 Note that civilian casualties in the territory controlled by the DPR/LPR have also resulted from other forms of indiscriminate and targeted attacks including air strikes
and small arms fire. For a recent example of a targeted attack, from the direction of government-controlled territory, on civilians see OHCHR, “Report on the human
rights situation in Ukraine 16 February to 15 May 2018”, para. 22 (“Of deep concern, on 17 April, a bus carrying approximately 30 civilian workers from the DFS
in armed-groups-controlled territory came under what appears to be deliberate small arms fire originating from the direction of government-controlled territory.”),
available at https://www.ohchr.org/Documents/Countries/UA/ReportUkraineFev-May2018_EN.pdf.
31 OSCE, “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 (emphasis added).
240
1-2 February
2015
“The SMM visited Donetsk city’s Petrovskyi and
Voroshilovskyi districts (respectively 1.7km northwest
and 15km south-west of Donetsk city centre,
“DPR”-controlled) to monitor the effects of shelling
reported by various sources. The SMM visited six sites
in the two districts where it observed damage to
infrastructure and residential properties. Local
residents reported that Petrovskyi district was shelled
on 1 February at approximately 17:00hrs and that a
young girl was killed and two men wounded as a
result. […] In Voroshilovskyi district local residents
told the SMM that shelling occurred on 2 February at
approximately 07:45hrs and that two adults, one
woman and one man were killed.”
OSCE 32
“SMM crater analysis shows that one building
sustained a direct artillery hit originating from the
north-west.”
4 February
2015
According to the OSCE SMM Spot Report, the
shelling took place in the Kirov quarters of Donetsk
on 4 February, between 11:40 a.m. and 11:45 a.m.
strikes hit the immediate vicinity of a kindergarten No
381, a neighbouring street and the Donetsk Hospital
No 27. As a result, 6 persons were killed, 25 or 26
injured.
OSCE33
“Based on the analysis of the impact site, the size of the
crater and observed destructions, the SMM concluded
that the shelling came from south-south-westerly
direction and was carried out with the use of MSLR
BM-27 Uragan.”
32 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 18:00 (Kyiv time), 2 February 2015”, 3 February
2015, available at http://www.osce.org/ukraine-smm/138896 (emphasis added).
33 OSCE, “Spot report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in the Kirovskyi district of Donetsk city on 4 February 2015”, 7 February
2015, available at https://www.osce.org/ukraine-smm/139406 (emphasis added).
241
11 February
2015
“In Donetsk, on 11 February from 10:00 to 11:30hrs,
the SMM observed the aftermath of a shelling
incident in the morning of 11 February at the central
bus station and a metal works factory located in
Leninskyi district (“Donetsk People’s Republic”
(“DPR”)-controlled). At the bus station the SMM
saw two burnt-out buses, one of them struck by an
artillery shell. The SMM could not determine the
precise type of artillery shell or the direction of fire.
Staff at the Donetsk Central Hospital later confirmed
to the SMM that the shelling at the two sites had
caused four civilian casualties and injured three.”
OSCE34
“Based on its observations and crater analysis, the
SMM assessed that the impacts were caused by mortar
shells fired from the north-west.”
26 May 2015
“The SMM saw the aftermath of shelling in “DPR”-
controlled Horlivka (39km north-north-east of
Donetsk). Residents, including one injured by the
shelling, told the SMM that shells struck at 18:00hrs
on 26 May. The SMM saw nine crater impacts (all
within a radius of 200 metres) at three locations in
residential areas and conducted crater analysis at one
location. At this location, the SMM saw the body of a
deceased woman close to two crater impacts. […]
According to the “DPR” “emergency services” and
local residents, a 38 year old man and his 11 year old
daughter were killed instantly in this strike and his
wife and two young children had been hospitalized
with injuries. At City Central Hospital No.2 the
SMM spoke with the wounded mother. She and her
children had suffered shrapnel wounds. Later, the
SMM saw three bodies at the mortuary (one a middle
OSCE35
“The SMM estimated that the craters were caused by
incoming artillery from the north-north-west. In both
craters the SMM found shrapnel consistent with
122mm artillery.”
34 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 18:00 (Kyiv time), 11 February 2015”, 12 February
2015, available at http://www.osce.org/ukraine-smm/140271 (emphasis added).
35 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 19:30 (Kyiv time), 27 May 2015”, 28 May 2015,
available at http://www.osce.org/ukraine-smm/160611 (emphasis added).
242
aged man, one woman and a child). The SMM
assessed that all three were victims of the shelling.”
7 July 2015
“In “DPR”-controlled Svobodne (49km north-east of
Mariupol), the SMM noted 15 shell impacts, assessed
to have been caused by 120mm artillery rounds fired
from the west. The SMM observed three destroyed
houses, which it assessed to have sustained direct
hits. A number of other houses had sustained
damage. According to “DPR” armed personnel and
residents of the village, an elderly woman and her
adult son were killed in the shelling. The SMM
observed a destroyed house where residents said the
victims had lived. Human remains and blood were at
the scene. The shelling occurred between 04:10 and
04:50hrs on 7 July, according to residents in
neighbouring “DPR”-controlled Telmanove (50km
north-east of Mariupol). In “DPR”-controlled
Starobesheve (81km north-north-east of Mariupol),
the head doctor of the hospital later told the SMM
that two civilians killed in Svobodne had been taken
to the morgue, which is attached to the hospital.”
OSCE36
“In “DPR”-controlled Svobodne (49km north-east of
Mariupol), the SMM noted 15 shell impacts, assessed
to have been caused by 120mm artillery rounds fired
from the west.”
19 July 2015
“On 19 July the SMM observed the aftermath of
shelling overnight and conducted crater analyses in
“DPR”-controlled Donetsk city, visiting a total of 12
impact sites. Around 80 Universytetska Street and 69
Shchorsa Street (2.5km north-west of Donetsk city
centre), the SMM observed three fresh craters that it
concluded had been caused by MBT fragmentation
OSCE37
“In both cases, the SMM was able to conclude the
direction of fire to have been from the area of
government-controlled Pisky (11km north-west of
Donetsk) and Pervomaiske (17km north-west of
Donetsk).”
36 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 19:30 (Kyiv time), 7 July 2015”, 8 July 2015,
available at https://www.osce.org/ukraine-smm/171186 (emphasis added).
37 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 19:30 (Kyiv time), 19 July 2015”, 20 July 2015,
available at https://www.osce.org/ukraine-smm/173666 (emphasis added).
243
shells (125mm) fired from the north-west. At
Hospital No. 23 at 46 Tselinogradska Street (4km
west of Donetsk city centre), the SMM observed
three fresh craters that it also concluded had been
caused by MBT fragmentation shells (125mm) fired
from the north-west.”
29-30 July
2015
“In “DPR”-controlled Horlivka (37km north-east of
Donetsk), in the area of Pereslavskaya Street, the
SMM was told by residents that shelling had taken
place around 22:00hrs on 29 July. […]
A resident told the SMM that as a result of the
shelling, one woman had been killed and her son and
husband had been injured and hospitalized. […]
In another area of Horlivka (Rtutna Street), the SMM
observed impacts to the western sides of apartment
buildings, and some shrapnel marks on eastern
façades. […] The walls of buildings were damaged
and windows were shattered. Three residents told the
SMM that shelling had begun at around 04:00hrs on
30 July. According to them, one man had been killed
and two elderly women and a 14-year-old child were
injured.
The head and deputy head of Horlivka trauma
hospital no. 2 together told the SMM that six people
(two elderly women, two men and two children) had
been injured as a result of the shelling and brought to
the hospital, among them two children (one aged
seven and the other 14 years).”
OSCE38
“The SMM found remnants of shells in the craters,
assessed to be from 120mm calibre mortar. The SMM
assessed the direction of fire as incoming from the westnorth-
west.
[…]
The SMM assessed the direction of fire as incoming
from the west-north-west.”
38 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine based on information received as of 19:30 (Kyiv time), 30 July 2015”, 31 July 2015,
available at http://www.osce.org/ukraine-smm/175591 (emphasis added).
244
27 April 2016
“Four civilians were killed close to a “DPR”
checkpoint near Olenivka when shelling occurred in
the early hours of 27 April.”39
OSCE / OHCHR
“According to OSCE crater analysis, the mortar rounds
were fired from the west-south-westerly direction. This
indicates the responsibility of the Ukrainian armed
forces.”40
11 October
2016
“The SMM followed up on reports of civilian
casualties and observed the result of shelling. In a
hamlet between “DPR”-controlled Sakhanka and
Uzhivka (formerly Leninske) (both 24km north-east
of Mariupol) the SMM observed two impact sites. At
the first site the SMM saw the totally destroyed roof
of an inhabited house. Based on the damage and
shrapnel, the SMM assessed it as caused by a 122mm
artillery round possibly fired from a north-westerly
direction. At the second site the SMM saw a fresh
crater next to a road and assessed it as possibly
caused by a 122mm artillery round fired from a
north-westerly direction. The “head” of Sakhanka
“village council” told the SMM that a woman (in her
late seventies) had been killed during shelling which
occurred on the previous night, and as a result her
husband (in his late seventies) had suffered a heart
attack, adding that two women (aged 53 and 47) and
a man had been injured and taken to a hospital”.
OSCE41
“Based on the damage and shrapnel, the SMM assessed
it as caused by a 122mm artillery round possibly fired
from a north-westerly direction. At the second site the
SMM saw a fresh crater next to a road and assessed it
as possibly caused by a 122mm artillery round fired
from a north-westerly direction.”
20 October
2016
“Conversely, neighbouring villages and towns, such
as “DPR”-controlled Makiivka
which is adjacent to Avdiivka-Yasynuvata-Donetsk
airport area saw a considerable
OSCE42
“The SMM assessed two of the impact sites as caused
by 122mm artillery rounds fired from a north-westerly
direction.”
39 OSCE, “Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in Olenivka”, 28 April 2016, available at https://www.osce.org/ukrainesmm/
236936 (emphasis added).
40 OHCHR, “Report on the human rights situation in Ukraine, 16 February to 15 May 2016”, para. 20, available at
https://www.ohchr.org/Documents/Countries/UA/Ukraine_14th_HRMMU_Report.pdf (emphasis added).
41 OSCE, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30, 11 October 2016”, 12 October 2016, available
at https://www.osce.org/ukraine-smm/274286 (emphasis added).
42 OSCE, “Thematic Report: Civilian casualties in eastern Ukraine 2016”, September 2017, p. 21, available at https://www.osce.org/special-monitoring-mission-toukraine/
342121?download=true (emphasis added).
245
number of casualties, amounting to 23 cases, almost
90 per cent of which resulted
from shelling. An example is the incident which
occurred on neighbouring streets of a residential area
in Makiivka on 27 October, leading to nine casualties
(two killed, seven injured). Many of those
interviewed by the SMM described being thrown
against the wall or the floor during the impacts and
being injured by flying shrapnel and shards of glass
from shattering windows. The SMM confirmed the
deaths of two men as a result of injuries sustained
during the shelling.”
2 February
2017
“In Kalininskyi district of Donetsk city, the SMM
observed a fresh impact next to a roundabout
assessed as caused by a single multiple-launch rocket
system (MLRS; likely Smerch or Uragan) rocket
fired from a direction ranging from west to north.
[…]
An SMM mini unmanned aerial vehicle (UAV)
spotted a five-storey dormitory building, about 30m
south of the impact, whose roof had been completely
ripped off and all windows shattered. About 170m
north-west of the impact, the gates of a car wash had
been blown in, while a gas station behind the car
wash had sustained slight damages. The UAV spotted
a “DPR” compound some 260m south-east of the
impact site with two multi-purpose armoured tracked
vehicles (MTLB) inside. The head of the dormitory
where internally displaced persons reside said that
two of them had been injured. At a morgue, staff said
OSCE43
“In Kalininskyi district of Donetsk city, the SMM
observed a fresh impact next to a roundabout assessed
as caused by a single multiple-launch rocket system
(MLRS; likely Smerch or Uragan) rocket fired from a
direction ranging from west to north.
[…]
The SMM assessed the impacts as caused by MLRS
(BM-21Grad, 122mm) rockets fired from a westerly
direction.”
43 OSCE, “Spot Report by the OSCE Special Monitoring Mission to Ukraine: Casualties, damage to civilian infrastructure registered in Donetsk region following
fighting”, 3 February 2017, available at https://www.osce.org/ukraine-smm/297606 (emphasis added).
246
that the body of a dead man had been brought in
together with partial remains of another person.
On Artema Street in Donetsk city the SMM observed
two fresh impacts: one in the entry steps of a
residential apartment building and another on the
road 15-20m north of the building. The SMM
assessed the impacts as caused by MLRS (BM-
21Grad, 122mm) rockets fired from a westerly
direction. Half of the windows on the south-westfacing
side of the building were destroyed.
On Sobinova Street the SMM observed a fresh
impact in the garden of a house assessed as caused by
a single MLRS (BM-21) rocket. […]
On Kievskyi Avenue the SMM observed two
impacts, one on the first and another on the fourth
floor of two residential buildings, as well as shrapnel
damage to nearby buildings. The SMM saw holes in
the exterior west-facing walls of several apartments
and broken windows. The SMM assessed one impact
as caused by an MLRS (BM-21) rocket and the other
by an artillery round at least 122mm, both fired from
a north-westerly direction. According to local
residents the above explosions in Donetsk city had
occurred between 22:20 and 23:30 on 2 February.”
28 April 2018
“At a hospital in Dokuchaievsk the injured woman’s
daughter (in her thirties) told the SMM that on the
morning of 28 April her mother, while on the way to
a store, had heard sounds of shelling. Then, about
100m away from her house at 4 Polzunova Street, she
had felt a strong pain in her right shoulder. The SMM
OSCE44 “The SMM assessed the craters as caused by fire from a
north-westerly direction.”
44 OSCE, “Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30, 29 April 2018”, 30 April 2018, available
at https://www.osce.org/special-monitoring-mission-to-ukraine/379156 (emphasis added).
247
spoke to a doctor (man, in his sixties) who said that a
woman (in her sixties) with injuries caused by
shrapnel had been admitted to the hospital that
morning.
[...]
On 28 April, at a morgue in Dokuchaievsk the SMM
saw two covered bodies. At the morgue medical staff
told the SMM that the bodies were victims of
shelling.”
248
Table 5: Killing and ill-treatment by all parties to the armed conflict
Date Organisation Killing and ill-treatment by all parties to the armed conflict, including Ukraine?
March to April
2014 OHCHR
Yes:45
“2. […] Serious human rights violations were committed including during the Maidan protests, which
resulted in the death of 121 individuals […] There have been also numerous reports of torture and illtreatment
of protestors […]”
“45. […] dozens of people who participated in the Maidan demonstrations were […] subjected to torture
and ill-treatment […]”
“52. There has been a culture of effective impunity in Ukraine for the high level of criminal misconduct,
including torture […] often committed by the police in the course of their work […]”
“58. Most acts of severe beatings, torture, and other cruel, inhuman or degrading treatment were attributed
to the ‘Berkut’ riot police […]”
April to May
2014 OHCHR
Yes:46
“39. […] The use of torture and ill-treatment in pre-trial detention facilities is often attributed to the fact
that police officers are still evaluated on quantitative indicators.”
“113. […] the HRMMU verified allegations […] that Pavel Gubarev, the self-proclaimed governor of
Donetsk, who was detained in Donetsk by police on 6 March and transferred to Kyiv, had been tortured and
was in a critical condition […]”
45 OHCHR, “Report on the human rights situation in Ukraine 15 April 2014”, paras. 2, 45, 52, 58 (Annex 44 to Memorial).
46 OHCHR, “Report on the human rights situation in Ukraine 15 May 2014”, paras. 39, 113 (Annex 45 to Memorial).
249
May to June
2014 OHCHR
Yes:47
“4. The escalation in criminal activity resulting in human rights abuses […] torture, and killings by armed
groups are now affecting the broader population of the two eastern regions, which are now marked by an
atmosphere of intimidation and consequent fear […]”
June to July
2014 OHCHR
Yes: 48
“59. Reports suggested that members of the Ukraine forces have been responsible for the ill-treatment and
torture of detainees […]”
July to August
2014 OHCHR
Yes:49
“10. The HRMMU also received reports of human rights violations committed by territorial battalions
under the Ministry of Defence or special battalions under the Ministry of Internal Affairs. This includes
cases of […] torture […]”
“12. […] The Security Service of Ukraine and police have detained more than 1,000 people in the Donbas
region, as of 16 August, because of ‘irrefutable evidence of their participation in terrorist activities.’ […]
and there are reports of ill-treatment during arrest or while in custody.”
August to
September 2014 OHCHR
Yes:50
“23. The Human Rights Monitoring Mission in Ukraine also received reports of allegations of human
rights violations committed by volunteer battalions under the Ministry of Defence or special battalions
under the Ministry of Internal Affairs […]”
47 OHCHR, “Report on the human rights situation in Ukraine 15 June 2014”, para. 4 (Annex 46 to Memorial).
48 OHCHR, “Report on the human rights situation in Ukraine 15 July 2014”, para. 59 (Annex 296 to Memorial).
49 OHCHR, “Report on the human rights situation in Ukraine 17 August 2014”, paras. 10, 12, available at
https://www.ohchr.org/Documents/Countries/UA/UkraineReport28August2014.pdf.
50 OHCHR, “Report on the human rights situation in Ukraine 19 September 2014”, para. 23 (Annex 47 to Memorial).
250
September to
November 2014 OHCHR
Yes:51
“10. […] The HRMMU continued to receive credible reports of persons deprived of their liberty being
subjected to torture and ill-treatment while being illegally held or detained by either the armed groups or
by Ukrainian law enforcement agencies and some volunteer battalions.”
November to
December 2014 OHCHR
Yes:52
“9. The efforts of the Government to safeguard the territorial integrity of Ukraine and restore law and
order in the conflict zone have been accompanied by arbitrary detentions, torture, and enforced
disappearances of people suspected of ‘separatism and terrorism’. Most of such human rights violations
appear to have been perpetrated by certain voluntary battalions or by the Security Service of Ukraine
(SBU). The procedural rights of people have not always been observed, with reports of ill-treatment and
reports of reprisals upon release.”
“44. […] Some other detainees interviewed by the HRMMU reported being beaten and intimidated to
confess to participation in the armed groups. On 14 November, a Donetsk resident died on the premises of
Izium district police department (Kharkiv region), shortly after being taken out and then returned by
masked men and an identified SBU official. Forensic examination found multiple and extensive
hematomas on his body and a closed blunt injury of the chest […]”
December 2014
to February
2015
OHCHR
Yes:53
“14. Allegations of violations of international human rights law and international humanitarian law have
persisted over the reporting period. Credible reports of arbitrary detentions of civilians, torture and
enforced disappearance have been alleged against the armed groups and the Government […]”
“37. […] a pattern of enforced disappearances, secret detention and ill-treatment by Ukrainian law
enforcement agencies in the security operation area and adjacent territories.”
51 OHCHR, “Report on the human rights situation in Ukraine 15 November 2014”, para. 10 (Annex 48 to Memorial).
52 OHCHR, “Report on the human rights situation in Ukraine 15 December 2014”, paras. 9 and 44 (Annex 303 to Memorial).
53 OHCHR, “Report on the human rights situation in Ukraine 1 December 2014 to 15 February 2015”, paras. 14 and 37 (Annex 309 to Memorial).
251
February to May
2015 OHCHR
Yes:54
“13. […] The HRMMU continued to receive allegations of ill-treatment and torture of people detained by
the Ukrainian armed forces and law enforcement agencies. It is also concerned that investigations into
allegations of gross human rights violations by the Ukrainian military and law enforcement personnel have
yet to be carried out.”
“45. […] the HRMMU received allegations that during interrogation, some detainees were subjected to illtreatment
and torture (beatings, suffocation with bag on the head, electric shocks and deprivation of sleep,
food and water for more than 24 hours). The people arrested were not provided with a defense lawyer and
were mocked at when requesting one […]”
January 2014 to
May 2016 OHCHR
Yes:55
“51. HRMMU has also received allegations concerning the death of people in custody of the Government
or its constituent armed forces. The majority of these allegations pertain to the initial stages of the conflict,
i.e. June 2014 – February 2015. They mostly concern individuals who had been members of the armed
groups or were suspected of affiliation with them. Most often, the death of victims was allegedly caused
by torture and ill-treatment, or by inadequate or absent medical aid.”
“62. At the same time, OHCHR has observed an apparent lack of motivation to investigate some cases and
a formalistic approach in the work of investigative bodies, especially when it concerns acts allegedly
committed by Ukrainian forces. Cover-up and political bias are not uncommon, especially when alleged
perpetrators belong to the ranks of the military and law enforcement. As a result, some perpetrators
continue to enjoy impunity. Changes of measures of restraint often provide alleged perpetrators with
opportunities to escape from justice. While, forensic experts do not always pay sufficient attention to
documenting signs of torture on bodies recovered from the conflict zone, investigators also do not always
task forensic experts to answer questions whether a body bears signs of torture. Material evidence related
to a summary deprivation of life is often collected poorly and is not properly preserved.”
54 OHCHR, “Report on the human rights situation in Ukraine 16 February to 15 May 2015”, paras. 13 and 45 (Annex 310 to Memorial).
55 OHCHR, “Accountability for killings in Ukraine from January 2014 to May 2016”, paras. 51, 62 and 68 (Annex 49 to Memorial).
252
“68. To the Government of Ukraine: […] (c) Improve the collection of forensic and preservation of
other material evidence related to acts of arbitrary deprivation of life in the conflict zone, including
documenting signs of torture or ill-treatment in accordance with international standards […]”
May to August
2015 OHCHR
Yes:56
“6. HRMMU continued to receive and verify allegations of killings, abductions, torture and ill-treatment,
sexual violence, forced labour, ransom demands and extortion of money on the territories controlled by the
‘Donetsk people’s republic’ and ‘Luhansk people’s republic’. It also received reports of isolated incidents
where armed groups disrupted religious services and intimidated several religious communities […]
7. […] HRMMU has received testimonies of plea bargains being made by individuals under torture or
duress.
8. HRMMU continued to observe a persistent pattern of arbitrary and incommunicado detention by
Ukrainian law enforcement officials (mainly by the Security Service of Ukraine) and military and
paramilitary units (primarily by former volunteer battalions now formally incorporated into the Ukrainian
armed forces, National Guard and police), which is often accompanied by torture and ill-treatment of
detainees, and violations of their procedural rights. HRMMU continues to advocate for proper and prompt
investigation of every single reported case, and for prosecution of perpetrators.”
August to
November 2015 OHCHR
Yes:57
“7. Efforts of the Government of Ukraine to safeguard the territorial integrity of Ukraine and restore law
and order in the conflict zone continued to be accompanied by allegations of enforced disappearances,
arbitrary and incommunicado detention as well as torture and ill-treatment of people suspected of
trespassing against territorial integrity or terrorism or believed to be supporters of the ‘Donetsk people’s
republic’ and ‘Luhansk people’s republic’. Elements of the Security Service of Ukraine appear to enjoy a
high degree of impunity, with rare investigations into allegations involving them.”
56 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2015”, paras. 6-8 (Annex 769 to Memorial).
57 OHCHR, “Report on the human rights situation in Ukraine 16 August to 15 November 2015”, para. 7 (Annex 312 to Memorial). See also paras. 43-48 for details.
253
November 2015
to February
2016
OHCHR
Yes:58
“45. Throughout the country, OHCHR continued to receive allegations of enforced disappearances,
arbitrary and incommunicado detention, and torture and ill-treatment of people accused by the Ukrainian
authorities of ‘trespassing territorial integrity’, ‘terrorism’ or related offenses, or of individuals suspected
of being members of, or affiliated with, the armed groups.”
“50. During the reporting period, OHCHR documented a pattern of cases of SBU detaining and allegedly
torturing the female relatives of men suspected of membership or affiliation with the armed groups […]”
“53. […] OHCHR is also deeply concerned that despite its repeated interventions, it continues to receive
allegations of SBU violating basic procedural guarantees, denying detainees the right to counsel, and
subjecting them to torture and ill-treatment.
54. The failure to investigate allegations of torture is of particular concern. OHCHR has observed that the
authorities are unwilling to investigate allegations of torture particularly when the victims are persons
detained on grounds related to national security or are viewed as being ‘pro-federalist’. […] While
monitoring trials, OHCHR observed that prosecutors and judges rarely record or act upon defendant’s
allegations of torture […]
55. OHCHR is also very concerned about the use of statements extracted through torture as evidence in
court proceedings […]”
“70. As mentioned above, OHCHR continued to document consistent and credible allegations of torture,
ill-treatment, incommunicado detention and enforced disappearances by SBU elements in Kharkiv,
Mariupol, and Zaporizhzhia.
58 OHCHR, “Report on the human rights situation in Ukraine 16 November 2015 to 15 February 2016”, paras. 45, 50, 53-55, 70-71, 73 and 103 (Annex 314 to
Memorial).
254
71. OHCHR is concerned about SBU officials’ systematic denial of these allegations, which suggests their
resistance to any investigations […]”
“73. OHCHR has followed cases of residents of Government-controlled Donetsk and Luhansk regions
who have been charged and tried for their alleged membership in and support of the armed groups, simply
for being in contact with people (usually their relatives) living in territories controlled by these groups or
working for a civilian water supply company operating in the ‘Luhansk people’s republic’.”
“103. […] Of grave concern is the allegation that the accused suffered reprisals in the form of threats,
intimidation and ill-treatment by the SBU after they challenged the admissibility of evidence in court.”
February to May
2016 OHCHR
Yes:59
“30. OHCHR received allegations of enforced disappearances, arbitrary and incommunicado detention,
torture and ill-treatment committed by Ukrainian law enforcement. […]
31. The majority of cases documented during the reporting period concerned incidents in the conflict zone.
While the cases from 2014 and early 2015 suggest that volunteer battalions (often in conjunction with the
Security Service of Ukraine (SBU)) were frequent perpetrators, information from the late 2015 and early
2016 mostly implicate SBU. Many of these cases concern incommunicado detention in informal detention
facilities where torture and ill-treatment are persistently used as means to extract confessions or
information, or to intimidate or punish the victim. […]
32. On 20 February 2016, a Mariupol resident was transferred to Donetsk as part of a simultaneous release
of detainees. Since March 2015, he had been held incommunicado at the Kharkiv SBU. He was
apprehended in Mariupol on 28 January 2015 and kept in an illegal detention facility. There, he was
reportedly severely tortured and electrocuted by three men who wanted him to identify supporters of the
‘Donetsk people’s republic’ in Mariupol. On 8 February 2015, he was charged under article 258
(terrorism) of the Criminal Code. The following day, the court placed him in Mariupol SIZO. On 12
March 2015, he was released from custody under house arrest and, while leaving the courthouse, was
59 OHCHR, “Report on the human rights situation in Ukraine 16 February to 15 May 2016”, paras. 30-32, 48-49, 59, 212(e)-(f), 213(d) (Annex 771 to Memorial).
255
apprehended by SBU and transferred to Kharkiv SBU. At the time of his arrival, 72 individuals were held
there; 17 when he was released on 20 February 2016.”
“48. In the majority of cases documented by OHCHR, law enforcement employed threats of sexual
violence against individuals detained under charges of terrorism, along with other forms of torture and illtreatment
during interrogation. Two of the documented cases took place in or around Avdiivka in April
and May 2015. A male detainee who was subjected to torture and forced to confess to his involvement in
the armed groups on camera, was subsequently threatened with sexual violence, told that he would be
handcuffed and raped by a homosexual man. Two women from the same family, aged 18 and 41, were
tortured and repeatedly threatened with sexual violence.
49. Other documented cases appear to be linked to the military presence in densely populated civilian
areas, such as towns near the contact line, and general impunity. A man with a mental disability was
subject to cruel treatment, rape and other forms of sexual violence by eight to 10 members of the ‘Azov’
and ‘Donbas’ battalions in August-September 2014. The victim’s health subsequently deteriorated and he
was hospitalized in a psychiatric hospital.”
“59. A resident of Mariupol was detained by three servicemen of the ‘Azov’ battalion on 28 January 2015
for supporting the ‘Donetsk people’s republic’. He was taken to the basement of Athletic School No. 61 in
Mariupol, where he was held until 6 February 2015. He was continuously interrogated and tortured. He
complained about being handcuffed to a metal rod and left hanging on it, he was reportedly tortured with
electricity, gas mask and subjected to waterboarding and he was also beaten in his genitals. As a result he
confessed about sharing information with the armed groups about the locations of the Government
checkpoints. Only on 7 February, he was taken to the Mariupol SBU, where he was officially detained.”
“212. […] (e) The Security Service of Ukraine (SBU) to treat all persons detained in the context of the
‘anti-terrorism operation’ humanely and without adverse distinction in compliance with binding
international human rights law and standards; (f) The SBU to cease the practice of extracting confessions
or self-incriminating statements under duress […]”
256
“213. […] (d) To all parties involved in the hostilities […] Treat all persons deprived of their liberty,
civilian or military, humanely and according to international human rights and humanitarian law standards
[…]”
May to August
2016 OHCHR
Yes:60
“5. […] OHCHR has continued to document cases of torture and ill-treatment by the Government and
armed groups […]”
“45. […] approximately 70 per cent of cases documented by OHCHR contained allegations of torture, illtreatment,
and incommunicado detention prior to transfer into the criminal justice system. The majority of
allegations implicate SBU officials, police, and members of the paramilitary DUK ‘Right Sector’ […]”
“47. In an emblematic case, armed men in camouflage bearing no insignia apprehended a man in his house
in Government-controlled areas of Donetsk region in October 2015. He was handcuffed, blindfolded and
taken to an indoor shooting range in the basement of the SBU building in Mariupol. There, he was beaten,
suffocated with a plastic bag, submerged in cold water, and had his ribs broken by a man who jumped on
his torso. He was forced to sign a confession, read it in front of a camera, and was subsequently charged
under article 258-3 of the Criminal Code of Ukraine. Still in detention, he is afraid of reprisals and
unwilling to corroborate the use of the Mariupol SBU basement indoor shooting range for complain about
his ill-treatment to the authorities. Four additional verified cases from 2015 incommunicado detention and
torture.”
May 2017
United Nations
Subcommittee on
Prevention of Torture
and Other Cruel,
Inhuman or
Yes:61
“34. The Subcommittee has received numerous and serious allegations of acts that, if proven, would amount
to torture and ill-treatment. Persons interviewed by the Subcommittee in various parts of the country have
recounted beatings, electrocutions, mock executions, asphyxiations, acts of intimidation and threats of
60 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August 2016”, paras. 5, 45 and 47 (Annex 772 to Memorial). See also paras. 43-44, 46 and
48 for details.
61 Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “Visit to Ukraine undertaken from 19 to 25 May and
from 5 to 9 September 2016: observations and recommendations addressed to the State party”, UN Doc. CAT/OP/UKR/3, 18 May 2017, paras. 34-38, available at
http://undocs.org/en/CAT/OP/UKR/3 (emphasis added).
257
Degrading Treatment
or Punishment
sexual violence against themselves and their family members. In the light of all the work done and
experience gained during the visit, the Subcommittee has no difficulty in concluding that these allegations
are likely to be true.
35. Many of the above-mentioned acts are alleged to have occurred while the persons concerned were under
the control of the State Security Service or during periods of informal detention. In such cases, detainees
accused of crimes relevant to the armed conflict in eastern Ukraine […] are alleged to have been tortured
in order to extract information regarding their involvement or that of their associates in “separatist”
activities and to identify armed groups’ military positions. The Subcommittee also understands that, in some
cases, acts were committed by private individuals or volunteer battalions with the consent or acquiescence
of public officials.
36. As it did during its 2011 visit (see CAT/OP/UKR/1, paras. 64 and 93-94), the Subcommittee also
received allegations about the ill-treatment of detained persons, including juveniles, by the police during
their apprehension and interrogation. Reports of juveniles being punched, kicked, burned and shocked with
tasers were borne out by consistent interviews, observation of injuries and registers (even if such records
were not always complete). Many detainees stated that, following ill-treatment by the police, they were
prevented from entering pretrial detention facilities (SIZOs) because they had visible injuries and had
therefore been kept in pretrial centres under the authority of the national police (ITTs) for their “faces to
heal” before being registered and undergoing a medical examination at a SIZO.
37. In addition, it appears that prosecutors and judges are not particularly sensitive or sympathetic to
complaints of torture and ill-treatment. A number of factors may contribute to this, including […] the
deference shown to police investigators given prosecutors’ reliance on them for other cases and a tolerance
for torture committed by ‘defenders’ (volunteers fighting in eastern Ukraine), stemming from expressions
of sympathy for their cause. […] In addition, the Subcommittee met many officials, including
administrators, law enforcement officers and medical professionals, who did not feel it was their
responsibility to report suspected cases of torture and ill-treatment.
38. When allegations of torture were looked into, some investigative steps, such as medical examinations,
witness interviews and the provision of timely access to the scene of the events, were either severely delayed
or completely thwarted. Moreover, the Subcommittee observed that accounts of suspicious injuries were
treated in a variety of ways. In some cases, a report was forwarded to the prosecutor’s office; in others, it
was sent to the police. In any event, it was not clear that investigations systematically followed from such
258
reports, perhaps because some were sent to the police officers accused of committing the act. In addition, a
number of reports received no reply and others received only an initial acknowledgment.”
September 2017
United Nations
Human Rights
Council
Yes:
“21. Dozens of civilians and persons hors de combat had been subjected to summary executions and killings
or had died of torture and ill-treatment in custody. About 3,000 conflict-related detainees had been deprived
of their liberty in the territories controlled by the armed groups. They had been subjected to torture, illtreatment
and/or inhuman conditions of detention, often aggravated by the lack of access to external
observers. In Government-controlled territory, conflict-related detainees had often been kept
incommunicado, including in informal places of detention, and subjected to torture and ill-treatment.
Hundreds of persons remained missing on both sides of the contact line.”62
“39. The Subcommittee recommends [inter alia] that [Ukraine] take urgent measures to prevent and punish
all acts of torture and ill-treatment occurring at the hands of, or with the consent or acquiescence of, State
officials […]”63
62 United Nations General Assembly, Human Rights Council, Working Group on the Universal Periodic Review, 28th Session, Compilation on Ukraine, Report of the
Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/WG.6/28/UKR/2, 4 September 2017, para. 21, available at https://documentsdds-
ny.un.org/doc/UNDOC/GEN/G17/257/58/PDF/G1725758.pdf?OpenElement.
63 Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “Visit to Ukraine undertaken from 19 to 25 May and
from 5 to 9 September 2016: observations and recommendations addressed to the State party”, UN Doc. CAT/OP/UKR/3, 18 May 2017, para. 39, available at
http://undocs.org/en/CAT/OP/UKR/3.
259
INDEX OF DOCUMENTS ANNEXED TO THE COUNTER-MEMORIAL ON THE
CASE CONCERNING APPLICATION OF THE INTERNATIONAL CONVENTION FOR
THE SUPPRESSION OF THE FINANCING OF TERRORISM
Submitted by the Russian Federation
EXPERT REPORTS
Annex 1 Expert Report of A.A. Bobkov, 8 August 2021
Annex 2 Expert Report of Major General V.A. Samolenkov, 8 August 2021
DOCUMENTS OF INTERNATIONAL ORGANISATIONS
Annex 3 OSCE SMM, “Spot report by the OSCE Special Monitoring Mission to Ukraine
(SMM), 5 September 2014: The Situation in Mariupol”, 5 September 2014
Annex 4 OSCE SMM “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine
based on information received as of 18:00 (Kyiv time), 17 September 2014”,
18 September 2014
Annex 5 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM)
based on information received as of 18:00 (Kyiv time), 27 October 2014”,
28 October 2014
Annex 6 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM)
based on information received as of 18:00 (Kyiv time), 11 January 2015”, 12 January
2015
Annex 7 OSCE SMM, “Spot report by the OSCE Special Monitoring Mission to Ukraine
(SMM), 22 January 2015: Shelling Incident on Kuprina Street in Donetsk City”,
22 January 2015
Annex 8 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM)
based on information received as of 18:00 (Kyiv time), 3 February 2014”, 4 February
2014
Annex 9 OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine
based on information received as of 18:00 (Kyiv time), 10 February 2015”,
11 February 2015
Annex 10 OSCE SMM, “Spot Report by the OSCE Special Monitoring Mission to Ukraine
(SMM): Shelling in Olenivka”, 28 April 2016
Annex 11 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM),
based on information received as of 19:30, 6 September 2016”, 7 September 2016
Annex 12 OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30, 9 October 2016”, 10 October 2016
Annex 13 OSCE SMM, “Latest from OSCE Special Monitoring Mission (SMM) to Ukraine,
based on information received as of 19:30, 11 October 2016”, 12 October 2016
260
Annex 14 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM),
based on information received as of 19:30, 28 October 2016”, 29 October 2016
Annex 15 OSCE SMM, “Latest from OSCE Special Monitoring Mission to Ukraine (SMM)
based on information received as of 19:30 (Kyiv time), 6 November 2016”,
7 November 2016
Annex 16 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 29 January 2017”, 30 January
2017
Annex 17 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 30 January 2017”, 31 January
2017
Annex 18 OSCE SMM, “Thematic report, Hardship for conflict-affected civilians in eastern
Ukraine”, February 2017 (excerpts)
Annex 19 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 3 February 2017”, 4 February
2017
Annex 20 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 5 February 2017”, 6 February
2017
Annex 21 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 16 February 2017”, 17 February
2017
Annex 22 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 17 February 2017”, 18 February
2017
Annex 23 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 24 February 2017”, 25 February
2017
Annex 24 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 28 February 2017”, 1 March
2017
Annex 25 OHCHR, “Report on the human rights situation in Ukraine 16 November 2016 to
15 February 2017”, 15 March 2017 (excerpts)
Annex 26 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 1 March 2017”, 2 March 2017
Annex 27 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 2 March 2017”, 3 March 2017
261
Annex 28 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 7 May 2017”, 8 May 2017
Annex 29 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 18 June 2017”, 19 June 2017
Annex 30 OSCE SMM, “Latest from the OSCE Special Monitoring Mission to Ukraine
(SMM), based on information received as of 19:30, 13 July 2017”, 14 July 2017
Annex 31 OHCHR, “Report on the human rights situation in Ukraine 16 May to 15 August
2019”, 17 September 2019 (excerpts)
RUSSIAN GOVERNMENT, PROCEDURAL DOCUMENTS
Annex 32 AIP (Aeronautical Information Publication), Russian Federation, GEN 3.1
“Aeronautical information services of the Russian Federation”, 22 August 2013
Annex 33 AIP, ENR 3.1.1 “International airways of the Russian Federation”, 26 June 2014
Annex 34 Telegram from the Southern Interregional Territorial Department of FATA, 12 July
2014
Annex 35 Submission of a NOTAM to the Federal State Unitary Enterprise “State Air Traffic
Management Corporation of the Russian Federation” for Issuance, 16 July 2014
Annex 36 NOTAM V6158/14, 16 July 2014
Annex 37 Main ATM Centre: Information on Flights JAI119, SIA323, KZR904, SIA25,
AUA659, UAE242, UDN703, flying on 17 July 2014, 17 July 2014
Annex 38 Ruling on the provision of the results of operative search activities to the body of
inquiry, investigator, or court, Criminal Case No. 201/837072-14, 26 March 2020
(excerpts)
Annex 39 Record of Witness Interrogation of Eduard Ivanovich Dobrodeev, 9 October 2020
(excerpts)
Annex 40 Record of Witness Interrogation of Irina Alekseevna Dobrodeeva, 16 February 2021
(excerpts)
RUSSIA-UKRAINE CORRESPONDENCE
Annex 41 Letter of the Prosecutor General’s Office of the Russian Federation No. 82/1-6425-
15, 13 September 2016
Annex 42 Letter from the Prosecutor General’s Office of Ukraine No. 14/1/1-25106-18,
20 November 2018
Annex 43 Letter from the Prosecutor General’s Office of Ukraine No. 14/1/1-24350-19,
16 September 2019
Annex 44 Letter from the Prosecutor General’s Office of Ukraine No. 14/1/1-25562-19,
26 December 2019
262
RUSSIA’S CORRESPONDENCE WITH INTERNATIONAL ORGANISATIONS
Annex 45 Letter of Alexander Lukashevich, Permanent Representative of the Russian
Federation to the OSCE, to the Secretary General of the OSCE of 13 May 2020 No.
261 and Letter of the Secretary General of the OSCE to Alexander Lukashevich,
Permanent Representative of the Russian Federation to the OSCE, of 6 July 2020
UKRAINE’S LAWS AND REGULATIONS
Annex 46 Intentionally omitted
Annex 47 Order of the Ministry of Internal Affairs of Ukraine No. 177 “On the organisation of
activity of stationary posts of the Road Patrol Service of the State Traffic
Inspectorate of the Ministry of Internal Affairs of Ukraine”, 4 May 2011 (excerpts)
Annex 48 Donetsk Regional State Administration, Order No. 590 “On the organisation of work
of the Donetsk Regional State Administration and its structural divisions in the
context of the Anti-Terrorist Operation”, 29 July 2014 (excerpts)
Annex 49 Order of the Cabinet of Ministers of Ukraine “On the approval of the list of localities
on the territory of which the state authorities temporarily do not exercise or do not
fully exercise their authority”, No. 1085-r, 7 November 2014 (excerpts)
Annex 50 Instruction on the procedure for implementing the norms of international
humanitarian law in the Armed Forces of Ukraine approved by the Order of the
Ministry of Defence of Ukraine No. 164, 23 March 2017 (excerpts)
Annex 51 Criminal Code of Ukraine, 5 April 2001, Articles 258-4 and 258-5 (excerpts)
UKRAINE’S GOVERNMENT DOCUMENTS, PUBLICATIONS, JURISPRUDENCE
Annex 52 Official website of the Ministry of Defence of Ukraine. “RK TR 9K79 “Tochka”
(9K79-1 “Tochka-U”)”, 18 September 2013 (excerpts)
Annex 53 Latest information from the Information and Analysis Center of the National
Security and Defence Council of Ukraine, 17 July 2014 (excerpts)
Annex 54 Information and Analysis Center of the National Security and Defence Council of
Ukraine, “The situation in the eastern regions of Ukraine – 11.01.15”, 11 January
2015
Annex 55 Information and Analysis Center of the National Security and Defence Council of
Ukraine, “The Situation in the Eastern Regions of Ukraine – 13.01.15”, 13 January
2015
Annex 56 Information and Analysis Center of the National Security and Defence Council of
Ukraine, “The Situation in the Eastern Regions of Ukraine – 14.01.15”, 14 January
2015
263
Annex 57 Ukraine, Oktyabrsky District Court of Mariupol, Case No. 263/574/15-k, Ruling,
15 January 2015 (excerpts)
Annex 58 Information and Analysis Center of the National Security and Defence Council of
Ukraine, “The situation in the Eastern regions of Ukraine 24.01.2015”, 24 January
2015
Annex 59 Information and Analysis Center of the National Security and Defence Council of
Ukraine, “The situation in the Eastern Regions of Ukraine – 10.02.15”, 10 February
2015
Annex 60 Ukraine, Volnovakha District Court of the Donetsk Region, Case No. 221/1370/15-k,
Judgment, 20 May 2015 (excerpts)
Annex 61 Ukraine, Novozavodsky District Court of Chernihiv, Case No. 729/743/15-k,
Judgment, 28 July 2015 (excerpts)
Annex 62 Ukraine, Volnovakha District Court of the Donetsk Region, Case No. 221/1556/15-k,
Judgment, 23 September 2015 (excerpts)
Annex 63 Ukraine, Kramatorsk City Court, Case No. 234/11709/15-k, Judgment, 12 October
2015 (excerpts)
Annex 64 Ukraine, Kramatorsk City Court, Case No. 234/16920/15-k, Ruling, 12 October 2015
(excerpts)
Annex 65 Official website of the Ministry of Defence of Ukraine, “Operation ‘Industrial
Area’”, 22 April 2016 (excerpts)
Annex 66 Official website of the National Security and Defence Council of Ukraine, “O.
Turchynov on the Svitlodarsk Bulge: The Ukrainian Armed Forces will adequately
respond to all provocations of the Russian hybrid troops”, 21 December 2016
Annex 67 Ukraine, Dobropilsky City Court, Case No. 227/431/16-k, Judgment, 24 January
2017 (excerpts)
Annex 68 Official website of the Ministry of Defence of Ukraine, “‘Now the situation in the
ATO is difficult, but controlled’ - Minister of Defence of Ukraine”, 29 January 2017
Annex 69 Information and Analysis Center of the National Security and Defence Council of
Ukraine, “The situation in the Eastern Regions of Ukraine – 03.02.2017”, 3 February
2017
Annex 70 Ukraine, Shevchenkivsky District Court of Chernivtsi, Case No. 727/3421/17,
Ruling, 8 April 2017 (excerpts)
Annex 71 Ukraine, Court of Appeal of the Donetsk Region, Case No. 234/16050/15-k,
Decision, 26 July 2017 (excerpts)
Annex 72 Ukraine, Dobropilsky City Court, Case No. 227/431/16-k, Judgment, 14 December
2017 (excerpts)
264
Annex 73 Ukraine, Selydovsky City Court, Case No. 242/3786/18, Ruling, 6 August 2018
(excerpts)
Annex 74 Ukraine, Selydovsky City Court, Case No. 242/3538/18, Judgment, 17 October 2018
(excerpts)
Annex 75 Ukraine, Svyatoshinsky District Court of Kyiv, Case No. 759/13012/18, Decision,
26 December 2018 (excerpts)
Annex 76 Security Service of Ukraine, Notices of suspicion to L. Kharchenko, I. Girkin, S.
Dubinskiy and O. Pulatov, 18 June 2019
Annex 77 Ukraine, Primorsky District Court of Mariupol, Case No. 265/4773/15-k, Judgment,
18 June 2019 (excerpts)
Annex 78 Ukraine, Ordzhonikidzevsky District Court of Mariupol, Case No. 265/6438/19,
Ruling, 6 November 2019 (excerpts)
Annex 79 Ukraine, Ordzhonikidzevsky District Court of Mariupol, Case No. 265/2434/20,
Judgment, 13 May 2020 (excerpts)
Annex 80 Official website of the Ministry of Defence of Ukraine, “Field artillery” (excerpts)
NON-GOVERNMENTAL ORGANISATIONS’ DOCUMENTS
Annex 81 IPHR, “Rockets hit residential area in Kramatorsk, Ukraine”, February 2015
(excerpts)
Annex 82 Centre for Civil Liberties, “In search of justice: Investigation of crimes related to
violation of the right to life, the right to liberty and security of person, freedom from
torture committed in the anti-terrorist operation zone: shortcomings of the work of
investigative bodies and recommendations of human rights activists”, 2016
(excerpts)
Annex 83 Human Rights Watch, “Studying Under Fire, Attacks on Schools, Military Use of
Schools During the Armed Conflict in Eastern Ukraine”, 11 February 2016
(excerpts)
Annex 84 Human Rights Watch, “Ukraine: Dangers, Unnecessary Delays at Crossing Points”,
17 February 2017
Annex 85 Shelter Cluster Ukraine, Ukraine-Donbass Region, Shelter repairs in Avdiivka as
reported to the Cluster as of December 2016, 18 February 2017
Annex 86 Kharkiv Human Rights Protection Group, Overview of events in February 2017 at
certain areas of Donetsk and Luhansk regions, 1 March 2017 (excerpts)
Annex 87 Kharkiv Human Rights Protection Group, Overview of events in March 2017 at
certain areas of Donetsk and Luhansk regions, 1 April 2017 (excerpts)
Annex 88 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
265
Annex 89 International Partnership for Human Rights, Civic Solidarity Platform, Truth
Hounds, “Scorching Winter 2016-2017. Analysis of the shellings of residential areas
in Eastern Ukraine” (Russian language version), 2017 (excerpts)
Annex 90 Kharkiv Human Rights Publisher, “Armed conflict in the East of Ukraine: the
damage caused to the housing of the civilian population”, 2019 (excerpts)
SCHOLARLY AUTHORITIES
Annex 91 Ministry of Defence of the USSR, Textbook on Field Artillery Gunnery (For
Artillery Schools), Book One, Voenizdat Publishing House, Moscow, 1961 (excerpts)
Annex 92 Ministry of Defence of the USSR, Textbook on Field Artillery Gunnery (For
Artillery Schools), Book Three, Voenizdat Publishing House, Moscow, 1962
(excerpts)
Annex 93 Ministry of Defence of the Russian Federation, Directorate of Rocket Forces and
Artillery of the Ground Forces, Manual for the Study of the Rules of Shooting and
Artillery Fire Control (PSiUO-2011), Moscow, 2014 (excerpts)
Annex 94 Commentary on Article 205, in Article-by-Article Commentary on the Criminal Code
of the Russian Federation: in Two Volumes, Volume 2, 2nd Edition, Edited by A.V.
Brilliantov, Prospekt, 2015 (excerpts)
Annex 95 Commentary on Article 205, in Article-by-Article Commentary on the Criminal Code
of the Russian Federation: in Four Volumes, Special Part, Section IX, Volume 3,
Editor-in-Chief V.M. Lebedev, Urait, 2017 (excerpts)
PRESS REPORTS
Annex 96 Slovo I Dilo, “The Situation in the Eastern Regions of Ukraine as of 20 May”, 20
May 2014 (excerpts)
Annex 97 112.ua, “Kyiv-2 has been relocated to Donetsk Region and is at a checkpoint in
Volnovakha as ordered by Ministry of Internal Affairs, battalion commander says”,
10 October 2014
Annex 98 Interfax, “Head of the DPR Promised to Capture Kramatorsk, Slovyansk, and
Mariupol”, 23 October 2014
Annex 99 Donetsk News Agency, “DPR Ministry of Defence denounces DPR militia
involvement in shelling attack on a route taxi van near Volnovakha as
disinformation”, 13 January 2015
Annex 100 Donetsk News Agency, “One Person Killed, Seven Wounded after a Ukrainian
Projectile Hit a Bus in Dokuchayevsk”, 16 January 2015
Annex 101 BBC News Russia, “Fighting breaks out again in eastern Ukraine”, 20 January 2015
(excerpts)
Annex 102 Radio Svoboda, “Hostilities continue in the area of the Donetsk Airport - ATO
headquarters”, 21 January 2015
266
Annex 103 UNIAN, “ATO Headquarters: the militants are not attacking Mariupol, but they are
intensively shelling its outskirts”, 23 January 2015
Annex 104 Newsweek, “Civilians Caught in Crossfire as Ukraine Separatists Make Gains”,
23 January 2015
Annex 105 LB.ua, “Microdistrict 'Vostochny' in Mariupol is under shelling again”, 24 January
2015 (excerpts)
Annex 106 Ria News, “Zakharchenko: the militia are not going to assault Mariupol”, 24 January
2015
Annex 107 Associated Press, “Police: 10 Killed in Mariupol Shelling in Ukraine”, 24 January
2015
Annex 108 Slovo I Dilo, “Shelling of a Residential Area in Mariupol (Infographic)”, 24 January
2015 (excerpts)
Annex 109 BBC News Ukraine, “Shelling of Kramatorsk: at least seven people killed”,
10 February 2015
Annex 110 Los Angeles Times, “Missiles Strike eastern Ukrainian town, killing at least 15”,
10 February 2015
Annex 111 Ukraine Crisis Media Center, “Pro-Russian militants attacked Kramatorsk airport”,
10 February 2015
Annex 112 Ukraine Crisis Media Center, “Andriy Lysenko: OSCE identifies the direction from
which Kramatorsk was shelled”, 11 February 2015
Annex 113 0629.ua, “Grad shells exploded In Mariupol on Vostochny near the checkpoint.
There are battles for Sakhanka (UPDATE + PHOTO + VIDEO)”, 12 February 2015
Annex 114 Port News, “Cargo turnover at Mariupol (Ukraine) in the first 5 months of 2015
decreased by 35,5% and reached 3,812 mln tonnes”, 9 June 2015
Annex 115 Ukrainskaya Pravda, “Avdiivka. From disco to disco”, 23 June 2015 (excerpts)
Annex 116 6264.com.ua (Kramatorsk city website), “Consequences of the shelling in
Kramatorsk (PHOTOS)”, 10 February 2016 (excerpts)
Annex 117 Glavnoe, “If there were no war: Arsen Karapetyan, Kherson (photo)”, 11 April 2016
(excerpts)
Annex 118 BBC News Russia, “Why Avdiivka became the hottest spot in Donbass”, 15 April
2016
Annex 119 BBC News Ukraine, “What happened at the Svitlodarsk Bulge?”, 24 December 2016
Annex 120 Radio Free Europe/Radio Liberty, “Anxious Ukraine Risks Escalation In ‘Creeping
Offensive’”, 30 January 2017
Annex 121 Dsnews, “Spontaneous counter-attack. The UAF take control over Avdiivka road
junction (MAP)”, 30 January 2017
267
Annex 122 Novaya Gazeta, “Fighting draw”, 31 January 2017
Annex 123 BBC News Ukraine, “Avdiivka: why is there an ongoing fighting for frozen
trenches?”, 31 January 2017
Annex 124 Interfax, “Due to the shelling, 203 miners were trapped in the Donetsk mine”,
31 January 2017
Annex 125 62.ua (Donetsk city website), “In Donetsk, the Northern Water Supply Facility was
de-energized - part of the Kyivski District was left without electricity and heating”,
31 January 2017
Annex 126 Krym.Realii, “From Avdiivka: ‘The main thing is that the “Grads” stop “hammering”
from Donetsk’”, 31 January 2017 (excerpts)
Annex 127 AP Images, “Ukrainian servicemen load ammunition into a tank in Avdiivka”,
2 February 2017, 09:56:34
Annex 128 AP Images, “A Ukrainian serviceman walking past Ukrainian tanks in Avdiivka”,
2 February 2017, 09:51:44
Annex 129 AP Images, “Ukrainian servicemen loading ammunition into a tank in Avdiivka”,
2 February 2017, 09:54:46
Annex 130 Reuters, “Tanks are seen in the government-held industrial town of Avdiyivka”,
2 February 2017
Annex 131 Reuters, “Tanks are seen in the government-held industrial town of Avdiyivka”,
2 February 2017
Annex 132 Reuters, “Tanks are seen in the government-held industrial town of Avdiyivka”,
2 February 2017
Annex 133 AP Images, “Ukrainian servicemen load ammunition into a tank in Avdiivka”,
2 February 2017, 09:56:20
Annex 134 Ukrainskaya Pravda, “It became known how the aggravation began in Avdiivka”,
3 February 2017
Annex 135 European pressphoto agency, “Crisis in Ukraine”, 6 February 2017
Annex 136 Al Jazeera, “Avdiivka, evacuating again as fighting escalates”, 8 February 2017
Annex 137 Eurasia Daily Monitor, “Crawling Advance’: A New Tactic of Ukrainian Troops in
Donbas”, Vladimir Socor, Volume 14, Issue 16, 9 February 2017
Annex 138 The Guardian, “Violence flares in war-weary Ukraine as US dithers and Russia
pounces”, 14 February 2017
Annex 139 Glavcom, “Dmytro Tymchuk: Transfer of regular Russian troops is observed in
several directions at once”, 17 February 2017
Annex 140 Militaryaviation.in.ua, “Damaged Mi-24P helicopters as a result of the shelling of
Kramatorsk on 10 February 2015”, 11 February 2019
268
Annex 141 Capital, “Will Ukrainian coking coal really become Ukrainian?”, 27 February 2020
(excerpts)
Annex 142 Liga.Dossier, “Gerashchenko Anton, Deputy Minister of Internal Affairs of
Ukraine”, 9 February 2021 (excerpts)
Annex 143 Nieuwsuur, “Thousands of secret MH17 tapes provide insight into the situation
before, during and after the disaster”, 11 April 2021 (excerpts)
Annex 144 NOS op 3, “MH17-Tapes”, “Responsibility”, 15 April 2021
Annex 145 Liga.Dossier, “Vyacheslav Abroskin, Rector of the Odessa University of Internal
Affairs, former First Deputy Head of the National Police of Ukraine”, 19 April 2021
(excerpts)
SOCIAL MEDIA
Annex 146 VKontakte page “Reports from the Novorossiya’s militia”, post “16.07.14 19:42
Message from Igor Ivanovich Strelkov”, 16 July 2014
Annex 147 VKontakte page “Reports from the Novorossiya’s militia”, post “16.07.14. A big
review of the combat situation in the most important fighting locations over the past
day”, 16 July 2014 (excerpts)
Annex 148 VKontakte page “Reports from Strelkov Igor Ivanovich”, post of 17 July 2014, 17:41
(Moscow time) containing a message from 17:37 (Moscow time)
Annex 149 VKontakte page “Reports from Strelkov Igor Ivanovich”, post of 17 July 2014, 18:16
containing a message from 17:50 (Moscow time)
Annex 150 VKontakte page “Reports from Strelkov Igor Ivanovich”, post of 17 July 2014, 22:00
Annex 151 Facebook page of the Kyiv-2 Special Purpose Battalion, 2 October 2014
Annex 152 Facebook page of the Kyiv-2 Special Purpose Battalion, 10 October 2014 (excerpts)
Annex 153 Facebook page ‘Kyiv’, 17 November 2014 (excerpts)
Annex 154 Facebook page of the Kyiv-2 Special Purpose Battalion, 18 November 2014
(excerpts)
Annex 155 VKontakte page “It’s Dokuch, baby!” [Typical Dokuchayevsk], 30 November 2014
Annex 156 VKontakte page “It’s Dokuch, baby!” [Typical Dokuchayevsk], 30 November 2014
Annex 157 VKontakte page “It’s Dokuch, baby!” [Typical Dokuchayevsk], 5 December 2014
Annex 158 VKontakte page “Reports from the Novorossiya’s militia”, 5 December 2014
Annex 159 VKontakte page “Reports from the Novorossiya’s militia”, 9 January 2015
Annex 160 VKontakte page “Reports from the Novorossiya’s militia”, 9 January 2015
Annex 161 VKontakte page “Reports from the Novorossiya’s militia”, 9 January 2015
Annex 162 VKontakte page “Reports from the Novorossiya’s militia”, 10 January 2015
269
Annex 163 VKontakte page “Reports from the Novorossiya’s militia”, 10 January 2015
Annex 164 VKontakte page “Reports from the Novorossiya’s militia”, 11 January 2015
(excerpts)
Annex 165 VKontakte page “Reports from the Novorossiya’s militia”, 11 January 2015
(excerpts)
Annex 166 VKontakte page “Reports from the Novorossiya’s militia”, 11 January 2015
Annex 167 VKontakte page “Reports from the Novorossiya’s militia”, 11 January 2015
Annex 168 VKontakte page “Reports from the Novorossiya’s militia”, 12 January 2015
Annex 169 Twitter page “Ridnа_Vilnа 33%”, 12 January 2015
Annex 170 VKontakte page “Reports from the Novorossiya’s militia”, 12 January 2015
(excerpts)
Annex 171 VKontakte page “Reports from the Novorossiya’s militia”, 12 January 2015
Annex 172 VKontakte page “It’s Dokuch, baby!” [Typical Dokuchayevsk], 13 January 2015
Annex 173 VKontakte page “Reports from the Novorossiya’s militia”, 13 January 2015
(excerpts)
Annex 174 VKontakte page “Reports from the Novorossiya’s militia”, 13 January 2015
Annex 175 Twitter page “Dokuchaevsk-ua”, local community social media, 13 January 2015
Annex 176 Twitter page “Dokuchaevsk-ua”, local community social media, 13 January 2015
Annex 177 Twitter page “Dokuchaevsk-ua”, local community social media, 13 January 2015
Annex 178 VKontakte page “It’s Dokuch, baby!” [Typical Dokuchayevsk], 13 January 2015
Annex 179 VKontakte page “Reports from the Novorossiya’s militia”, 14 January 2015
(excerpts)
Annex 180 VKontakte page “Reports from the Novorossiya’s militia”, 14 January 2015
Annex 181 VKontakte page “Reports from the Novorossiya’s militia”, 14 January 2015
Annex 182 VKontakte page “It’s Dokuch, baby!” [Typical Dokuchayevsk], 15 January 2015
Annex 183 YouTube, Screenshot of the video “Shooting at the checkpoint in Volnovakha.
Eyewitness account” from Hromadske TV Zaporizhya channel”, 16 January 2015
Annex 184 Facebook page “Defence of Mariupol”, 19 January 2015
Annex 185 VKontakte page “Reports from the Novorossiya’s militia”, 20 January 2015
(excerpts)
Annex 186 Blog of Andrey Skaternoy, “Volnovakha-Donetsk checkpoint ‘Buhas’. The one”, 20
January 2015
270
Annex 187 Facebook page of Dmitry Tymchuk, former member of the Ukrainian Parliament,
Ukrainian military expert and blogger, 21 January 2015 (excerpts)
Annex 188 VKontakte page “Reports from the Novorossiya’s militia”, 21 January 2015
Annex 189 Facebook page of Dmitry Tymchuk, former member of the Ukrainian Parliament,
Ukrainian military expert and blogger, 22 January 2015 (excerpts)
Annex 190 Facebook page of Evgeniy Deidei, coordinator of the Kyiv-1 battalion, 23 January
2015
Annex 191 Facebook page “Defence of Mariupol”, 24 January 2015
Annex 192 Facebook page of the Kyiv-2 Special Purpose Battalion, 25 January 2015
Annex 193 Photo from Odnoklassniki social network page of Svetlana Kondryanenko,
25 January 2015
Annex 194 Facebook page of Anton Gerashchenko, 24 February 2015 (excerpts)
Annex 195 VKontakte page “Avdiivka – my Motherland!”, commentary, 4 August 2015
Annex 196 VKontakte page “Avdiivka – my Motherland!”, commentary, 12 August 2015
Annex 197 VKontakte page “MIL.IN.UA”, 5 March 2016
Annex 198 VKontakte page “Avdiivka – my Motherland!”, commentary, 11 June 2016
Annex 199 VKontakte page “Avdiivka – my Motherland!”, commentary, 3 December 2016
Annex 200 Facebook page of the Press Centre for the ATO headquarters (archived page),
29 January 2017
Annex 201 Facebook page of Yuriy Butusov, 29 January 2017
Annex 202 Facebook page of Musa Magomedov, Director General of the Avdiivka Coke Plant,
30 January 2017
Annex 203 Facebook page of Pavlo Zhebrivskyi, Chairman of the Donetsk Regional Civilian-
Military Administration, 31 January 2017
Annex 204 VKontakte page “National Information Portal ‘Tisk’”, 31 January 2017 (excerpts)
Annex 205 Facebook page of the Donbass SOS Non-Governmental Organisation, 1 February
2017 (excerpts)
Annex 206 Twitter page of Christopher Miller, photographer, 1 February 2017
Annex 207 Twitter page of Christopher Miller, photographer, 2 February 2017
Annex 208 Facebook page of Vyacheslav Abroskin, 2 February 2017
Annex 209 Facebook page of the General Staff of the Armed Forces of Ukraine, 3 February
2017
Annex 210 Twitter page of Christopher Miller, photographer, 3 February 2017
271
Annex 211 Twitter page of Christopher Miller, photographer, commentary to the post,
3 February 2017
Annex 212 Twitter page of Christopher Miller, photographer, 3 February 2017
Annex 213 Facebook page of Pavlo Zhebrivskyi, Chairman of the Donetsk Regional Civilian-
Military Administration, 16 February 2017
Annex 214 Facebook page of the Donetsk Regional Prosecutor’s Office, 16 February 2017
Annex 215 Facebook page of Vyacheslav Abroskin, 15 August 2019
Annex 216 Facebook page of the Ministry of Defence of Ukraine, 29 January 2020
AUDIO-VISUAL MATERIALS
Annex 217 Intercepted conversation between Kharchenko and Dubinskiy at 16:48 on 17 July
2014
Annex 218 YouTube, “Mariupol, vostochniy сheckpoint 04.09.2014”, 4 September 2014
Annex 219 YouTube, “Mariupol, vostochniy сheckpoint under Grad Fire”, 5 September 2014
Annex 220 YouTube, “Mariupol Checkpoint Came under Grad Fire - private video”,
5 September 2014
Annex 221 YouTube, “Mariupol, vostochniy сheckpoint under Grad Fire | Video”,
5 September 2014
Annex 222 YouTube, “2014-10-30 How do our soldiers live under constant shellings? (MTV
story)”, 1 November 2014
Annex 223 YouTube, “The situation around checkpoint 32 is a covert separatist offensive”,
2 November 2014
Annex 224 YouTube, “Battle in the vicinity of Volnovakha, Separatists Lost Firing Positions”, 9
November 2014
Annex 225 VKontakte page “Reports from the Novorossiya’s militia”, 7 January 2015
Annex 226 YouTube, “Volnovakha video from the site of the bus shelling”, 14 January 2015
Annex 227 YouTube, “Volnovakha, shelling of the checkpoint full video”, 14 January 2015
Annex 228 YouTube, “SBU intercepted conversation of terrorists which is proof of their
involvement in attacks of Mariupol”, 24 January 2015
Annex 229 YouTube, “Zakharchenko on the beginning of the offence on Mariupol”, 24 January
2015
Annex 230 YouTube, “Kramatorsk. Shelling 10-02-15. Dvortsovaya 34”, 10 February 2015
Annex 231 Rossiyskaya Gazeta, “‘Saxons’ are good for the Anglo-Saxons”, 11 March 2015
Annex 232 YouTube, “Kramatorsk. 10 February, 2015. The shelling of the city from the MLRS
Video from the surveillance camera”, 1 April 2016
272
Annex 233 YouTube, “Alexander Hug confirmed the presence of new dugouts of the UAF near
the DFS (press-conference 22.01.2017)”, 22 January 2017
Annex 234 YouTube, “Press briefing ‘Humanitarian situation in Avdiivka’”, 1 February 2017
(excerpts)
Annex 235 TSN, “In complete secrecy, the Ukrainian military took up new positions near a
strategic highway in Donbas”, 12 February 2017
Annex 236 YouTube, “Avdiivka.. The UAF hide heavy weaponry among residential buildings
OSCE where are you ?”, 21 February 2017
Annex 237 Vice, “Civilians flee East Ukraine town of Avdiivka as fighting with Russian-backed
separatists escalates”, 23 February 2017
Annex 238 YouTube, “MLRS SMERCH - Kramatorsk airfield”, 10 February 2019
Annex 239 YouTube, “SPG9”, 24 July 2019
Annex 240 Intercepted conversation between Dubinskiy and Girkin, at 19:54 on 17 July 2014,
26 July 2020
Annex 241 Intercepted conversation between Botsman and Dubinskiy, at 17:42 on 17 July 2014,
13 November 2020
Annex 242 YouTube, “Full interviews MH17 defendant Oleg Pulatov”, 28 February 2021
Annex 243 YouTube, “Reconstruction: the revealing phone conversations of MH17 prime
suspects”, 11 April 2021
Annex 244 Intercepted conversation between Dubinskiy and Pulatov, at 19:52 on 17 July 2014
Annex 245 Intercepted conversation between Dubinskiy and Kharchenko, at 19:59 on 17 July
2014
Annex 246 Intercepted conversation between Dubinskiy and Pulatov, at 18:12 on 16 July 2014
Annex 247 Intercepted conversation between Skiff and Dubinskiy, at 00:17 on 17 July 2014
OTHER DOCUMENTS
Annex 248 Summary Material on the Interpretation of the Term “Направленный на”
(“napravlennyi na“; intended to) used in Article 2(1)(b) of the ICSFT in Russian
Criminal Law (Document from the Judges’ Folder submitted to the Registry of the
ICJ by the Russian Federation for the Hearings on Preliminary Objections, II Round,
6 June 2019, Tab. 6.1.)
Annex 249 Supreme Court of Denmark, Fighters and Lovers Case, T1 and ors v A, Appeal
judgment, Case No. 399/2008, ILDC 2250 (DK 2009), 25 March 2009
Annex 250 Schedule of flights that used the TAMAK waypoint to enter the airspace of the
Russian Federation on 17 July 2014
Annex 251 Transcripts of certain publicly available alleged intercepts concerning the shoot
down of Flight MH17, 16-17 July 2014
273
Annex 252 Translation of the transcripts of the Intercepted Conversation between Evdotiy
(“Pepel”) and Ponomarenko (18:00:22, 23 January 2015) contained in Annex 418 to
the Memorial of Ukraine (excerpts)
Annex 253 Translation of the transcripts of the Intercepted Conversations of Maxim Vlasov (23–
24 January 2015) contained in Annex 408 to the Memorial of Ukraine (excerpts)
Annex 254 Translation of the transcripts of the Intercepted Conversation between Kirsanov and
Ponomarenko (11:04:12, 24 January 2015) contained in Annex 415 to the Memorial
of Ukraine (excerpts)
Annex 255 Translation of the transcripts of the Intercepted Conversation between Kirsanov and
Ponomarenko (10:38:14, 24 January 2015) contained in Annex 414 to the Memorial
of Ukraine (excerpts)
Annex 256 Translation of the Signed Declaration of Oleksiy Oleksandrovich Demchenko,
Victim Interrogation Protocol (30 January 2015) contained in Annex 216 to the
Memorial of Ukraine
Annex 257 Translation of the transcripts of the Intercepted Conversations of Yuriy Shpakov (16
September 2016) contained in Annex 430 to the Memorial of Ukraine (excerpts)
Annex 258 Bellingcat, “Ukrainian Tanks in Avdiivka Residential Area”, 3 February 2017
Annex 259 Agrarian Donbass State Enterprise official website, “Olenivka Bread-Making Plant
increases production volumes”, 5 April 2021
Annex 260 Graphic scheme of the air routes and segments restricted by NOTAM V6158/14, 30
May 2021
Annex 261 Wikimapia, Ruins of a brick factory (excerpts)
Annex 262 DNR Live Business Website, Republican Enterprise “Olenivka Bread-Making Plant”
(excerpts)
Annex 263 Google maps, cafe and bar “Zebra”
Annex 264 Yandex maps, bus terminal “Dokuchayevsk”
Annex 265 Satellite Image of Avdiivka on Google Earth with marked E50 Highway
Annex 266 “Kichiksu” station on Yandex.Maps
Annex 267 Ministry of Defence of the Russian Federation official website, “152mm field gun
2A36 ‘Giatsint-B’”
Annex 268 Stamm website, “Combat mission plotter, flexible, with printed scale” (excerpts)