Volume of Annexes

INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME OF ANNEXES
TO THE MEMORIAL
SUBMITTED BY UKRAINE
1 JULY 2022
i
TABLE OF CONTENTS
TO THE INDEX OF ANNEXES TO THE MEMORIAL
Page
A. UKRAINIAN GOVERNMENT DOCUMENTS .......................................................................... ii
B. RUSSIAN GOVERNMENT DOCUMENTS ............................................................................... ii
1. Resolutions ................................................................................................................ ii
2. Addresses & Statements ............................................................................................ ii
3. Documents of the Investigative Committee of the Russian Federation ..................iii
C. SCHOLARLY AUTHORITIES .............................................................................................. iv
D. PRESS REPORTS .............................................................................................................. iv
E. OTHER DOCUMENTS ......................................................................................................... v
ii
INDEX OF ANNEXED DOCUMENTS
ANNEXES
A. UKRAINIAN GOVERNMENT DOCUMENTS
Page
Annex 1. Prosecutor General’s Office of Ukraine, The Prosecutor
General’s Office of Ukraine Initiated Criminal Proceedings
Against Officials of the Investigative Committee of the Russian
Federation (29 September 2014)
p. 1
Annex 2. ArmyINFORM, About Us (27 May 2019) p. 5
Annex 3. Ruslan Tkachuk, Seven Myths of the Kremlin Propaganda
About the Russian-Ukrainian Conflict, ArmyINFORM (26
January 2022)
p. 9
B. RUSSIAN GOVERNMENT DOCUMENTS
1. Resolutions
Page
Annex 4. Resolution of the State Duma of the Federal Assembly of the
Russian Federation of February 15, 2022 N 743-8 GD , “On the
appeal of the State Duma of the Federal Assembly of the
Russian Federation to the President of the Russian Federation
V.V. Putin on the necessity to recognize the Donetsk People’s
Republic and the Luhansk People’s Republic” (15 February
2022)
p. 13
2. Addresses & Statements
Page
Annex 5. President of Russia Vladimir Putin, Address by the President of
the Russian Federation (21 February 2022)
p. 19
Annex 6. President of Russia Vladimir Putin, Address by the President of
the Russian Federation (24 February 2022)
p. 43
Annex 7. Permanent Mission of the Russian Federation to the United
Nations, Statement and Reply by Permanent Representative
Vassily Nebenzia at UNSC Briefing on Ukraine (23 February
2022)
p. 55
Annex 8. President of Russia Vladimir Putin, Remarks at the Concert
Marking the Anniversary of Crimea’s Reunification with
Russia (18 March 2022)
p. 59
iii
3. Documents of the Investigative Committee of
the Russian Federation
Page
Annex 9. Investigative Committee of the Russian Federation, The
Investigative Committee Opened a Criminal Investigation
Concerning the Genocide of the Russian-Speaking Population
in the South-East of Ukraine (29 September 2014)
p. 63
Annex 10. Investigative Committee of the Russian Federation,
Kommersant: “Ukraine Has Been Compared to South Osetia”
(30 September 2014)
p. 67
Annex 11. Investigative Committee of the Russian Federation, A Criminal
Case Has Been Initiated Against a Number of High-Ranking
Officials of the Armed Forces of Ukraine (2 October 2014)
p. 71
Annex 12. Investigative Committee of the Russian Federation, A Criminal
Investigation was Initiated Over New Facts of Genocide of
Russian-Speaking Civilians During Shelling of Towns and
Settlements in Donbas (13 January 2015)
p. 75
Annex 13. Investigative Committee of the Russian Federation, Criminal
Proceedings Have Been Initiated Against High-Ranking
Ukrainian Military Personnel, as Well as Against Oleg
Lyashko, a Member of Parliament (10 September 2015)
p. 79
Annex 14. Investigative Committee of the Russian Federation, Criminal
Cases Have Been Initiated Against 20 High-Ranking Officials
of the Ministry of Defense of Ukraine (11 September 2017)
p. 83
Annex 15. Investigative Committee of the Russian Federation, Alexander
Bastrykin Gave a Lecture for Students of the Moscow State
Institute of International Relations (MGIMO) on the
Investigation of War Crimes (25 November 2017)
p. 89
Annex 16. Investigative Committee of the Russian Federation, The
Chairman of the Investigative Committee of Russia Took Part
in the International Scientific and Practical Conference
“Crimes Against Peace” (30 November 2018)
p. 95
Annex 17. Investigative Committee of the Russian Federation,
International Day of Commemoration for the Victims of
Genocide (9 December 2019)
p. 99
Annex 18. Investigative Committee of the Russian Federation, A Criminal
Case Has Been Initiated for Genocide Against the Residents of
the Town of Shchastya in the LPR (18 April 2022)
p. 103
Annex 19. Investigative Committee of the Russian Federation, Izvestia:
The Investigative Committee of Russia Initiated a Case on the
Genocide Against the Residents of the Town of Shchastya in the
LPR (19 April 2022)
p. 107
iv
C. SCHOLARLY AUTHORITIES
Page
Annex 20. Bin Cheng, GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS (Stevens and Sons Ltd.
1953)
p. 111
Annex 21. L. Oppenheim, INTERNATIONAL LAW: A TREATISE, VOLUME 1 —
PEACE (H. Lauterpacht, ed., David McKay Company Inc., 8th ed.
1955)
p. 131
Annex 22. Michel Virally, Panorama du droit international contemporain.
Cours général de droit international public, Recueil Des Cours
1983-V, Collected Courses of the Hague Academy of
International Law, Vol. 183
p. 139
Annex 23. Giorgio Gaja, Obligations and Rights Erga Omnes in
International Law, Second Report, Annuaire de l’Institut de
droit international, Vol. 71 (Krakow Session, 2005)
p. 145
Annex 24. OPPENHEIM’S INTERNATIONAL LAW: VOLUME 1 PEACE (Robert
Jennings & Arthur Watts, eds., Oxford University Press, 9th ed.
2008)
p. 155
Annex 25. Florian Jeẞberger, The Definition of Genocide, in THE UN
GENOCIDE CONVENTION: A COMMENTARY (Paola Gaeta, ed.,
Oxford University Press 2009)
p. 165
Annex 26. Robert Kolb, The Scope Ratione Materiae of the Compulsory
Jurisdiction of the ICJ, in THE UN GENOCIDE CONVENTION: A
COMMENTARY (Paola Gaeta, ed., Oxford University Press 2009)
p. 177
Annex 27. Daniel Thürer & Thomas Burri, Secession, in MAX PLANCK
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (June 2009)
p. 183
Annex 28. Robert Kolb, GOOD FAITH IN INTERNATIONAL LAW (Hart 2017) p. 189
Annex 29. James Crawford, BROWNLIE’S PRINCIPLES OF PUBLIC
INTERNATIONAL LAW (Oxford University Press, 9th ed. 2019)
p. 197
D. PRESS REPORTS
Page
Annex 30. Direct Line with Vladimir Putin, President of Russia (17 April
2014)
p. 203
Annex 31. BBC News, The Prosecutor General’s Office Opened
Proceedings Against Russian Investigators (30 September
2014)
p. 211
v
Annex 32. Lyubov Chyzhova, It is Putin Who Should be Tried for
Genocide—Adviser to the Head of the Ministry of Internal
Affairs of Ukraine, RFE/RL (1 October 2014)
p. 215
Annex 33. BBC News, Investigative Committee of Russia Accused the
Military Leadership of Ukraine of “Genocide” (2 October 2014)
p. 219
Annex 34. Ria Novosti, Investigative Committee Accuses the Ukrainian
Military of 374 Crimes Against Residents of Donbas (28 June
2019)
p. 225
Annex 35. Ria Novosti, Gryzlov Called Putin’s Decree on Donbas a
Response to Kyiv's Actions (18 November 2021)
p. 229
Annex 36. Ria Novosti, The Situation in Donbas Meets All the Signs of
Genocide, Says Moskalkova (23 February 2022)
p. 233
Annex 37. Interfax, Lavrov: Moscow Considers the Attitude of the
Ukrainian Authorities Towards the Residents of Donbas as
Genocide (25 February 2022)
p. 237
Annex 38. RBC, Lavrov Announced Non-Recognition of the Democratic
Government of Ukraine (25 February 2022)
p. 241
E. OTHER DOCUMENTS
Page
Annex 39. U.N. High Commissioner for Refugees, Ukraine Refugee
Situation: Operational Data Portal (as of 5 March 2022)
p. 245
Annex 40. U.N. High Commissioner for Refugees, Ukraine Refugee
Situation: Operational Data Portal (as of 21 June 2022)
p. 251
Annex 1
Prosecutor General’s Office of Ukraine, The Prosecutor General’s Office of Ukraine
Initiated Criminal Proceedings Against Officials of the Investigative Committee of
the Russian Federation (29 September 2014)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
1
2
29 September 2014
The Prosecutor General's Office of Ukraine initiated criminal proceedings against officials of the
Investigative Committee of the Russian Federation
The Prosecutor General's Office of Ukraine has initiated criminal proceedings against officials of the
Investigative Committee of the Russian Federation (the IC of the Russian Federation) for committing
crimes provided for by Article 258-3 (facilitating terrorist organization), Article 343 (interference in the
activities of a law enforcement officer), Article 344 (interference in the activities of a statesman) of the
Criminal Code of Ukraine.
As the Prosecutor General’s Office has learned, in May-June 2014, a department for investigating
crimes related to the use of prohibited means and methods of warfare was created within the structure
of the Central Office of the IC of the Russian Federation. The purpose of this department, according to
the official website of the entity, is to bring the Ukrainian military to justice for alleged crimes against
civilians.
In particular, the Investigative Committee of the Russian Federation opened a criminal case against the
Ukrainian military officer N.V. Savchenko for allegedly aiding and abetting the murder of journalists of
the "Russia" TV channel I.V. Kornelyuk and A.D. Voloshyn.
The IC of the Russian Federation is also conducting criminal investigation against unidentified
servicemen of the Armed Forces of Ukraine, the National Guard of Ukraine and activists of the public
organization "Right Sector" for their alleged shelling of Slovyansk, Kramatorsk, Donetsk, Mariupol and
other territories of Donetsk and Luhansk regions, killing civilians.
Thus, by means of a groundless criminal prosecution, unlawful interference in the activities of law
enforcement agencies of Ukraine and the Armed Forces of Ukraine is being carried out. In this regard,
it can be stated that the creation of the Department for the Investigation of Crimes Related to the Use
of Prohibited Means and Methods of Warfare within the structure of the IC of the Russian Federation,
as well as the initiation of these and other criminal cases by the officials of the IC of the Russian
Federation, are aimed at facilitating terrorist organizations "Donetsk People's Republic" and "Luhansk
People's Republic" in their criminal activities, and obstructing representatives of state bodies and public
figures from performance of their duties.
The commission of these criminal offenses encroaches on the interests of the state, its sovereignty and
territorial integrity protected by international treaties and laws of Ukraine.
Department of Public Affairs and Media
of the Prosecutor General's Office of Ukraine
3
PROSECUTOR GENERAL'S OFFICE OF UKRAINE
4
Annex 2
ArmyINFORM, About Us (27 May 2019)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
5
6
About us
27 May 2019
ArmyINFORM is an information agency of the Ministry of Defense of
Ukraine, established in December 2018.
Our goal is a quality information product, objectivity and impartiality in
editorial policy, and round-the-clock access to news. Every day
ArmyINFORM gives a complete picture of events in the field of
defense and security: operational information, analytics, exclusive
comments, interviews, photo reports, infographics, and video streams
from the scene. We are created for smart, active, caring people, for
whom it is important to be aware of everything that happens in the
army and to draw their own conclusions.
ArmyINFORM has a network of correspondent offices.
Correspondents of the agency work in all regions of Ukraine, in
particular, constantly in the area of the Joint Forces Operation.
Among the partners of the agency are military units and organizations,
electronic and print media, TV and radio companies of Ukraine,
foreign media, authorities, embassies and consulates, and defense
industrial complex enterprises.
ArmyINFORM has a professional photo service and its own photo
archive.
ArmyINFORM Press Center provides professional training, holding
and comprehensive media support of press conferences, briefings,
round tables, Internet conferences, presentations, seminars, and
exhibitions. Among the regular guests of the press center are
statesmen, military leaders, domestic and foreign diplomats, opinion
leaders, prominent athletes, artists, writers and scientists, religious
and public figures, and show business stars.
ArmyINFORM keeps up with the times and is constantly improving
due to close feedback from the consumer of our information product.
Be the first with ArmyInform. Our credo is: "To society – about the
army. To army – about the society".
7
APMIAIIIDl;a
8
APMIA~ ARMYINFORM
OURTASK
Preparat ion and dist ribution of the informat ion product of a
military nature fully ready-to-use by both media
organizations and st ructures and individual consumers
APMIA~ INFORMATION EDITORIAL OFFICES
Chemihiv
INFORMATION EDITORIAL OFFICES
Troop Training Coverage Department
Department of Humanitarian Policy and Social
Protection
News and Internet Projects Department
Department of Coverage of International
Cooperation
INFORMATION EDITORIAL OFFICES
c. Department of Coverage of Defense Policy and
Development of the Armed Forces of Ukraine
c Department of Coverage of Military-Technical
Policy and Development of Defense Industriel
Complex
c. Department of History, Development of National
Traditions, Culture and Sports
Annex 3
Ruslan Tkachuk, Seven Myths of the Kremlin Propaganda About the Russian-
Ukrainian Conflict, ArmyINFORM (26 January 2022)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
9
10
11
Seven myths of the Kremlin propaganda about the
Russian-Ukrainian conflict
Read in: 8 minutes 26 January 2022. 12: 39:!!> 398
Seven myths of the Kremlin
propaganda about the
Russian-Ukrainian conflict
IREFUTED
Against the background of prolonged military aggression against Ukraine, Russia is conducting a constant and
state-coordinated disinformation campaign aimed at the population of Russia and its neighbors, the European
Union and beyond, in particular to influence public opinion. The Kremlin spares no effort to denigrate Ukraine, to
portray it as a threat to global security, and to weaken international support for Ukrainian sovereignty. The recent
Russian military build-up has only exacerbated this flurry of misinformation.
The EUVSDisinfo fact-checking platform systematized the most common and dangerous myths, and often
outright lies related to the Russian-Ukrainian conflict.
Myth 2: "This conffict was provoked by the situation in Ukraine. There is evidence that Ukraine is committing
atrocities against the Russian-speaking population in the east of the country. Russia must intervene, not teast
because Ukraine and Russia are "one nation". Ukraine simpty betongs to Russia's "privi/eged sphere of
influence".
Not true: The claim that Ukraine is attacking its own territory and pursuing its own citizens is absurd. To intensify
domestic support for Russian military aggression, the Russian state media are relentlessly trying to denigrate
Ukraine, accusing it of genocide in eastern Ukraine, drawing groundless parallels with Nazism and World War Il.
There is no evidence that Russian-speaking or ethnie Russians in eastern Ukraine are persecuted, not to
mention genocide, by the Ukrainian authorities.
ln fact, there is no evidence that Russian-speaking or ethnie Russians in eastern Ukraine are persecuted, not to
mention genocide, by the Ukrainian authorities. This is confirmed in reports published by the Council of Europe,
the UN High Commissioner for Human Rights and the OSCE.
The Kremlin's propaganda often claims that Ukraine and Russia are "one nation", which is the most deeply
rooted myth used against Ukraine. This claim is ungrounded even from a long-term historical perspective.
Despite long periods of foreign rule, Ukraine has a strong national culture and identity and is a sovereign country.
The concept of an "all-Russian nation" without political borders is an ideological construction dating back to
imperial times. The Russian government has been cultivating this myth by force since 2014, trying to rationalize
and justify its military aggression against Ukraine.
As for “spheres of influence”, this concept has no place in the 21st century. Like all sovereign states, Ukraine is
free to determine its own path, its foreign policy and security policy, as well as its participation in international
organizations and military alliances.
Like all sovereign states, Ukraine is free to determine its own path, its foreign policy and security policy, as
well as its participation in international organizations and military alliances.
To promote the idea that Ukraine belongs to Russia's "sphere of influence," Kremlin propaganda often declares
that Ukraine is not a "real" state, and tries to distort history to legitimize the idea that Ukraine belongs to Russia's
natural sphere of interests.
. . .
Ruslan Tkachuk
Correspondent of ArmyInform
12
Annex 4
Resolution of the State Duma of the Federal Assembly of the Russian Federation of
February 15, 2022 N 743-8 GD , “On the appeal of the State Duma of the Federal
Assembly of the Russian Federation to the President of the Russian Federation V.V.
Putin on the necessity to recognize the Donetsk People’s Republic and the Luhansk
People's Republic” (15 February 2022)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51
13
14
RESOLUTION
OF THE STATE DUMA
OF THE FEDERAL ASSEMBLY OF THE RUSSIAN FEDERATION
On the appeal of the State Duma of the Federal Assembly
of the Russian Federation "To the President of the Russian
Federation V.V. Putin on the necessity to recognize the Donetsk People's
Republic and the Luhansk People's Republic"
The State Duma of the Federal Assembly of the Russian Federation decides to:
1. Adopt the appeal of the State Duma of the Federal Assembly of the Russian Federation
"To the President of the Russian Federation V.V. Putin on the necessity to recognize the Donetsk People's
Republic and the Luhansk People's Republic".
2. Send this Resolution and the said Appeal to the President of the Russian Federation V.V.
Putin.
3. Send this Resolution and the said Appeal to the "Parliamentary newspaper" for official
publication.
4. This Resolution shall enter in force from the day of its adoption.
Chairman of the State Duma
of the Federal Assembly
of the Russian Federation V.V. Volodin
Moscow
15 February 2022
No. 743-8 DG
15
Appeal
of the State Duma of the Federal Assembly
of the Russian Federation (eight convocation)
to the President of the Russian Federation V.V. Putin
on the necessity to recognize the Donetsk People's Republic and the Luhansk People's Republic
Dear Vladimir Vladimirovich!
The State Duma of the Federal Assembly of the Russian Federation expresses unequivocal and
unified support for the appropriate measures taken for humanitarian purposes to support residents of
certain areas of the Donetsk and Luhansk regions of Ukraine who have expressed a desire to speak and
write in Russian, who want freedom of religion, as well as those who disagree with the actions of the
Ukrainian authorities, violating their rights and freedoms.
Residents of the Donetsk and Luhansk regions of Ukraine at the all-Ukrainian referendum of 27
March 1994 agreed to the federal land structure of Ukraine and the confirmation of the Russian language
as the state language of Ukraine along with the Ukrainian language, and also supported the use of the
Russian language in the territories of the Donetsk and Luhansk regions of Ukraine in the field of labor
relations, office work, documentation, education and scientific activities.
The new authorities of Ukraine, now glorifying the fascists Bandera, Shukhevych and their
followers, have become intolerant of the historically established norms of life, as well as the will and
religion of the inhabitants of these regions. The actions of the Ukrainian authorities forced residents of
certain areas of the Donetsk and Luhansk regions of Ukraine to initiate a referendum and vote in May
2014 for the adoption of the Act of Self-Determination of the Donetsk People's Republic (89 percent) and
the Act of Self-Determination of the Luhansk People's Republic (96 percent).
For eight years, residents of certain areas of the Donetsk and Luhansk regions of Ukraine have
been living under shelling from small- and large-caliber weapons. According to data of the United Nations,
more than ten thousand people died, more than fifty thousand are injured, more than 1.4 million people
are displaced within Ukraine and more than 2.5 million people arrived in the Russian Federation en masse
as an emergency seeking asylum. The authorities of Ukraine have stopped paying pensions and social
benefits to these residents and have established a complete economic blockade of the population and
enterprises in the certain areas of the Donetsk and Luhansk regions of Ukraine. The actions of the
Ukrainian authorities are quite comparable with the genocide of their own people.
The process of peaceful settlement of the situation in the south-east of Ukraine could only be
started with the personal participation of the leaders of the Russian Federation, the French Republic, the
Federal Republic of Germany and Ukraine in the “Normandy Four” format. A Contact Group for resolving
the situation in Ukraine was also created, consisting of representatives of Ukraine, Russia, the
Organization for Security and Cooperation in Europe, as well as certain areas of the Donetsk and Luhansk
regions of Ukraine. As a result of the work at the negotiation platforms, the Minsk agreements were
adopted and approved by a special resolution of the United Nations Security Council, as well as numerous
decisions of the Contact Group for resolving the situation in Ukraine.
Today, none of the clauses of the Minsk agreements, which laid down the main vector of
16
protecting the rights and freedoms and restoring the peaceful life of citizens, infrastructure and the
economy of residents of certain areas of the Donetsk and Luhansk regions of Ukraine, has not been
implemented by the new Ukrainian authorities. Instead of consistent actions, the Ukrainian authorities are
trying to revise or completely cancel all the reached agreements. There have been many recorded attempts
to disrupt the peace process: numerous violations of the regime of ceasefire are recorded along the entire
contact line, shells destroy civilian homes, schools and other infrastructure. The Ukrainian side seizes
settlements between the contact lines, where, among other residents, citizens of the Russian Federation
live also. In order to please the Ukrainian authorities, an employee of the Joint Center for Control and
Coordination, a representative of the unrecognized Luhansk People's Republic, was arrested during
performance of his official duties. Representatives of the Ukrainian side in the Contact Group for resolving
the situation in Ukraine deliberately demonstrate their inadequacy and continue to imitate compliance
with the established truce in the Donetsk and Luhansk regions of Ukraine.
For humanitarian purposes, since 2014, the Russian Federation has taken significant measures to
support residents of certain areas of the Donetsk and Luhansk regions of Ukraine. On a regular basis,
humanitarian convoys with food, building materials, medicines and gifts for children are sent from Russia.
Members of the State Duma consider the recognition of the Donetsk People's Republic and
Luhansk People's Republic as justified and morally acceptable. During the past years on the basis of the
will of the people, democratic representative and executive bodies of state power have been created in the
republics, the Constitution of the Donetsk People's Republic and the Constitution of the Luhansk People's
Republic are in force, as well as legislative, regulatory legal acts adopted by the highest representative
and executive bodies of state power of the republics, regulating relations in the political, financial,
economic and social spheres.
Such recognition will create legal grounds for guaranteeing the security and protection of the
peoples of the Donetsk People's Republic and the Luhansk People's Republic from external threats and
the implementation of a policy of genocide against the inhabitants of the republics, strengthening peace
between people and regional stability in accordance with the purposes and principles of the Charter of the
United Nations, and will initiate the process of international recognition of both states.
In connection with the foregoing, the members of the State Duma are turning to you, dear Vladimir
Vladimirovich, with request to consider the issue about recognition by the Russian Federation of the
Donetsk People's Republic and the Luhansk People's Republic as independent, sovereign and independent
states, as well as the issue of holding immediate talks with the leadership of the Donetsk People's Republic
and the Luhansk People's Republic in order to create a legal basis for interstate relations that ensures the
regulation of all aspects of cooperation and mutual assistance, including security issues.
Chairman of the State Duma
of the Federal Assembly
of the Russian Federation V.V. Volodin
Moscow
15 February 2022
17
18
Annex 5
President of Russia Vladimir Putin, Address by the President of the Russian Federation
(21 February 2022)
19
20
February 21, 2022 22:35 The Kremlin, Moscow
Address by the President of the Russian Federation
President of Russia Vladimir Putin: Citizens of Russia, friends,
My address
concerns the events in Ukraine and why this is so important for us, for Russia.
Of course, my message is also addressed to our compatriots in Ukraine.
The matter is
very serious and needs to be discussed in depth.
The situation
in Donbass has reached a critical, acute stage. I am speaking to you directly
today not only to explain what is happening but also to inform you of the decisions being
made as well as potential further steps.
I would like
to emphasise again that Ukraine is not just a neighbouring country for us. It
is
an inalienable part of our own history, culture and spiritual space. These are
our
comrades, those dearest to us – not only colleagues, friends and people who
once served
together, but also relatives, people bound by blood, by family
ties.
Since time
immemorial, the people living in the south-west of what has historically been
Russian
land have called themselves Russians and Orthodox Christians. This was
the case
before the 17th century, when a portion of this territory rejoined
the Russian
state, and after.
It seems to us that, generally speaking, we all know these facts, that this is common
knowledge. Still, it is necessary to say at least a few words about the history
of this issue
in order to understand what is happening today, to explain the motives behind Russia’s
actions and what we aim to achieve.
21
So, I will start with the fact that modern
Ukraine was entirely created by Russia or, to be
more precise, by Bolshevik, Communist
Russia. This process started practically right after
the 1917 revolution, and Lenin
and his associates did it in a way that was extremely harsh
on Russia – by separating, severing what is historically Russian land. Nobody asked
the millions
of people living there what they thought.
Then, both before and after the Great
Patriotic War, Stalin incorporated in the USSR
and transferred to Ukraine some
lands that previously belonged to Poland, Romania
and Hungary. In the process, he
gave Poland part of what was traditionally German land
as compensation, and in 1954,
Khrushchev took Crimea away from Russia for some
reason and also gave it to Ukraine. In effect, this is how the territory of modern Ukraine
was formed.
But now I would like to focus attention
on the initial period of the USSR’s formation.
I believe this is extremely important
for us. I will have to approach it from a distance, so
to speak.
I will remind you that after the 1917 October Revolution and the subsequent Civil War,
the Bolsheviks set about creating
a new statehood. They had rather serious
disagreements among themselves on this
point. In 1922, Stalin occupied the positions
of both the General Secretary of the Russian Communist Party (Bolsheviks)
and the People’s Commissar for Ethnic Affairs.
He suggested building the country
on the principles of autonomisation that is,
giving the republics – the future administrative
and territorial entities – broad
powers upon joining a unified state.
Lenin criticised this plan and suggested
making concessions to the nationalists, whom he
called “independents” at that time.
Lenin’s ideas of what amounted in essence
to a confederative state arrangement
and a slogan about the right of nations to selfdetermination,
up to secession,
were laid in the foundation of Soviet statehood. Initially
they were confirmed
in the Declaration on the Formation of the USSR in 1922, and later
on, after
Lenin’s death, were enshrined in the 1924 Soviet Constitution.
This immediately raises many
questions. The first is really the main one: why was it
necessary to appease
the nationalists, to satisfy the ceaselessly growing nationalist
ambitions on the outskirts of the former empire? What was the point of transferring
22
to the newly, often arbitrarily formed administrative units – the union republics – vast
territories that had nothing to do with them? Let me repeat that these
territories were
transferred along with the population of what was historically
Russia.
Moreover, these administrative units
were de facto given the status and form of national
state entities. That raises
another question: why was it necessary to make such generous
gifts, beyond the wildest dreams of the most zealous nationalists and, on top of all that,
give
the republics the right to secede from the unified state without any conditions?
At first glance, this looks absolutely incomprehensible, even crazy. But
only at first glance.
There is an explanation. After the revolution, the Bolsheviks’ main goal was to stay
in power at all costs, absolutely at all
costs. They did everything for this purpose: accepted
the humiliating Treaty of Brest-Litovsk, although the military and economic situation
in Kaiser Germany
and its allies was dramatic and the outcome of the First World War was
a foregone
conclusion, and satisfied any demands and wishes of the nationalists within
the country.
When it comes to the historical destiny of Russia and its peoples,
Lenin’s principles
of state development were not just a mistake; they were
worse than a mistake,
as the saying goes. This became patently clear after the dissolution of the Soviet Union
in 1991.
Of course, we cannot change past events, but we must at least admit them
openly
and honestly, without any reservations or politicking. Personally, I can
add that no political
factors, however impressive or profitable they may seem
at any given moment, can or may
be used as the fundamental principles of statehood.
I am not trying to put the blame on anyone. The situation in the country
at that time, both
before and after the Civil War, was extremely complicated;
it was critical. The only thing
I would like to say today is that this is
exactly how it was. It is a historical fact. Actually,
as I have already said,
Soviet Ukraine is the result of the Bolsheviks’ policy and can be
rightfully
called “Vladimir Lenin’s Ukraine.” He was its creator and architect. This is
fully
and comprehensively corroborated by archival documents, including Lenin’s
harsh
instructions regarding Donbass, which was actually shoved into Ukraine.
And today
23
the “grateful progeny” has overturned monuments to Lenin in Ukraine. They
call it
decommunization.
You want decommunization? Very well, this suits us just fine. But why
stop halfway? We
are ready to show what real decommunizations would mean for Ukraine.
Going back to history, I would like to repeat that the Soviet Union was
established
in the place of the former Russian Empire in 1922. But practice
showed immediately that
it was impossible to preserve or govern such a vast and complex territory
on the amorphous principles that amounted to confederation.
They were far removed from
reality and the historical tradition.
It is logical that the Red Terror and a rapid slide into Stalin’s
dictatorship, the domination
of the communist ideology and the Communist
Party’s monopoly on power, nationalisation
and the planned economy – all this transformed
the formally declared but ineffective
principles of government into a mere
declaration. In reality, the union republics did not
have any sovereign rights,
none at all. The practical result was the creation of a tightly
centralised and absolutely unitary state.
In fact, what Stalin fully implemented was not Lenin’s but his own
principles
of government. But he did not make the relevant amendments to the cornerstone
documents, to the Constitution, and he did not formally revise
Lenin’s principles
underlying the Soviet Union. From the look of it, there
seemed to be no need for that,
because everything seemed to be working well in conditions of the totalitarian regime,
and outwardly it looked wonderful,
attractive and even super-democratic.
And yet, it is a great pity that the fundamental and formally legal
foundations of our state
were not promptly cleansed of the odious and utopian
fantasies inspired by the revolution,
which are absolutely destructive for any
normal state. As it often happened in our country
before, nobody gave any
thought to the future.
It seems that the Communist Party leaders were convinced that they had
created a solid
system of government and that their policies had settled the ethnic
issue for good. But
falsification, misconception, and tampering with public
opinion have a high cost. The virus
of nationalist ambitions is still with us,
and the mine laid at the initial stage to destroy
24
state immunity to the disease
of nationalism was ticking. As I have already said, the mine
was the right of secession from the Soviet Union.
In the mid-1980s, the increasing socioeconomic problems and the apparent
crisis
of the planned economy aggravated the ethnic issue, which essentially was
not based
on any expectations or unfulfilled dreams of the Soviet peoples but
primarily the growing
appetites of the local elites.
However, instead of analysing the situation, taking appropriate
measures, first of all
in the economy, and gradually transforming the political
system and government in a wellconsidered
and balanced manner, the Communist
Party leadership only engaged in open
doubletalk about the revival of the Leninist principle of national self-determination.
Moreover, in the course of power struggle within the Communist Party
itself, each
of the opposing sides, in a bid to expand its support base,
started to thoughtlessly incite
and encourage nationalist sentiments, manipulating
them and promising their potential
supporters whatever they wished. Against the backdrop of the superficial and populist
rhetoric about democracy and a bright
future based either on a market or a planned
economy, but amid a true
impoverishment of people and widespread shortages, no one
among the powers that
be was thinking about the inevitable tragic consequences
for the country.
Next, they entirely embarked on the track beaten at the inception of the USSR
and pandering to the ambitions of the nationalist elites nurtured within
their own party
ranks. But in so doing, they forgot that the CPSU no longer had – thank God – the tools
for retaining power and the country itself, tools such
as state terror and a Stalinist-type
dictatorship, and that the notorious
guiding role of the party was disappearing without
a trace, like a morning
mist, right before their eyes.
And then, the September 1989 plenary session of the CPSU Central
Committee approved
a truly fatal document, the so-called ethnic policy of the party in modern conditions,
the CPSU platform. It included the following
provisions, I quote: “The republics of the USSR
shall possess all the rights
appropriate to their status as sovereign socialist states.”
25
The next point: “The supreme representative bodies of power of the USSR
republics can
challenge and suspend the operation of the USSR Government’s
resolutions
and directives in their territory.”
And finally: “Each republic of the USSR shall have citizenship of its
own, which shall apply
to all of its residents.”
Wasn’t it clear what these formulas and decisions would lead to?
Now is not the time or place to go into matters pertaining to state or constitutional law,
or define the concept of citizenship. But one may wonder: why
was it necessary to rock
the country even more in that already complicated situation?
The facts remain.
Even two years before the collapse of the USSR, its fate was actually
predetermined. It is
now that radicals and nationalists, including and primarily those in Ukraine, are taking
credit for having gained independence.
As we can see, this is absolutely wrong.
The disintegration of our united
country was brought about by the historic, strategic
mistakes on the part of the Bolshevik leaders and the CPSU leadership, mistakes
committed at different
times in state-building and in economic and ethnic policies.
The collapse of the historical Russia known as the USSR is on their conscience.
Despite all these injustices, lies and outright
pillage of Russia, it was our people who
accepted the new geopolitical reality
that took shape after the dissolution of the USSR,
and recognised the new
independent states. Not only did Russia recognise these
countries, but helped
its CIS partners, even though it faced a very dire situation itself. This
included our Ukrainian colleagues, who turned to us for financial support many
times from
the very moment they declared independence. Our country provided
this assistance while
respecting Ukraine’s dignity and sovereignty.
According to expert assessments, confirmed by a simple calculation of our energy prices,
the subsidised loans Russia provided to Ukraine along with economic and trade
preferences, the overall benefit for the Ukrainian budget in the period from 1991 to 2013
amounted to $250 billion.
26
However, there was more to it than that. By the end of 1991, the USSR owed some $100
billion to other countries and international funds. Initially, there was this idea that all
former Soviet
republics will pay back these loans together, in the spirit of solidarity
and proportionally to their economic potential. However, Russia undertook to pay
back all
Soviet debts and delivered on this promise by completing this process
in 2017.
In exchange for that, the newly independent
states had to hand over to Russia part
of the Soviet foreign assets. An agreement to this effect was reached with Ukraine
in December 1994. However,
Kiev failed to ratify these agreements and later simply
refused to honour them
by making demands for a share of the Diamond Treasury, gold
reserves, as well
as former USSR property and other assets abroad.
Nevertheless, despite all these challenges, Russia
always worked with Ukraine in an open
and honest manner and, as I have already
said, with respect for its interests. We
developed our ties in multiple fields.
Thus, in 2011, bilateral trade exceeded $50 billion.
Let me note that in 2019, that
is before the pandemic, Ukraine’s trade with all EU
countries combined was
below this indicator.
At the same time, it was striking how the Ukrainian authorities always preferred dealing
with Russia in a way that
ensured that they enjoy all the rights and privileges while
remaining free from
any obligations.
The officials in Kiev replaced partnership with
a parasitic attitude acting at times
in an extremely brash manner. Suffice it to recall the continuous blackmail on energy
transits and the fact that they literally
stole gas.
I can add that Kiev tried to use dialogue with
Russia as a bargaining chip in its relations
with the West, using the threat of closer ties with Russia for blackmailing the West
to secure preferences by claiming
that otherwise Russia would have a bigger influence
in Ukraine.
At the same time, the Ukrainian authorities – I would like to emphasise
this – began
by building their statehood on the negation of everything
that united us, trying to distort
the mentality and historical memory of millions of people, of entire generations living
in Ukraine. It is not
surprising that Ukrainian society was faced with the rise of far-right
27
nationalism, which rapidly developed into aggressive Russophobia and neo-Nazism. This
resulted in the participation of Ukrainian nationalists and neo-Nazis in the terrorist groups
in the North Caucasus and the increasingly loud
territorial claims to Russia.
A role in this was played by external forces, which used a ramified
network of NGOs
and special services to nurture their clients in Ukraine and to bring their representatives
to the seats of authority.
It should be noted that Ukraine actually never had stable traditions of real statehood. And,
therefore, in 1991 it opted for mindlessly emulating
foreign models, which have no
relation to history or Ukrainian realities. Political
government institutions were readjusted
many times to the rapidly growing clans
and their self-serving interests, which had nothing
to do with the interests of the Ukrainian people.
Essentially, the so-called pro-Western civilisational choice made by the oligarchic
Ukrainian authorities was not and is not aimed at creating better
conditions
in the interests of people’s well-being but at keeping the billions
of dollars that
the oligarchs have stolen from the Ukrainians and are holding
in their accounts in Western
banks, while reverently accommodating the geopolitical rivals of Russia.
Some industrial and financial groups and the parties and politicians on their payroll relied
on the nationalists and radicals from the very beginning.
Others claimed to be in favour
of good relations with Russia and cultural and language diversity, coming to power with
the help of their citizens who
sincerely supported their declared aspirations, including
the millions of people in the south-eastern regions. But after getting the positions they
coveted, these people immediately betrayed their voters, going back on their
election
promises and instead steering a policy prompted by the radicals and sometimes even
persecuting their former allies – the public organisations that
supported bilingualism
and cooperation with Russia. These people took advantage
of the fact that their voters
were mostly law-abiding citizens with moderate
views who trusted the authorities,
and that, unlike the radicals, they would
not act aggressively or make use of illegal
instruments.
Meanwhile, the radicals became increasingly brazen in their actions and made more
demands every year. They found it easy to force their will on the weak
authorities, which
28
were infected with the virus of nationalism and corruption
as well and which artfully
replaced the real cultural, economic and social
interests of the people and Ukraine’s true
sovereignty with various ethnic
speculations and formal ethnic attributes.
A stable statehood has never developed
in Ukraine; its electoral and other political
procedures just serve as a cover,
a screen for the redistribution of power and property
between various
oligarchic clans.
Corruption, which is certainly a challenge and a problem for many countries, including
Russia, has gone beyond
the usual scope in Ukraine. It has literally permeated
and corroded Ukrainian
statehood, the entire system, and all branches of power.
Radical nationalists took advantage
of the justified public discontent and saddled
the Maidan protest, escalating
it to a coup d'état in 2014. They also had direct assistance
from foreign
states. According to reports, the US Embassy provided $1 million a day
to support
the so-called protest camp on Independence Square in Kiev. In addition, large
amounts were impudently transferred directly to the opposition leaders’ bank
accounts,
tens of millions of dollars. But the people who actually suffered,
the families of those who
died in the clashes provoked in the streets and squares of Kiev and other cities, how much
did they get in the end? Better not ask.
The nationalists who have seized
power have unleashed a persecution, a real terror
campaign against those who
opposed their anti-constitutional actions. Politicians,
journalists, and public
activists were harassed and publicly humiliated. A wave of violence
swept Ukrainian
cities, including a series of high-profile and unpunished murders. One
shudders
at the memories of the terrible tragedy in Odessa, where peaceful protesters
were brutally murdered, burned alive in the House of Trade Unions. The criminals who
committed that atrocity have never been punished, and no one is even
looking for them.
But we know their names and we will do everything to punish them,
find them and bring
them to justice.
Maidan did not bring Ukraine any closer
to democracy and progress. Having accomplished
a coup d'état, the nationalists
and those political forces that supported them eventually
led Ukraine into an impasse, pushed the country into the abyss of civil war. Eight years
later, the country is split. Ukraine is struggling with an acute socioeconomic crisis.
29
According to international organisations,
in 2019, almost 6 million Ukrainians –
I emphasise – about 15 percent, not of the wokrforce, but of the entire population of that
country, had to go abroad to find work. Most of them do odd jobs. The following fact is also
revealing:
since 2020, over 60,000 doctors and other health workers have left the country
amid
the pandemic.
Since 2014, water bills increased by almost a third, and energy bills grew several times,
while the price of gas
for households surged several dozen times. Many people simply do
not have the money to pay for utilities. They literally struggle to survive.
What happened? Why is this all happening? The answer is obvious. They spent
and embezzled the legacy inherited not only from the Soviet era, but also from the Russian
Empire. They lost tens, hundreds of thousands of jobs which enabled people to earn
a reliable income and generate
tax revenue, among other things thanks to close
cooperation with Russia. Sectors
including machine building, instrument engineering,
electronics, ship and aircraft building have been undermined or destroyed altogether.
There was a time, however, when not only Ukraine, but the entire Soviet Union took pride
in these companies.
In 2021, the Black Sea Shipyard in Nikolayev
went out of business. Its first docks date
back to Catherine the Great. Antonov,
the famous manufacturer, has not made a single
commercial aircraft since 2016,
while Yuzhmash, a factory specialising in missile
and space equipment,
is nearly bankrupt. The Kremenchug Steel Plant is in a similar
situation. This
sad list goes on and on.
As for the gas transportation system, it was
built in its entirety by the Soviet Union, and it
has now deteriorated to an extent that using it creates major risks and comes at a high
cost for the environment.
This situation begs the question: poverty, lack
of opportunity, and lost industrial
and technological potential – is this the pro-Western civilisational choice they have been
using for many years to fool millions
of people with promises of heavenly pastures?
It all came down to a Ukrainian economy in tatters and an outright pillage of the country’s
citizens, while Ukraine itself
was placed under external control, directed not only from
30
the Western capitals,
but also on the ground, as the saying goes, through an entire
network of foreign advisors, NGOs and other institutions present in Ukraine. They have
a direct bearing on all the key appointments and dismissals and on all branches
of power
at all levels, from the central government down to municipalities, as well as on stateowned
companies and corporations, including Naftogaz, Ukrenergo,
Ukrainian Railways,
Ukroboronprom, Ukrposhta, and the Ukrainian Sea Ports
Authority.
There is no independent judiciary in Ukraine. The Kiev authorities, at the West’s demand,
delegated the priority right to select
members of the supreme judicial bodies, the Council
of Justice and the High
Qualifications Commission of Judges, to international
organisations.
In addition, the United States directly controls
the National Agency on Corruption
Prevention, the National Anti-Corruption
Bureau, the Specialised Anti-Corruption
Prosecutor's Office and the High
Anti-Corruption Court. All this is done under the noble
pretext of invigorating
efforts against corruption. All right, but where are the results?
Corruption is
flourishing like never before.
Are the Ukrainian people aware that this is how
their country is managed? Do they realise
that their country has turned not
even into a political or economic protectorate but has
been reduced to a colony
with a puppet regime? The state was privatised. As a result,
the government, which
designates itself as the “power of patriots” no longer acts
in a national
capacity and consistently pushes Ukraine towards losing its sovereignty.
The policy to root out the Russian language and culture and promote assimilation carries
on. The Verkhovna Rada has generated a steady flow of discriminatory bills, and the law
on the so-called indigenous people
has already come into force. People who identify
as Russians and want to preserve their identity, language and culture are getting
the signal that they
are not wanted in Ukraine.
Under the laws on education and the Ukrainian language
as a state language, the Russian
language has no place in schools or public
spaces, even in ordinary shops. The law
on the so-called vetting of officials
and purging their ranks created a pathway for dealing
with unwanted civil servants.
31
There are more and more acts enabling the Ukrainian military and law enforcement
agencies to crack down on the freedom of speech, dissent, and going after the opposition.
The world knows the deplorable
practice of imposing unilateral illegitimate sanctions
against other countries,
foreign individuals and legal entities. Ukraine has outperformed
its Western
masters by inventing sanctions against its own citizens, companies, television
channels, other media outlets and even members of parliament.
Kiev continues to prepare the destruction of the Ukrainian Orthodox
Church
of the Moscow Patriarchate. This is not an emotional judgement; proof of this can be
found in concrete decisions and documents. The Ukrainian
authorities have cynically
turned the tragedy of the schism into an instrument
of state policy. The current authorities
do not react to the Ukrainian people’s
appeals to abolish the laws that are infringing
on believers’ rights. Moreover,
new draft laws directed against the clergy and millions
of parishioners of the Ukrainian
Orthodox Church of the Moscow Patriarchate have been
registered in the Verkhovna Rada.
A few words about Crimea. The people of the peninsula freely made their
choice to be with
Russia. The Kiev authorities cannot challenge the clearly stated
choice of the people,
which is why they have opted for aggressive action, for activating extremist cells, including
radical Islamist organisations, for sending subversives to stage terrorist attacks at critical
infrastructure
facilities, and for kidnapping Russian citizens. We have factual proof that
such aggressive actions are being taken with support from Western security
services.
In March 2021, a new Military Strategy was adopted in Ukraine. This
document is almost
entirely dedicated to confrontation with Russia and sets the goal of involving foreign
states in a conflict with our country. The strategy
stipulates the organisation of what can
be described as a terrorist underground
movement in Russia’s Crimea and in Donbass. It
also sets out the contours of a potential war, which should end, according to the Kiev
strategists, “with the assistance of the international community on favourable terms
for Ukraine,” as well as – listen carefully, please – “with foreign military support
in the geopolitical confrontation with the Russian Federation.” In fact, this is
nothing other
than preparation for hostilities against our country, Russia.
As we know, it has already been stated today that Ukraine intends to create its own
nuclear weapons, and this is not just bragging. Ukraine has the nuclear technologies
32
created back in the Soviet times and delivery vehicles for such weapons, including aircraft,
as well as the Soviet-designed Tochka-U precision
tactical missiles with a range of over
100 kilometres. But they can do more; it
is only a matter of time. They have had
the groundwork for this since the Soviet era.
In other words, acquiring tactical nuclear weapons will be much easier
for Ukraine than
for some other states I am not going to mention here, which
are conducting such
research, especially if Kiev receives foreign technological support. We cannot rule
this out
either.
If Ukraine acquires weapons of mass destruction,
the situation in the world and in Europe
will drastically change, especially for us, for Russia. We cannot but react to this real
danger, all the more so since,
let me repeat, Ukraine’s Western patrons may help it
acquire these weapons to create yet another threat to our country. We are seeing how
persistently the Kiev regime is being pumped with arms. Since 2014, the United States
alone has
spent billions of dollars for this purpose, including supplies of arms
and equipment and training of specialists. In the last few months, there has been
a constant flow of Western weapons to Ukraine, ostentatiously, with the entire
world
watching. Foreign advisors supervise the activities of Ukraine’s armed
forces and special
services and we are well aware of this.
Over the past few years, military contingents
of NATO countries have been almost
constantly present on Ukrainian territory under
the pretext of exercises. The Ukrainian
troop control system has already been
integrated into NATO. This means that NATO
headquarters can issue direct commands
to the Ukrainian armed forces, even to their
separate units and squads.
The United States and NATO have
started an impudent development of Ukrainian territory
as a theatre of potential military operations. Their regular joint exercises are obviously
anti-Russian. Last year alone, over 23,000 troops and more than a thousand
units
of hardware were involved.
A law has already been adopted that allows
foreign troops to come to Ukraine in 2022
to take part in multinational drills.
Understandably, these are primarily NATO troops. This
year, at least ten of these
joint drills are planned.
33
Obviously, such undertakings are designed
to be a cover-up for a rapid buildup
of the NATO military group on Ukrainian
territory. This is all the more so since the network
of airfields upgraded with
US help in Borispol, Ivano-Frankovsk, Chuguyev and Odessa,
to name a few, is
capable of transferring army units in a very short time. Ukraine’s
airspace is open
to flights by US strategic and reconnaissance aircraft and drones that
conduct
surveillance over Russian territory.
I will add that the US-built Maritime
Operations Centre in Ochakov makes it possible
to support activity by NATO warships,
including the use of precision weapons, against
the Russian Black Sea Fleet and our infrastructure on the entire Black Sea Coast.
At one time, the United States
intended to build similar facilities in Crimea as well but
the Crimeans and residents of Sevastopol wrecked these plans. We will always remember
this.
I would like to repeat that today
such a centre has already been deployed in Ochakov.
In the 18th century,
soldiers of Alexander Suvorov fought for this city. Owing to their
courage, it
became part of Russia. Also in the 18th century, the lands of the Black Sea
littoral, incorporated in Russia as a result of wars with the Ottoman
Empire, were given
the name of Novorossiya (New Russia). Now attempts are being
made to condemn these
landmarks of history to oblivion, along with the names of state and military figures
of the Russian Empire without whose efforts modern
Ukraine would not have many big
cities or even access to the Black Sea.
A monument to Alexander Suvorov was
recently demolished in Poltava. What is there
to say? Are you renouncing your own
past? The so-called colonial heritage of the Russian
Empire? Well, in this case,
be consistent.
Next, notably, Article 17 of the Constitution of Ukraine stipulates that
deploying foreign
military bases on its territory is illegal. However, as it
turns out, this is just
a conventionality that can be easily circumvented.
Ukraine is home to NATO training missions which are, in fact, foreign
military bases. They
just called a base a mission and were done with it.
34
Kiev has long proclaimed a strategic course on joining NATO. Indeed,
each country is
entitled to pick its own security system and enter into
military alliances. There would be no
problem with that, if it were not for one
“but.” International documents expressly stipulate
the principle of equal and indivisible security, which includes obligations not to strengthen
one's own security
at the expense of the security of other states. This is stated
in the 1999 OSCE
Charter for European Security adopted in Istanbul and the 2010 OSCE
Astana
Declaration.
In other words, the choice of pathways towards ensuring security should
not pose a threat
to other states, whereas Ukraine joining NATO is a direct
threat to Russia's security.
Let me remind you that at the Bucharest NATO summit held in April 2008,
the United
States pushed through a decision to the effect that Ukraine and, by the way, Georgia would
become NATO members. Many European allies of the United
States were well aware
of the risks associated with this prospect already then,
but were forced to put up with
the will of their senior partner. The Americans
simply used them to carry out a clearly anti-
Russian policy.
A number of NATO member states are still very sceptical about Ukraine joining
NATO. We
are getting signals from some European capitals telling us not to worry since it will not
happen literally overnight. In fact, our US partners
are saying the same thing as well. “All
right, then” we respond, “if it does not
happen tomorrow, then it will happen the day after
tomorrow. What does it
change from the historical perspective? Nothing at all.”
Furthermore, we are aware of the US leadership’s position and words that
active hostilities
in eastern Ukraine do not rule out the possibility of that country
joining NATO if it meets
NATO criteria and overcomes corruption.
All the while, they are trying to convince us over and over again that
NATO is a peace-loving
and purely defensive alliance that poses no threat to Russia. Again, they want us to take
their word for it. But we are well aware of the real value of these words. In 1990, when
German unification was discussed,
the United States promised the Soviet leadership that
NATO jurisdiction or military
presence will not expand one inch to the east and that
the unification of Germany will not lead to the spread of NATO's military organisation
to the east. This is a quote.
35
They issued lots of verbal assurances, all of which turned out to be
empty phrases. Later,
they began to assure us that the accession to NATO by Central and Eastern European
countries would only improve relations with
Moscow, relieve these countries of the fears
steeped in their bitter historical
legacy, and even create a belt of countries that are friendly
towards Russia.
However, the exact opposite happened.
The governments of certain Eastern European
countries, speculating on Russophobia,
brought their complexes and stereotypes about
the Russian threat to the Alliance and insisted on building up the collective defence
potentials and deploying
them primarily against Russia. Worse still, that happened
in the 1990s and the early
2000s when, thanks to our openness and goodwill, relations
between Russia and the West had reached a high level.
Russia has fulfilled all of its
obligations, including the pullout from Germany, from Central
and Eastern
Europe, making an immense contribution to overcoming the legacy
of the Cold
War. We have consistently proposed various cooperation options, including
in the NATO-Russia Council and the OSCE formats.
Moreover, I will say something I have never said publicly, I will say it now for the first time.
When then outgoing
US President Bill Clinton visited Moscow in 2000, I asked him how
America would
feel about admitting Russia to NATO.
I will not reveal all the details of that conversation, but the reaction to my question was, let
us say, quite restrained,
and the Americans’ true attitude to that possibility can actually be
seen from their
subsequent steps with regard to our country. I am referring to the overt
support
for terrorists in the North Caucasus, the disregard for our security demands
and concerns, NATO’s continued expansion, withdrawal from the ABM Treaty, and so on. It
raises the question: why? What is all this about, what is the purpose?
All right, you do not
want to see us as friends or allies, but why make us an enemy?
There can be only one answer – this is
not about our political regime or anything like that.
They just do not need a big and independent country like Russia around. This is
the answer to all
questions. This is the source of America’s traditional policy towards
Russia.
Hence the attitude to all our security proposals
36
Today, one glance at the map is
enough to see to what extent Western countries have kept
their promise to refrain
from NATO’s eastward expansion. They just cheated. We have
seen five waves of NATO expansion, one after another – Poland, the Czech Republic
and Hungary were
admitted in 1999; Bulgaria, Estonia, Latvia, Lithuania, Romania,
Slovakia and Slovenia in 2004; Albania and Croatia in 2009; Montenegro in 2017;
and North
Macedonia in 2020.
As a result, the Alliance, its
military infrastructure has reached Russia’s borders. This is
one of the key
causes of the European security crisis; it has had the most negative impact
on the entire system of international relations and led to the loss of mutual
trust.
The situation continues to deteriorate,
including in the strategic area. Thus, positioning
areas for interceptor
missiles are being established in Romania and Poland as part
of the US project to create a global missile defence system. It is common knowledge that
the launchers deployed there can be used for Tomahawk cruise missiles – offensive strike
systems.
In addition, the United States is developing
its all-purpose Standard Missile-6, which can
provide air and missile defence, as well as strike ground and surface targets. In other
words, the allegedly defensive
US missile defence system is developing and expanding its
new offensive
capabilities.
The information we have gives us good
reason to believe that Ukraine’s accession to NATO
and the subsequent deployment
of NATO facilities has already been decided and is only
a matter of time. We clearly
understand that given this scenario, the level of military
threats to Russia
will increase dramatically, several times over. And I would like
to emphasise at this point that the risk of a sudden strike at our country will multiply.
I will explain that American strategic
planning documents confirm the possibility of a socalled
preemptive strike at enemy
missile systems. We also know the main adversary
of the United States and NATO.
It is Russia. NATO documents
officially declare our country
to be the main threat to Euro-Atlantic security.
Ukraine will serve as an advanced
bridgehead for such a strike. If our ancestors
heard about this, they would probably simply
not believe this. We do not want
to believe this today either, but it is what it is. I would like
people in Russia
and Ukraine to understand this.
37
Many Ukrainian airfields are located
not far from our borders. NATO’s tactical aviation
deployed there, including
precision weapon carriers, will be capable of striking at our
territory to the depth of the Volgograd-Kazan-Samara-Astrakhan line. The deployment
of reconnaissance
radars on Ukrainian territory will allow NATO to tightly control Russia’s
airspace
up to the Urals.
Finally, after the US destroyed the INF Treaty, the Pentagon has been openly developing
many land-based attack
weapons, including ballistic missiles that are capable of hitting
targets at a distance of up to 5,500 km. If deployed in Ukraine, such systems will be able
to hit targets in Russia’s entire European part. The flying time of Tomahawk
cruise missiles
to Moscow will be less than 35 minutes; ballistic missiles from
Kharkov will take seven
to eight minutes; and hypersonic assault weapons, four
to five minutes. It is like a knife
to the throat. I have no doubt that they
hope to carry out these plans, as they did many
times in the past, expanding
NATO eastward, moving their military infrastructure
to Russian borders and fully ignoring our concerns, protests and warnings. Excuse me, but
they simply
did not care at all about such things and did whatever they deemed necessary.
Of course, they are going to behave
in the same way in the future, following a well-known
proverb: “The dogs bark
but the caravan goes on.” Let me say right away – we do not
accept this behaviour
and will never accept it. That said, Russia has always advocated
the resolution
of the most complicated problems by political and diplomatic means,
at the negotiating table.
We are well aware of our enormous
responsibility when it comes to regional and global
stability. Back in 2008,
Russia put forth an initiative to conclude a European Security
Treaty under
which not a single Euro-Atlantic state or international organisation could
strengthen their security at the expense of the security of others. However,
our proposal
was rejected right off the bat on the pretext that Russia should
not be allowed to put limits
on NATO activities.
Furthermore, it was made explicitly clear
to us that only NATO members can have legally
binding security guarantees.
Last December, we handed over to our
Western partners a draft treaty between
the Russian Federation and the United
States of America on security guarantees, as well
38
as a draft agreement on measures to ensure the security of the Russian Federation
and NATO member
states.
The United States and NATO responded
with general statements. There were kernels
of rationality in them as well, but
they concerned matters of secondary importance and it
all looked like an attempt to drag the issue out and to lead the discussion astray.
We responded to this accordingly and pointed out that we were ready to follow the path
of negotiations, provided,
however, that all issues are considered as a package that
includes Russia’s
core proposals which contain three key points. First, to prevent further
NATO
expansion. Second, to have the Alliance refrain from deploying assault weapon
systems on Russian borders. And finally, rolling back the bloc's military capability
and infrastructure in Europe to where they were in 1997, when the NATO-Russia
Founding
Act was signed.
These principled proposals of ours
have been ignored. To reiterate, our Western partners
have once again vocalised
the all-too-familiar formulas that each state is entitled to freely
choose ways
to ensure its security or to join any military union or alliance. That is,
nothing
has changed in their stance, and we keep hearing the same old references
to NATO’s
notorious “open door” policy. Moreover, they are again trying to blackmail us and are
threatening us with sanctions, which, by the way, they
will introduce no matter what
as Russia continues to strengthen its sovereignty
and its Armed Forces. To be sure, they
will never think twice before coming up
with or just fabricating a pretext for yet another
sanction attack regardless
of the developments in Ukraine. Their one and only goal is
to hold back the development of Russia. And they will keep doing so, just as they did
before,
even without any formal pretext just because we exist and will never compromise
our sovereignty, national interests or values.
I would like to be clear and straightforward:
in the current circumstances, when our
proposals for an equal dialogue on fundamental issues have actually remained
unanswered by the United States and NATO, when the level of threats to our country has
increased significantly,
Russia has every right to respond in order to ensure its security.
That is
exactly what we will do.
39
With regard to the state of affairs
in Donbass we see that the ruling Kiev elites never stop
publicly making clear
their unwillingness to comply with the Minsk Package of Measures
to settle the conflict and are not interested in a peaceful settlement. On the contrary, they
are trying to orchestrate a blitzkrieg in Donbass as was the case in 2014 and 2015. We all
know how these reckless schemes ended.
Not a single day goes by without
Donbass communities coming under shelling attacks.
The recently formed large
military force makes use of attack drones, heavy equipment,
missiles, artillery
and multiple rocket launchers. The killing of civilians, the blockade,
the abuse of people, including children, women and the elderly, continues unabated.
As we say, there is no end in sight to this.
Meanwhile, the so-called civilised
world, which our Western colleagues proclaimed
themselves the only
representatives of, prefers not to see this, as if this horror
and genocide,
which almost 4 million people are facing, do not exist. But they do exist
and only because these people did not agree with the West-supported coup in Ukraine
in 2014 and opposed the transition towards the Neanderthal and aggressive
nationalism
and neo-Nazism which have been elevated in Ukraine to the rank of national
policy. They
are fighting for their elementary right to live on their own land,
to speak their own
language, and to preserve their culture and traditions.
How long can this tragedy continue?
How much longer can one put up with this? Russia
has done everything to preserve Ukraine’s territorial integrity. All these years, it has
persistently
and patiently pushed for the implementation of UN Security Council
Resolution
2202 of February 17, 2015, which consolidated the Minsk Package
of Measures of February 12, 2015, to settle the situation in Donbass.
Everything was in vain. Presidents
and Rada deputies come and go, but deep down
the aggressive and nationalistic
regime that seized power in Kiev remains unchanged. It is
entirely a product of the 2014 coup, and those who then embarked on the path
of violence, bloodshed
and lawlessness did not recognise then and do not recognise now
any solution to the Donbass issue other than a military one.
In this regard, I consider it necessary
to take a long overdue decision and to immediately
recognise the independence
and sovereignty of the Donetsk People's Republic
40
Publication status
and the Lugansk People's
Republic.
I would like to ask the Federal
Assembly of the Russian Federation to support this decision
and then ratify the Treaty of Friendship and Mutual Assistance with both republics. These
two
documents will be prepared and signed shortly.
We want those who seized and continue
to hold power in Kiev to immediately stop
hostilities. Otherwise, the responsibility for the possible continuation of the bloodshed will
lie entirely
on the conscience of Ukraine’s ruling regime.
As I announce the decisions taken
today, I remain confident in the support of Russia’s
citizens and the country’s
patriotic forces.
Thank you.
Published in sections: News, Transcripts
Publication date: February 21, 2022, 22:35
Direct link: en.kremlin.ru/d/67828
41
42
Annex 6
President of Russia Vladimir Putin, Address by the President of the Russian Federation
(24 February 2022)
43
44
February 24, 2022 06:00 The Kremlin, Moscow
Address by the President of the Russian Federation
President of Russia Vladimir Putin: Citizens of Russia, friends,
I consider it necessary today to speak again
about the tragic events in Donbass
and the key aspects of ensuring the security
of Russia.
I will begin with what I said in my address on February 21, 2022. I spoke about our biggest
concerns and worries, and about
the fundamental threats which irresponsible Western
politicians created for Russia consistently, rudely and unceremoniously from year to year.
I am
referring to the eastward expansion of NATO, which is moving its military
infrastructure ever closer to the Russian border.
It is a fact that over the past 30 years we
have been patiently trying to come
to an agreement with the leading NATO
countries regarding the principles of equal
and indivisible security in Europe.
In response to our proposals, we invariably faced either
cynical deception and lies or attempts at pressure and blackmail, while the North Atlantic
alliance
continued to expand despite our protests and concerns. Its military machine is
moving and, as I said, is approaching our very border.
Why is this happening? Where did this insolent
manner of talking down from the height
of their exceptionalism, infallibility
and all-permissiveness come from? What is
the explanation for this contemptuous
and disdainful attitude to our interests
and absolutely legitimate demands?
The answer is simple. Everything is clear and obvious. In the late 1980s, the Soviet Union
grew weaker and subsequently broke
apart. That experience should serve as a good
45
lesson for us, because it has
shown us that the paralysis of power and will is the first step
towards
complete degradation and oblivion. We lost confidence for only one moment, but
it was enough to disrupt the balance of forces in the world.
As a result, the old treaties and agreements
are no longer effective. Entreaties
and requests do not help. Anything that
does not suit the dominant state, the powers that
be, is denounced as archaic,
obsolete and useless. At the same time, everything it regards
as useful is
presented as the ultimate truth and forced on others regardless of the cost,
abusively and by any means available. Those who refuse to comply are subjected
to strong-arm tactics.
What I am saying now does not concerns only
Russia, and Russia is not the only country
that is worried about this. This has
to do with the entire system of international relations,
and sometimes even US
allies. The collapse of the Soviet Union led to a redivision
of the world, and the norms of international law that developed by that time –
and the most
important of them, the fundamental norms that were adopted following
WWII and largely formalised its outcome – came in the way of those who declared
themselves the winners of the Cold War.
Of course, practice, international relations
and the rules regulating them had to take into
account the changes that took
place in the world and in the balance of forces. However,
this should have been
done professionally, smoothly, patiently, and with due regard
and respect for the interests of all states and one’s own responsibility. Instead, we saw
a state of euphoria created by the feeling of absolute superiority, a kind of modern
absolutism, coupled with the low cultural standards and arrogance of those who
formulated and pushed through decisions that suited only themselves.
The situation took
a different turn.
There are many examples of this. First a bloody
military operation was waged against
Belgrade, without the UN Security Council’s
sanction but with combat aircraft and missiles
used in the heart of Europe. The bombing of peaceful cities and vital infrastructure went
on for several weeks. I have to recall these facts, because some Western colleagues
prefer to forget
them, and when we mentioned the event, they prefer to avoid speaking
about
international law, instead emphasising the circumstances which they interpret
as they think necessary.
46
Then came the turn of Iraq, Libya and Syria. The illegal use of military power against Libya
and the distortion of all the UN
Security Council decisions on Libya ruined the state,
created a huge seat of international terrorism, and pushed the country towards
a humanitarian
catastrophe, into the vortex of a civil war, which has continued there
for years. The tragedy, which was created for hundreds of thousands and even
millions
of people not only in Libya but in the whole region, has led to a large-scale exodus from
the Middle East and North Africa to Europe.
A similar fate was also prepared for Syria. The combat operations conducted
by the Western coalition in that country without
the Syrian government’s approval or UN
Security Council’s sanction can only be
defined as aggression and intervention.
But the example that stands apart from the above events is, of course, the invasion of Iraq
without any legal grounds.
They used the pretext of allegedly reliable information available
in the United
States about the presence of weapons of mass destruction in Iraq. To prove
that
allegation, the US Secretary of State held up a vial with white power, publicly,
for the whole world to see, assuring the international community that it was a chemical
warfare agent created in Iraq.
It later turned out that all of that was a fake and a sham,
and that Iraq did
not have any chemical weapons. Incredible and shocking but true. We
witnessed
lies made at the highest state level and voiced from the high UN rostrum.
As a result we see a tremendous loss in human life, damage, destruction, and a colossal
upsurge of terrorism.
Overall, it appears that nearly everywhere, in many regions of the world where the United
States brought its law and order,
this created bloody, non-healing wounds and the curse
of international
terrorism and extremism. I have only mentioned the most glaring but far
from
only examples of disregard for international law.
This array includes promises not to expand NATO
eastwards even by an inch. To reiterate:
they have deceived us, or, to put it
simply, they have played us. Sure, one often hears that
politics is a dirty
business. It could be, but it shouldn’t be as dirty as it is now, not to such
an extent. This type of con-artist behaviour is contrary not only to the principles
of international relations but also and above all to the generally accepted
norms
of morality and ethics. Where is justice and truth here? Just lies and hypocrisy all around.
47
Incidentally, US politicians, political
scientists and journalists write and say that a veritable
“empire of lies” has
been created inside the United States in recent years. It is hard
to disagree
with this – it is really so. But one
should not be modest about it: the United
States is still a great country and a system-forming power. All its satellites not only humbly
and obediently say yes
to and parrot it at the slightest pretext but also imitate its
behaviour and enthusiastically accept the rules it is offering them. Therefore, one can say
with good reason and confidence that the whole so-called Western bloc formed
by the United States in its own image and likeness is, in its entirety, the very
same “empire
of lies.”
As for our country, after the disintegration of the USSR, given the entire unprecedented
openness of the new, modern Russia,
its readiness to work honestly with the United
States and other Western
partners, and its practically unilateral disarmament, they
immediately tried to put the final squeeze on us, finish us off, and utterly destroy us. This
is how
it was in the 1990s and the early 2000s, when the so-called collective West was
actively supporting separatism and gangs of mercenaries in southern Russia.
What
victims, what losses we had to sustain and what trials we had to go
through at that time
before we broke the back of international terrorism in the Caucasus! We remember this
and will never forget.
Properly speaking, the attempts to use us in their own interests never ceased until quite
recently: they sought to destroy
our traditional values and force on us their false values
that would erode us,
our people from within, the attitudes they have been aggressively
imposing on their countries, attitudes that are directly leading to degradation
and degeneration, because they are contrary to human nature. This is not going
to happen. No one has ever succeeded in doing this, nor will they succeed now.
Despite all that, in December 2021, we made yet
another attempt to reach agreement
with the United States and its allies on the principles of European security and NATO’s
non-expansion. Our efforts were in vain. The United States has not changed its position. It
does not believe it
necessary to agree with Russia on a matter that is critical for us.
The United
States is pursuing its own objectives, while neglecting our interests.
Of course, this situation begs a question: what
next, what are we to expect? If history is
any guide, we know that in 1940 and early 1941 the Soviet Union went to great lengths
48
to prevent war or at least
delay its outbreak. To this end, the USSR sought not to provoke
the potential aggressor
until the very end by refraining or postponing the most urgent
and obvious
preparations it had to make to defend itself from an imminent attack. When it
finally acted, it was too late.
As a result, the country was not prepared to counter the invasion by Nazi Germany, which
attacked our Motherland on June 22,
1941, without declaring war. The country stopped
the enemy and went on to defeat it, but this came at a tremendous cost. The attempt
to appease the aggressor
ahead of the Great Patriotic War proved to be a mistake which
came at a high
cost for our people. In the first months after the hostilities broke out, we
lost vast territories of strategic importance, as well as millions of lives. We
will not make
this mistake the second time. We have no right to do so.
Those who aspire to global dominance have
publicly designated Russia as their enemy.
They did so with impunity. Make no mistake,
they had no reason to act this way. It is true
that they have considerable financial,
scientific, technological, and military capabilities.
We are aware of this and have an objective view of the economic threats we have been
hearing, just as our ability to counter this brash and never-ending blackmail. Let me
reiterate
that we have no illusions in this regard and are extremely realistic in our
assessments.
As for military affairs, even after the dissolution of the USSR and losing a considerable part
of its capabilities,
today’s Russia remains one of the most powerful nuclear states.
Moreover, it
has a certain advantage in several cutting-edge weapons. In this context,
there
should be no doubt for anyone that any potential aggressor will face defeat
and ominous consequences should it directly attack our country.
At the same time, technology, including in the defence sector, is changing rapidly. One day
there is one leader, and tomorrow
another, but a military presence in territories bordering
on Russia, if we
permit it to go ahead, will stay for decades to come or maybe forever,
creating
an ever mounting and totally unacceptable threat for Russia.
Even now, with NATO’s eastward expansion the situation for Russia has been becoming
worse and more dangerous by the year. Moreover,
these past days NATO leadership has
been blunt in its statements that they need
to accelerate and step up efforts to bring
49
the alliance’s infrastructure closer
to Russia’s borders. In other words, they have been
toughening their position.
We cannot stay idle and passively observe these developments.
This would be an absolutely irresponsible thing to do for us.
Any further expansion of the North Atlantic alliance’s
infrastructure or the ongoing efforts
to gain a military foothold of the Ukrainian
territory are unacceptable for us. Of course,
the question is not about NATO
itself. It merely serves as a tool of US foreign policy.
The problem is that in territories adjacent to Russia, which I have to note is our historical
land, a hostile “anti-Russia” is taking shape. Fully controlled from the outside, it is
doing
everything to attract NATO armed forces and obtain cutting-edge weapons.
For the United States and its allies, it is a policy of containing Russia, with obvious
geopolitical dividends. For our
country, it is a matter of life and death, a matter of our
historical future as a nation. This is not an exaggeration; this is a fact. It is not only a very
real threat to our interests but to the very existence of our state and to its
sovereignty. It is
the red line which we have spoken about on numerous
occasions. They have crossed it.
This brings me to the situation in Donbass. We
can see that the forces that staged
the coup in Ukraine in 2014 have seized
power, are keeping it with the help of ornamental
election procedures and have
abandoned the path of a peaceful conflict settlement.
For eight years, for eight
endless years we have been doing everything possible to settle
the situation by peaceful political means. Everything was in vain.
As I said in my previous address, you cannot
look without compassion at what is
happening there. It became impossible to tolerate
it. We had to stop that atrocity, that
genocide of the millions of people who
live there and who pinned their hopes on Russia,
on all of us. It is their
aspirations, the feelings and pain of these people that were the main
motivating
force behind our decision to recognise the independence of the Donbass
people’s
republics.
I would like to additionally emphasise the following. Focused on their own goals,
the leading NATO countries are
supporting the far-right nationalists and neo-Nazis
in Ukraine, those who will
never forgive the people of Crimea and Sevastopol for freely
making a choice to reunite with Russia.
50
They will undoubtedly try to bring war to Crimea just as they have done in Donbass, to kill
innocent people just as members of the punitive units of Ukrainian nationalists
and Hitler’s
accomplices did during the Great Patriotic War. They have also openly laid
claim to several other Russian regions.
If we look at the sequence of events and the incoming
reports, the showdown between
Russia and these forces cannot be avoided. It is only
a matter of time. They are getting
ready and waiting for the right moment. Moreover,
they went as far as aspire to acquire
nuclear weapons. We will not let this happen.
I have already said that Russia accepted the new geopolitical reality after the dissolution
of the USSR. We have been
treating all new post-Soviet states with respect and will
continue to act this
way. We respect and will respect their sovereignty, as proven
by the assistance
we provided to Kazakhstan when it faced tragic events and a challenge
in terms
of its statehood and integrity. However, Russia cannot feel safe, develop,
and exist while facing a permanent threat from the territory of today’s Ukraine.
Let me remind you that in 2000–2005 we used our
military to push back against
terrorists in the Caucasus and stood up for the integrity of our state. We preserved Russia.
In 2014, we supported the people
of Crimea and Sevastopol. In 2015, we used our Armed
Forces to create a reliable shield that prevented terrorists from Syria from penetrating
Russia. This
was a matter of defending ourselves. We had no other choice.
The same is happening today. They did not leave
us any other option for defending Russia
and our people, other than the one we
are forced to use today. In these circumstances, we
have to take bold and immediate action. The people’s republics of Donbass have asked
Russia for help.
In this context, in accordance with Article 51 (Chapter
VII) of the UN Charter, with
permission of Russia’s Federation Council, and in execution of the treaties of friendship
and mutual assistance with the Donetsk People’s
Republic and the Lugansk People’s
Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out
a special military operation.
51
The purpose of this operation is to protect people
who, for eight years now, have been
facing humiliation and genocide perpetrated
by the Kiev regime. To this end, we will seek
to demilitarise and denazify Ukraine,
as well as bring to trial those who perpetrated
numerous bloody crimes against
civilians, including against citizens of the Russian
Federation.
It is not our plan to occupy the Ukrainian
territory. We do not intend to impose anything
on anyone by force. At the same
time, we have been hearing an increasing number
of statements coming from the West
that there is no need any more to abide
by the documents setting forth the outcomes of World War II, as signed by the totalitarian
Soviet regime. How can
we respond to that?
The outcomes of World War II and the sacrifices
our people had to make to defeat Nazism
are sacred. This does not contradict
the high values of human rights and freedoms
in the reality that emerged over the post-war decades. This does not mean that nations
cannot enjoy the right to self-determination, which is enshrined in Article 1 of the UN
Charter.
Let me remind you that the people living in territories which are part of today’s Ukraine
were not asked how they want to build their lives when the USSR was created or after
World War II. Freedom
guides our policy, the freedom to choose independently our future
and the future
of our children. We believe that all the peoples living in today’s Ukraine,
anyone who want to do this, must be able to enjoy this right to make a free
choice.
In this context I would like to address the citizens of Ukraine. In 2014, Russia was obliged
to protect the people of Crimea and Sevastopol from those who you yourself call “nats.”
The people of Crimea and Sevastopol made their choice in favour of being with their
historical
homeland, Russia, and we supported their choice. As I said, we could not act
otherwise.
The current events have nothing to do with a desire to infringe on the interests of Ukraine
and the Ukrainian people. They are
connected with the defending Russia from those who
have taken Ukraine hostage
and are trying to use it against our country and our people.
52
I reiterate: we are acting to defend ourselves
from the threats created for us and from
a worse peril than what is happening
now. I am asking you, however hard this may be,
to understand this and to work
together with us so as to turn this tragic page as soon
as possible and to move
forward together, without allowing anyone to interfere in our
affairs and our
relations but developing them independently, so as to create favourable
conditions for overcoming all these problems and to strengthen us from within
as a single
whole, despite the existence of state borders. I believe in this,
in our common future.
I would also like to address the military
personnel of the Ukrainian Armed Forces.
Comrade officers,
Your fathers, grandfathers and great-grandfathers did not fight the Nazi occupiers and did
not defend our
common Motherland to allow today’s neo-Nazis to seize power in Ukraine.
You swore
the oath of allegiance to the Ukrainian people and not to the junta, the people’s
adversary which is plundering Ukraine and humiliating the Ukrainian
people.
I urge you to refuse to carry out their
criminal orders. I urge you to immediately lay down
arms and go home. I will
explain what this means: the military personnel of the Ukrainian
army who do
this will be able to freely leave the zone of hostilities and return to their
families.
I want to emphasise again that all
responsibility for the possible bloodshed will lie fully
and wholly with the ruling Ukrainian regime.
I would now like to say something
very important for those who may be tempted
to interfere in these developments from
the outside. No matter who tries to stand in our
way or all the more so create
threats for our country and our people, they must know that
Russia will respond
immediately, and the consequences will be such as you have never
seen in your
entire history. No matter how the events unfold, we are ready. All
the necessary
decisions in this regard have been taken. I hope that my words will be
heard.
Citizens of Russia,
53
Publication status
The culture and values, experience
and traditions of our ancestors invariably provided
a powerful underpinning for the wellbeing and the very existence of entire states
and nations, their success
and viability. Of course, this directly depends on the ability
to quickly adapt
to constant change, maintain social cohesion, and readiness
to consolidate and summon
all the available forces in order to move forward.
We always need to be strong, but
this strength can take on different forms. The “empire
of lies,” which I mentioned in the beginning of my speech, proceeds in its policy primarily
from
rough, direct force. This is when our saying on being “all brawn and no brains”
applies.
We all know that having justice and truth on our side is what makes us truly strong. If this
is the case, it would
be hard to disagree with the fact that it is our strength and our
readiness to fight that are the bedrock of independence and sovereignty and provide
the necessary foundation for building a reliable future for your home, your family,
and your
Motherland.
Dear compatriots,
I am certain that devoted soldiers
and officers of Russia’s Armed Forces will perform their
duty with
professionalism and courage. I have no doubt that the government institutions
at all levels and specialists will work effectively to guarantee the stability of our economy,
financial system and social wellbeing, and the same applies to corporate
executives
and the entire business community. I hope that all parliamentary
parties and civil society
take a consolidated, patriotic position.
At the end of the day, the future of Russia is in the hands of its multi-ethnic people, as has
always been the case
in our history. This means that the decisions that I made will be
executed,
that we will achieve the goals we have set, and reliably guarantee the security
of our Motherland.
I believe in your support and the invincible force rooted
in the love for our Fatherland.
Published in sections: News, Transcripts
Publication date: February 24, 2022, 06:00
Direct link: en.kremlin.ru/d/67843
54
Annex 7
Permanent Mission of the Russian Federation to the United Nations, Statement and
Reply by Permanent Representative Vassily Nebenzia at UNSC Briefing on Ukraine (23
February 2022)
55
56
PERMANENT MISSION OF THE RUSSIAN FEDERATION TO THE UNITED
NATIONS
RUSSIAUN.RU
Statement and reply by Permanent Representative Vassily
Nebenzia at UNSC briefing on Ukraine
23 February 2022
Colleagues,
We have had a very intense day in terms of discussing the Ukrainian crisis. I will not repeat what I said at the
General Assembly in the morning. I can only state with regret that at the end of the day Ukraine did not heed
our signals that we sent to Kiev about the need to stop provocations against LPR and DPR.
It seems that our Ukrainian colleagues, whom certain states have been arming and nudging lately, are still
under a delusion that with a blessing of Western sponsors, they may secure a military solution to the problem
of Donbas. Otherwise, it is hard to explain intensification of fire and acts of sabotage on the territory of the
republics. Over past 24 hours, OSCE SMM made records of almost 2,000 ceasefire violations, including
almost 1,500 explosions. People of Donetsk and Lugansk still have to hide in basements. Refugees
continuously flow to Russia. In a word, the nature of provocations of Ukraine’s Armed Forces has not
changed. But you do not want to notice that and prefer repeating Ukraine’s telltales, according to which the
people of Donbas all but bombard themselves.
It is surprising that steepening sufferings of the people of Donbas do not touch our Western colleagues. During
today’s debate at the General Assembly you found no words to express sympathy and support to them. It
seems that for you, those 4 million people do not exist. I would like to remind that the principle of sovereignty
and territorial integrity of states, of which violation we are being accused with regard to Ukraine, as stipulated
in 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among
States, must be strictly observed with regard to states that are “conducting themselves in compliance with the
principle of equal rights and self-determination of peoples and thus possessed of a government representing
the whole people belonging to the territory without distinction as to race, creed or colour.” The current
government of Ukraine is not like this. By the way, the tragedy of Ukraine started after the illegitimate Maidan
coup in 2014, when instead of talking to the Russian-speaking population, new Ukrainian authorities
confronted them with guns and aviation. There is enough information and evidence on that matter, however
our Western partners prefer to not notice it.
Yesterday and earlier today we tried to explain to you the logic of decisions on recognition of DPR and LPR
made by the Russian leadership, accentuated the need to ensure peace and security on those territories. But
you would not listen. To you, the people of Donbas are but a bargaining chip in the geopolitical game that
seeks to weaken Russia and bring NATO closer to our borders. Whereas to us, those are women, children,
elderly people who had to hide from Ukrainian bombardments and provocations for 8 years by now. To us,
this is the Ukrainian people that suffers under the sway of the Maidan authorities. This is what makes our
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approaches different. Unless you take off this geopolitical lens, you cannot ever understand us. But those for
whose sake those decisions were made, those whom you disregarded for 8 years and only called pro-Russian
separatists and terrorists – those people are truly grateful to us. And this is what really matters for us.
I repeat that the root cause of this Ukrainian crisis is Ukraine’s acts and its years-long sabotage of direct
obligations under the Minsk Package. Last week we still hoped that Kiev would think better and finally
implement what it committed to back in 2015. What was needed for that was a direct dialogue with Donetsk
and Lugansk. However another confirmation of Ukraine’s unreadiness for such dialogue, for steps towards
granting a special status (that was enshrined in the Minsk Agreements) to Donbas, and explicit support for that
on the part of Ukraine’s Western patrons finally convinced us that we had no right to make the people of
Donbas suffer further on.
As I said, Ukraine’s provocations against Donbas not only failed to stop, but actually intensified, that is why
the leadership of DPR and LPR turned to us with a request to grant military support under bilateral agreements
on cooperation that had been signed simultaneously with the recognition of Donetsk and Lugansk. This is a
logical step that clearly follows from the acts of Ukrainian regime.
While we were in this meeting, President of Russia Vladimir Putin made an address to say that he decided to
start a military operation in Donbas. We do not know all the details yet, but let me tell you briefly – what
clearly follows from his message is that occupation of Ukraine is not part of our plan. The goal of this special
operation is protection of people who have been victimized and exposed to genocide by the Kiev regime. To
ensure this, we will seek demilitarization and denazification of Ukraine, and criminal prosecution for those
who committed numerous heinous crimes against civilians, including citizens of the Russian Federation.
This decision was made as per Article 51 of the UN Charter and authorized by the Federation Council of the
Federal Assembly of Russia in pursuance of the Treaty of Friendship, Cooperation and Mutual Assistance
with DPR and LPR.
There is plenty of incoming information on that matter which is yet to be verified. We will keep you updated.
Thank you.
In response to the representative of Ukraine:
I am not going to take any questions today. I gave you what I know at this moment, and I will not wake up
Minister Lavrov at this hour. As we said, we will share information as to the latest developments. Do not call
it a war. It is called a special military operation in Donbas.
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Annex 8
President of Russia Vladimir Putin, Remarks at the Concert Marking the Anniversary of
Crimea's Reunification with Russia (18 March 2022)
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Concert marking the anniversary of Crimea's
reunification with Russia
Vladimir Putin attended a concert marking eight years since Crimea's
reunification with the Russia, at the Luzhniki Sports Centre in Moscow.
March 18, 2022 16:15 Moscow
President of Russia Vladimir Putin: "We, the multi-ethnic nation of the Russian
Federation, united by corn mon fate on our land ... " These are the first words of our
fundamental law, the Russian Constitution. Each word has deep meaning and enormous
significance.
On our land, united by corn mon fate. This is what the people of Crimea and Sevastopol
must have been th in king as they went to the referendum on March 18, 2014. They lived
and continue to live on their land, and they wanted to have a corn mon fate with their
historical motherland, Russia. They had every right toit and they achieved their goal. Let's
congratulate them first because it is their holiday. Happy anniversary!
Over these years, Russia has done a great deal to help Crimea and Sevastopol grow. There
were things that needed to be done that were not immediately obvious to the unaided eye.
These were essential things such as gas and power supply, utility infrastructure, restoring
the road network, and construction of new roads, motorways and bridges.
We needed to drag Crimea out of that humiliating position and state that Crimea
and Sevastopol had been pushed into when they were part of another state that had only
provided leftover financing to these territories.
There is more to it. The fact is we know what needs to be done next, how it needs to be
done, and at what cost - and we will fulfil all these plans, absolutely.
These decisions are not even as important as the fact that the residents of Crimea
and Sevastopol made the right choice when they put up a firm barrier against neo-Nazis
and ultra-nationalists. What was and is still happening on other territories is the best
indication that they did the right thing.
People who lived and live in Don bass did not agree with this coup d'etat, either. Several
punitive military operations were instantly staged against them; they were besieged
and subjected to systemic shelling with artillery and bombing by aircraft - and this is
actually what is called "genocide."
The main goal and motive of the military operation that we launched in Don bass
and Ukraine is to relieve these people of suffering, of this genocide. At this point, I recall
the words from the Holy Scripture: "Greater love hath no man than this, that a man lay
down his life for his friends." And we are seeing how heroically our military are fighting
during this operation.
These words come from the Holy Scripture of Christianity, from what is cherished by those
who profess this religion. But the bottom line is that this is a universal value for all nations
and those of all religions in Russia, and primarily for our people. The best evidence of this
is how our fellows are fighting and acting in this operation: shoulder to shoulder, helping
and supporting each other. If they have to, they will cover each other with their bodies
to protect their comrade from a bullet in the battlefield, as they would to save their brother.
It has been a long time since we had such unity.
It so happened that, by sheer coincidence, the start of the operation was same day
as the birthday of one of our outstanding military leaders who was canonised - Fedor
Ushakov. He did not lose a single battle throughout his brilliant career. He once said that
these thunderstorms would glorify Russia. This is how it was in his time; this is how it is
today and will always be!
Thank you!
Publication status Published in sections: News, Transcripts
Publication date: March 18, 2022, 16:15
Direct link: en.kremlin.ru/d/68016
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Annex 9
Investigative Committee of the Russian Federation, The Investigative Committee
Opened a Criminal Investigation Concerning the Genocide of the Russian-
Speaking Population in the South-East of Ukraine (29 September 2014)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
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The Investigative Committee opened a criminal investigation
concerning the genocide of the Russian-speaking population in
the south-east of Ukraine
The Main Investigation Department of the Investigative Committee of Russia initiated a
criminal case concerning the genocide of the Russian-speaking population living on the
territory of the Luhansk and Donetsk People's Republics (Article 357 of the Criminal Code of
the Russian Federation). The investigation found that in the period from 12 April 2014 to the
present, in violation of the 1948 Convention "On the Prevention and Punishment of the Crime
of Genocide," as well as other international legal acts condemning genocide, unidentified
persons from among the top political and military leadership of Ukraine, the Armed Forces of
Ukraine, the National Guard of Ukraine and the "Right Sector" gave orders aimed to
completely destroy specifically the Russian-speaking population living on the territory of the
Donetsk and Luhansk republics. The investigation established that the killings of Russianspeaking
citizens were carried out using the Grad and Uragan multiple launch rocket systems,
unguided rockets with a cluster warhead, Tochka-U tactical missiles, and other types of
heavy offensive weapons of indiscriminate action. As a result of these actions, at least two
and a half thousand people died. In addition, more than 500 residential buildings, public
utilities and life support facilities, hospitals, children's and educational institutions were
ruined and destroyed on the territory of the Donetsk and Luhansk republics, as a result of
which more than 300 thousand residents, fearing for their lives and health, were forced to
leave their permanent places of residence and seek asylum in the territory of the Russian
Federation. All these listed facts and evidence, already collected by the Russian investigation,
confirm that the actions of persons from among the Ukrainian political and military
leadership who gave orders for the destruction of the Russian-speaking population are fall
under not only in Russian legislation, but also in the norms of international law. As for the
Criminal Code of the Russian Federation, the article for genocide provides for punishment in
the form of imprisonment for up to twenty years or the death penalty.
Head of Department V.I. Markin
29 September 2014 19:10
Page address: https://sledcom.ru/news/item/523738
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Annex 10
Investigative Committee of the Russian Federation, Kommersant: “Ukraine Has
Been Compared to South Osetia” (30 September 2014)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
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Kommersant: "Ukraine has been compared to South Osetia."
The Investigative Committee found signs of genocide in the killings of civilians
The Investigative Committee of Russia decided to qualify the events in the south-east of Ukraine as genocide
of the Russian-speaking population by initiating a criminal case under the relevant article of the Criminal
Code. Earlier, the incident was investigated as the use of prohibited methods of warfare, during which killings
and other serious crimes were committed.
Alexander Drymanov, the Chairman of the Department of the Investigative Committee of Russia for the
Investigation of Crimes Related to the Use of Prohibited Means and Methods of Warfare in Ukraine, initiated
a criminal case on genocide (Article 357 of the Criminal Code of the Russian Federation) of the Russianspeaking
population living in the territory of the self-proclaimed Luhansk and Donetsk People's Republics.
The investigation found that from 12 April 2014 to the present day, in violation of the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide, as well as other international legal acts condemning
genocide, "unidentified persons" from among the highest political and military leadership of Ukraine, the
armed forces of this country, the National Guard and the "Right Sector" gave orders aimed at the eradication
of Russian-speaking citizens living on the territory of the DPR and LPR, said Vladimir Markin, the official
representative of the Investigative Committee.
For this purpose, Mr. Markin noted, Ukrainian security forces used "Grad" and "Uragan" multiple rocket
launcher systems, Tochka-U tactical missiles, cluster bombs, and other heavy weapons of indiscriminate
effect. According to the investigation, at least 2,500 civilians became victims of such attacks. In addition,
more than 500 residential buildings, public utilities and life support facilities, hospitals, children's and
educational institutions were destroyed or damaged on the territory of the unrecognized republics. All this led
to the fact that more than 300,000 residents of the southeast were forced to leave Ukraine, moving to Russia.
Another reason for the new qualification of the actions of the Ukrainian security forces was the mass graves
of killed civilians, which were found in the south-east of Ukraine.
If Article 356 of the Criminal Code of the Russian Federation, under which a criminal case was initially
initiated on the events in Ukraine, provides for 10 to 20 years in prison, the new article provides for a life
sentence.
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At the same time, it should be recalled that Mr. Drymanov already has experience in investigating cases of
genocide. It was under Article 357 of the Criminal Code of the Russian Federation that he qualified the
actions of the Georgian security forces in South Osetia in 2008. The investigation of the case of the genocide
of the South Osetian population has long been completed, but its materials have not been submitted to the
court of general jurisdiction in Russia. But the results of the investigation were sent to the International
Criminal Court and the ECHR, to which the victims of the genocide appealed. Obviously, the same fate
awaits the materials of the new genocide case.
30 September 2014
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Annex 11
Investigative Committee of the Russian Federation, A Criminal Case Has Been
Initiated Against a Number of High-Ranking Officials of the Armed Forces of
Ukraine (2 October 2014)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
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A criminal case has been initiated against a number of
high-ranking officials of the armed forces of Ukraine
The Main Investigation Department of the Russian Investigative Committee initiated a
criminal case against the Minister of Defense of Ukraine Valeriy Heletey, the Chief of the
General Staff of the Armed Forces of Ukraine Viktor Muzhenko, the Commander of the 25th
Brigade of the Armed Forces of Ukraine Oleg Mykas, as well as other unidentified persons
from among the commanders of the 93rd Brigade of the Armed Forces of Ukraine, and a
number of senior officials from among the military leadership of Ukraine. According to the
investigation, the actions of all the named persons show signs of crimes under Part 3 of Art.
33, paragraphs "a", "b", "e", "g", "l" of part 2 of Art. 105, part 3 of Art. 33, part 1 of Art. 356,
part 3 of Art. 33, art. 357 of the Criminal Code of the Russian Federation, that is, the
organization of murders, the use of prohibited means and methods of warfare and genocide.
Geletey, Muzhenko, Mykas and the commanders of the 93rd brigade (AFU), deliberately, in
violation of the 1948 Convention "On the Prevention and Punishment of the Crime of
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Genocide" and other international legal acts condemning genocide, gave orders for the
complete destruction of the national group of Russian-speaking persons living on the territory
of the self-proclaimed Luhansk and Donetsk People's Republics. In pursuance of these
orders, during the shelling of the cities of Donetsk, Luhansk, Slavyansk, Kramatorsk and
other settlements of the self-proclaimed Donetsk and Luhansk People's Republics,
subordinate military personnel used the Grad and Uragan multiple launch rocket systems,
aviation unguided rockets with a cluster warhead, tactical missiles "Tochka-U", other types of
heavy offensive weapons of indiscriminate action. More than 3,000 civilians were killed as a
result. In addition, more than 5,000 civilians were harmed with varying degrees of severity,
more than 500 residential buildings, public utilities and life support facilities, hospitals,
children's and educational institutions were completely or partially destroyed and burned, as a
result of which more than 300 thousand residents of these republics, fearing for their lives
and health, were forced to leave their places of permanent residence, arriving on the territory
of the Russian Federation. As part of the investigation, the investigators plan to issue
resolutions on the involvement of these persons as accused and further put them on the
international wanted list. Until now, despite the declared truce, peaceful people are dying in
Donbas every day. And it is quite obvious that this is happening either as a result of direct
orders from the Minister of Defense, or with his tacit consent. And he will bear responsibility
for this, from which even a trick of signing an oath with a pen with a closed cap will not save
him. By the way, let me remind him and his accomplices that such crimes have no statute of
limitations.
Head of Department V.I. Markin
02 October 2014 10:15
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Annex 12
Investigative Committee of the Russian Federation, A Criminal Investigation was
Initiated Over New Facts of Genocide of Russian-Speaking Civilians During
Shelling of Towns and Settlements in Donbas (13 January 2015)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
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A criminal investigation was initiated over new facts of
genocide of Russian-speaking civilians during the shelling
of towns and settlements in Donbas
The Main Investigative Directorate of the Investigative Committee of Russia has opened a
criminal investigation into the facts of mass shelling of the cities of Donetsk, Gorlovka,
Dokuchaevsk and Olenivka, as well as other settlements from multiple rocket launchers
"Grad" and "Uragan," self-propelled artillery mounts "Acacia" and "Gvozdika," other heavy
weapons, including those using incendiary ammunition, during the period from 01.12.2014 to
12.01.2015. As a result of these shellings, more than 40 people were killed, more than 120
received injuries of varying severity, residential buildings were partially or completely
destroyed in the cities of Donbas, as well as social infrastructure and communications
facilities. In total, since the beginning of the so-called "anti-terrorist operation" in the southeast
of Ukraine, more than 4,800 people have been killed, more than 10,500 received injuries
of varying severity, more than 1,000 residential buildings, public utilities and life support
facilities have been completely or partially destroyed and burned, in connection with that
more than 500,000 civilians were forced to leave their places of permanent residence,
arriving on the territory of the Russian Federation. The actions of persons from among the top
political and military leadership of Ukraine, who command the so-called "anti-terrorist
operation" conducted in the south-east of Ukraine, as well as the commanders of the
Ukrainian nationalist battalions "Aidar", "Azov" and "Dnipro" controlled by them, can only
be qualified as genocide (Article 357 of the Criminal Code of the Russian Federation), that is,
the destruction of the Russian-speaking population. This criminal case will be connected in
one proceeding with the previously initiated criminal case on the use of prohibited means and
methods of warfare. It should be noted that such acts carried out by the Ukrainian military
constitute especially grave crimes not only under Russian law, but also under the norms of
international law. In particular, the Protocol on the cessation of the use of weapons in the
south-east of Ukraine (Minsk, 05.09.2014) and the Memorandum to it (Minsk, 19.09.2014),
as well as the provisions of the Convention on the Protection of Civilian Persons in Time of
© 2007-2022 Investigative Committee of the Russian Federation
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War (Geneva, 12.08. 1949) and its Additional Protocol II, the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be
Excessively Injurious or to Have Indiscriminate Effects (New York, 10.10.1980), the
Convention on the Prevention and Punishment of the Crime of Genocide (Paris, 09.12.1948)
and others. This is not the first criminal case that the Russian Investigative Committee
prosecutes in connection with the killing of civilians in the Donbass, including elderly
people, children, journalists, and Russian nationals. Apparently, trying to hide the names of
these military men from the international community, the Ukrainian command, obviously
hoping that no one would recognize them, carried out a rotation. But this is their naive
delusion! There is no doubt that in this case, too, Russian investigators will use all the legal
efforts and means at their disposal to not only establish the names of those newly minted
"fighters" with the civilian population of Donbas and add to the list of defendants in the
criminal case, but also to make them public in order for the whole world to learn as to whose
hands are creating lawlessness in the south-east of Ukraine. At the same time, it looks
absolutely cynical that the whole world responded so unanimously to the tragedy in France
and also unanimously does not notice the more cynical and barbaric crimes that are
committed daily by the Ukrainian authorities in Donbas. As for the legal grounds for bringing
Ukrainian military and mercenaries to criminal liability, Russian legislation, in accordance
with Part 3 of Article 12 of the Criminal Code of the Russian Federation, gives us the right to
bring foreign citizens who have committed a crime outside of the Russian Federation to
criminal liability in cases where the crime is directed against a citizen of the Russian
Federation, as well as in cases provided for by an international treaty of the Russian
Federation, if foreign citizens have not been convicted in a foreign state and are held
criminally liable in the territory of the Russian Federation.
Head of Department V.I. Markin
13 January 2015 15:10
Page address: https://sledcom.ru/news/item/886833
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Annex 13
Investigative Committee of the Russian Federation, Criminal Proceedings
Have Been Initiated Against High-Ranking Ukrainian Military Personnel, as
Well as Against Oleg Lyashko, a Member of Parliament (10 September 2015)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
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Criminal proceedings have been initiated against high-ranking
Ukrainian military personnel, as well as against Oleg Lyashko, a
member of parliament
The Main Investigation Department of the Investigative Committee of Russia has opened a
criminal case against the Minister of Defense of Ukraine Stepan Poltorak, the Chief of the
General Staff of the Ministry of Defense of Ukraine Viktor Muzhenko, the Commander of the
Army of the Armed Forces of Ukraine Anatoly Pushnyakov, the Commander of the National
Guard of Ukraine Mykola Balan and other unidentified persons from among servicemen of the
Armed Forces of Ukraine and the National Guard of Ukraine. They are suspected of
committing crimes under Part 1 of Article 356 and Article 357 of the Criminal Code (use of
prohibited means and methods of warfare and genocide).
Thus, in the period from 31 May to 1 September 2015, unidentified persons from among the
military personnel of the Armed Forces of Ukraine and the National Guard of Ukraine,
following the deliberately criminal orders of Poltorak, Muzhenko, Pushnyakov and Balan in
order to destroy the national group of the Russian-speaking population living on the territory
of the self-proclaimed Donetsk People's Republic, carried out targeted artillery shelling using
heavy types of weapons (caliber not less than 122 mm) of civilian infrastructure objects that
are not military targets in the settlements of the republic.
The investigation believes that Ukrainian servicemen violated: the Protocol on the cessation of
the use of weapons in the south-east of Ukraine (Minsk, 05.09.2014) and the Memorandum to
it (Minsk, 19.09.2014), the provisions of the Convention on the Protection of Civilian Persons
in Time of War (Geneva, 12.08.1949) and Additional Protocol II (Geneva, 08.06.1977) to it,
the Convention on the Prevention and Punishment of the Crime of Genocide (Paris,
09.12.1948), the Convention on the Rights of the Child (New York, 20.11.1989).
As a result of these artillery shellings, 45 people died, more than 160 people were injured, at
least 163 objects were ruined or partially destroyed, including residential buildings, a court
building, a mine substation, etc.
In addition, the Main Investigation Department of the Investigative Committee of Russia
initiated a criminal case against the member of the Verkhovna Rada of Ukraine of the 7th
convocation Oleg Lyashko and other persons from among the fighters of the Azov battalion on
the grounds of crimes under paragraphs "a", "c" of part 2 of Art. 126, paragraphs "d," "e" of
part 2 of Art. 117, part 1 of Art. 356 of the Criminal Code of the Russian Federation (abduction
of a person, torture, use of prohibited means and methods of warfare).
According to investigators, on 17 September 2014, four fighters of the Azov battalion,
following orders of Oleg Lyashko, who is the creator of the Azov battalion, illegally entered
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the apartment of Dmitry Chaikovsky, a resident of the city of Mariupol. After searching the
apartment, the suspects tied Chaikovsky's hands and, using violence, took him to the location
of the Azov battalion, and then placed him in a metal container. During the day, Lyashko,
together with the fighters of the named battalion, severely beat the victim, and also threatened
to kill him, demanding to provide information about the possible possession of a stolen weapon.
Subsequently, the suspects took Chaikovsky in the trunk of a car to a wasteland, continuing the
torture, but then released him without receiving any information.
Initiating these criminal cases, the Investigative Committee was guided by Part 3 of Art. 12 of
the Criminal Code of the Russian Federation, which gives us the right to bring foreign citizens
who have committed a crime outside the Russian Federation to criminal liability in cases where
the crime is directed against a citizen of the Russian Federation, as well as in cases provided
for in an international treaty of the Russian Federation, if foreign citizens have not been
convicted in a foreign state and are held criminally liable in the territory of the Russian
Federation.
Currently, investigative actions are being carried out aimed at establishing all the circumstances
of the crimes committed.
Head of Department V.I. Markin
10 September 2015 11:32
Page address: https://sledcom.ru/news/item/965853
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Annex 14
Investigative Committee of the Russian Federation, Criminal Cases Have Been
Initiated Against 20 High-Ranking Officials of the Ministry of Defense of Ukraine
(11 September 2017)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
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Criminal cases have been initiated against 20 high-ranking officials of
the Ministry of Defense of Ukraine
Collecting evidence of crimes against the peace and security of mankind in south-east Ukraine, the
Investigative Committee has documented dozens of facts of crimes
against the Russian-speaking population of Donbas. In some cases, the investigation has already identified
specific military personnel involved in them, in other cases they have yet to be
identified. The systematic nature of these crimes, the manner and the circumstances clearly
indicate that they are organized and coordinated by the same people —
high-ranking officials of the Ministry of Defense of Ukraine.
We have already provided a legal assessment of certain acts recorded since the beginning of the conflict. Since
the crimes are being committed to this day, the Main Investigation Department of the Investigative Committee
of Russia initiated an additional 20 criminal cases against the Minister of Defense of Ukraine Stepan Poltorak,
his deputies Oleg Rusnak, Ivan Shevchuk, Igor Pavlovsky, Alexander Dublan, Chief of General Staff Viktor
Muzhenko, as well as his first deputies and deputies Igor Kolesnik, Serhiy Bessarab and Volodymyr Khizhego,
officials in charge of intelligence, ground troops and air forces, including special operations: Sergei Popko,
Vasily Burba, Sergei Naev, Anatoly Pushniakov, Alexander Krasnook,
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Alexander Pavlyuk, Andrei Grishchenko, Alexander Lokota, Sergei Drozdov, Mikhail Zabrodsky, Igor Lunev
and Igor Voronchenko. The investigation is of the view that their actions constitute crimes under Articles 356
and 357 of the Criminal Code of the Russian Federation (use of prohibited means and methods of warfare,
genocide).
According to the investigation, in the period of 2016-2017, these persons, in violation of the Protocol on the
cessation of the use of weapons in the south-east of Ukraine and the Memorandum thereto, as well as the
provisions of the Convention on the Protection of Civilian Persons in Time of War and its Additional Protocol
II, the Convention on the Rights of the Child, the Convention on the Prevention and Punishment of the Crime
of Genocide and others, exercising the general control over military operations, gave deliberately criminal
orders to the soldiers of the law enforcement agencies of Ukraine to conduct targeted artillery shelling of
civilian infrastructure located in settlements of the self-proclaimed Donetsk and Luhansk People's Republics
using heavy types of weapons with high damaging properties. It is obvious that all these persons acted out of
hatred to the Russian-speaking population living in the Donbass, wishing them to die. This is clearly evident
by the results of the shelling - 110 civilians were killed and 430 civilians, who were not related to the armed
conflict, were injured. There are children, women and pensioners among them. More than 1,285 infrastructure
facilities, including residential buildings, schools, hospitals and other civilian facilities, have been destroyed or
partially destroyed, which once again confirms the desire of the Ukrainian military to eradicate the Russianspeaking
population and to prevent them from deciding for themselves how to live.
In the near future, the individuals involved in the criminal case will be indicted and then put on a wanted list.
The Investigative Committee of Russia continues investigative actions aimed at collecting evidence of crimes
against peace and security of mankind committed by officials of the Ukrainian security services.
Official representative
of the Investigative Committee S. Petrenko
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11 September 2017
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Annex 15
Investigative Committee of the Russian Federation, Alexander Bastrykin Gave a
Lecture for Students of the Moscow State Institute of International Relations
(MGIMO) on the Investigation of War Crimes (25 November 2017)
This document has been translated from its original
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pursuant to Rules of the Court, Article 51.
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Alexander Bastrykin gave a lecture for the students of the
Moscow State Institute of International Relations (MGIMO) on
the investigation of war crimes
The Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs
of Russia hosted a meeting of Doctor of Law, Professor Alexander Bastrykin, with students. The
topic of his speech was: "The activities of the Investigative Committee of the Russian Federation in
carrying out criminal prosecutions for war crimes using the example of South Osetia and Ukraine."
Before proceeding to the content of the given topic, the Chairman of the Investigative Committee of
Russia thanked the Rector of MGIMO, Academician of the Russian Academy of Sciences, Doctor of
Political Sciences, Professor Anatoly Torkunov for "providing the opportunity to meet within the
walls of one of the country's unique educational institutions, which has created a scientific base for
in-depth study of almost any aspect of international relations." Alexander Bastrykin emphasized the
relevance of the chosen profession of a diplomat and its growing role in modern conditions "in the
search for effective answers to the large-scale challenges of our time."
Turning to the coverage of "problems of implementing the norms of international humanitarian
law in relation to a situation in which Russia cannot remain indifferent for objective reasons,"
the Chairman of the Investigative Committee of Russia recalled the reasons and goals of creating ad
hoc international
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and mixed criminal tribunals designed to investigate international crimes, including war crimes.
"And if in some cases we can talk about the desire to follow the principle of inevitability of
punishment for committed criminal acts, then it is impossible not to pay attention to examples
when the world community ignores the facts of committing international crimes, including
serious violations of international humanitarian law," stressed the Head of the Investigative
Committee.
As part of his speech, Alexander Bastrykin dwelled in detail on such issues as the observance of
the world law and order, including the norms of international humanitarian law, the timeliness
of the investigation and trial of crimes against the peace and security of mankind, the collection of
evidence in the investigation of crimes of this category, bringing international criminals to justice.
The role of national bodies of preliminary investigation and judicial bodies of states that, by virtue of
the norms of international law and domestic legislation, are able to exercise jurisdiction, including
extraterritorial jurisdiction, as well as the grounds for extending the extraterritorial jurisdiction
of the Russian Federation to crimes committed abroad, were discussed in detail.
Alexander Bastrykin cited some results of the investigation of the criminal case on the facts of
the genocide of the ethnic group of Osetians and the massacres of citizens of the Russian Federation
living in the territory of South Osetia, and Russian peacekeepers: "being directly in the zone of armed
conflict and working practically in combat conditions, the staff of the Investigative Committee
of Russia established all the circumstances of the Georgian armed aggression. During the
investigation of the criminal case, more than 5,000 persons from among the civilian population of the
republic and Russian military personnel were recognized as victims, and more than 1,000 witnesses
were interrogated, whose testimonies confirm the facts of the genocide. More than 30,000 items
and documents have been recognized as material evidence. Official documents of the Armed
Forces of Georgia were found and confiscated in the conflict zone. Numerous violations by the
Georgian Party of international treaties on the principles of settling the Georgian-South Osetian
conflict, norms of international humanitarian law and universally recognized human and civil
rights and freedoms have been documented. The consequences of the treacherous armed
invasion were the murders of 162 civilians in South Osetia, as well as causing harm of varying
severity to the health of 255 citizens of the Republic. On the basis of the evidence collected during
the investigation, indictment orders concerning the former Ministers of Defense and the Ministry of
Internal Affairs of Georgia and a number of other high-ranking servicemen of Georgia were issued.
They escaped from the preliminary investigation authorities, and therefore were put on the
international wanted list. In January 2016, the International Criminal Court authorized the
prosecutor of this court to commence an investigation of the events that took place on the territory of
South Osetia in October 2008. However, the ICC turned the circumstances of the case 'upside
down', leaving the facts of mass murder and mutilation of the Osetian part of the population of
South Osetia and the forced resettlement of 16,000 Osetians from their place of residence outside
the scope of the investigation. At the same time, the conclusion of the ICC was made contrary to the
irrefutable evidence presented by the Investigative Committee – a copy of the case file, which
includes more than 33 volumes, as well as a significant amount of photo and video materials.
The ICC also ignored the Judgement of the International Court of Justice in the Hague dated 01
April 2011 which terminated the legal action of Georgia against the Russian Federation on the
application of the norms of the International Convention on Elimination of All Forms of Racial
Discrimination."
The Chairman of the Investigative Committee paid particular attention to the events in the south-east of
Ukraine, which "fall under the concept of a non-international armed conflict, as defined in the
Additional Protocol to the Geneva Conventions as of 12 August 1949 Relating to the
Protection of
© 2007-2022 Investigative Committee of the Russian Federation 92
Victims of Non-International Armed Conflicts, and in connection with this is governed by the norms of
international humanitarian law, which is officially recognized by the International Committee of
the Red Cross."
In addition, he announced some data on the progress of the investigation: "Since 2014 to the present,
196 criminal cases have been initiated with 127 people being prosecuted. Among them are high-ranking
officials of the Ministry of Defense of Ukraine, including the Minister of Defense of Ukraine Poltorak,
his deputies, the Head of the General Staff Muzhenko and his deputies. These persons in violation of
the Protocol on the Cessation of the Use of Weapons in the South-East of Ukraine and the Memorandum
thereto, as well as the provisions of the Convention relative to the Protection of Civilian Persons in
Time of War, the Convention on the Rights of the Child, the Convention on the Prevention and
Punishment of the Crime of Genocide and other regulatory legal acts issued deliberately criminal orders
to carry out targeted artillery shelling of civilian infrastructure and settlements of the selfproclaimed
Donetsk and Luhansk People's Republics." Mr. Bastrykin explained that the
Investigative Committee is prosecuting war criminals and nationalists who kill the civilian population
of south-east Ukraine and our compatriots (we are talking about Russian journalists and residents
of Russian settlements who suffered from shelling from the territory of Ukraine).
Concluding the lecture, Alexander Bastrykin thanked those present for their attention, emphasizing
that "the history of our great Motherland bears evidence of the terrible war crimes of the fascist
regime and the price that the fraternal peoples of the Soviet Union and the whole world paid for to
ensure that the criminals receive the punishment they deserve. And only by not allowing ourselves to
forget the lessons of history and by following the legal postulates formulated by the post-war era, will
we be able to ensure the peaceful and dignified existence of future generations."
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25 November 2017
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Annex 16
Investigative Committee of the Russian Federation, The Chairman of the
Investigative Committee of Russia Took Part in the International Scientific and
Practical Conference “Crimes Against Peace” (30 November 2018)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
95
96
The Chairman of the Investigative Committee of Russia took part
in the international scientific and practical conference "Crimes
against peace"
Today the Chairman of the Investigative Committee of Russia Alexander Bastrykin took part
in the international scientific and practical conference titled "Crimes against peace" at the All-
Russian State University of Justice (the Russian Academy of Law of the Ministry of Justice of
Russia). Employees of the central offices of the Investigative Committee of Russia, the
Prosecutor General's Office, the Supreme Court, the Federal Security Service, the Ministry of
Internal Affairs of Russia, prominent scientists in the field of international law, and foreign
guests attended the event.
Alexander Bastrykin made a presentation titled "Crimes against humanity: history and
modernity." He recalled that in 1950 the International Law Commission summarized the
activities of the Nuremberg Military Tribunal and formulated the fundamental principles that
were reflected in its decision. These principles, recognized by the entire international
community, became at that time the foundation for the formation of international criminal law.
The Chairman of the Russian Investigative Committee paid special attention to principle VI,
97
according to which war crimes, crimes against peace and humanity are punished as
international legal crimes.
Since its inception, the Investigative Committee of Russia has been actively and consistently
involved in the investigation of crimes against the peace and security of mankind. The evidence
collected by the Investigative Committee of Russia should form the basis of the charges against
those who fire daily at civilians and give such orders.
The Chairman of the Investigative Committee of Russia noted that today the investigators of
the Investigative Committee are investigating criminal cases that involve more than 230
episodes of criminal activity of Ukrainian military personnel. These are the use of prohibited
means and methods of warfare, shelling of civilian infrastructure and the genocide of the
Russian-speaking population of the self-proclaimed DPR and LPR. "When one military is
fighting against another military, this can be understood, but when the military destroy women,
children, the elderly, it is impossible to comprehend. The worst thing is that these are not
careless crimes, but deliberate ones. We are recording numerous facts of the Ukrainian military
destroying schools, maternity hospitals, and residential areas with aimed fire," the
Chairman of the Investigative Committee of Russia emphasized.
Alexander Bastrykin expressed his conviction that specialists in the field of both international
and national law need to move forward, while starting from the basic provisions of the Charter
of the Nuremberg Tribunal and taking into account modern realities, as well as actively work
in the international sphere, defending Russia's national interests.
During the conference, the participants discussed the effectiveness of law enforcement practice
in connection with legislative novelties on crimes against peace.
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Annex 17
Investigative Committee of the Russian Federation, International Day of
Commemoration for the Victims of Genocide (9 December 2019)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
99
100
International Day of Commemoration for the Victims of Genocide
On 9 December, it is customary to remember and honor the memory of the people who became victims
of genocide. It was this day in 2015 that was proclaimed by the UN General Assembly as the
International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the
Prevention of this Crime.
The date is not accidental - on 9 December 1948, the General Assembly adopted the Convention on the
Prevention and Punishment of the Crime of Genocide, to which more than a hundred states, including
our country, remain parties. The term "genocide" was used in legal practice as early as the Nuremberg
Trials, and the Convention became the first international act to enshrine the concept of genocide.
Unfortunately, the history of mankind knows many examples of this monstrous crime. Among them are
the mass extermination of individual peoples and the extermination of entire class groups of people
committed by supporters of the Wehrmacht and followers of the Nazis. For several generations, with a
shudder and pain in their souls, they have been remembering the horrors and atrocities of the Nazis,
101
documented and forever remaining in world history.
We have not forgotten the facts of the genocide of the Great Patriotic War. The Investigative Committee
of the Russian Federation is investigating a criminal case about the events of October 1942, when more
than 200 children were killed by members of the SS-10 "a" Sonderkommanda in order to carry out
punitive operations to destroy Soviet citizens in the Yeisk orphanage. There is also an ongoing criminal
investigation into the punitive operation during the occupation of the village of Zhestyanaya Gorka
in 1942 (now Novgorod Oblast). According to archival materials, a "Tailkommanda" of the security
police and SD [from German Sicherheitsdienst standing for Security Service] was formed for the mass
murder of Soviet citizens from among the civilian population.
Guided by the norms of both national and international law, investigators, of course, cannot stand aside
when acts of genocide are committed in our time. The Investigative Committee of Russia is investigating
crimes of genocide of the Russian-speaking population of Donbas, where civilians are dying at the hands
of the Ukrainian military under targeted fire. The Russian investigation recorded the facts of the
genocide in 2008 of the ethnic group of Osetians, mass killings of citizens of the Russian Federation
who lived in South Osetia, and Russian peacekeepers. During the investigation of the circumstances of
the Georgian armed aggression, over 1,000 witnesses were interrogated, whose testimony, along with
other evidence, confirmed the commission of a crime against humanity.
There is no excuse for genocide. And this day serves not only as a reminder of its consequences –
colossal, destructive and painful losses for all mankind, but also as a warning about the inevitability of
responsibility and the inadmissibility of any manifestations of this crime. Remembering the lessons of
history, it is impossible to leave unpunished the commission of brutal acts of violence against certain
groups of the population, regardless of the statute of limitations of their commission. Not a single fact
of criminal actions based on the ideas of racial superiority, Nazism, even after a long time, should not
go unnoticed.
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Annex 18
Investigative Committee of the Russian Federation, A Criminal Case Has Been
Initiated for Genocide Against the Residents of the Town of Shchastya in the LPR
(18 April 2022)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
103
104
A criminal case has been initiated for genocide against the residents of the town of
Shchastya in the LPR
In violation of the requirements
of the Convention on the
Prevention and Punishment of
the Crime of Genocide (New
York, 09 December 1948), the
Armed Forces of Ukraine and
other Ukrainian military
formations, beginning in late
February of this year, have
repeatedly fired from various
types of weapons, including
artillery, at residential areas of
the city of Shchastya in the
Luhansk People's Republic
aimed at the complete
eradication of Russians and the
Russian-speaking population.
These citizens did not take part
in the armed conflict and
hostilities.
As a result of unlawful actions of the Ukrainian side, civilians were killed, hundreds of residents received injuries
of varying severity. The exact number of dead and injured will be determined in the course of investigative actions
that are currently being carried out by military investigators in the city. In addition, at least 331 residential buildings
were damaged, some of which were completely destroyed, as well as civilian infrastructure and life support
facilities (gas pipeline, power substation, water supply networks, schools, kindergartens, public eating venues).
Based on this fact, the military investigative bodies of the Investigative Committee of the Russian Federation
initiated criminal proceedings against the persons participating in the armed conflict on the side of Ukraine on the
grounds of a crime under Article 357 of the Criminal Code of the Russian Federation (genocide, that is, actions
aimed at the complete eradication of a national or ethnic group as such, by killing its members, causing serious
harm to their health and creating living conditions designed for physical eradication).
Currently, the necessary investigative actions are being carried out aimed at recording the traces of this crime, as
well as identifying the persons involved in its commission.
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Investigative Committee of the Russian Federation
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Annex 19
Investigative Committee of the Russian Federation, Izvestia: The Investigative
Committee of Russia Initiated a Case on the Genocide Against the Residents of the
Town of Shchastya in the LPR (19 April 2022)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
107
108
Izvestia: “The Investigative Committee of Russia initiated a case on the genocide against
the residents of the town of Shchastya in the LPR”
The Investigative Committee of Russia: a case on the genocide of residents of the city of
Shchastya has been initiated
The Investigative Committee (IC) of Russia initiated a criminal case against servicemen of the
Armed Forces of Ukraine (AFU) for the genocide against residents of the city of Shchastya in
the Luhansk People's Republic (LPR). This was reported on April 18th in the publication on
the website of the agency.
The criminal case is being investigated under Article 357 of the Criminal Code of the Russian
Federation (“genocide, that is, actions aimed at the complete eradication of a national or ethnic
group as such, by killing its members, causing serious harm to their health and creating living
conditions designed for physical eradication”).
According to the IC of Russia, the Ukrainian formations fired at the settlement “to completely
eradicate the Russians.”
“These citizens did not take part in the armed conflict and hostilities,” the IC of Russia noted.
The shelling of the town of Shchastya by the AFU violated the provisions of the Convention
on the Prevention and Punishment of the Crime of Genocide of 1948, the agency added.
As a result, civilians were killed, hundreds of residents received injuries of varying severity.
The exact number of dead and injured will be determined during the investigation.
“In addition, at least 331 residential buildings were damaged, some of which were completely
destroyed, as well as civilian infrastructure and life support facilities (gas pipeline, power
substation, water supply networks, schools, kindergartens, pubic eating venues),” the IC
concluded.
On April 15, it became known that the IC of Russia will check the data of American journalist
Patrick Lancaster about the discovery of killed residents of Mariupol after the withdrawal of
the Ukrainian radical nationalist group “Azov.” The interrogations of witnesses will also
continue. The investigation will provide its criminal law assessment of each death of the
civilian population.
On 11 April, a resident of the Mariupol residential district Skhidnyi told the correspondent of
the Izvestia TV channel Alexei Poltoranin that the nationalists openly told civilians about the
order to wipe the city off the face of the earth.
On 24 February, Russia launched a special operation to protect Donbas. The Kremlin explained
that the tasks of the special operation include the demilitarization and denazification of
109
Ukraine, the implementation of which is necessary to ensure the security of Russia. The
decision was made against the background of the aggravation of the situation in the LPR and
the DPR as a result of shelling by the Ukrainian military.
19 April 09:20 a.m.
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Annex 20
Bin Cheng, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL
COURTS AND TRIBUNALS (Stevens and Sons Ltd. 1953)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
111
112
113
GENERAL
OF
PRINCIPLES
LAW
as applied hy
INTERNATIONAL COURTS AND TRIBUNALS
BY
BIN CHENG, PH.D., LICENCIÉ EN DROIT
"·.tecturer in, International Law
University College, London
WITH A FOREWORD BY
GEORG SCHW ARZENBERGER, PH.n., DR.JUR.
Reader in International Law in the Um:ve·rsitg of London:
J7ice•Dean of the Faculty of Laws, University Oollege, London
Published under the a'USpices of
THE LONDON INSTITUTE OF WORLD AFFAIRB
LONDON
STEVENS & SONS LIMITED
1953
First published in 1953
by Stevens & Sons Limited
of 119 &, 120 Chancery Lane
London - Law Publishers
and prinf;ld in Great Britain
by The Eastern Press Ltd.
of London and Rea ding
114
CHAPTER 4
GOOD FAITH IN THE EXERCISE OF RIG HTS
(THE THEORY OF ABUSE OF RIGHTS)
THE principle 0£ good faith which governs international relations
controls also the exercise 0£ rights by States. The theory
of abuse of rights (abus de droit), recognised in principle both
by the Permanent Court of International Justice 1 and the International
Court of Justice, 2 is merely an application of this
principle to the exercise of rights.
A. The Malicious Exercise of a Right
The prohibition 0£ malicious injury is an important aspect 0£
the theory 0£ abuse of right as it has been applied in most
Continental legal systems. 3 In the international sphere, attention
may be drawn to the following extract from the proceedings
of the Fur Seal Arbitral Tribunal (1892), which clearly
shows that the President of the Tribunal entertained no doubt
as to its applicability in international law and that counsel
£or Great Britain was not indisposed to admit it. The question
raised was whether the United States had a right to complain of
the hunting of fur seals by British fishermen in that part of
the Behring Sea adjacent to the American Pribilof Islands.
" Sir CHARLES RussELL: Where is the right that is invaded by
that pelagic sealing? ... It is not enough to prove that their industry
(if I must use that phrase) may be less profitable to them because
other persons, in the exercise of the right of sealing on the high seas,
may intercept seals that come to them-that may be what lawyers
1 Cf. infra, pp. 123, 127.
2 Anglo-Norwegian Fisheries Case (1951), U.K./Norway, ICJ Reports, 1951,
p. 116, at p. 142. See infra, p. 134, note 42. The theory of abuse of rights has
been frequently referred to by judges of the I.C.J. in their separate and dissenting
opinions. See ICJ Reports, 1947-1948, pp. 69, 71, 79 et seq., 91, 92, 93, 103,
115; ICJ Reports, 1949, pp. 46, 47 et seq., 75, 129 et seq.; ICJ Reports, 1950,
pp. 14 et seq., 19, 20, 29, 148, 348, 349; ICJ Reports, 1951, pp. 149 et seq.;
ICJ Reports, 1952, pp. 56, 128, 133, 135.
a Cf. H. C. Gutteridge," Abuse of Rights," 5 Cambridge L.J. (1933), p. 22.
121
115
.
122 The Principle of Good Faith
call a damnum, but it is not an injuria . . . ; but a damnum does
not give a legal right of action ....
" The PRESIDENT: Unless done maliciously.
" Sir CHARLES RussELL: You are good enough, Mr. President,
to anticipate the very next topic .. . . They would have a right
to complain . . . if it could be truly asserted that any class or
set of men had, for the malicious purpose of injuring the lessees
of the Pribilof Islands and not in regard to their own profit and
interest and in exercise of their own supposed rights, committed
a series of acts injurious to the tenants of the Pribilof Islands, I
agree that that would probably give a cause of action; and, therefore,
they have the further right (what I might call the negative
right) of being protected against malicious injury. ..." 4
The exercise of a right-or supposed right, since the right no
longer exists for the sole purpose of causing injury to another
is thus prohibited. Every right is the legal protection of a
legitimate interest. An alleged exercise of a right not in
furtherance of such interest, but with the malicious purpose of
injuring others can no longer claim the protection of tlie law. 5
Malitiis non est indulgendum. 6
B. The Fictitious Exercise of a Right
I. EV AS ION OF THE LAW
Ex re sed non ex nomine is a principle of good faith. 7 By
looking to the real state of things and not attaching decisive
importance to the legal denominations which the parties may
give to their actions, this principle inter alia precludes the form
of the law from being used to cover the commission of what
in fact is an unlawful act. I£ international law prescribes
respect for private property, but allows expropriation for
4 Fur Seal Arbitration (1893) G.B./U.S., 1 Int.Arb., p. 755, at pp. 8 89-890.
Cf. American contention that the high seas were "free only for innocent and
inoffensive use, not injurious to the just interests of any nation which borders
upon it" (p. 839). See also ibid., p. 892.
5 Cf. PCIJ: German Interests Case (Merits) (1926), Speech of German Agent
(Ser. C. 11-I, pp. 136 et seq.) and German Memorial (pp. 375 et seq.), where
the German Government admitted that the exercise of no right can be unlimited,
and that the exercise of a right for no serious motive except the pur
pose of injuring others constituted an abuse of right.
6 Digest: VI.i. De rei vindic, 38.
7 Cf. PCIJ: Chorzow Factory Case (Merits) (1928), D.O. by Ehrlich, A. 17,
p. 87. See svpra, p. 39.
116
Theory of Abuse of Rights 123
reasons of public utility 8 it is not permissible £or a State to
go through the forms of an expropriation procedure in order
to seize private property not £or public purposes, but £or the use
of some individuals for private profit. This occurred in the
Walter F. Smith Case (1929) and the act was considered contrary
to the principle of good faith and held to be unlawful. 9
II. EVASION OF TREATY OBLIGATIONS
By application 0£ the same principle, international law prohibits
the evasion 0£ a treaty obligation under the guise of an alleged
exercise of a right. In the Free Zones Case (Jgt.) (1932),
France was under treaty obligations to maintain certain frontier
zones with Switzerland free from customs barriers. The
Permanent Court of International Justice while recognising
that France had the sovereign and undoubted right to establish
a police cordon at the political frontier, £or the control of
traffic and even £or the imposition of fiscal taxes other than
customs duties, held that: -
'' A reservation must be made as regards the case of abuses of a
right ["les cas d'abus de droit "], since it is certain that France
must not evade the obligation to maintain the zones by erecting a
customs barrier under the guise of a control cordon.'' 10
The principle of good faith thus requires every right to be
exercised honestly and loyally. Any fictitious exercise of a
right £or the purpose 0£ evading either a rule of law or a
contractual obligation will not be tolerated. Such an exercise
constitutes an abuse of the right, prohibited by law.
C. Interdependence of Rights and Obligations
I. RIGHTS AND TREATY OBLIGATIONS
When a State assumes a treaty obligation, those of its rights
which are directly in conflict with this obligation are, to that
extent, restricted or renounced. Thus, if Great Britain agrees
s Supra, p. 37.
9 Supra, p. 39.
10 A/B. 46, p. 167. See also the Court's Order of December 6, 1930, in the same
case, A. 24, p. 12; and Oscar Chinn Case (1934), A/B. 63, p. 86 (see supra,
p. 117).
117
124 The Principle of Good Faith
that inhabitants of the United States shall have the right to
fish in certain of her territorial waters, she has to that
extent deprived herself of the right to prohibit foreigners
from fishing in those waters. But the other rights of Great
Britain, for example, her right as local sovereign to legislate
for the protection and preservation of :fisheries, are apparently
not considered as having been affected by this obligation. Thus
in the North Atlantic Coast Fisheries Case (1910) where the
facts were as related above, the Permanent Court of Arbitration
said:-
''. . . the line by which the respective rights of both parties
accruing out of the treaty are to be circumscribed, can refer only
to the right granted by the treaty; that is to say the liberty of taking,
drying, and curing fish by the American inhabitants in certain
British waters in common with British subjects, and not to the
exercise of rights of legislation by Great Britain not referred to in
the treaty.
" ... a line which would limit the exercise of sovereignty of a
State within the limits of its own territory, can be drawn only on
the ground of express stipulation, and not by implication from
stipulations concerning a different subject-matter." 11
The non-limitation of the right is, however, only apparent.
It is submitted that, in reality, with the assumption of every
obligation, all the rights of the State suffer a limitation to a
greater or lesser extent. "\Vhen a State assumes a treaty
obligation, the principle of good faith-which governs the
performance of treaty obligations-imposes a general limitation
on every right of the State so that none may be exercised in a
manner incompatible with the bona fide execution of the
obligation assumed. Thus in the same decision, the Permanent
Court of Arbitration added: -
" The line in question is drawn according to the principle of
international law that treaty obligations are to be executed in perfect
good faith, therefore excluding the right to legislate at will concerning
the subject-matter of the treaty, and limiting the exercise of
sovereignty of the State bound by a treaty with respect to that
subject-matter to such acts as are consistent with the treaty." 12
11 1 H.C.R., p. 141, at p. 169.
12 Ibid., at p. 169. Italics added.
118
Theory of Abuse of Rights 125
In other words,
" The exercise of that right [i.e., to legislate J by Great Britain
is, however, limited by the said treaty in respect of the said liberties
therein granted to the inhabitants of the United States in that such
regulations must be made bona fide and must not be in violation
of the said treaty.
"Regulations which are (1) appropriate or necessary for the
protection and preservation of such fisheries, or (2) desirable or
necessary on grounds of public order and morals without unnecessarily
interfering with the fishery itself, and in both cases equitable
and fair as between local -and American fishermen, and not so
framed as to give unfairly an advantage to the former over the latter
class, are not inconsistent with the obligation to execute the treaty
in good faith and are therefore reasonable and not in violation 􀁵f the
treaty. " 13
Whatever the limits of the right might have been before
the assumption of the obligation, from then onwards, the right
is subject to a restriction. Henceforth, whenever its exercise
impinges on the field covered by the treaty obligation, it must
be exercised bona fide, that is to say reasonably. A reasonable
and bona fide exercise of a right in such a case is one which
is appropriate and necessary for the purpose of the right (i.e.,
in furtherance of the interests which the right is intended to
protect). It should at the same time be £air and equitable as
between the parties and not one which is calculated to procure
for one of them an unfair advantage in the light of the obligation
assumed. A reasonable exercise of the right is regarded as
compatible with the obligation. But the exercise of the right
in such a manner as to prejudice the interests of the other
contracting party arising out of the treaty is unreasonable and
is considered as inconsistent with the bona fide execution of the
treaty obligation, and a breach of the treaty. In this way,
the principle of good faith establishes an interdependence
between the rights of a State and its obligations. By weighing
the conflicting interests covered by the right and the obligation,
it delimits them in such a way as to render the exercise of the
right compatible with the spirit of the obligation.
Another, though more complicated, example, illustrating the
interdependence of rights and treaty obligations, is to be found
13 Ibid., at p. 171.
119
126 The Principle of Good Faith
in the German Interests Case (Merits) (1926). The relevant
facts may be briefly recalled. The case was concerned inter
alia with the nitrate factory at Chorz6w, Polish Upper Silesia.
Both the factory and the territory formerly belonged to the
German Empire. By the Treaty 0£ Versailles, Germany agreed
that a plebiscite should be held in Upper Silesia and in 11dvance
renounced in favour 0£ Poland all rights and titles over that
portion 0£ Upper Silesia lying beyond the frontier line to be fixed
by the Principal Allied and Associated Powers as the result of
the plebiscite (Art. 88). Article 256 0£ the Treaty provided
that Powers to which German territory was to be ceded were
to acquire the property and possessions situated therein belonging
to the German Empire. The value 0£ such acquisitions
was to be fixed by the Reparation Commission, and paid to
the latter by the State acquiring the territory, to be credited to
the German Government on account 0£ the sums due in respect
0£ reparations. Poland, however, was not entitled to reparations.
The Treaty was signed on June 28, 1919, but did not come into
force between Germany and Poland until January 10, 1920.
On December 24, 1919, i.e., between the date 0£ signature 0£
the Treaty and its coming into force, a series 0£ legal instruments
were signed and legalised in Berlin. By these
instruments a private company was formed and to it the Reich
sold the factory at Chorz6w. Ownership was transferred only
on January 28-29, 1920, at a time when the Treaty had
already come into force. After that part of Upper Silesia in
which the factory was situated had been allotted to Poland
(October 20, 1921), Poland, consid􀂄ring the sale to be null and
void, declared that the factory had become Polish State property
in accordance with Article 256 0£ the Treaty of Versailles.
Germany contested the legality of this measure.
In the opinion of -the Permanent Court of International
Justice, Article 88 of the Treaty of Versailles merely contemplated
the possible renunciation of sovereignty over the territories in
question and Article 256 did not operate in this case until the
effective transfer 0£ sovereignty. It held that: -
'' Germany undoubtedly retained until the actual transfer of
sovereignty the right to dispose of her property. " 14
14 A. 7, p. 30.
120
Theory of Abuse of Rights 127
The treaty obligations assumed by Germany did not, therefore,
directly affect her proprietary rights, including the right of
alienating property in the plebiscite area. The Court added,
however:-
" And only a misuse of this right could (' ce n'est qu'un abus de
ce droit ou 1m manquement au principe de la bonne foi qui pourraient
'] endow an act of alienation with the character of a breach
of the Treaty." 15
It follows, therefore, that a legitimate exercise of the right
of alienation was compatible with the treaty obligations, while
an abuse of this right, i.e., an exercise of the right contrary
to the principle of good faith, would be incompatible therewith.
In considering "whether Poland can rely as against
Germany on the contention that there has been a misuse of the
right [' un abus du droit '] possessed by the latter to alienate
property situated in the plebiscite area, before the transfer of
s.overeignty," 16 the Court arrived at the conclusion that:-
" Such misuse (' un tel abus '] has not taken place in the
present case. The act in question does not overstep the limits of
the normal administration of public property and was not designed
to procure for one of the interested Parties an illicit advantage and
to deprive the other of an advantage to which he was entitled." 17
In the opinion of the Court, " the abandonment by the Reich
of an enterprise showing a serious deficit, by means of a sale
under conditions offering a reasonable guarantee that the capital
invested would eventually be recovered " " appears in fact to
have fulfilled a legitimate object of the administration," and
no sufficient reasons had been shown why the transaction should
not be regarded as genuine. 18
'' Again, the Court cannot regard the alienation as an act calculated
to prejudice Poland's rights. At the time when the alienation
took place (Auflassung and entry in the land register, January 28-
29, 1920), the Treaty of Versailles was already in force. An opinion
must therefore be formed regarding the good faith of the Government
of the Reich in the light of the obligations arising out of this
15 Ibid., at p. 30. The French text is authoritative.
16 Ibid., at p. 37.
11 Ibid., at pp. 37-38.
18 Ibid., at p. 38.
121
128 The Principle of Good Faith
Treaty, and not on the basis of other international agreements-such
as for instance the Geneva Convention which did not exist at that
date and the conclusion of which could not even be foreseen. Now,
under the Treaty of Versailles, Germany could only foresee two
possibilities, either that Poland would claim the factory as Reich
property, or that she would claim the right to liquidate it as belonging
to a company controlled by German nationals, such as the
Oberschlesische. The advantage for Poland of the former alternative
over the latter would have consisted in the possibility of
directly acquiring the ownership under Article 256, at a price to be
fixed by the Reparation Commission instead of obtaining it by
application of the liquidation procedure referred to in Article 297.
This difference, however, cannot suffice to justify the view that the
alienation was contrary to the obligations arising under the Treaty of
Versailles and that it was even null and void or contrary to the
principles of good faith." 19
This case, and especially the last quotation from the
judgment, shows the intimate, one might almost say the
intricate, interdependence of a State's rights and obligations,
established by the principle of good faith. On the one hand,
there was the undoubted right of Germany to dispose of her
property in the plebiscite area until the actual transfer of
sovereignty. On the other, there were the obligations assumed
by Germany under the Treaty of Versailles. These obligations
did not prohibit Germany from alienating her property. With
the assumption of these obligations, however, the right of
disposition implicitly suffered certain restrictions. It could no
longer be exercised at will. ·while the bona £de exercise of the
right would be compatible with Germany's treaty obligations, its
exercise contrary to the principle of good faith would constitute a n
abuse o f right and a breach o f these obligations, i.e., a n
unlawful act. In such cases, in deciding whether or not the
right was exercised in good faith, an international tribunal
must examine whether the exercise of the right was in pursuit
of the legitimate interests protected by it 20 and whether, in the
light of the obligations assumed by the State, the exercise of
J 9 Ibid., at pp. 38 39. Italics added.
20 It 􀀯ust be remembered that, in this case, the right of disposition is merely an
attribute of the right of ownership, which determines the object of the right.
122
Theory of Abuse of Rights 129
the right was calculated to prejudice the rights and legitimate
interests 0£ the other party under the Treaty.
In this way, th􀁹 principle 0£ good faith governing the
exercise 0£ rights, sometimes called the theory 0£ abuse of
rights, while protecting the legitimate interests 0£ the owner of
the right, imposes such limitations upon the right as will render
its exercise compatible with that party's treaty obligations, or,
in other words, with the legitimate interests 0£ the other
contracting party. Thus a £air balance is kept between the
respective interests 0£ the parties and a line is drawn delimiting
their respective rights. Any overstepping 0£ this line by a
party in the exercise 0£ his right would constitute a breach of
good faith, an abuse 0£ right, and a violation 0£ his obligation.
II. RIGHT S AND OBLIGATIONS UNDER GENERAL
INTERNATIONAL LAW
The Mexican-United States General Claims Commission (1923)
in the North American Dredging Co. of Texas Case (1926)
said:-
" If it were necessary to demonstrate how legitimate are the
fears of certain nations with respect to abuses of the right of protection
and how seriously the sovereignty of those nations within
their own boundaries would be impaired if some extreme conceptions
of this right were recognised and enforced, the present case
would furnish an illuminating example." 21
Speaking 0£ the " world-wide abuses either 0£ the right of
national protection or 0£ the right 0£ national jurisdiction," the
Commission declared : -
" The present stage of international law imposes upon every
international tribunal the solemn duty of seeking for a proper and
adequate balance between the sovereign right of national jurisdiction,
on the one hand, and the sovereign right of national protection of
citizens on the other. No international tribunal should or may evade
the task of finding such limitations of both rights as will render
them compatible with the general rules and principles of international
law. " 22
21 Op. of Com. 1927, p. 21, at p. 29.
22 Ibid., at p. 23. Italics added.
c. 9
123
.
130 The Principle of Good Faith
This approach to the problem 0£ the limitation 0£ rights
clearly shows that what has so far been said regarding the
interdependence 0£ rights and obligations applies not only to
treaty obligations but also to obligations derived from the
general law. Every right is subject to such limitations as are
necessary to render it compatible both with a party's contractual
obligations and with his obligations under the general law.
This process 0£ adjusting the rights and obligations 0£ a
State may also be illustrated by the Trail Smelter Arbitration
(1935). In this case, there was, on the one hand, the right of
a State to make use of its own territory, and, on the other hand,
the duty of a State at all times " to protect other States against
injurious acts by individuals from within its jurisdiction." 23
Taking into account the conflicting interests at stake 24 and
analogous cases in muniripal law,25 the Arbitral Tribunal
arrived at the conclusion that: -
" No State has the right to use or permit the use of its territory
in such a manner as to cause injury by fumes in or to the territory
of another or the properties or persons therein, when the case is ·of
serious consequence and the injury is established by clear and convincing
evidence." 26
Thus, instead 0£ recognising and enforcing some extreme views
concerning the use of territory, the Tribunal struck a proper
balance between a State's rights and obligations. Any overstepping
of this limit would constitute an abuse 0£ right, a
violation of the obligation to protect other States from injuries
emanating from its territory and an unlawful act.
The recognition of the interdependence 0£ a person's rights
and obligations is one of the most important features of the
principle of good faith governing the exercise of rights. The
rights enjoyed by a person become correlated with his obligations.
Generally, each right suffers such limitations as would
render its exercise compatible with the obligations arising from
the general rules and principles of the legal order. Its limits
vary, therefore, with the changing contents of these rules and
23 Award II (1941), 3 UNRIAA, p. 1905, at p. 1963.
24 Cf. ibid., at pp. 1938, 1939.
2s Ibid., at pp. 1963 et seq.
26 Ibid., at p. 1965.
124
Theory of Abuse of Rights 131
principles. As a society becomes more integrated more obligations
are laid upon its members and the rights 0£ each subject
0£ law become also more restricted. Whenever the owner 0£
the right contracts additional obligations, these place further
limitations upon its exercise, even though this may not be
expressly laid down. The right may no longer be exercised in
a manner incompatible with the bona fide performance of these
obligations. Hence the exact limits of a right may differ from
person to person, according to the amount and contents of each
person's obligations. In this sense, rights can no longer be
regarded as absolute, 27 but are essentially relative. 28
Good faith in the exercise of rights, in this connection,
means that a State's rights must be exercised in a manner
compatible with its various obligations arising either from
treaties or from the general law. It follows from this interdependence
0£ rights and obligations that rights must be
reasonably exercised. The reasonable and bona fide exercise of
a right implies an exercise which is genuinely in pursuit of
those interests which the right is destined to protect and which
21 Cf. North American Dredging Co. of Texas Case (1926), Op. of Com, 1927, p.
21 at p. 26. What the Commission here wished to refute appears to be not so
much the law of nature, but the view that certain rights are " inalienable," or
'' uncurtailable.''
28 Cf. !CJ: Admission of a State to the U.N. (1948) Adv.Op., Ind.Op. by Azevedo,
ICJ Reports;-1947-1948, p. 57, at p. 79. See also p. 80. It is believed, however,
that the learned j_udge used the term " relativity of rights " in the sense
generally employed by writers, i.e., rights must be exercised in conformity
with the social purpose of the rule of law which creates them. (See, e.g.,
L. Josserand, De !'esprit des lois et de leur relativite; Theorie de l'abus de
droit, 1927).
Among international publicists, the view is quite widely held that an abuse
of right is an anti-social exercise of the right. See e.g., Politis, "Le probleme
des limitations de la souverainete et la theorie de l'abus des droits dans Jes
rapports internationaux," 6 Recueil La Haye (1925), p. 1, at p. 81 et passim,
and following him, Lauterpacht, The Function of Law in the International
Community, 1933, pp: 286 et seq. T. Selea, in his La notion de l'abus du
droit dans le droit international, 1940, though in substance following closely
the above-cited work of Politis, went further and considered as an abuse of
right any exercise of a right which deviates from the social function or social
purpose of the right (pp. 57 et sei[., 101 et seq., 177). This, however, is
going too far. Money thrown into the sea would presumably not be fulfilling
its destined social function, but it is doubtful whether a State acting in
this way would be legally chargeable with an abuse of right. The functional
criterion is above all inadequate. It affords no juridical explanation why an
unsocial or anti-social exercise of a right is unlawful. It fails completely to
explain such cases of abuse of right as those envisaged by the German
Interests Case (Merits) (1926) and the Free Zones Case (Jgt.) (1932). The
correlation is, therefore, in the writer's opinion, between a person's rights
and his obligations, and not between rights and the public interest. The
existence of the obligation explains the illegality of the abusive exercise ol
the right.
125
132 The Principle of Good Faith
is not calculated to cause any unfair prejudice to the legitimate
interests of another State, whether these interests be secured by
treaty or by general international law. The exact line dividing
the right from the obligation, or, in other words, the line delimiting
the rights of both parties is traced at a point where there
is a reasonable balance between the conflicting interests involved.
This becomes the limit between the right and the obligation, and
constitutes, in effect, the limit between the respective rights of
the parties. The protection of the law extends as far as this
limit, which is the more often undefined save by the principle
of good faith. Any violation of this limit constitutes an abuse
of right and a breach of the obligation-an unlawful act. In
this way, the principle of good faith, by recognising their interdependence,
harmonises the rights and obligations of every
person, as well as all the rights and obligations within the legal
order as a whole.
D. Abuse of Discretion
In the complexities of human society, either of individuals or
of nations, law cannot precisely delimit every right in advance.
Certain rights may indeed be rigidly circumscribed, as, £or
instance, the right of self-defence in the territory of a friendly
State. This right is limited to the taking of the only available
means of self-defence imperatively demanded by the circumstances.
29 But, in a great number of cases, the law allows
the individual or the State a wide discretion in the exercise
of a right. Thus we have seen, when examining the principle
of self-preservation, that the State enjoys a wide discretion in
the exercise of its right of expropriation and requisition, its right
to admit and expel aliens, and, generally speaking, all its rights
of self-preservation in territory subject to its authority. This
discretion extends to the determination of the nature, extent
and duration of the State's requirements and the methods best
calculated to meet the various contingencies. 30
But wherever the law leaves a matter to the judgment of the
person exercising the right, this discretion must be exercised
in good faith, and the law will intervene in all cases where this
2• Supra, pp. 83 et seq.
30 See supra, pp. 67-68, and references therein.
126
Theory of Abuse of Rights 133
discretion is abused. 31 As Judge Azevedo said m one of his
ipdividual opinions : -
" Any legal system involves limitations and is founded on definite
rules which are always ready to reappear as the constant element
of the construction, whenever the field of action of discretionary
principles, adopted in exceptional circumstances, is overstepped.
This is a long-established principle, and has served, during centuries,
to limit the scope of the principle of qui suo jure utitur neminem
laedit.'' 32
Thus in cases concerning· tht'l expulsion of aliens, an international
tribunal would normally accept as conclusive the reasons
of a serious nature adduced by the State as justifying such
action. 33 It would, however, regard as unlawful measures of
expulsion those which are arbitrary, 34 or accompanied by unnecessary
hardship. 35 Where private property is taken £or public use,
although it is primarily for the State to decide what are its
needs, as well as their extent and duration, 36 international
tribunals would intervene when the need is plainly not one of
a public character, 37 or when the property is retained clearly
beyond the time required by the public need. 38 Furthermore,
while it is left to the State conducting military operations to
determine what are military necessities, international tribunals
are entitled to intervene in cases of manifest abuse of this discretion,
causing wanton destruction or injury. 39 Again, while
a State taking reprisals against another is not bound to relate
its measures closely to the offence, 40 it has been held that
" reprisals out of all proportion to the act which had prompted
them ought certainly to be considered as excessive and hence
unlawful." 41
Whenever, therefore, the owner of a right enjoys a certain
discretionary power, this must be exercised in good faith, which
31 See supra, p. 68, and refeiences therein.
a2 ICJ: Admission of a State to the U.N. (1948), Adv.Op., ICJ Reports, 1947-1948,
p. 57, at p. 80.
33 Supra, pp. 34-35.
34 Supra, p. 35, note 9, and p. 36.
35 Supra, p. 36.
36 Supra, pp. 39, 40-41, 43 45.
37 Supra, p. 39.
ss Supra, p. 44.
39 Supra, pp. 65 et seq.
40 Supra, p. 98.
41. Supra, p. 98.
127
134 The Principle of Good Faith
means that it must be exercised reasonably, honestly, m conformity
with the spirit of the law and with due regard to the
interests of others. But since discretion implies subjective
judgment, it is often difficult to determine categorically that
the discretion has been abused. Each case must be judged
according to its particular circumstances by looking either at
the intention or motive of the doer or the objective result of
the act, in the light of international practice and human
experience. When either an unlawful intention or design can
be established, or the act is clearly unreasonable, 42 there is an
abuse prohibited by law.
In some cases, however, the existence of an abuse 1s
particularly difficult to determine. This is well illustrated by
the case contemplated in the first Advisory Opinion delivered
by the International Court of Justice. The question put to
the Court was whether a member of the United Nations which
was called upon, in virtue of Article 4 of the Charter, to
vote, either in the Security Council or in the General Assembly,
on the admission of a State to membership in the United
Nations, was juridically entitled to make its consent to the
admission dependent on conditions not expressly provided by
paragraph I of the said Article. A majority of nine judges
considered that the conditions laid down in Article 4 I of the
Charter were the only conditions to be taken into account,43 while
a minority of six considered that these were merely the indispensable
conditions of admission. 44 In determining whether or not a
particular condition is fulfilled by an applicant, the State which
is called upon to vote naturally enjoys freedom of judgment.
But it follows from the above Advisory Opinion that, in the view
of the Court, this freedom is to be exercised within the scope of
the prescribed conditions of Article 4 I, while in the opinion
of the dissenting Judges this freedom is not so circumscribed,
42 See also the application of the test of " reasonableness " and " moderation "
by the I.C.J. in the Anglo-Norwegian Fisheries Case (1951) in determining
whether Norway committed a " manifest abuse " in delimiting the base line
of the Lopphavet Basin (ICJ Reports, 1951, p. 116, at pp. 141-142; cf. pp. 150.
153, 156, 167 et seq.) !See also ICJ: United States Nationals in Morocco Case
(1952), ICJ Reports, 1952, p. 176, at p. 212.
43 Admission of a State to the U.N. (1948), Adv.Op., ICJ Reports 1947-1948,
p. 57, at p. 65.
44 Ibid., at pp. 90, 104, 109 et seq.
128
129
Theory of Abuse of Rights 135
but may be exercised within the general purposes and principlea
of the Charter of the United Nations. 45
But, as was pointed out by some of the dissenting Judges,
however circumscribed, the exercise ô:f this discretion is
extremely difficult, if not impossible, to control. 46 For the only
result of its exercise is a vote of "yes " or " no," and there
is no rule of law which obliges a member, in casting his vote,
to give his reasons. Even if the reasons may be gathered îrom
the discussions preceding the vote, a member might change his
views between the time of the discussions and the time of the
vote. Furthermore, whatever juridical limits may have been
set to the type of consideration that may be taken into account,
there is no me ans of verif ying whether the reasons advanced
during the discussion are genuine and decisive, and, even if
they are, whether they are the exclusive ones. As one of the
J udges said in an individual opinion " all kinds of prejudices,
and even physical repugnance will :find a way of in:fluencing
the decision, either by an act of the will or even through the
action of the subconscious. '' 47
It is especially on account of this difficulty of controlling
the exercise of discretionary powers that the Judges, whether
they were of the opinion that the discretion should be exercised
within the limits of Article 4 I or within the wider limits of
the general purposes and principles of the United Nations
Charter, all agreed in stressing that the discretion inherent in
the right to vote must be exercised in good faith. 48 Good faith
in the exercise of the discretionary power inherent in a right
seems thus to imply a genuine disposition on the part of the
owner of the right to use the discretion in a reasonable, honest
and sincere manner in conformity with the spirit and purpose,
as well as the letter, of the law. It may also be called a
spontaneous sense of duty scrupulously to observe the law. In
this present case, there is practically no means of controlling the
exercise of the discretion. It is, therefore, essential that it
should be possible to place reliance on the Stat~'s own sense of
respect for the law.
45 Ibid., at pp. 91-2, 93, 103, ll5.
411 Ibid., at pp. 102 et seq., 111 et seq.
u Judge Azevedo, ibid., at p. 78.
48 Ibid., at pp. 63, 71, 79 et seq., 91, 92, 93, 108, 115.
136 The Principle of Good Faith
The present instance clearly shows how important, and
indeed how indispensable, it . is to any legal system for the
discretionary power inherent in every right to be exercised in
good faith. 49 For, unless this discretion is normally exercised
by every subject of law spontaneously in a bona fide manner
well within the limit beyond which the exercise may be regarded
as an abuse, even if the law is able ultimately to prevent certain
manifest abuses, th􀁊 legal system will be strained to breaking
point.
In the preceding pages we have seen the various ways in
which the principle of good faith governs the exercise of rights.
Where the right confers upon its owner a discretionary power,
this must be exercised honestly, sincerely, reasonably, in conformity
with the spirit of the law and with due regard to the
interests of others. All rights have to be exercised reasonably
:and in a manner compatible with both the contractual obligations
of the party exercising them and the general rules and
principles of the legal order. They must not be exercised
fictitiously so as to evade such obligations or rules of law, or
maliciously so as to injure others. Violations of these requirements
of the principle of good faith constitute abuses of right,
;prohibited by law. It follows, however, from the general
presumption of good faith that abuses of right cannot be
presumed. 50
The importance of the principle of good faith governing the
exercise of rights naturally goes beyond the prohibition of abuses.
In recognising the interdependence of rights and obligations, it
reconciles conflicting interests, establishes the proper limits of
rights, and secures harmony in the legal order. By infusing
such qualities as honesty, sincerity, reasonableness and moderation
into the exercise of rights, it promotes the smooth and
proper functioning of the legal system.
49 See also ICJ: United States Nationals in Morocco Case (1952), ICJ Reports,
1952, p. 176, at pp. 207 212, especially p. 212.
50 PCIJ: German Interests Case (Merits) (1926), A. 7, p. 30; Id. : Free Zones
Case (Second Phase: Order) (1930), A. 24, p. 12; Same Case (J gt.) (1932),
A/B 46, p. 167.
130
Annex 21
L. Oppenheim, INTERNATIONAL LAW: A TREATISE, VOLUME 1 — PEACE
(H. Lauterpacht, ed., David McKay Company Inc., 8th ed. 1955)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
131
132
133
INTERNATIONAL LAW
A TREA TISE
BY L. 'OPPENHEIM
L.4TB WIJBWBl,1, PRORSBoa 01' I.NTBB.NATIO!UL LAW 11' TBB UNIVRllBJTT
Ol' OAlfBRIDOK; LATl!i llllllMBRR 01' T1lll lN8'l'IT1JTB 01' llfTBRN.lTIONAL LAW
VoL. 1.-PEACE
EIGHTH EDITION
BDITED BY
H. LAUTERPACHT
LATB WIIBWBLL PROVBB8-0R or tNTBRNATlO!U.L LA w Uf THB UtflVBRSITT or OU[BBJDQJI
FlilLLOW 01' TRINlTY OOLLBO&, CAM13Rll)GB; OJ' Gli1''8 nnr, BAIUU8Tl&-A1'•L.l9
lfKHBRR 01' TJtB [.ltSl'ITUTB 011 [NTEBIUTIO!UL LAW
DAVID McKAY COMPANY INC.
New York
134
Eighlh Edition, 1955
Second Imp,-ess-ion 1957
Third Imp,-ession 1958
Fou,-th Impression 196o
Fi/th Imp,-ess·ion 1961
Sixt!, Impression 1962
Sevrnth I-mprPssion 1963
Printed in Great Britatn
by T. and A. Co!ISTABU LTD., Hopetoun Street
Printen to the University of Edlnburgh
135
§ I55aa] IN'l'ERNATIONAL DELINQUENCIES 345
discussed by a number of international tribunals and with
varying results. It is believed that while they may often
have the legal effect of ousting the jurisdiction of an international
tribunal until the remedies of the local courts have
been exhausted, nevertheless the weight of authority is
against the validity of so much of a ' Calvo clause ' as
purports to make an individual renounce the right which
International Law confers, not upon him but upon his home
State, of protecting him against treatment which contravenes
the rules of International Law.1
§ 155aa. The responsibility of a State may become involved Abuse of
as the result of an abuse of a right enjoyed by virtue of Rights.
International Law.2 This occurs when a State avails itself of
its right in an arbitrary manner in such a way as to inflict
upon another State an injury which cannot be justified by a
legitimate consideration of its own advantage. Thus international
tribunals have held that a State may become
responsible for an arbitrary expulsion of aliens.3 The
Permanent Court of International Justice expressed the
view that, in certain circumstances, a State, while technically
acting within the law, may actually incur liability by
abusing its rights-although, as the Court said, such an
abuse cannot be presumed.4 Individual Judges of the
1 See Hyde, § 305, and in A.J.,
21 (1927), pp. 298-303 ; Ralston,
§§ 70-89 ; Borchard, §§ 371-378, and
in A.J., 20 (1926), pp. 538-540 ;
• Freeman, The International Responsibility
of States for Denial of Justice
(1938), pp. 456-496; Bullington,
ibid., 22 (1928), pp. 66-68; Feller,
ibid., 27 (1933), pp. 461-468 ; Summers
in R.l. (Paris), 7 (1931), pp.
567-581, and 12 (1933), pp. 229-233;
Ténékidès in R.G., 43 (1936), pp.
270-284 ; Borchard in Annuaire, 36
(i.) (1931), pp. 357-398; Lipstein in
B. Y., 22 (1945), pp. 130-145; Freeman
in A.J., 40 (1946), pp. 120-147.
See also the North American Dredging
Oo.'s claim before the AmericanMexican
Mixed Claims Commission, in
A .J ., 20 ( 1926 ), pp. 800-809, and
Annual Digest, 1925-1926; and Mexican
Union Railway (Limited) case,
deoided in February 1930 by the
British-Mexican Claims Commission:
AnnualDigest, 1929-1930, CaseNo.129.
• See Lauterpacht, The Function
of Law, pp. 286-306 ; Scerni, L'abusa
del diritto nei rapporti internazionali
(1930) ; Selea, La notion de l'abus du
droit dans le droit international (1939);
Kiss, L'abus de droit en droit inter-
1!,ational (1953); Cheng, General Principles
of Law as Applied by International
Tribunals (1953), pp.121-136;
Politis in Hague Recueil, vol. 6 (1925)
(i.), pp. 1-109 ; Leibholz in Z.o. V.,
l (1929), pp. 77-125; Schlochauer in
Z. V., 17 ( 1933), pp. 373-394 ; Salvioli
in Hague Recueil, vol. 46 (1933) (iv.),
pp. 66-69; Guggenheim, ibid., 74
(1949) (i.), pp. 249-254.
1 See below, §§ 323, 324. And see
Boeck in Hague Recueil, vol 18
(1927) (iii.), pp. 627-640.
' Free Zones of Upper Savoy and
the District of Gex: Series A, No. 24
136
346 RESPONSIBILITY OF STATES [§ 155aa
International Court of Justice have repeatedly referred to
it 1 ; probably it is implied in the frequent judicial affirmation
of the obligation of States to act in good faith. 2 The
conferment and deprivation of nationality is a right which
International Law recognises as being within the exclusive
competence of States ; but it is a right the abuse of which
may be a ground for an international claim.3 The duty
of the State not to interfere with the flow of a river to the
detriment of other riparian States has its source in the same
principle.4 The maxim, sic utere tuo ut alienum non laedas,
is applicable to relations of States no less than to those
of individuals ; it underlies a substantial part of the law
of tort in English law and the corresponding branches of
other systems of law O ; it is one of those general principles
of law recognised by civilised States which the Permanent
p. 12, and Seriee A/B, No. 46, p. 167.
See also the case of Certain German
Interesta in Polish Upper Silesia:
Seri es A, No. 7, p. 30.
1 See e.g. Judge Azevedo in the
Admission case (I.C.J. Reports, 1948,
pp. 79, 80); Judge Alvarez in the
Admission (General Assembly) case
(l.C.J. Reports, 1950, p. 15). See also
J udge Anzilotti in the Electricity
Company of Sofia case, Seriee A(B,
No. 77, p. 88.
8 See the Joint Dissenting Opinion
in the Admission case (l.C.J. Reporta,
1948, pp. 91, 92). And see the
Opinion of the Court itself in that case
for the statement that with regard to
the conditions of admission of new
members the Charter did not forbid
the taking into consideration of any
factor it was possible ' reasonably and
in good faith ' to connect with the
conditions laid down in the Charter.
8 See the Minutes of the First
Committee of the Hague Conference
on Codification of International Law,
1930, pp. 20 and 197. And see
Rundatein in Z. V., 16 (1931), pp.
41-45, and§ 293, below.
• See below, § 178a. And see §§ 174
and 197 f.
• On abuse of righte generally see
Gutteridge in Cambridge Law Journal,
5 (1932), pp. 22-45. For an instance
of conventions! regulation of a
nuisance committed by private perSQllB
and affecting injuriouely the
territory of a neighbouring State see
the Convention of April 15, 1935,
between Canada and the United
States for the eettlement of difficulties
arising out of the complaint of the
United States that fumes discharged
from the smelter of the Consolidated
Mining and Smelting Company in
British Columbia were causing damage
to the State of Washington: U.S.
Treaty Series, No. 983; A.J., 30
(1936), Suppl., p. 163. In the Trail
8melter Arbitration arieing out of this
Agreement it was held, in 1941, that
under international law no State has a
right to use or permit the use of its
territory in such a manner as to cause
injury by fumes in or to the territory
of another : A nnual Digest, 1938-
1940, Case No. 315. And see the
Report in the same matter of the
International Joint Commission between
Canada and the United States
of February 28, 1931: A.J., 25
(1931), p. 540. When the International
Law Commission adopted in
1953 a draft Article on Fisheries
which provided, de lege f erenda, that
States shall be under a duty to accept
regulations prescribed by an international
authority as esaential for the
purpose of protecting fiahing resources
against waste or extermination, it
etated that the prohibition of abuse
of rights is supported by judicial and
other authority (Report of the Commission,
Fifth Session, 1953).
137
§ 155b] INTERNATIONAL DELINQUENCIES 347
Court is bound to apply by virtue of Article 38 of its
Statute. However, the extent of the application of the still
controversial 1 doctrine of the prohibition of abuse of rights
is not at all certain. It is of recent origin in the literature
and practice of International Law, and it must be left to
international tribunals to apply and develop it by reference
to individual situations.
§ 155b. A State which puts forward a claim before a Nationalclaims
commission or other international tribunal must be 1
0
·ty
1
?f
a1ms.
in a position to show that it has locus standi for that purpose.2
The principal, and almost the exclusive, factor creating that
locus standi is the nationality of the claimant, and it may
be stated as a general principle 3 that from the time of the
1 See e.g. Balladore Pallieri, p.
287 ; Cavaglieri, N'UOVi studi sull' intervento
(1928), pp. 42-52. According
to Article 33 of the Treaty of April
18, 1951, constituting the European
Coal and Steel Community (see above,
p. 186), the Court set up by the Community
has jurisdiction, inter alia, in
appeals by member-States against
decisions or recommendations of the
High Authority on account of abuse
of power.
1 On the nature of the claim put
forward by a State on behalf of its
nationals see the Judgment of the
Permanent Court of International
Justice of September 13, 1928, in the
Oase concerning the Factory at Ohorzow:
Series A, No. 17, pp. 25-29;
Annual Digest, 1927-1928, Case No.
170. See also Borchard in Yale Law
Journal, 43 (1933-1934), pp. 365-371,
for a survey of otber relevant cases.
8 See Burst in B. Y., 1926, pp.
163-182; Hyde, §§ 275, 280; Ralston,
§§ 291-348 ; Lambie in A.J.,
24 (1930), pp. 264-278; Borchard
in Annuaire, 36 (i.) (1931), pp. 277-
356; Witenberg in Hague Recueil, vol.
41 (1932) (3), pp. 44-50; Borchard in
R.l., 3rd ser., 14 (1933), pp. 421-467;
Ch. de Visscher, ibid., 17 (1936),
pp. 481-484; Bases of Discussion,
iii. pp. 140-145 ; Sibert in R.G., ~,
(1937), pp. 514-520 ; Sinclair in B. Y.,
27 (1950), pp. 125-144. With regard
to the nationality of corporations see
below, p. 642, n. 3. As to protection
of shareholders in foreign companies
see Mervyn Jones in B.Y., 26 (1949),
pp. 225-258. The principle stated
above has not been followed invaria
bly, and exceptional cases exist in
which a State bas been allowed to
support a claim on the joint basis of
the claimant's domicile within its
territory and of his having made a
declaration of intention to acquire its
nationality: see Hyde, § 275, and
Ralston, § 300. See also the observations
of Fitzmaurice in B. Y., 17
(1936), pp. 104-110, in connection
with the l'm Alone case in which the
owners of the ship, which the
Commissioners held to have been
illegally sunk, were nationals of the
de/endant State. See also A nnual
Digest, 1933-1934, Case No. 86 (at
pp. 205, 206). As to the two cases
-Martin Koszta and August Piepenbrink-
of the successful assertion by
the United States of America of a right
of protection over persona who were
not its nationals see Wharton, ii,
§ 17 5; Moore, iii. §§ 490, 491 ; Martens,
Oauses céUbres, v. pp. 583-599; Borchard,
§ 250. But see Hyde, i. § 396,
who cites a passage in Moore, iii. p.
844, which makes it clear that the
claim to protect was based upon
Koszta's admission to American protection
ad interim by the American
Consul and Chargé d'AfiaireB at
Constantinople by the grant of a
passport or safe-conduct in accordance
with the recognised usage in
Turkey. See also the case of Edward
Hilson v. Germany in A.J., 19 (1925),
pp. 810-815, and Annual Digest, 1925-
1926, (',ase No. 198. Asto the August
138
Annex 22
Michel Virally, Panorama du droit international contemporain. Cours
général de droit international public, Recueil Des Cours 1983-V,
Collected Courses of the Hague Academy of International Law, Vol. 183
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
139
140
141
ACADÉMIE DE DROIT INTERNATIONAL
FONDÉE EN l 923 AVEC LE CONCOURS DE LA
DOTATION CARNEGIE POUR LA PAIX INTERNATIONALE
RECUEIL DES COURS
COLLECTED COURSES OF THE HAGUE
ACADEMY OF INTERNATIONAL LAW
1983
V
Tome 183 de la collection
1985
MARTINUS NIIBOFF PUBLISHERS
Dordrecht/Boston/Lancaster
142
PANORAMA
DU DROIT INTERNATIONAL
CONTEMPORAIN
Cours général
de droit international public
par
MICHEL VIRALL Y
143
196 Michel Viral/y
et la protestation. Il a déjà été beaucoup question de la première, sur
laquelle il n'est pas nécessaire de revenir ici (cf. supra, pp. 52 ss.).
La protestation a pour objet de manifester un désaccord, un refus
d'acceptation et, ainsi, de rendre inopposable juridiquement la
situation qu'elle vise.
La signification juridique de ces deux actes leur est inhérente.
Le droit international a seulement à en tirer les conséquences.
2) Les actes relatifs à l'exercice des droits de souveraineté
Les actes relatifs à l'exercice par leur auteur de ses droits de
souveraineté sont eux-mêmes très nombreux et divers. Ils revêtent
habituellement la forme d'actes de droit interne (lois, décrets),
mais ont une portée internationale dans la mesure 'où ils ont pour
objet de créer une situation s'imposant à d'autres Etats. On peut
citer, à titre d'exemples: la fixation de l'étendue de la mer territoriale,
l'établissement d'une zone de pêche, ou d'une zone économique
exclusive, l'établissement de lignes de base droites, ou
d'autres limites maritimes, une déclaration de guerre ou de neutralité,
l'établissement d'un blocus maritime, une déclaration
d'embargo commercial, une autorisation de survol du territoire,
une suspension du droit de passage inoffensif à travers certaines
parties de la mer territoriale, l'établissement d'une zone interdite à
la navigation des tiers à titre temporaire, etc.
La validité et la portée juridique internationale de ces actes est
déterminée par le droit international. Ils sont inattaquables et immédiatement
opposables aux autres Etats s'ils sont pris dans les
limites de ce que le droit international autorise ( 12 milles pour la
mer territoriale, 200 milles pour la zone économique exclusive,
etc.). Au-delà de ces limites, ils ne peuvent produire d'effets qu'à
l'égard des Etats vis-à-vis desquels ils sont devenus opposables,
par reconnaissance ou par tolérance (la reconnaissance n'ayant
évidemment pas pour conséquence de rendre la situation conventionnelle).
3) Les actes comportant des engagements juridiques
Un certain nombre d'actes unilatéraux des Etats comportent des
engagements à l'égard d'autres Etats. On peut y assimiler les actes
portant renonciation à un droit, qui constituent un engagement de
144
Cours général de droit international public 197
ne pas exercer ce droit. Ce sont des actes que l'on a tenté de réduire
à une proposition, ou à une promesse, qui acquerrait valeur conventionnelle
après avoir été acceptée tacitement et lierait son auteur
seulement à l'égard des Etats l'ayant ainsi acceptée.
Cette construction paraît artificielle. Elle ne correspond pas,
dans la plupart des cas, à la réalité des faits (et, notamment à la
volonté des auteurs des engagements en cause). Le recours à la
fiction vient ici au secours d'un préjugé doctrinal hostile à l'acte
unilatéral.
Dans l'affaire des Essais nucléaires, la Cour internationale de
Justice a pris une position très claire, en affirmant que « tout engagement
valablement pris lie son auteur et doit être exécuté par lui
de bonne foi» (CIJ Recueil 1974, p. 267). Ce dictum de la Cour
formule un principe général tout à fait analogue, pour les actes
unilatéraux, à pacta sunt servanda pour les traités. Le fondement
est le même dans les deux cas: c'est celui de la bonne foi. On notera
que, pour la Cour, la validité de l'engagement pris ne dépend en
aucune façon de l'acceptation d'un quelconque Etat tiers. Aussi
bien, un tel engagement peut-il être pris erga omnes. L'application
dans le cas d'espèce (des essais nucléaires) du principe posé par la
Cour peut être discutable. Le raisonnement suivi par la Cour paraît,
au contraire, inattaquable. Il convient, simplement, clans chaque cas
d'espèce, de déterminer: 1) si l'auteur de la déclaration a entendu
prendre un engagement (ou ne s'est pas contenté d'une déclaration
d'intention, qui n'était pas destinée à le lier) et 2) s'il s'est placé
sur le plan du droit, ou n'a pris qu'un engagement purement politique.
On retrouve ici le problème déjà rencontré à propos des
accords purement politiques, et qui doit être résolu de la même
façon (supra, p. 191 ).
4) Des actes s'imposant à d'autres Etats?
Aucun des actes précédemment mentionnés n'implique une quelconque
supériorité de leur auteur sur d'autres Etats. Ils ne portent
donc aucune atteinte au principe de l'égalité souveraine. Tous reposent
sur la volonté de leur auteur de produire des effets de droit
et ceux-ci ne sont effectivement produits que s'ils sont admis par
le droit international, qui rend ainsi leur intention juridiquement
efficace, ou s'ils bénéficient de la reconnaissance ou de la tolérance
des autres Etats.
Annex 23
Giorgio Gaja, Obligations and Rights Erga Omnes in International
Law, Second Report, Annuaire de l’Institut de droit international, Vol.
71 (Krakow Session, 2005)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
145
146
147
Institute of International Law
Yearbook
Volume 71, Part I
Session of Krakow, 2005 - First part
Preparatory W ork
Justitia et Pace
'
Editions A. Pedone - 13, rue Soufflot - Paris
148
Institut de droit international
Annuaire
Volume 71, Tome I
Session de Cracovie, 2004 - Première partie
Travaux préparatoires
Justitia et Pace
Editions A. Pedone - 13, rue Soufflot - Paris
149
III. Second Report (August 2004)
Introduction
In presenting my first report in March 2002 I expressed the wish that that
report, « together with the comments to be made by members of the
5th Commission and a brief summing up », would lead to a wide-ranging
discussion on substantial issues in a plenary meeting at Bruges. As this
discussion could not take place, the 5th Commission met in Bruges and decided
that a certain number of propositions should be drafted in view of the Institute's
discussion in Krakow. The present report, which is based on my previous
report, the ten valuable comments on the report, the discussion in Bruges and
further reflections, contains the draft of seven propositions, each with a brief
commentary. According to the Commission's guidelines, the propositions
concentrate on questions relating to the consequences of infringements of
obligations erga omnes and on related remedies; obligations established under
treaties have also been considered. Several issues referred to in my first report
or in some of the comments could not be included.
Proposition A
« For the purposes of the present propositions, an obligation erga omnes is :
(a) an obligation under general international law that a State owes in any
given case to ail the other States, in view of their corn.mon values and
concem for compliance; or
(b) an obligation under a treaty that a State party to the treaty owes in any
given case to ail the other States parties to the same treaty, in view of
their comrnon values and concem for compliance. »
(1) There is no widely accepted definition of obligations erga omnes. The
International Court of Justice has often referred to this type of obligation, but
bas not elaborated on the elements briefly described inits pioneeringjudgment
in the Barcelona Traction case. The Court then mentioned « obligations
towards the international community as a w~ole » and said they were « the
150
190 Première partie : Travaux préparatoires
concem of ail States», so that « in view of the importance of the rights
involved ail States can be held to have a legal interest in their protection ».108
(2) The « importance of the rights involved » clearly reflects the basic values
of the « international community as a whole » and explains the concem that
« ail States >> are considered to have in the protection of those rights," and hence
in compliance with the corresponding obligations.
(3) As in practice an organized response by the international community or a
collective response by ail States would prove in most cases to be impossible, an
obligation owed by a State to all the other States necessarily means an
obligation existing towards each other State individually.
( 4) While the judgment in the Barcelona Traction case appears to view the
« international community as a whole » as only composed of States, the
international community may be considered as. including other entities, such as
peoples or international organizations. However, as the role of States is
certainly predominant and a consideration of other entities to which an
obligation erga omnes may also be owed would complicate the drafting of the
present propositions, these only refer to States as omnes.
(5) What characterizes an obligation erga omnes is that· all States are
concemed with compliance in any specific case, irrespective of the existence of
a State, entity or individual which may be specially affected by a breach. For
instance, when the obligation not to commit genocide is infringed by a State,
the targeted group is specially affected, but all the other States are also
concerned with compliance.
( 6) The example of genocide is taken from the judgment in the Barcelona
Traction case, where the Court also mentioned « aggression » and the
infringement of « the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination ». 109
The Court referred to an obligation erga omnes conceming self-determination
in its judgment in the East Timor case110 and in its advisory opinion on the
Legat consequences of the construction of a wall in the occupied Palestinian
territory, 111 in which the Court also mentioned « certain [ ... ] obligations under
international humanitarian law ». 112
'
108 ICJ Reports (1970), p. 32 (para. 33).
109 Ibid. , p. 32 (para. 34).
110 ICJ Reports (1995), p. 102 (para. 29). In this judgement self-detennination was
defined a right erg a omnes.
111 ICJ Reports (2004), p. 199 (paras. 155-156).
112 Ibid., p. 199 (paras. 155 and 157).
151
Les obligations et les droits erga omnes 191
(7) Obligations under a treaty may share some of the characteristics of
obligations erga omnes under general international law. Treaties may be based
on common values of the States parties, which may be concemed with
compliance in any given case, irrespective of the existence of a specially
affected State or entity or individual. Since obligations under a treaty are only
owed to the other States parties to the treaty, they are sometimes referred to as
obligations erga omnes partes.
(8) The following propositions cover obligations both under general
international law and under a treaty, with the understanding that in the latter
case obligations are owed only to other States parties to the treaty.
(9) Sorne treaties providing for obligations erga omnes establish collective
guarantees for compliance which may significantly contribute to the respect of
obligations, in particular through the supervision of monitoring bodies and the
availability of remedies for States and individuals. Contrary to what was held
by the Court in its judgment on the merits of the Military and paramilitary
activities in and against Nicaragua case, 113 the existence of such mechanisms
does not generally imply that States may not take in the case of infringements
of obligations under those treaties the same actions that are allowed with regard
to breaches of obligations erga omnes under general intemational law.
( 10) Entities other than States and individuals may also have obligations erga
omnes. Since compliance with those obligations raises specific issues, the
present propositions are limited to obligations pertaining to States.
Proposition B
« When a State is under an obligation erga omnes, ail the States to whom
the obligation erga omnes is owed have a corresponding right. A right erga
omnes belongs to the State, entity or individual to whom the obligation is also
owed and which would be specially affected by a breach of the obligation erga
. .
omnes m a g1ven case. »
( 1) The concept of rights erga omnes bas not been defined by the International
Court of Justice. It has not generally been used with regard to the rights of all
the States to whom an obligation erga omnes is owed, but mainly with
reference to the rights that specially concemed States or entities or individuals
have in relation to an obligation erga omnes in a specific case, so that they
113 The Court then said that « where human rights are protected by international
conventions, that protection takes the form of such arrangements for monitoring or
ensuring respect fqr human rights as are provided for in the conventions themselves ».
ICJ Reports (1986), p. 134 (para. 267).
152
192 Première partie : Travaux préparatoires
would be specially affected by a breach. Wben the Court said in the East Timor
case that << Portugal's assertion that the rights of peoples to self-determination,
as it evolved from the Charter and from United Nations practice, has an erga
omnes character is irreproachable », 114 the Court appeared to refer to the right
that the East Timorese people have towards all the States, including the
defendant State in the proceedings.
(2) The fact that a right is characterized erga omnes implies that concern with
compliance of the corresponding obligation is shared by all the States to whom
the obligation erga omnes is owed. Moreover, as stated in Proposition G, these
States may also be under an obligation to ensure compliance. That obligation
would be owed to the State, entity or individual having a right erga omnes.
Proposition C
« While peremptory norms always impose obligations erga omnes, these
obligations are not necessarily established by peremptory norms. »
(1) Article 53 of the Vienna Convention on the Law of Treaties defines a
peremptory norm as « a norm accepted and recognized by the international
community of States as a whole as a norm from wbich no derogation is
permitted » and sanctions with invalidity any conflicting treaty. lt is clear that
peremptory nonns reflect fondamental values shared by « the international
community of States as a whole » and that all States are concemed with
compliance with the obligations imposed by peremptory norms, so much so that
a treaty designed to affect compliance negatively is considered invalid. Should
the obligation not be owed by a State to all the other States, there would be no
reason why a treaty between two or more States could not affect compliance.
(2) As bas been widely held in literature, 115 peremptory norms represent an
inner circle within the wider circle of norms establishing obligations erga
omnes. This is because obligations erga omnes are not necessarily imposed by
peremptory nonns. Thus, unless it was peremptory: a norm establishing an
114 ICJ Reports (1995), p. l 02 (para. 29). In bis dissenting opinion Judge Weeramantry
referred to « the right erga omnes of the people of East Timor to the recognitioà oftheir
self-determination and pennanent sovereignty over their natural resources » (p. 215).
115 Among recent reassertions see M. Byers, « Conceptualizing the Relationship
betweenJus Cogens and Erga Omnes Rules », 66 Nord. JIL (1997), p. 211 at p. 237; G.
Abi-Saab, « The Uses of Article 19 », 10 EJIL (1999), p. 339 at p. 348; K. Zemanek,
« New Trends in the Enforcement of erga omnes Obligations», 4 Max Planck Yearbook
of UN Law (2000), p. lat p. 6; L.-A. Sicilianos, << The Classification of Obligations and
the Multilateral Dimensions of the Relations of International Responsibility », 13 EJJL
(2002), p. 1127 at p. 1137.
153
Les obligations et les droits erga omnes 193
obligation erga omnes could be validly derogated by a treaty, with the
consequence that it would no longer apply in the relations between States party
to that treaty.
(3) Examples of treaties derogating norms establishing obligations erga omnes
may be rare. However, the distinction between these norms and peremptory
norms i__s at least theoretically important because one would otherwise have to
assume that, for instance, all the norms of general intemational law conceming
the protection of human rights have a peremptory character. These are certainly
norms establishing obligations erga omnes because, in view of the fact that
infringements ofhuman rights mainly concemnationals of the infringing State,
no other State would be specially affected by the breach and tbus the obligation
to protect human rights would have little meaning unless it was erga omnes.
Proposition D
« When a State commits a breach of an obligation erga omnes all the States to
whom the obligation is owed are entitled to claim from the responsible State
in particular :
(a) cessation of the intemationally wrongful act;
(b) performance of the obligation of reparation in the interest of the State,
entity or individual which is specially affected by the breach. Restitution
should be effected unless materially impossible. »
(1) This proposition follows to a large extent the wording of Article 48 of the
ILC Articles on Responsibility of States for internationally wrongful acts. 116
Paragraph 1 of that Article provides that :
« Any State other than an injured State is entitled to invoke the responsibility
ofanother State in accordance with paragraph 2 if:[ ... ] (b) The obligation
breacbed is· owed to the intemationally community as a whole. »
Paragraph 2 runs as follows :
« Any State entitled to invoke responsibility under paragraph 1 may claim
from the responsible State :
(a) Cessation of the international wrongful act, and assurances and
guarantees of non-repetition in accordance with Article 30; and
(b) Performance of the obligation of reparation in accordance with the
preceding Articles, in the interest of the injured State or of the
beneficiaries of the obligation breached. »
116 UN doc. A/56Î10, pp. 318-319.
154
Annex 24
OPPENHEIM’S INTERNATIONAL LAW: VOLUME 1 PEACE (Robert Jennings &
Arthur Watts, eds., Oxford University Press, 9th ed. 2008)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
155
156
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 19 June 2008
ISBN: 9780582302457
Part 1 The subjects of international law, Ch.3
Position of the states in international law,
Independence and Territorial and Personal
Authority
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
From: Oppenheim's International Law: Volume 1 Peace (9th Edition)
Edited By: Sir Robert Jennings QC, Arthur Watts KCMG QC
Subject(s):
States, independence — Jurisdiction of states, territoriality principle — Sovereignty — Armed conflict,
international — Protected persons and property — Terrorism — Geneva Conventions 1949 —
Combatants, unlawful — Propaganda for war — Abuse of rights
157
Oxford Public International Law
condemning hostile propaganda67 as well as, more generally, propaganda against peace or
for wars of aggression.The condemnation of such propaganda has tended to be accompanied by measures to
encourage the freedom to provide and receive information, this being regarded as
necessary for the proper development of international understanding and as an important
factor contributing to the maintenance of international peace. It has also been regarded as
involving a fundamental human right.A draft Convention on Freedom of Information was
prepared at the 1948 United Nations Conference70 but, although given further study
subsequently, it has not yet been adopted. A draft Declaration on Freedom of Information
was approved by the Economic and Social Council in 1960,71 but it too has not yet been
adopted by the General Assembly.Freer access to and dissemination of information (p.
406) was also provided for in the Final Act of the Helsinki Conference on Security and
Cooperation in Europe 1975.73 It is in the context of the freedom to provide and receive
information that states have sometimes felt it necessary to protest at actions by another
state designed to prevent the reception in its territory of broadcasts originating from the
territory of the protesting state.§ 123 Restrictions upon personal authority
Personal authority does not give unlimited liberty of action. Although the citizens of a state
remain to a considerable extent under its power when abroad, the exercise of this power is
restricted by the state’s duty to respect the territorial supremacy of the foreign state on
whose territory those citizens reside. A state must refrain from performing acts which,
although they are according to its personal supremacy within its competence, would violate
the territorial supremacy of this foreign state. A state must not perform acts of sovereignty
in the territory of another state.Thus, for instance, a state may not use force upon its
nationals abroad to compel them to fulfil their military service obligations in their home
state (even though it is within its rights in imposing such obligations upon them);and a
state is prevented from requiring such acts from its citizens abroad as are forbidden to
them by the municipal law of the land in which they reside, and from ordering them not to
commit such acts as they are bound to commit according to the municipal law of the land in
which they reside.But a state may also by treaty obligation be in some respects restricted in its liberty of
action with regard to its citizens.Thus insofar as the principle of (p. 407) humanitarian
intervention5 is tending to become a rule of international law and specific legal obligations
in the field of human rights and fundamental freedoms are becoming established,states
are bound to respect the fundamental human rights of their own citizens.
§ 124 Abuse of rights
A further restraint on the freedom of action which a state in general enjoys by virtue of its
independence, and territorial and personal supremacy, is to be found in the prohibition of
the abuse by a state of a right enjoyed by it by virtue of international law.Such an abuse of
rights occurs when a state avails itself of its right in an arbitrary manner in such a way as to
inflict upon another state an injury which cannot be justified by a legitimate consideration
of its own advantage. Thus international tribunals have held that a state may become
responsible for an arbitrary expulsion of aliens.The Permanent Court of International
Justice expressed the view that, in certain circumstances, a state, while technically acting
within the law, may nevertheless incur liability by abusing its rights — although, as the
Court said, such an abuse cannot be presumed.Individual judges of the International
Court of Justice have sometimes (p. 408) referred to it;possibly it is implied in the frequent
judicial affirmation of the obligation of states to act in good faith.The conferment and
deprivation of nationality is a right which international law recognises as being within the
exclusive competence of states; but it is a right the abuse of which may be a ground for an
international claim.The duty of the state not to interfere with the flow of a river to the
67
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70
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72
73
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detriment of other riparian states has its source in the same principle.The maxim, sic
utere tuo ut alienum non laedas, is applicable to relations of states no less than to those of
individuals; it underlies a substantial part of the law of tort in several systems of law;it is
one of those general principles of law recognised by civilised states which the International
Court is bound to apply by virtue of Article 38 of its Statute.However, the extent of the
application of the still controversial10 doctrine of the prohibition of abuse of rights is not at
all certain.
Much of the purpose of a doctrine of abuse of rights is directed to securing a balance
between the right of the state to do freely all those things it is entitled to do, and the right
of other states to enjoy a similar freedom of action without harmful interference originating
outside their borders. The need for such a balance has been underlined by the rapid growth
of activities which could cause harm far outside the area where they take place, and by the
urgency of contemporary concern for the protection of the human environment. In the Trail
Smelter Arbitration, which raised questions of state responsibility for acts of private
persons on its territory, the tribunal supported the proposition that ‘a (p. 409) State owes at
all times a duty to protect other States against injurious acts by individuals from within its
jurisdiction’;and in the Corfu Channel case, which by contrast raised questions of direct
state responsibility, the International Court of Justice referred to ‘every State’s obligation
not to allow knowingly its territory to be used for acts contrary to the rights of other
States’.Such limited international judicial consideration of the issues involved, while
affording sound guidance as to the underlying principles, is insufficient to regulate
increasingly complex situations. In relation in particular to pollution of the environment13 of
one state from sources in another state, international agreements have been concluded as a
means of regulating the extent of state responsibility.The topic of ‘international liability
for injurious consequences arising out of acts not prohibited by international law’ was
placed in the work programme of the International Law Commission in 1974 at the request
of the General Assembly of the United Nations.This has been seen as ‘an affirmation of a
broad principle that States, even when undertaking acts that international law did not
prohibit, had a duty to consider the interests of other States that might be affected’.This
notion is broader than that of ‘abuse of rights’ since it omits the suggestion of excess
inherent in the term ‘abuse’.
Early consideration of this topic by the Commission, as reflected in draft articles considered
by it in 1988–90, covers activities within a state which create an appreciable risk of causing
physical transboundary injury, and of which the state knew or had the means of knowing:while states are free to carry out or (p. 410) permit activities in their territories, that
freedom must, if such activities involve risk, be compatible with the protection of the rights
flowing from the sovereignty of other states, which calls for cooperation between the states
concerned to prevent or minimise the risk of transboundary injury, or its effects if injury has
already occurred, and for reparation to be made for any appreciable injury suffered.§ 125 Protection of the environment
Concern for the effects which a state’s acts may have outside its territory has increasingly
extended beyond their specific effects on nearby states, to cover also acts which may affect
all states through their impact on the world’s environment generally.(p. 411) This wider environmental concern sprang from growing awareness of the damage
done to neighbouring states by various forms of pollution, particularly that brought about
by increasingly intensive industrial activity and its associated phenomenon of ‘acid rain’.The development of nuclear power, with the attendant risks of radioactive pollution should
the nuclear reactors be damaged, added an extra dimension to the problem; and special
urgency and importance was added after the Chernobyl disaster of 1986,3 which caused
serious and damaging (p. 412) pollution of the land in several other countries as a result of
7
8
9
10
11
12
13
14
15
16
17
18
1
2
3
159
70 See § 115, n 8.
71 Resolution 756 (XXIX).
72 A Declaration on Fundamental Principles concerning the Contribution of the Mass
Media to Strengthening Peace and International Understanding, the Promotion of Human
Rights and to Countering Racialism, Apartheid and Incitement to War was adopted at the
20th UNESCO General Conference in November 1978: ILM, 18 (1979), p 276. See also the
Resolution on an International Programme for the Development of Communication adopted
at the 21st UNESCO General Conference in 1980: ILM, 20 (1981), p 451. This resolution
has been seen as marking the establishment of a so-called ‘new international information
and communication order’, on which see Condorelli, Ital YBIL, 5 (1980–81), pp 123–38; Sur,
AFDI, 27 (1981), pp 45–64. On the UNESCO Committee for the Intergovernmental
Information Programme, established in 1985, see Beer-Gabel, AFDI, 32 (1986), pp 684–96.
73 Cmnd 6198, at pp 36–9; ILM, 14 (1975), pp 1292, 1315–17. See also the Concluding
Document of the Madrid Follow-up Conference 1980–83 (Cmnd 9066, pp 19–21; ILM, 22
(1983), pp 1398, 1403).
74 See eg Parliamentary Debates (Commons), vol 32, col 31 (written answers, 15
November 1982), ibid, vol 60, col 115 (written answers, 15 May 1984), and ibid, vol 79, col
463 (written answers, 22 May 1985). Such jamming of radio broadcasts is likely to be
inconsistent with the relevant provisions, particularly Art 35, of the International
Telecommunication Convention 1982, Art 19.2 of the International Covenant on Civil and
Political Rights 1966, and the Final Act of the Helsinki Conference on Security and
Cooperation in Europe 1975 (Art 2 of Basket 3).
1 See § 118.
2 See Oppenheimer, AJ, 36 (1942), at pp 589–90.
3 For example, in time of war a belligerent is not entitled to prohibit one of its nationals,
resident in a neutral state under the laws of which debts must be paid, from paying a debt
due to a national of the other belligerent. For a survey of the law of the US as to the
jurisdiction of courts of equity over persons to compel the doing of acts outside the
territorial limits of the state, see Messner, Minn Law Rev, 14 (1929–30), pp 494–529. As to
enforcement of foreign public law, see § 144. See also § 139, as to certain problems which
have arisen in connection with anti-trust cases and boycotts.
4 Note also the Treaty of Berlin of 1878 which restricted the personal supremacy of
Bulgaria, Montenegro, Serbia, and Romania in so far as these states were thereby obliged
not to impose any religious disabilities on any of their subjects (see also § 40, n 4 and § 131,
n 41, as to the position of Cyprus); and the policy of protecting racial, religious, and
linguistic minorities by means of treaty obligations was carried further in the treaties
concluded at the end of the First World War (see §§ 426–7).
5 See § 131(2).
6 See §§ 429–44.
1 See H Lauterpacht, The Function of Law, pp 286–306, Development of International Law
by the International Court (1958), pp 162–5; Scerni, L’abuso del diritto nei rapporti
internazionali (1930); Gutteridge, CLJ, 5 (1932), pp 22–45; Seles, La Notion de l’abus du
droit dans le droit international (1939); Kiss, L’abus de droit en droit international (1953);
Cheng, General Principles of Law as Applied by International Tribunals (1953), pp 121–36;
Politis, Hag R, 6 (1925), i, pp 1–109; Leibholz, ZöV, I (1929), pp 77–125; Schlochauer, ZöV,
17 (1933), pp 373–94; Salvioli, Hag R, 46 (1933), iv, pp 66–9; Guggenheim, ibid, 74 (1949),
i, pp 249–54; Roulet, Le Caractère artificiel de la théorie de l’abus de droit en droit
international (1958); Garcia-Amador, Hag R, 94 (1958), ii, pp 376–82; Schwarzenberger,
International Law and Order (1971), pp 84–109; Taylor, BY, 46 (1972–73), pp 323–52;
160
Goodwin-Gill, International Law and the Movement of Persons between States (1978), pp
209–18, and BY, 47 (1974–75), pp 79–86; Thirlway, BY, 60 (1989), pp 25–9. See also the
work done by the ILC from 1974 onwards and referred to at nn 15, 16 and 18.
To some extent, the matter may be one of formulation. If a right is formulated in absolute
terms (‘a State may expel aliens’), arbitrary and precipitate action may involve an abuse of
that right; if the right is formulated in qualified terms (‘a State may take reasonable
measures to expel aliens’), such action would be wrongful not so much as an abuse of right
but as being outside the scope of the right claimed. And see YBILC (1973), p 182, para (10).
The inclusion in a rule of a qualification requiring reasonableness, or something similar, in
its application, serves much of the purpose of the doctrine of ‘abuse of rights’. That doctrine
is a useful safeguard in relatively undeveloped or over-inflexible parts of a legal system
pending the development of precise and detailed rules.
2 See §§ 413–14.
3 Free Zones of Upper Savoy and the District of Gex: Series A, No 24, p 12, and Series A/B,
No 46, p 167. See also the case of Certain German Interests in Polish Upper Silesia: Series
A, No 7, p 30. In the Anglo-Norwegian Fisheries case the Court regarded the situation
before it as in part involving a ‘case of manifest abuse’ of the right to measure the
territorial sea: ICJ Rep (1951), p 142. See Fitzmaurice, BY, 27 (1950), pp 12–14; ibid, 30
(1953), pp 53–4; and ibid, 35 (1959), pp 210–16.
When the ILC adopted in 1953 a draft Article on Fisheries which provided, de lege ferenda,
that states shall be under a duty to accept regulations prescribed by an international
authority as essential for the purpose of protecting fishing resources against waste or
extermination, it stated that the prohibition of abuse of rights was supported by judicial and
other authority (Report of the Commission (Fifth Session, 1953)).
4 See eg Judge Azevedo in the Admission Case, ICJ Rep (1948), pp 79, 80; Judge Alvarez in
the Admission (General Assembly) Case, ICJ Rep (1950), p 15. See also Judge Anzilotti in
the Electricity Company of Sofia Case, Series A/B, No 77, p 88.
5 See the Joint Dissenting Opinion in the Admission Case, ICJ Rep (1948), pp 91, 92; and
see the Opinion of the Court itself in that case for the statement that with regard to the
conditions of admission of new members the Charter did not forbid the taking into
consideration of any factor it was possible ‘reasonably and in good faith’ to connect with the
conditions laid down in the Charter.
6 See the Minutes of the First Committee of the Hague Conference on Codification of
International Law (1930), pp 20 and 197. And see Rundstein, ZöV, 16 (1931), pp 41–5, and §
378. See also the Dissenting Opinion of Judge Read in the Nottebohm Case, ICJ Rep (1955),
at pp 37–8.
7 See §§ 175–81 and also §§ 173, 225.
8 See Handelskwekerij G J Bier BV v Mines de Potasse d’Alsace SA, Neth YBIL, 11 (1980),
p 326, concerning pollution of the Rhine by a company in France, causing damage in the
Netherlands. The court concluded that it had to apply international law and that, there
being no applicable rule of customary international law, it had to apply general principles of
law, which included the principle sic utere tuo ut alienum non laedas, by virtue of which the
person making the discharge which was causing the pollution was acting in breach of a
legal duty.
9 See § 12. In Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für
Getreide und Futtermittel [1972] CMLR 177, 186, a court in the Federal Republic of
161
Germany regarded the principle of proportionality as existing in public international law as
part of the general principle of law prohibiting the abuse of rights.
l0 See eg Balladore Pallieri, p 287; Cavaglieri, Nuovi Studi sull’ intervento (1928), pp 42–
52. ‘Abuse of rights’ may have some affinities with, although it is distinct from, the doctrine
of détournement de pouvoir. The Court of Justice of the European Communities has
jurisdiction to hold invalid acts of the Council and Commission of the Communities on
grounds, inter alia, of misuse of powers: see Art 173 of the Treaty establishing the EEC, and
equivalent Articles of the Treaties establishing the ECSC and Euratom.
11 RIAA, iii, p 1963, quoting Eagleton, Responsibility of States in International Law (1928),
p 80. See also n 14.
12 ICJ Rep (1949), p 22; and see § 121, n 8.
See also the Lake Lanoux Arbitration — in which France’s entitlement to exercise its rights
(in relation to the utilisation of the waters of Lake Lanoux) had to be set against the
entitlement of Spain (which was downstream of Lake Lanoux) to have its rights respected
and Spanish interests taken into consideration — but this Arbitration turned on the
provisions of a treaty between the two parties rather than on customary international law
(ILR, 24 (1957), at p 140). It must be noted that where actions of private individuals and
companies in one state cause harm in the territory of another, the matter is often settled by
municipal courts applying municipal law. For references to several such cases, see Lachs,
ICLQ, 39 (1990), pp 663–9. See also n 8 of this section. As to the damage caused to
downstream states by the escape of chemical wastes into the Rhine from the Sandoz
Chemical Corporation’s factory at Basle, Switzerland, see Rest, Germ YBIL, 30 (1987), pp
160–76.
13 See generally, § 125. On liability for ultra-hazardous activities, see also § 149.
14 For an instance of conventional regulation of a nuisance committed by private persons
and affecting injuriously the territory of a neighbouring state, see the Convention of 15
April 1935, between Canada and the USA for the settlement of difficulties arising out of the
complaint of the US that fumes discharged from the smelter of the Consolidated Mining and
Smelting Company in British Columbia were causing damage to the State of Washington:
US TS No 983; AJ, 30 (1936), Suppl, p 163. In the Trail Smelter Arbitration arising out of
this Agreement it was held, in 1941, that under international law no state has a right to use
or permit the use of its territory in such a manner as to cause injury by fumes in or to the
territory of another; RIAA, iii, p 1963; AD, 9 (1938–40), No 104. See the Report in the same
matter of the International Joint Commission between Canada and the US of 28 February
1931: AJ, 25 (1931), p 540. See also § 121, n 5.
15 Res 3071 (XXVIII) (1973).
16 YBILC (1980), ii, pt 2, p 159. See generally, UN Secretariat, Study of State Practice
Relevant to International Liability for Injurious Consequences Arising out of Acts not
Prohibited by International Law (1984, UN Doc A/CN 4/384).
17 Note also the Decision of the OECD Council of 8 July 1988 on the exchange of
information concerning accidents capable of causing transfrontier damage: ILM, 28 (1989),
p 247. And see § 125, n 15, for other OECD decisions.
18 See draft Arts 1–10 submitted by the Special Rapporteur and referred to the Drafting
Committee by the ILC at the end of its debate on this topic at its 1988 session: Report of the
ILC (40th Session, 1988), paras 21–101. See also Arts 10–17 (the previous Arts 1–10 having
been revised to become Arts 1–9) discussed by the ILC at its 1989 session, and focusing on
procedures (warnings, notifications, etc) for preventing transboundary harm: Report of the
ILC (41st Session, 1989), paras 377–97, these articles were expanded into Arts 10–20 at the
Commission’s session in 1990, and draft Arts 21–27 (on international liability) and 28–33
162
(on civil liability in municipal law) were also discussed: Report of the ILC (42nd Session,
1990), paras 492–525. See generally on the ILCs work on this topic, Caubet, AFDI, 29
(1983), pp 99–120; Magraw, AJ, 80 (1986), pp 305–30; Barboza, AFDI, 34 (1988), pp 513–22;
Boyle, ICLQ 39 (1990), pp 1–26.
1 See generally Andrassy, Hag R, 79 (1951), ii, pp 77–178; Thalmann, Grundprinzipien des
modernen zwischenstaatlichen Nachbarrechts (1951); Hag R (1973), Special Vol (ed Kiss)
(Proceedings of Colloquium on the Protection of the Environment and International Law);
Dickstein, ICLQ, 23 (1974), pp 426–46; Barros and Johnston, The International Law of
Pollution (1974), pp 69–82; Handl, AJ, 69 (1975), pp 50–76; Teclaff and Utton (eds),
International Environmental Law (1975); Kiss, Survey of Current Developments in
International Environmental Law (1976), in The Structure and Process of International Law
(eds Macdonald and Johnston, 1983), pp 1069–94, Droit international de l’environment
(1989), and Germ YBIL, 32 (1989), pp 241–63; Hoffman, ICLQ, 25 (1976), pp 509–42;
Johnson, International Environmental Law (1976); Dupuy, AFDI, 20 (1974), pp 815–29, and
La Responsabilité internationale des états pour les dommages d’origine technologique et
industrielle (1977); Springer, ICLQ, 26 (1977), pp 531–57; Handl, Rev Belge, 14 (1978–79),
pp 40–64, AJ, 74 (1980), pp 525–65, and AS Proceedings (1980), pp 223–34; Schneider,
World Public Order and the Environment (1979); Bothe (ed), Trends in Environmental Policy
and Law (1980); Cripps, ICLQ, 29 (1980), pp 1, 2–6; Caldwell, International Environmental
Policy (1984); Hag R (1984), Special Vol (ed Dupuy) (Proceedings of Colloquium on the
Future of the International Law of the Environment); Gündling, ZöV, 45 (1985), pp 265–91;
Lang, ZöV, 46 (1986), pp 261–83; Flinterman, Kwiatkowska and Lammers (eds),
Transboundary Air Pollution (1986); Malvia, Indian JIL, 27 (1987), pp 30–49; Annuaire, 1
(1987), pp 159–294 (an exhaustive study); Environmental Protection and Sustainable
Development (1987), a Report of UN Experts Group on Environmental Law (Munro,
Chairman; Lammers, Rapporteur), appointed by the UN World Commission on Environment
and Development; Anand, International Law and the Developing Countries (1987), pp 150–
73; Restatement (Third), ii, pp 99–143; Sumitra, Indian JIL, 27 (1987), pp 385–410; Boyle,
BY, 60 (1989), pp 257–313; Gaines, Harv ILJ, 30 (1989), p 311–49; Hahn and Richards, ibid,
pp 421–46; Lachs, ICLQ, 39 (1990), pp 663–9; Sachariew, Neth IL Rev, 37 (1990), pp 193–
206; Wolfrum, Germ YBIL, 33 (1990), 308–30.
See also discussion of the legal aspects of long-distance air pollution by the ILA: Report of
the 58th Conference (1978), pp 383, 390–422; Report of the 59th Conference (1980), pp
531–79; Report of the 60th Conference (1982), pp 157–82 (approving the ‘Montreal’ Rules
of International Law Applicable to Transfrontier Pollution); Report of the 61st Conference
(1984), pp 377–413; Report of the 62nd Conference (1986), pp 198–230; Report of the 63rd
Conference (1988), pp 218–81. See also § 179, as to pollution of river waters resulting from
the conduct of upper riparian states; and § 124, n 18, as to the work of the ILC on state
responsibility for injurious consequences arising out of acts not prohibited by international
law.
While international concern has grown rapidly in the last decade, the matter began to
attract growing attention among lawyers and scientists much earlier. See eg Air Pollution
(1961), World Health Organisation Monograph Series No 46.
2 See n 11 of this section.
3 Some states formally reserved their rights as against the USSR; these included the UK
(see UKMIL, BY, 57 (1986), p 600). See generally on this incident, RG, 90 (1986), pp 1016–
20, and 91 (1987), p 653; Kiss, AFDI, 32 (1986), pp 139–52; Handl, RG, 92 (1988), pp 5–62;
the statement by the IAEA Board of Governors, at ILM, 25 (1986), p 1009; Sands,
Chernobyl: Law and Communication (1988); and Woodliffe, ICLQ, 39 (1990), pp 461–71. For
an attempt (unsuccessful, mainly on procedural grounds) to institute proceedings against
the USSR for damage allegedly caused by the Chernobyl accident, see Garden
163
164
Annex 25
Florian Jeẞberger, The Definition of Genocide, in THE UN GENOCIDE
CONVENTION: A COMMENTARY (Paola Gaeta, ed., Oxford University
Press 2009)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
165
166
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Commentaries on International Law
Published in print: 15 October 2009
ISBN: 9780199570218
Part II The Definition of Genocide, 4 The Definition
and the Elements of the Crime of Genocide
Florian Jeßberger
From: The UN Genocide Convention: A Commentary
Edited By: Paola Gaeta
Subject(s):
Genocide — Elements of crimes — International criminal law, victims
167
OXFORD PUBLIC INTERNATIO NAL LAW
Oxford Scholarly Authorities on International Law
(p. 87) 4 The Definition and the Elements of the Crime of
Genocide
1. Introduction 87
2. Structure and Elements of the Crime of Genocide 89
3. Drafting History 90
3.1 Individual Acts 91
3.2 Intent to Destroy 93
4. Genocidal Acts 94
4.1 Killing Members of the Group 96
4.2 Causing Serious Bodily or Mental Harm to Members of the Group 97
4.3 Deliberately Inflicting Conditions of Life Calculated to Bring About the
Physical Destruction of the Group 100
4.4 Imposing Measures Intended to Prevent Births Within the Group 101
4.5 Forcibly Transferring Children of the Group to Another Group 102
4.6 Ethnic Cleansing as a Genocidal Act? 103
5. Genocidal Intent 105
5.1 The Meaning of Intent 105
5.2 Destruction of the Group 107
A. Partial Destruction of the Group 108
B. Destruction of the Group ‘As Such’ 109
6. Concluding Remarks 110
1. Introduction
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide1
(hereinafter the ‘Genocide Convention’ or ‘the Convention’) (p. 88) contains the definition of
genocide and therefore forms the ‘heart’ of the Convention’s regime. The definition is
relevant for the application of many provisions of the Convention, such as Articles I, III, IV,
V, VI, and VII. In a strict sense, the significance of Article II is confined to define genocide
within the meaning of the Convention. In context, however, as defined in Article II, genocide
is a crime under international law, which the state parties undertake to prevent and punish.
Acts of genocide may give rise to both responsibility of the individual and the state.It is apparent that the definition provided for in Article II differs from what is commonly
perceived as genocide. To many, genocide is mass murder. Mass murder may, but does not
necessarily, amount to genocide within the meaning of Article II. At the same time, under
certain circumstances even non-lethal acts may be covered by the definition of genocide.
Today, the definition contained in Article II of the Convention is widely accepted and
generally recognized as the authoritative definition of the crime of genocide. The crime of
genocide as defined in Article II of the Convention is part of customary international law
and ius cogens.The definition in Article II is reproduced, mostly verbatim, not only in
many international instruments4 but also in the legislation of many states.Thus, Article II
1
2
3
4 5
168
forms the foundation on which statutory and case law on both international and national
level is based. All this statutory and case law has direct repercussions on the (p. 89)
interpretation of the Convention itself, since it forms ‘subsequent practice’ within the
meaning of Article 31(3)(b) of the 1969 Vienna Convention of the Law of Treaties.
2. Structure and Elements of the Crime of Genocide
The definition laid down in Article II consists of two distinct elements: the requisite intent
and the individual act.
The first element is addressed in the opening clause of the definition. Genocide requires the
specific intent to destroy in whole or in part a national, ethnic, racial or religious group as
such. This specific intent embodies the systematic element of genocide, which represents
the international dimension of the crime.The second element of genocide, the individual act, is addressed in subparagraphs (a) to
(e). This exhaustive list includes acts against the physical or psychological integrity of
members of the group, against the existence or biological continuity of the group, and—as
is arguably the case in (e)—the cultural existence of the group.It follows that the definition
does not pick up all of the aspects of genocide Raphael Lemkin identified in his
groundbreaking work;clearly the definition of genocide in the Convention does not relate
to ‘genocide’ in ‘the political field’, ‘in the social field’, ‘in the economic field’, and ‘in the
field of morality’.
As regards ‘cultural genocide’ it is interesting to note that Article III of the ad hoc
Committee’s Draft dealt with it, but it never made its way into the subsequent drafts or the
Convention itself, mainly because it was perceived as too vague a concept and the
difference between mass murder and, for instance, the closing of libraries was perceived as
being too great.Instead, on a Greek motion,subparagraph (e) was included as one form of
cultural genocide. Beyond that, however, as the International Criminal Tribunal for the
former Yugoslavia (ICTY) stated
[A]n enterprise attacking only the cultural or sociological characteristics of a human
group in order to annihilate these elements which give to that group its own identity
(p. 90) distinct from the rest of the community would not fall under the definition of
genocide.Although Article II explicitly mentions this only with regard to the genocidal acts in
subparagraphs (c) (‘deliberately’) and (d) (‘intended’), it is to be noted that each of the
individual acts embraced by the definition of genocide requires the presence of a mental
element. This mental element is not to be confused with the specific intent to destroy. As
the International Law Commission (ILC) pointed out:
The prohibited acts enumerated in subparagraphs (a) to (e) are by their very nature
conscious, intentional or volitional acts which an individual could not usually
commit without knowing that certain consequences were likely to result. These are
not the type of acts that would normally occur by accident or even as a result of
mere negligence.The requirement of a ‘general intent’ has also been confirmed by the International Court of
Justice (‘ICJ’)and the case law of the ad hoc Tribunals.Furthermore, according to the
ad hoc Tribunals, genocide may be committed by act or omission.6
7
8
9
10
11
12 13
14
169
defies universal conscience [ … ]’. In the definition of genocide itself, the draft refers to
‘purpose’ rather than ‘intent’: according to Article I(2) of the Secretariat’s draft genocide is
an act committed ‘with the purpose of destroying [the group] in whole or in part, or of
preventing its preservation or development.’ In its Commentary, the Secretariat made it
clear that this definition would exclude e.g. ‘isolated acts of violence not aimed at the
destruction of a group of human beings’.The phrase ‘in whole or in part’ was inserted
after a Norwegian initiative. A Soviet motion to include also negligent acts in the ambit of
Article II was rejected.In its initial drafts, the ad hoc Committee used the term ‘deliberate’ instead of ‘purpose’ or
‘intent’ to describe the mental element of the crime.According (p. 94) to this definition
genocide means ‘any of the following deliberate acts directed against a [ … ] group’. In the
course of its discussions, the ad hoc Committee replaced the phrase ‘directed against’ with
‘committed with the intent to destroy’, following a proposal by the US.In the Sixth Committee the term ‘deliberate’ was ultimately deleted from the definition; the
reason being a controversy in the Committee whether or not ‘deliberate acts’ would require
premeditation on the part of the perpetrator or not.4. Genocidal Acts
Article II defines genocide as any of the five acts enumerated in subsections (a) to (e) if
committed with the intent to destroy. The list of acts is exhaustive.Other acts, which are
not included in the list, are not genocide, even if the perpetrator acts with the intent to
destroy a protected group.
The definition creates no requirements as regards the person of the perpetrator. Thus,
everybody can commit genocide, low-level executors and high-level planners alike and even
members of the protected groups.The individual acts are directed against individual members of the group; these members
are targets of the attack, their physical integrity or social existence is violated or
endangered.Although Article II subsections (a), (b), (d) and (e) use the plural form and
speak of ‘members’ as immediate victims of the genocidal act, as a rule, it is sufficient if the
individual act is directed against one single member of the group.This is clarified, e.g., in
the Elements of Crimes to Article 6 of the Statute of the International Criminal Court (ICC),
which points out that it is required, for instance, that the ‘perpetrator killed one or more
persons’. An exception is (c), where the group itself is the target.
(p. 95) Genocide is not conditional upon the actual destruction of the group.As the
definition in Article II indicates, the actual destruction of the protected group, be it in whole
or in part, is not necessary. Thus, at least theoretically, an isolated act may suffice.Genocide does not require that the individual act be part of a genocidal campaign or a
systematic or widespread attack on a protected group.This is the correct view under the
Convention notwithstanding the fact that the Elements of Crimes to Article 6 of the ICC
Statute explicitly require that ‘[t]he conduct took place in the context of a manifest pattern
of similar conduct directed against that group or was conduct that could itself effect such
destruction’.This provision should be understood as establishing a merely procedural
requirement related to the jurisdiction of the ICC rather than adding an additional material
element to the definition of genocide.A related and controversial issue is the question whether genocide requires a genocidal
policy or plan.Some writers contend that any act of genocide would presuppose a policy
or at least a collective activity of a state or a group.Other commentators distinguish
between acts under subsections (a) and (b) and acts under subsections (c) to (e). Only in the
latter cases some sort of collective or even organized action necessarily would be present.Even though it is difficult to imagine ‘imposing measures’ and maybe also ‘inflicting
conditions of life’ as isolated acts of a single individual, and even though typically these
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
170
actions need to be carried out on a large scale and involve many individuals, the definition
does not include a policy or collective action as a distinct and additional element. This view
has been expressed by the ICTY Appeals (p. 96) Chamber: ‘The existence of a plan or policy
is not a legal ingredient of the crime.’4.1 Killing Members of the Group
Under Article II(a) killing members of a protected group is genocide if committed with the
required intent.Killing means causing the death of a person.The killing must be
intentional;negligent homicide, therefore, is no basis for genocide. Initially, there was
some confusion, created by the different wording in the French and English versions of the
Convention and other Statutes which followed it, such as the ICTR Statute. While the
French version requires ‘meutre de membres du groupe’, the English one requires ‘killing
members of the group’. Although nobody ever seriously considered unintentional killings to
be covered by either the Convention or other related statutory provisions, in Akayesu49 the
ICTR Trial Chamber expressed the opinion that the term ‘killing’ used in the English version
would be too general, since it could ‘very well include both intentional and unintentional
homicides’, whereas the term ‘meurtre’, used in the French version, would be more precise.
The Chamber concluded in light of the presumption of innocence and the need to apply the
version more favourable to the accused that genocide under subsection (a) would require
that death has been caused with the intention to do so. Hence, in the jurisprudence of the
ad hoc (p. 97) Tribunals, the term ‘killing’ has been equated with murder.Subsequently, in
Kayishema and Ruzindana, an ICTR Trial Chamber used a slightly different argument by
stating that there would be ‘virtually no difference between the two terms’ since ‘killing’ is
linked to the intent to destroy as spelled out in the operative part of the Article.This view,
which appears to confuse general and specific intent, has, however, been confirmed by the
ICTR Appeals Chamber which, rightly, added that ‘it would construe them both as referring
to intentional but not necessarily premeditated murder’.As of today, it is firmly settled in
the jurisprudence of international tribunals that there is no requirement to prove a further
element of premeditation in the killing.The view—which is somewhat contrary to the wording of the provision—that killing one
individual may suffice is not only firmly established in the jurisprudence of the ad hoc
Tribunals54 but also explicitly confirmed in the Elements of Crimes to Article 6(a) of the ICC
Statute.
4.2 Causing Serious Bodily or Mental Harm to Members of the
Group
Article II(b) requires that the perpetrator have intentionally caused serious bodily or mental
harm to at least one member of the group.According to the general standards of liability,
the harm must be inflicted intentionally.The elements of the definition have been further
specified by international tribunals, most noteworthy by the ICTR Trial Chambers in
Akayesu and Kayishema and Ruzindana.(p. 98) As regards the infliction of bodily harm, it is to be noted that the original wording
(‘impairing the physical integrity of members of the group’) was replaced by the Sixth
Committee for being too vague.According to international case law, serious bodily harm
means serious damage to health, causing disfigurement, and serious injuries to external or
internal organs or senses.As examples the Akayesu judgment listed, among other things,
mutilation and use of force, beating with rifle butts, and injuries inflicted with a machete.The inclusion of mental harm was controversial in the negotiations of Article II.Causing
serious mental harm does not require a physical attack or any physical effects of mental
harm.This interpretation is supported, first of all, by the wording of the definition, which
places the two modalities of conduct on an equal footing. Second, causing serious mental
harm as such to members of the group can have a significant effect on the group’s social
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The prohibited act encompasses permanent transfer done with the intention of destroying
the group’s existence. The provision is based on the assumption that children, when
transferred to another group, cannot grow up as part of their group of origin, or become
estranged from their cultural identity. The language, traditions and culture of their group
become or remain alien to the children.
4.6 Ethnic Cleansing as a Genocidal Act?
While it had been used by Yugoslav media since 1981, the term ‘ethnic cleansing’ was used
internationally since 1992 in connection with the war in former Yugoslavia.The
expression ‘ethnic cleansing’ is not a legal, but a factual term that describes a complex
phenomenon, a policy whose implementation (p. 104) is accompanied by serious human
rights violations geared toward forcing an ethnic group out of a certain region to change
the ethnic composition of the population.In the context of the war in former Yugoslavia,
the term was used to describe the practice of Serb forces in Bosnia-Herzegovina to expel
Muslims and Croats from their traditional areas of settlement. This practice aimed at
creating ethnically homogeneous territories. In fact, such ‘cleansing operations’ included
massacring and mistreating civilians, acts of sexual violence, the bombardment of cities
along with the destruction of places of worship, and confiscation of property. The Security
Council’s Commission of Experts on Violations of Humanitarian Law During the Yugoslav
War also counted among the employed methods: torture, arbitrary arrest and detention, and
extra-judicial executions.Whether and to what extent so-called ethnic cleansing can be classified as genocide
depends on the individual circumstances of the case.For instance, the German
Constitutional Court held in Jorgic that ‘systematic expulsion can be a method of
destruction and therefore an indication, though not the sole substantiation, of an intention
to destroy’.An ICTY Trial Chamber, early in the Tribunal’s history, inferred genocidal
intent from the gravity of certain acts of ‘ethnic cleansing’.Later, the Trial Chamber in
Krstic held that ‘there are obvious similarities between a genocidal policy and the policy
commonly known as ethnic cleansing ’.The blanket qualification of ethnic cleansing as genocide that one occasionally encounters
is incorrect.Classification as genocide can fail because the primary aim of ‘ethnic
cleansing’ is to expel a population group from a certain area, but not to exterminate the
group as such. In addition, not all conduct that takes place in the course of ethnic cleansing
can be subsumed under the heading of genocide; this is the case, for example, for the
destruction of houses or churches. Still, frequently ‘ethnic cleansing’ exhibits genocidal
features, and in such cases it can be punished accordingly as genocide.Thus, the extent
(p. 105) of killing operations and the choice of victims based on ethnicity can suggest that
the perpetrators’ purpose is not just expulsion, but also extermination of the group.Even
acts that do not fall under the definition of the crime can be important evidence of
genocidal intent.5. Genocidal Intent
As it was already mentioned, the key element of the definition of genocide is the intent to
destroy a protected group. It is this element which lends the crime of genocide its
international dimension: in order to amount to genocide each of the individual acts
described in subparagraphs (a) through (e) must be committed with the intent to destroy a
protected group. Being part of the mental element, the intent to destroy a protected group
complements the general intent requirement which pertains to the material elements of the
individual genocidal act. Unlike the general intent requirement, the mental state required
for the intent to destroy does not necessarily correspond to the objective facts. Thus, the
intent to destroy a protected group is commonly referred to as specific intent.111
By
assigning the destruction of a protected group to the subjective requirements of the crime
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and thus to the perpetrator’s mental state, the definition of genocide makes it clear that
genocide, contrary to popular belief, does not imply that a protected group is actually
destroyed.
5.1 The Meaning of Intent
The definition of genocide requires that the individual acts are ‘committed with intent’. The
meaning of intent is still a matter of controversy. While the majority of commentators and
international tribunals favour a purpose-based approach, some scholars suggest a
knowledge-based approach.
According to the majority view and particularly to the jurisprudence of the ad hoc Tribunals
and the ICC, genocidal intent requires that the perpetrator acts with the aim, purpose or
desire to destroy a group.While no prior (p. 106) planning on the perpetrator’s part is
required,the destruction of the group in whole or in part must be the perpetrator’s
(preliminary) goal. Mere knowledge on part of the perpetrator that his acts contribute to
the destruction of a protected group is not sufficient. In cases in which the perpetrator does
not personally aim at the destruction of the group, he may, however, still be criminally
responsible for genocide, but, according to this view, not as a principal perpetrator but as
an aider and abettor to the crime.The opposing view argues that genocidal intent
already exists if the perpetrator knew of the organized attempt to exterminate the group.The argument runs as follows: in systematic crimes, the goals, preconditions and effects
cannot be distinguished. In this constellation, therefore, the perpetrator’s certain
knowledge of the destructive intent of the main or organizational perpetrators should be
sufficient to find the requisite mental element.While the wording of the provision (‘intent to destroy’) allows for both readings, the better
reasons support the purpose-based approach. In particular, the preparatory work of the
Convention shows that the drafters envisaged genocide as an enterprise whose goal, or
objective, was to destroy a human group, in whole or in part. Not only the Secretariat’s
Draft but also the subsequent developments reveal that only those cases were to be
included.Thus, (p. 107) the perpetrator’s certain knowledge that he or she is
participating in an extermination campaign against a group may indicate the presence of an
intent to commit genocide, but cannot replace it.5.2 Destruction of the Group
To commit genocide, the génocidaire does not need to succeed and actually destroy the
group.The destruction of the group is subject to the mens rea only. It is a matter of
controversy, however, whether the perpetrator must aim at the physical or biological
destruction of the (members of the) group or whether it suffices if he intends to eliminate
its existence as a social entity, e.g. through dissolution of the group.While there is
national case law referring to the social concept of the group,international
jurisprudence points towards a stricter understanding of the term based on physical
destruction.Again the wording of the Convention allows for both readings. In support of
a broad understanding of genocidal intent, including the (intended) destruction of the group
as a social entity within the concept of genocidal intent, it is argued, that Article II includes
genocidal acts which do not require the actual killing of group members; such a broad
understanding would also be in line with Lemkin’s concept of genocide.On the other
hand, the preparatory work of the Convention clearly points towards an interpretation of
the intent to destroy which is restricted to the (intended) physical or biological annihilation
of the protected group.Thus, the perpetrator has to aim at the physical (p. 108)
destruction of the group; aiming at the dissolution does not suffice nor does the intent to
remove the group from a region where it lives.112
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173
UN Doc. A/C.6/SR.73. For details of the debate see Schabas, supra note 15, at 216 et
seq.
See also the Commentary (§ 11) on the 1996 ILC Draft Code, which used the same
wording; but see the 1954 ILC Draft Code which used the word ‘including’ to indicate an
illustrative rather than an exhaustive list.
See ICTR, Judgment, Prosecutor v. Kayishema and Ruzindana, Appeals Chamber, 1 June
2001, § 170.
See Werle, supra note 3, marg. no. 588.
See, e.g., Robinson, supra note 9, at 62; Schabas, supra note 15, at 158; Werle, supra
note 3, marg. no. 588.
See, e.g. Werle, supra note 3, marg. no. 606.
A. Cassese, in A. Cassese, P. Gaeta, and J.R.W.D. Jones, The Rome Statute of the
International Criminal Court—A Commentary (Oxford: Oxford University Press, 2002), Vol.
I, 335, at 349; G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford: Oxford
University Press, 2005), at 245.
See ICTR, Judgment, Prosecutor v. Kayishema and Ruzindana, Appeals Chamber, 1 June
2001, § 163. But see ICTY, Judgment, Prosecutor v. Krstić, Trial Chamber, 2 August 2001, §
682: ‘[T]he acts of genocide must be committed in the context of a manifest pattern of
similar conduct, or themselves constitute a conduct that could in itself effect the
destruction of the group, in whole or in part, as such’.
In the Introduction to the Elements, it is clarified though that ‘the term “in the context
of”’ would ‘include the initial acts in an emerging pattern’.
See Werle, supra note 3, marg. no. 609; but see ICC, Decision, Prosecutor v. Al Bashir,
Pre-Trial Chamber, 4 March 2009, § 124.
See Cassese, supra note 2, at 140 et seq, and see also Chapter 6 in this volume.
See, e.g. C. Kress, ‘The Darfur Report and Genocidal Intent’, 3 Journal of Int’l Criminal
Justice (2005) 562.
See, e.g. Cassese, supra note 2, at 140 et seq., and see also Chapter 6 in this volume.
ICTY, Judgment, Prosecutor v. Jelisić, Appeals Chamber, 5 July 2001, § 48.
See, e.g. ICTY, Judgment, Prosecutor v. Krstić, Trial Chamber, 2 August 2001, § 685. See
also Mettraux, supra note 38, at 236; Schabas, supra note 20, at 158; Werle, supra note 3,
marg. 589; see also Article 6 of the German Code of Crimes against International Law.
See generally on Art. II(a): Cassese, supra note 2, at 133; C. Kress, ‘The Crime of Genocide
under International Law’, 6 Int’l Criminal Law Review (2006) 461, at 480; Lippman, The
Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later,
supra note 20, at 456; B. Lüders, Die Strafbarkeit von Völkermord nach dem Römischen
Statut für den International Strafgerichtshof (Berlin: Berliner Wissenschafts-Verlag, 2004),
at 173; Mettraux, supra note 38, at 236 et seq.; A. Paul, Kritische Analyse und
Reformvorschlag zu Art. II Genozidkonvention (Berlin, Heidelberg, London: Springer, 2008)
177; Schabas, supra note 15, 157; G. Verdirame, ‘The Genocide Definition in the
Jurisprudence of the ad hoc Tribunals’, 49 Int’l and Comparative Law Quarterly (2000) 578,
at 598.
47
See also footnote 2 to the Elements of Crimes to Article 6(a) of the ICC Statute
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36
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38
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40
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44
45
46
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Judgment, Prosecutor v. Musema, Trial Chamber, 27 January 2000, § 159; ICTR, Judgment,
Prosecutor v. Kayishema and Ruzindana, Trial Chamber, 21 May 1999, § 118.
See also Elements of Crimes to Article 6(e) of the ICC Statute.
See also Schabas, supra note 15, at 189 et seq.
See Werle, supra note 3, marg. no. 604 (with further reference).
UN Doc. S/25274 (1993), § 56.
See for details Werle, supra note 3, marg. nos. 604–5.
See Bundesverfassungsgericht, 12 December 2000, Neue Juristische Wochenschrift
(2001) 1848, at 1850.
See ICTY, Review of Indictment Pursuant to Rule 91, Prosecutor v. Nikolić, Trial
Chamber, 20 October 1995.
ICTY, Judgment, Prosecutor v. Krstić, Trial Chamber, 2 August 2001, § 562.
See Cassese, supra note 2, at 134 et seq. For a nuanced treatment, see also G. Dahm, J.
Delbrück, and R. Wolfrum, Völkerrecht (2nd edn., Berlin: de Gruyter, 2002), Vol. I/3, pp
1082 et seq.
In the same vein Werle, supra note 3, marg. no. 605.
Ibid.
See ICTY, Decision, Prosecutor v. Karadzić and Mladić, Trial Chamber, 11 July 1996, §
94.
See e.g. ICJ, 2007 Judgment, supra note 2, § 187.
See, e.g., ICC, 2009 Decision, supra note 41, § 139; ICTY, Judgment, Prosecutor v.
Krstić, Appeals Chamber, 19 April 2004, § 134; Judgment, Prosecutor v. Jelisić, Appeals
Chamber, 5 July 2001, §§ 46, 50 et seq.; Judgment, Prosecutor v. Rutaganda, Appeals
Chamber, 26 May 2003, § 524; Judgment, Prosecutor v. Akayesu, Trial Chamber, 2
September 1998, § 520; K. Ambos, Internationales Strafrecht (2nd edn., München: Beck
Verlag, 2008), 212, marg. no. 151; R.S. Clark, ‘Subjektive Merkmale im Völkerstrafrecht’,
114 Zeitschrift für die gesamte Strafrechtswissenschaft (2002) 372, at 396; Drost, supra
note 63, at 82; Schabas, supra note 15, at 227; C. Tournaye, ‘Genocidal Intent before the
ICTY’, 52 Int’l and Comparative Law Quarterly (2003) 447, at 453.
113
See Judgment, Prosecutor v. Krstić, Trial Chamber, 2 August 2001, § 572; Drost, supra
note 63, at 82; Lippman, ‘The Convention on the Prevention and Punishment of the Crime of
Genocide: Fifty Years Later’, 15 Arizona Journal of International and Comparative Law
(1998) 415, at 455; Robinson, supra note 9, at 60. For a different view, see Judgment,
Prosecutor v. Kayishema and Ruzindana, Trial Chamber, 21 May 1999, § 91.
114
See also Judgment, Prosecutor v. Krstić, Appeals Chamber, 19 April 2004, § 134; Kress,
supra note 46, at 493. For details, see Chapter 8, § 3.2 in this volume.
115
See A. K. A. Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-
Based Interpretation’, 99 Columbia Law Review (1999) 2259, at 2265 et seq.; A. Paul,
Kritische Analyse und Reformvorschlag zu Art. II Genozidkonvention (Berlin: Springer,
2008), 255 et seq.; O. Triffterer, ‘Kriminalpolitische und dogmatische Überlegungen zum
Entwurf gleichlautender “Elements of Crimes” für alle Tatbestände des Völkermordes’, in B.
Schünemann et al. (eds), Festschrift für Claus Roxin (Berlin: De Gruyter, 2001) 1415, at
1440 et seq.; H. Vest, Genozid durch organisatorische Machtapparate (Baden-Baden:
Nomos, 2002) 104, at 107. For a similar approach see R.W.D. Jones, ‘ “Whose Intent is it
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Annex 26
Robert Kolb, The Scope Ratione Materiae of the Compulsory
Jurisdiction of the ICJ, in THE UN GENOCIDE CONVENTION: A
COMMENTARY (Paola Gaeta, ed., Oxford University Press 2009)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
177
178
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Commentaries on International Law
Published in print: 15 October 2009
ISBN: 9780199570218
Part VI Enforcing the Convention Through the
United Nations, 22 The Scope Ratione Materiae of
the Compulsory Jurisdiction of the ICJ
Robert Kolb
From: The UN Genocide Convention: A Commentary
Edited By: Paola Gaeta
Subject(s):
Advisory opinions — Immunity from jurisdiction, ratione materiae — Genocide
179
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[in] such a convention the contracting States do not have any interests of their own;
they merely have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d’être of the Convention.3. The Scope Ratione Materiae of the Jurisdiction of the Court
3.1 Interpretation, Application or Fulfillment of the Convention
The dispute submitted to the Court under the compromissory clause must concern, or at
least be directly related, to the interpretation, application or fulfillment of the Genocide
Convention. This is an aspect of subject-matter jurisdiction (jurisdiction ratione materiae).The preliminary question as to whether a dispute truly concerns the ‘interpretation,
application or fulfillment’ of the Convention or not, is included in the reach of the
jurisdictional power of the Court. This solution flows from the fact that in cases of contested
jurisdiction, the Court alone decides definitively on the existence or non-existence of its
jurisdiction, in accordance with Article 36(6) of the ICJ Statute (compétence de la
compétence, Kompetenzkompetenz).Any other construction would deprive the
compromissory clause of all its intended effectiveness: a state could simply contest that the
dispute turns on a point of ‘interpretation, application or fulfillment’ in order to escape the
jurisdiction of the Court.
The three terms under scrutiny are cast in the alternative (‘or’, not ‘and’). It is thus
sufficient that a dispute concerns interpretation, or application, or fulfillment in order to
trigger the jurisdiction of the Court. This corresponds to the aim of the compromissory
clause, which is to open the Court as largely as possible to all disputes touching upon the
Convention. Moreover, as the three terms largely overlap, it would be completely artificial
to require cumulating the three: interpretation is directly relevant for application, since
application (p. 452) supposes and contains interpretation; and fulfillment is largely a form
of application. Hence, in a certain sense, each treaty dispute always turns at least indirectly
on interpretation, application and fulfillment at once. On the substance, the three terms
mentioned differ more or less slightly in their emphasis.‘Interpretation’ turns on the discovery of the legal meaning and content of a provision. In a
classical conception, interpretation logically precedes any application: the first determines
the meaning and content of a legal provision, the second draws the consequences of that
preliminary process in a series of acts of practical implementation of the provision at
stake.On the other hand, an interpretation is always implicit in any act of application: to
implement in a particular way is to imply that the Convention requires precisely this action
and not a different one. This, in turn, reveals the meaning that a party attaches to the terms
or content of the provision. ‘Application’ is the practical implementation of a Convention.
This term (or that of fulfillment) may cover many aspects linked to the implementation, e.g.
the consequences of a breach of the treaty. ‘Fulfillment’ (or ‘execution’ or ‘implementation’,
as many other compromissory clauses stipulate) is normally considered to be a specific form
of application, namely that type of application directed at satisfying the obligations
undertaken by the treaty or its general object and purpose. Hence, the term ‘fulfillment’
adds little to the term ‘application’, since the latter already contains it. One could however
maintain, as the Indian delegate had underlined during the preparatory works,that the
word ‘application’ included the study of circumstances in which the convention should or
should not apply, while the word ‘fulfillment’ referred to the compliance or non-compliance
of a party with the provisions of the Convention.38
Hence, as the PCIJ formulated it in the
Mavrommatis Jerusalem Concessions case, ‘“application” is a wider, more elastic and less
rigid term than “execution”’.39
It includes the term ‘execution’. The use of the term
‘execution’ (or ‘implementation’ or fulfillment’, as the case may be) in alternative to
‘application’ seems to be due in part to a usage in the 1920s and 1930s: in this epoch, the
term ‘execution’ was often used in compromissory clauses. This tradition seems to have
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influenced the drafters of treaties after the war, even if the term ‘execution’ was more
rarely (p. 453) used at that juncture than the now more popular terms ‘implementation’ or
‘fulfillment’.Overall, the reason for inserting all the three alternative terms, as does the Genocide
Convention, was to give a coverage as exhaustive as possible to the compromissory clause.
The aim was thus to close down all possible loopholes weakening the jurisdictional reach of
the Court. The purpose pursued in 1948 was to grant the Court a jurisdiction as wide as
possible in the life of the Convention, forestalling all the potential subtle arguments denying
jurisdiction on account of an insufficient link with that Convention. As the Court explained
in the Chorzów Factory case:
[F]or a jurisdiction of this kind [excluding important aspects of the implementation
of the treaty such as the consequences of its breach], instead of settling a dispute
once and for all, would leave open the possibility of further disputes.The Court since then often insisted on the importance of giving interpretations to the
compromissory clause enabling it to decide the whole dispute with finality and efficiency
(‘vider le différend’). It attempted carefully to leave no undecided inflammable material in
the relations between the parties to the dispute.This aim underlying the compromissory
clause calls for an extensive interpretation of the three terms ‘interpretation, application or
fulfillment’: all disputes linked with the ‘life of the Convention’ shall, according to the will of
the parties, be capable of unilateral submission to the ICJ. On the other hand, only disputes
directly linked with the Convention shall be submitted to the Court. That is a further, and
extremely important, aspect of subject-matter jurisdiction, to which it is time to turn.
3.2 Scope of the Convention and Other Related Rules of
International Law
The compromissory clause refers back to all the provisions of the Genocide Convention.
Thus, all the substantive rights and obligations, as set out in the various provisions of the
Convention, are covered by the jurisdiction of the ICJ in case of disputes as to their
interpretation, application or fulfillment. On the other hand, the compromissory clause itself
is of adjectival nature; it does not create further substantive rights for the parties; the
rights to be (p. 454) vindicated through the Court must be found elsewhere in the
provisions of the Convention. Thus, the compromissory clause does not expand the
jurisdiction of the ICJ to areas not covered in the other provisions of the Convention. In the
South West Africa cases, the Court has consequently pointed out that
in principle, jurisdictional clauses are adjectival not substantive in their nature and
effect; [they] cannot simultaneously and per se invest the parties with substantive
rights the existence of which is exactly what they will have to demonstrate in the
forum concerned… . Jurisdictional clauses do not determine whether parties have
substantive rights, but only whether, if they have them, they can vindicate them by
recourse to a tribunal.This renvoi of the compromissory clause to the provisions of the convention in which it is
inserted determines the most peculiar feature of the Court’s related jurisdiction: contrary to
optional clause jurisdiction under Article 36(2) of the ICJ Statute, which is in principle
unlimited (i.e. opening access to the Court for all disputes on international law),
compromissory jurisdiction under Article 36(1) is in principle limited (i.e. opening access to
the Court only for disputes as described in a special agreement or as enclosed within the
four corners of a particular convention).
40
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Annex 27
Daniel Thürer & Thomas Burri, Secession, in MAX PLANCK
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (June 2009)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
183
184
Content type: Encyclopedia entries
Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: June 2009
Secession
Daniel Thürer, Thomas Burri
Subject(s):
Foreign relations law — Secession — Sovereignty
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
185
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secession—and with it, it seems, the pro-secession argument as a whole—is very limited. In
no case should it be taken as more than just one element to be considered when weighing
and balancing the options in a conflict.
C. The Legality of Secession
13 In an ideal legal order, legitimacy and legality are always the same. With secession,
however, such a general congruency is unlikely from the outset, because views differ on
what is legitimate and what is not. Furthermore, it can be suspected that international law
adheres to the States’ perspective of legitimacy, for it is mainly States and not → peoples,
which make international law. Unsurprisingly, international law, as will be seen below, does
indeed deal with secession in a way that emphasizes the stability of existing States.
Nevertheless, the oppression argument has found its way into positive international law.
14 In brief, the international legal situation seems to be that secession in the strict sense of
the term is not explicitly forbidden. It is not illegal. But it runs counter to the principle of
territorial integrity and the latter ultimately prevails. International law provides no
unambiguous basis for a right to secession.
15 In detail, the principle of self-determination enshrined in Art. 1 (2) → United Nations
Charter as one of the purposes of the UN—‘[t]o develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples, and to
take other appropriate measures to strengthen universal peace’—could be considered as a
legal basis for a right to secession. The right to self-determination, looked at in isolation,
certainly means that a people has a right to its own State, for the people that truly
determines itself may also choose a State as the appropriate vessel for its fate. However,
such an unrestricted reading of the principle of self-determination does not find much
support. Rather, the principle is to be balanced with the territorial integrity and sovereignty
of existing States. Hence, the → Friendly Relations Declaration (1970), after having
elaborated in detail on the principle of self-determination, limits it:
nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and selfdetermination
of peoples as described above and thus possessed of a government
representing the whole people belonging to the territory without distinction as to
race, creed or colour. (Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in Accordance with the Charter
of the United Nations, UNGA Res 2625 [XXV] [24 October 1970] Principle V).
16 The clause was probably intended as a monument to the territorial integrity of States.
But one cannot help but notice its fallacy: it essentially holds that the principle of selfdetermination
does not enable any assault on the sovereignty of a State (‘nothing in the
foregoing paragraph’), provided that the principle of self-determination is complied with
(‘conducting themselves in compliance’). In other words, when the principle of selfdetermination
is not complied with, it may allow the dismemberment of a State, which may
well be the opposite of what the drafters of the clause originally intended. In spite of this
equivocality, the most common reading of self-determination, typically advocated by
proponents of States, upholds the territorial integrity of States and thus restricts the
principle of self-determination to an internal dimension. Construed in this way, the principle
of self-determination perhaps entitles a people to minority rights and structures enabling
186
→ autonomy or similar arrangements, such as those in → federal States, but does not give
them a right to secession.
17 However, a more progressive interpretation of the clause in the Friendly Relations
Declaration is possible, one which puts more emphasis on the second part of the paragraph.
According to this reading, external self-determination—ie the right to secession—is usually
dormant, but may be activated in exceptional circumstances. Such an exception would
notably apply when internal self-determination is violated. In this understanding, the right
to secession is a conditional right, with the violation of the principle of (internal) selfdetermination
being the condition. As a consequence, the right is endowed with a punitive
character in the sense of ‘if you misuse your power, you lose it’. The idea of forfeiture is
obviously prominent in this approach. Such reasoning is, however, on the fringes of legal
analysis and is strongly inspired by legitimacy considerations. Indeed, there is little support
for it in positive law. The formula in the Friendly Relations Declaration—‘possessed of a
government representing the whole people belonging to the territory without distinction as
to race, creed or colour’—is in fact the only positive legal basis. Note that the formula was
repeated on the occasion of the → Vienna World Conference on Human Rights (1993) in the
Vienna Declaration and Programme of Action ([25 June 1993] UN Doc A/CONF.157/23, Sec.
1, para. 2) and again in the Declaration on the Occasion of the Fiftieth Anniversary of the
United Nations ([24 October 1995] UNGA Res 50/6 GAOR 50th Session Supp 49, 13, para.
1). It is based on the idea of representation and, in an e contrario argument, can be
understood as asserting that if a government does not represent the whole population
without discrimination, the part of the population that is not represented may be entitled to
a right to secession. A lack of appropriate representation as a violation of internal selfdetermination
is thus understood to be a catalyst for the right to secession. Apart from this
positive—though indirect—manifestation, other reasons for the activation of the right to
secession can be found, if free associative reasoning is applied. As early as 1921, the
Commission of Rapporteurs in the Åland islands dispute found that it is possible to reach a
different conclusion, ie to recommend the separation of the Åland islands from Finland to
the benefit of the Åland islanders, ‘when a State lacks either the will or the power to enact
and apply just and effective guarantees’ (The Aaland Islands Question 28). The Supreme
Court of Canada in Reference re Secession of Quebec identified three potential
circumstances in which external self-determination may be considered: decolonization, the
case of alien ‘subjugation, domination or exploitation’ (para. 133, based on the passage of
the Friendly Relations Declaration, ie ‘and bearing in mind that subjection of peoples to
alien subjugation, domination and exploitation constitutes a violation of the principle [of
self-determination], as well as a denial of fundamental human rights, and is contrary to the
Charter’ Principle of equal rights and self-determination of peoples), and ‘when a people is
blocked from the meaningful exercise of its right to self-determination internally’ but then
only ‘as a last resort’ (para. 134). The last circumstance was not given clear consideration
by the Court, however. Moreover, when human rights are seriously and persistently violated
—when the oppression of a people is extreme, for example—this is widely perceived in
academia as activating the right to secession, although only as an ultima ratio (for instance
Tomuschat [2006] 35 [with further references]).
18 As to such a right to secession, three comments are in order. First, it is important to
stress that the impact of such a right to secession would be limited ab initio. Situations in
which secession is at stake are highly politicized, and a whole plethora of political
arguments are used to support or undermine secessionist claims. In such a setting, a right
to secession, while certainly bolstering the position of that part of the State that wishes to
secede, would be only one argument among many and its concrete application would be
187
subject to fierce debate. Therefore, a higher, impartial implementing authority would be at
least as important as the right itself.
19 Second, apart from the tenuousness of the legal basis, the right to secession in the
sense of a ‘remedial secession’ (Buchheit 222) raises other serious concerns. A remedial
right to secession based on external self-determination would have to tackle all the
difficulties of the right to self-determination, such as the questions of what is ‘a people’,
who belongs to ‘a people’, and how the will of ‘a people’ is determined (see → Self-
Determination). Then there are the concerns that are very familiar from the debate on
→ humanitarian intervention: serious issues relating to threshold levels would have to be
addressed if one needed to fix the level of oppression—the seriousness of human rights
violations, the degree of the lack of participation, etc—that would entitle a people to
secession. The ultima ratio qualification of the right to secession—as a last resort—would
not clarify things very much, for the ultimacy of a measure could always be disputed. It
probably only indicates that, in general, the threshold would have to be high. The duration
of the oppression needed in order to activate the right would pose additional challenges. In
particular, it would be necessary to answer the intricate question as to whether the right to
secede would continue to exist, once the oppression had ended.
20 Third, there is another fundamental argument which militates strongly against a right
to secession. It is clear that secessionist claims are born out of difficult, multi-faceted
circumstances. In such circumstances, it seems that various options would be available to
address the underlying issues and, in most cases, secession would only be one of these
options. Here, a right to secession seems to be a crude device—a black and white
instrument applied to an area dominated by shades of grey. The right would confirm a bias
in favour of one solution, namely secession, in a situation where many options should be
available on an equal footing. This argument is clearly not against the legitimacy of action
in face of oppression, but the crux is that there must be different means of addressing
situations in which secessionist claims arise. To limit the options a priori to secession, even
if only as an ultima ratio, seems to be an unbalanced approach that does not take the
complexity of such situations into account. It sends out the wrong signals to the parties
involved. And it includes a threat: the loss of a part of sovereignty in the event that basic
international obligations, such as human rights etc, are not complied with. One would
expect that there are more subtle ways of ensuring compliance than via a threat to break
down territorial integrity—note the similar argument discussed in Reference re Secession of
Quebec (para. 91).
21 The Supreme Court of Canada showed a way to address these concerns in the first,
lesser-known part of its opinion in Reference re Secession of Quebec. Here, it held that
Quebec’s—and probably any other Canadian province’s—clear will to secede from Canada
would entail an obligation to negotiate the separation bona fide, based on Canadian
constitutional law. The Constitution would not prescribe the outcome of these negotiations
(see para. 17 above). Clearly, this approach is tailored to the case of peaceful relations
between the State and the part wanting to secede (→ Peaceful Change). Yet, it is equally
clear that, even in case of oppression, it is very difficult to reach a solution without
negotiations. One can conclude from this that it might be an option to shape international
law following Canada’s example. For those who are unable to adhere to such a solution
because the possible sacrifice of State unity is too costly, it might still be acceptable to
condition the remedial right to secession in the way proposed in UN → Special Envoy Martti
Ahtisaari’s plan for Kosovo, (UN Special Envoy for the Future Status Process for Kosovo,
‘Comprehensive Proposal for the Kosovo Status Settlement’; see paras 37–38 below).
188
Annex 28
Robert Kolb, GOOD FAITH IN INTERNATIONAL LAW (Hart 2017)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
189
190
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144 Good Faith and the Jurisdiction of States
of the civilian population on the other. The law here tries to find some equilibrium
between the competing principles of neminem laedit qui suo jure utitur
and sic utere tuo ut alienum non laedas. 111 In a robust vision of this function of
the law, it has been said: 'There is such an abuse of right each tirne the general
interest of the community is injuriously affected as the result of the sacrifice
of an important social or individual interest to a less important, though hitherto
legally recognised individual right'. 112 It is on the basis of this conception
of abuse of rights that whole branches of international law have been
developed, especially the principle that the use of a territory should not lead
to the infringement of the rights of other states or to the creation of excessive
harm on the territory of the latter. Ill The Lake Lanoux arbitration (1957) is
a typical example of this balancing-up approach concerning the use of water
and the effects of unilateral conduct on neighbouring territory.114 The sarne
approach has been followed in many other cases, as for example in the Pulp
Mills (Argentina v Uruguay) case (2010)115 or the Indus Waters Kishenganga
arbitration (Pakistan v India) (2013). 116 State authorities have used the same
principles in order to judge the legality of extraterritorial US legislation in the
context of trust law.117 Similarly> article 51, § 5> letter b> of Additional Protocol
I of 1977 to the four Geneva Conventions of 1949, which condemns attacks
causing excessive civilian collateral damage in regard of the military advantage
anticipated, 118 responds to the same logic of a prohibition of abuse of
rights. The issue is manifestly one ofbalancing up. The only collateral damage
dedared to be unlawful is the one which appears to be 'excessive' with regard
to the military advantage anticipated.
4. Arbitrary action, unreasonable conduct and fraud: there is a last and more general
sphere of abuse of rights. It encompasses arbitrary, unreasonable and
fraudulent acts. Arbitrary conduct rests on acts which are manifestly unjustified
with regard to the facts, objectively shocking exercises of a right, acts
injuring the elementary legal conscience or certain discriminatory exercises
111 Sec the many referenccs in L Oppcnheim (R Jennings and A Watts, eds), International Law, 9th
edn (London, 1992) 408ff. Sec also among many others J Barboza, 'International Liability for the Jnjurious
C.Onsequences of Acts not Prohibited by International Law and Protection of the Environment'
(1994-lll) 247 RCAD/319ff.
11z H Lautcrpacht, The Function of Law in the International Community (Oxford, 1933) 286.
m Sec Corfu Channel (1949) 223 IC] Reports 223 and Trail Smelter (1941 ) III RIAA 1963, from
whcrc the main principlcs of modern environmental protection law have develop~.
114 Lake Lanoux (l 957) XII RIAA 281 ff.
115 Pulp Mi Ils (Argentina v Uruguay) (2010• 1) ICI Reports 55-56, § l 0 l, harm to the environment by
construction of industrial installations.
116 Indus Waters Kishenganga arbitration (Pakistan v lndia) (2013) 154 ILR 171 ff.
117 See W Meng, Extraterritoriale furisdiktion im iJ/fentlichen Wirtschaftsrecht (Berlin, 1994) 416.
118 Considered to be indiscriminate is: '(b} an attack which may be expccted to cause incidental loss
of civilian life, in jury to civilians, damage to civilian objects, or a combination thereof, which would be
CJCccssive in relation to the concrcte andl direct military advantagc anticipated'. On this provision, sec
cg Y Sandoz, C Swinarski and B Zimmermann ( cds), Commentary on the Addition.al Protoccl.s of 8 /unL
1977 to the Genem Conventions of 12 August 1949 ( Gencva, 1987) 613ff.
194
Good Faith and the Prohibition of Abuse of Rights 145
of rights. 119 Unreasonable acts are those which are beyond the pale of a sharable
justification. Finally, fraudulent acts are those which seek to circumvent
a legal prohibition by recourse to subtle forma! constructions. In a sense, the
pragmatic common lawyer will refrain frorn seeking an excessively precise
distinction between these concepts. As was graphically stated by FA Mann:
'I am not going to weary the Court with the somewhat unprofitable problem
of drawing the line between abuse, arbitrariness and discrimination.
These terms are often used interchangeably and all of them indicate the same
idea, the same principle ... '. 120 There are whole branches of international law
wbièh are based on the prohibition of 'arbitrary' action, notably in the con•
text of human rights. 121 Thus, famously, article 6, § 1, of the Covenant on
Civil and Political Rights ( CCPR) of 1966 holds that 'no one shall be arbitrarily
deprived of his life: 122 lt is true that to a large extent these notions have
become autonomous from the concept of abuse of rights. In effect, the latter
notion is not mentioned when 'arbitrary' acts are stigmatised. However, we
should not ignore the fact that all these special rules have flown from a polymorph
galaxy centred on good faith and the prohibition of abusive action. We
may also recall the jurisprudence of the ICTY, holding that the UN Security
Council could not indulge into arbitrary action.123 Another example verging
on fraud and circumvention is the modification of municipal law with a
view to extract certain valuable assets from the mass of items to be transferred
by state succession.124 Similar issues have arisen in the context of fraudulent
nationality in the UN Claims Commission for Iraq in the 1990s.125 Finally, we
may also emphasise that article 17 of the ECHR of 1950, under the title 'abuse
of rights1
, is a saving clause against activities or acts aimed at the destruction of
rights and freedoms provided for in the Convention.126 This is a special type
119 On the link betwttn abuse of rights and arbitrary action, sec cg BO Iluyomadc, 'The Scope and
Content of a Cornplaint of Abuse of Right in International Law' (1975) 16 Harvard lnterru1rional Law
Tournai 84ft'; S Jovanovic, Restriction des compétences discrttionnaircs des Etats en droit international
(Paris, 1988) 193ff. Further literature in Kolb, Borine 468.
120 Pleadings by FA Mann (Belgium), Barcelona Traction case, VIII JCJ Pleadings 58.
121 On arbitrary dcprivation of nationality, stt alrcady the old statement in W Schiffcr, Repertoire
of Questions of Gmeral International Law before the Ltague of Nations, 1920-1940 (Geneva, 1942) 85,
no 214.
122 See M Nowak, UN COVt11ant ori Civil and Political Rights, Commentary, 2nd edn (Kehl, 2005)
l 27ff, W K.àlin and J Künzli, The Law oflrittrnational Human Rights Protection (Oxford, 2009) 102-03.
Tbere are also other areas wbere the standard is 'arbitrariness' cg the issue of the prohibition of arbitrary
interfcrencc: with privacy: sec the Toonen v Australia case, UN Human Rights Committee unde.r
CCPR, Communication no 488/ 1992, (1994) 113 ILR 340-41, § 8.3.
• 123 Tadic (Jurisdiction) case, Appeals Chamber ( 1995) J OS ILR 465, § 28.
124 See B Stern, 'La succession d'Etats' (1996) 262 RCADI 344-46.
125 Pd' Argent, Les réparations de guerre en droit international public (Brussds, 2005) 355. lt has also
bec:n hcld by a Greek tribunal that the plcading of jurisdictional immunity in the face of a massacre
committed by one's own military forces amounted to an abuse of rights: d'Argent, ibid, 799, but the
ICJ has judged differently on that issue: Jurisdictionallmmunities of the State (20 l 2-1) ICI Reports 100ft'.
126 See cg Y Arai, '.Article 17' in P van Dijk, F van Hoof, A van Rijn and L Zwaak ( eds ), Theory and
PrQd'ic:c of the Europcan Convention on Human Rights, 4th edn (Antwerp, 2006) 1083ft'; FG Jacobs,
195
146 Good Faith and the ]urisdidion of States
of abuse of rights: it aims at protecting the rights listed in the Convention and
to safeguard the democratic institution against totalitarian and similar movements
'abusing' the rights granted with the aim of destroying human rights. ln
short words: no acceptance of use of human rights to destroy human rights;
herein precisely lies the abuse. By the same token, there are special rules on
abuse of rights within EU law. 127
A question that has been asked is whether the notion of abuse of rights supposes a
damage for a subject of the law, as does the concept of estoppel. There are differen t
distinctions to be made here. First, there are certain types of abuse of rights which
by definition suppose a damage, such as above-mentioned category 3), the disproportion
of interests issue. The point is there to prohibit a certain behaviour, or to
ensure reparation, when an excessive harrn has been inflicted on another subject.
A harm obviously encompasses or is in itself a damage. Conversely, there are other
notions based on the abuse of rights doctrine which do not in themselves include
a damage, eg the prohibition of fraudulent acts or of détournement. Second. much
depends on the function the abuse of rights is called to display: when the issue is
to daim pecuniary reparation for an unlawful act, a damage must be shown; conversely,
when the abuse is daimed to obtain the nullity of a certain act, no damage
must be shown.128 Similarly, as long as the abusive act has not been executed, the
daim can be geared only towards its prevention and no damage is required; once
the abusive act is executed, issues of responsibility will normally be prominent and
the damage may become a material consideration. 129 Overall, it cannot be said
that the element of damage is an inherent requirement of the doctrine of abuse
of rights.
We may conclude this chapter with some general examples of the prohibition
of abuse of rights in the case law. At the PCIJ, one of the leading cases is the
Certain German Interests in Upper Polish Silesia (1926). There the Court limited
the right of Germany to dispose of certain assets in a territory where a plebiscite
would be held on its remaining within Germany or shifting to Poland, by affirming
that in case of an abuse of rights, the transfer or alienation of assets would
amount to a violation of international law. 130 Another interesting case is the Free
Zones case of 1930 and l 932. The Court held that France kept its full sovereignty
over the free zones around Geneva and that it could therefore install any type of
RC White and C Ovey. The European Convention on Human Rights, Snd cdn (Oxford, 201 0) 122ff;
D Harris, M O'Boylt and C Warbrick, Law of the Europe'1n Qmvention on Human Rights, 3rd cdn
(Oxford, 2014) 852ft'; WA Schabas, The EuroptQn Con~ntion on Human Rights-A Commentary
(Oxford, 2015) 61 lfI, with a bibliography. Sec also JF Rcnucci, Droit européen des droits de l'homme,
2nd edn (Paris, 2012) 885ft'.
127 Sec Hung"ry vSlovak Republic (2012) 153 /LR 118-19 (CJEU).
128 Sec the Rcjoindcr by Guatemala in the Notttbohm case, ( 1955) I ICI Pleadings 511.
129 P Guggenheim, 'La validitl et la nullit~ des actes ju.ridiques internationaux' (1949-J) 74 RCADI
253- 54.
130 Certain German lnterests in Upper Polish Silesia (1926) PCIJ ser A, no 7, pp 30, 37- 38.
196
Annex 29
James Crawford, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL
LAW (Oxford University Press, 9th ed. 2019)
Pursuant to Rules of the Court Article 50(2), this annex is
comprised of such extracts of the whole document as are
necessary for the purpose of the pleading. A copy of the
whole document has been deposited with the Registry.
197
198
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445
Part II Personality and recognition, 5 Creation and
incidence of statehood
James Crawford SC, FBA
From: Brownlie's Principles of Public International Law (9th Edition)
James Crawford
Previous Edition (8 ed.)
Subject(s):
Statehood, legitimacy — Representation of states in international organizations — Sources, foundations
and principles of international law — Secession — 3e376cf7-6596-4a66-aab4-bc941a0fc49b — Selfdetermination
199
OXFORD PUBLIC INTERNATIO NAL LAW
Oxford Scholarly Authorities on International Law
Security Council Resolutions 242, 338, and 1397 and entailing ‘two states, Israel and
sovereign, independent, democratic and viable Palestine, living side-by-side in peace and
security’. The Roadmap was endorsed by the Security Council in November 2003.69
However, the parties still failed to agree on final status. In November 2007, the Israeli–
Palestinian Joint Understanding declared the intent of the parties to ‘immediately launch
good-faith bilateral negotiations in order to conclude a peace treaty, resolving all
outstanding issues, including all core issues without exception, as specified in previous
agreements’, ‘[i]n furtherance of the goal of two states, Israel and Palestine, living side by
side in peace and security’.The parties also committed to implement their respective
obligations under the Roadmap.Peace talks stalled after Israel refused to extend a tenmonth
freeze on settlement activity in the occupied Palestinian territory. That decision
prompted the Palestinian Authority to withdraw from direct talks with Israel, which had
only resumed a few weeks earlier after a two-year hiatus.
Though the parties had not reached a final status agreement, Palestine applied for
admission to membership in the UN on 23 September 2011.72 The Security Council
Committee on the Admission of New Members was unable to recommend action to the
Security Council and instead adopted a report noting deep divisions within the Council.Palestine had previously been accepted into membership in the Non-Aligned Movement, the
Organization of Islamic Cooperation, the Economic and Social Commission for Western
Asia, the Group of 77, and UNESCO.As at 1 July 2018, some 137 states have recognized
Palestine as a state. In 2012, the General Assembly accorded Palestine ‘non-member
observer State status’,but a real solution to the Palestine problem seems as distant as
ever.(C) Kosovo
Another unresolved case is that of Kosovo. States submitting observations in the Kosovo
advisory proceedings addressed, inter alia, the right to self-determination (outside the
colonial context), and some posited that a state might be created under a right (p. 130) to
‘remedial secession’.However, the Court found that it was ‘not necessary to resolve these
questions in the present case’, as the General Assembly had requested the Court’s opinion
on a narrower question—that is, whether the declaration of independence was in
accordance with international law. The Court concluded that ‘general international law
contains no applicable prohibition of declarations of independence’. Accordingly, the
‘declaration of independence of 17 February 2008 did not violate general international
law’.The Court found that Security Council Resolution 1244 (1999) did not address the
authors of the declaration of 17 February 2008 and so did not constrain them from issuing a
declaration of independence either. The authors of the declaration were not acting as one of
the Provisional Institutions of Self-Government within the Constitutional Framework, but
rather were representatives of the people of Kosovo acting outside the framework of the
interim administration.Nor did the resolution reserve the final determination of the
status of Kosovo to the Security Council.The Court chose not to address the
consequences of such a declaration of independence—whether a new state had been
created or whether other states would be obliged to recognize (or to refrain from
recognizing) it. As at 1 July 2018, some 116 states had recognized Kosovo.4. Achieving Independence: Secession and Self-Determination
If independence is the decisive criterion of statehood,self-determination is a principle
concerned with the right to be a state.A key initial development was the reference to ‘the
principle of equal rights and self-determination of peoples’ in Articles 1(2) and 55 of the UN
Charter.Many saw these references as merely hortatory, but the practice of UN organs
powerfully reinforced the principle—in particular the Declaration on the Granting of
Independence to Colonial Countries and Peoples, adopted by (p. 131) the General Assembly
in 1960 and referred to in a long series of resolutions since.The Declaration treats the
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principle of self-determination as one of the obligations stemming from the Charter: it is in
the form of an authoritative interpretation.The right to self-determination of ‘all peoples’
was subsequently included as Common Article 1 of the two human rights covenants of
1966.87
Means of achieving self-determination include the formation of a new state through
secession, association in a federal state, or autonomy or assimilation in a unitary (nonfederal)
state.It is generally accepted that peoples subjected to colonial rule have a right
to elect independence under international law, but the question of secession, and selfdetermination
more generally, has been highly controversial outside the colonial context.In practice, a marked distinction has developed between full (‘external’) self-determination
and qualified (‘internal’) self-determination. This was perhaps definitively formulated by the
Canadian Supreme Court:
We have also considered whether a positive legal entitlement to secession exists
under international law in the factual circumstances contemplated by Question 1,
i.e., a clear democratic expression of support on a clear question for Quebec
secession. Some of those who supported an affirmative answer to this question did
so on the basis of the recognized right to self-determination that belongs to all
‘peoples’. Although much of the Quebec population certainly shares many of the
characteristics of a people, it is not necessary to decide the ‘people’ issue because
… a right to secession only arises under the principle of self-determination of
peoples at international law where ‘a people’ is governed as part of a colonial
empire; where ‘a people’ is subject to alien subjugation, domination or exploitation;
and possibly where ‘a people’ is denied any meaningful exercise of its right to selfdetermination
within the state of which it forms a part. In other circumstances,
peoples are expected to achieve self-determination within the framework of their
existing state. A state whose government represents the whole of the people or
peoples resident within its territory, on a basis of equality and without
discrimination, and respects the principle of self-determination in its internal
arrangements, is entitled to maintain its territorial integrity under international law
and to have that territorial integrity recognized by other states.(p. 132) Questions of internal self-determination and remedial secession are left open here
and remain controversial. The International Court did not address submissions on remedial
secession in the Kosovo opinion.In 2014, the Autonomous Republic of Crimea and the
City of Sevastopol declared independence, mentioning Kosovo in support of their contention
that this was lawful and would result, subject to a favourable referendum outcome, in the
creation of an independent state (which would subsequently propose itself to form ‘a new
constituent entity of the Russian Federation’).The process has not been recognized, any
more than the attempted secession of Catalonia.A possible case of remedial secession is
South Sudan, although (like Eritrea) it could also be analysed on a more traditional basis as
a case of separation by agreement after intractable conflict.5. Identity and Continuity of States
The term ‘continuity’ of states is not employed with any precision, and may be used to
preface a diversity of legal problems.Thus, it may introduce the proposition that the legal
rights and responsibility of states are not affected by changes in the head of state or the
internal form of government.This proposition can, of course, be maintained without
reference to ‘continuity’ or ‘succession’, and it is in any case too general, since political
changes may result in a change of circumstances sufficient to affect particular types of
treaty relation. More significantly, legal doctrine tends to distinguish between continuity
(and identity) and state succession. The latter arises when one international personality
takes the place of another, for example by union or lawful annexation. In general, it is
86
87
88
89
90
91
92
93
94
95
96
201
assumed that cases of ‘state succession’ are likely to involve important changes in the legal
status and rights of the entities concerned, whereas if there is (p. 133) continuity the legal
personality and the particular rights and duties of the state remain unaltered. The
distinction is examined in more detail in chapter 19.
6. Conclusion
After rapid expansion in the number of states in the period 1948–60, and again in the
1990s, and despite several subsequent attempts at secession, the total number of states has
not increased much in the past 20 years. The international system remains opposed to
secession and the few putative states which have been widely recognized after unilateral
declarations of independence—Kosovo, South Sudan—still struggle. The main example of
what might be termed ‘remedial recognition’ is Palestine, currently recognized by a twothirds
majority of UN members (137); the two-state solution to the Palestine dispute is as
remote from achievement as ever. With that exception, it appears that the future of peoples,
even insular and discrete minorities, lies within their state of origin.
Footnotes:
Generally: 1 Whiteman 221–33, 283–476; Guggenheim, 80 Hague Recueil 1; Higgins,
Development (1963) 11–57; Fawcett, British Commonwealth in International Law (1963)
88–143; Marek, Identity and Continuity of States in Public International Law (2nd edn,
1968); Verzijl, 2 International Law in Historical Perspective (1969) 62–294, 339–500;
Rousseau, 2 Droit International Public (1974) 13–93; Arangio-Ruiz, L’État dans le sens du
droit des gens et la notion du droit international (1975); Lauterpacht, 3 International Law
(1977) 5–25; Grant, Recognition of States (1999); Crawford, Creation of States (2nd edn,
2006); Caspersen & Stansfield, Unrecognized States in the International System (2011);
Vidmar, Democratic Statehood in International Law (2013) 39–138, 202–41; Dugard (2013)
357 Hague Recueil 9, 45–69; Coleman, Resolving Claims to Self-Determination (2013) ch 2;
Vidmar (2015) 4 CJICL 547. On UN membership: Grant, Admission to the United Nations
(2009); Duxbury, Participation of States in International Organisations (2011); Charlesworth
(2014) 371 Hague Recueil 43, 79–81.
2
Oppenheim, 1 International Law (1st edn, 1905) 99–101; cf 1 Oppenheim 120–3.
3
Convention on Rights and Duties of States adopted by the Seventh International
Conference of American States, 26 December 1933, 165 LNTS 19.
4
E.g. Fitzmaurice (1957) 92 Hague Recueil 1, 13; Higgins (1963) 13; Fawcett (1963) 92.
5
Grant (1999) 37 Col JTL 403.
6
Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 ILR 11; North Sea
Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/
Denmark), ICJ Reports 1969 p 3, 32; In re Duchy of Sealand (1978) 80 ILR 683. Further:
Badinter Commission, Opinion No 1 (1991) 92 ILR 162; Opinion No 10 (1992) 92 ILR 206.
7
On Albania: Ydit, Internationalized Territories (1961) 29–33; Crawford (2nd edn, 2006)
510–12.
8
See Jessup, US representative in the Security Council, 2 December 1948, quoted in 1
Whiteman 230; also SC Res 69 (1949), GA Res 273(III), 11 May 1949.
9
On the European micro-states generally: Duursma, Fragmentation and the International
Relations of Microstates (1996). On micro-states as UN Members: Crawford (2nd edn,
1
202
Annex 30
Direct Line with Vladimir Putin, President of Russia (17 April 2014)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
203
204
April 17, 2014 15:55 Moscow
Direct Line with Vladimir Putin
The annual special Direct Line with Vladimir Putin was broadcast live
by Channel One, Rossiya-1 and Rossiya-24 TV channels, and Mayak,
Vesti FM and Radio Rossii radio stations.
Especially popular in the course of the discussion were questions about Crimea, including
the socioeconomic situation in Russia’s new regions – the Crimean Republic
and Sevastopol, the development of Russia’s Black Sea Fleet, and the situation regarding
the Crimean Tatars. There were also questions about the situation in Ukraine,
and the assessment of the developments in the southeast of the country.
The discussion also touched upon international issues, such as relations with the West
and NATO, the deployment of US anti-missile defence systems in Europe, the situation
with Transnistria, and economic issues related to the global oil and gas markets. Vladimir
Putin answered questions not only from citizens of Russia, but of other countries as well,
for instance from experts of the Valdai Club from Germany, the US and Hungary,
and a question from Edward Snowden.
Numerous questions dealing with the country’s life were raised, including those related
to healthcare, housing and utility services, relief efforts following the largest ever flood
in the Far East last year, prospects for the future use of Olympic facilities in Sochi, as well
as ways of instilling patriotism, and building relations with the opposition.
There were also a few personal questions. In the final part of the Direct Line, the President
answered questions of his own choice.
205
During the live television broadcast that lasted 3 hours 54 minutes, the President
responded to a total of 81 questions and appeals.
* * *
Direct line programme host Kirill Kleymenov: Good afternoon,
You are watching Direct Line with President Vladimir Putin. Here in the studio today are
Maria Sittel and Kirill Kleymenov.
Direct line programme host Maria Sittel:
Good afternoon,
I could say that we are having today yet another conversation with Vladimir Putin, however
the situation is different since the country we are talking to now has changed. After waiting
for 23 years, since the breakup of the Soviet Union, Crimea and Sevastopol have joined
Russia. For this reason, every question today will be directly or indirectly related to Crimea.
We will discuss a number of issues today, including healthcare, army, taxes, agriculture
and, naturally, Ukraine. There is no doubt that we’ll discuss developments in Ukraine’s
southeast and the genocide that was unleashed in this region. Ukraine is sliding into civil
war.
Kirill Kleymenov: Our colleagues Olga Ushakova, Valeriya Korableva, Tatyana Stolyarova
and Dmitry Shchugorev will assist us during today’s broadcast, while Tatyana Remizova
and Anna Pavlova are working in the call and SMS processing centre.
I would like to remind you that you can watch us live on Channel One, as well
as on Rossiya-1 and Rossiya-24 TV channels, and on Russia’s Public Television channel,
where interpretation into sign language will be available for people with impaired hearing.
Radio listeners can join our conversation on Mayak, Vesti FM and Radio Rossii stations.
We are live with President Vladimir Putin.
206
Tatyana Remezova: Good afternoon, colleagues! Hello, Mr President.
Our call centre has been working for a week, and we will continue to take calls during
the Direct Line broadcast. You can call us at the toll-free number 8 (800) 200–4040
or send text messages to 04040. There is a separate Moscow number, which is also toll
free, for residents of the Republic of Crimea and Sevastopol: +7 (495) 539–2442. People
from other countries can call us at the number you can see on the screen.
Over the past eight days, our call centre has received over two million questions,
or 17,500 per minute – we are definitely going to set a new record – and many callers just
say, “Thank you for Crimea.”
Anna Pavlova: Good afternoon. I’d like to remind you that this year you can send video
questions to the President from your PC or any mobile device. Our operators continue
to accept your messages on the websites www.moskva-putinu.ru and москва-путину.рф.
There is still time to record and send your questions.
I’d like to tell you that this is the first time that this programme will be broadcast with
a sign-interpreted version on our website. These new options have been introduced
to increase the audience.
Maria, Kirill, back to you.
Kirill Kleymenov: So, about Ukraine. Events are unfolding there with an incredible
and sometimes alarming speed. Indeed, two months ago, during the Olympic Winter
Games on February 17, no one thought that Crimea would reunite with Russia and that
people in eastern Ukraine would stop armoured convoys sent from Kiev with their bare
hands.
Mr Putin, the first question is perfectly obvious: What do you think about the events
underway in the Lugansk and Donetsk regions?
President of Russia Vladimir Putin: Before I answer your question, I’d like to go back
a little to review recent events in Ukraine. As you know, President Yanukovych refused
to sign the Association Agreement with the EU. No, he did not refuse to sign it, but said
207
that he could not sign it on the EU conditions, because it would dramatically worsen
the socioeconomic situation in Ukraine and affect Ukrainians. Yanukovych said that he
needed more time to analyse the document and to discuss it together with Europeans.
This provoked public unrest that eventually culminated in an unconstitutional coup,
an armed seizure of power. Some liked it, and some did not. People in eastern
and southeastern regions of Ukraine were worried about their future and the future
of their children, because they saw a rapid growth of nationalist sentiments, heard threats
and saw that [the new authorities] wanted to invalidate some of the ethnic minorities’
rights, including the rights of the Russian minority. On the other hand, this description is
relative, because Russians are native persons in Ukraine. But an attempt was made
to invalidate all decisions regarding the use of the native language. This alarmed people,
of course. What happened next?
Instead of starting a dialogue with these people, Kiev appointed new governors –
oligarchs and billionaires – to these regions. People are suspicious of oligarchs as it is.
They believe that they earned their riches by exploiting people and embezzling public
property, and these oligarchs have been appointed to head their regions. This only added
to the public discontent. People chose their own leaders, but what did the new
government do to them? They were thrown into prison. Meanwhile, nationalist groups did
not surrender their weapons, but threatened to use force in the eastern regions.
In response, people in the east started arming themselves. Refusing to see that
something was badly wrong in the Ukrainian state and to start a dialogue, the government
threatened to use military force and even sent tanks and aircraft against civilians. It was
one more serious crime committed by the current Kiev rulers.
I hope that they will see that they are moving into a deep hole, and that they are pulling
their country along. In this sense, the talks that will start today in Geneva are very
important, because I believe that we should get together to think about ways out of this
crisis and to offer people a real, not sham, dialogue. The current Kiev authorities have
travelled to the eastern regions, but who do they talk to there? They talk to their
appointees. There’s no need to go to Donbass for this, because they can summon them
to Kiev for a meeting. They should talk with people and with their real representatives, with
those whom people trust. They should release the arrested [opponents], help people
to express their opinion in an organised manner, suggest new leaders and start
a dialogue.
208
People in the eastern regions are talking about federalisation, and Kiev has at long last
started talking about de-centralisation. But what do they mean? To be able to understand
what they mean, they should sit down at the negotiating table and search
for an acceptable solution. Order in the country can only be restored through dialogue
and democratic procedures, rather than with the use of armed force, tanks and aircraft.
Kirill Kleymenov: So far the dialogue has started between diplomats: top diplomats from
the United States, Russia, the European Union and Ukraine are meeting in Geneva at this
very moment. Russia is represented by Foreign Minister Sergei Lavrov. Could you outline
Russia’s stance at the talks in just a few words?
Vladimir Putin: I just did exactly that. We feel strongly that this should not be a sham
dialogue between representatives of the authorities, but a dialogue with the people to find
the compromise I was talking about.
Kirill Kleymenov: How would you respond to the statements coming from both Kiev
and the West about Russia being behind the protests in eastern Ukraine, allegedly staged
and financed by “Moscow’s hand”? They even claim that certain Russian armed units are
there.
Vladimir Putin: Nonsense. There are no Russian units in eastern Ukraine – no special
services, no tactical advisors. All this is being done by the local residents, and the proof
of that is the fact that those people have literally removed their masks. So I told
my Western partners, “They have nowhere to go, and they won’t leave. This is their land
and you need to negotiate with them.”
Maria Sittel: I’m sure we’ll get back to the events in the southeast later in the course
of this conversation. Now let’s talk about Crimea and how you took the decision. You never
gave as much as a hint about Crimea over the course of your political career. You must
have thought about it, but you never even mentioned Crimea in private talks.
So how was this decision made? Can you tell us again? Was this opposed by any
members of your team? What was your assessment of the possible risks, from
international sanctions to the civil war we are watching unfold now?
209
Vladimir Putin: The most obvious risk was that the Russian speaking population was
threatened and that the threats were absolutely specific and tangible. This is what made
Crimean residents, the people who live there, think about their future and ask Russia
for help. This is what guided our decision.
I said in my recent speech in the Kremlin that Russia had never intended to annex any
territories, or planned any military operations there, never. Quite to the contrary, we were
going to build our relations with Ukraine based on current geopolitical realities. But we
also thought, and have always hoped, that all native Russians, the Russian-speaking
people living in Ukraine, would live in a comfortable political environment, that they would
not be threatened or oppressed.
But when this situation changed, and Russians in Crimea were facing exactly that, when
they began raising the issue of self-determination – that’s when we sat down to decide
what to do. It was at this exact moment that we decided to support Crimeans, and not 5,
10 or 20 years ago.
I discussed this problem with the Security Council members, and no one objected. In fact
all of them supported my position. And I’m more than happy now that all the steps
in the action plan were taken in a very precise manner, quickly, professionally
and resolutely.
Kirill Kleymenov: I would say the way the plan was executed was unique and unparalleled
in history.
Mr Putin, we who live in Russia are very well aware of how things are done here. But
indeed, this was done very quickly – a complicated referendum was organised
in the shortest time possible, security issues addressed, and Ukrainian units disarmed –
that really gave the impression of a long-planned and prepared action.
Vladimir Putin: No. This had not been pre-planned or prepared. It was done on the spot,
and we had to play it by ear based on the situation and the demands at hand. But it was
all performed promptly and professionally, I have to give you that.
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Annex 31
BBC News, The Prosecutor General’s Office Opened Proceedings Against Russian
Investigators (30 September 2014)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
211
212
[BBC NEWS UKRAINE]
The Prosecutor General's Office opened
proceedings against Russian
investigators
30 September 2014
Ukrainian military near Debaltseve
The Prosecutor General's Office of Ukraine has launched criminal proceedings against employees of the
Investigative Committee of Russia, whom it suspects of supporting militants in the Donbas and interfering in
the activities of Ukrainian law enforcement agencies.
The day before, the Russian Investigative Committee opened a criminal case on the “genocide of the Russian-speaking
population” in Luhansk and Donetsk regions.
Advisor to the Ministry of Internal Affairs Anton Gerashchenko told BBC Ukraine that the Russians are trying to “justify
the separation” of Donbas from Ukraine.
Reaction of Kyiv
The Prosecutor General's Office has initiated criminal proceedings against Russian investigators for "facilitating a
terrorist organization" and "interfering in the activities of a law enforcement officer and a statesman."
According to the Prosecutor General's Office, in May-June, a special department was created as part of the Investigative
Committee of the Russian Federation to investigate crimes related to the use of prohibited means and methods of
warfare. In particular, the Russian agency has launched criminal proceedings against servicemen of the Armed Forces
of Ukraine, the National Guard and activists of the “Right Sector”.
The Prosecutor General's Office of Ukraine calls these proceedings groundless and believes that their objective is to
support the activities of the so-called “DPR” and “LPR” and prevent representatives of [Ukrainian] state bodies and
[Ukrainian] public figures from performance of their duties.
213
"The commission of these criminal offenses encroaches on the interests of the state, its sovereignty and territorial
integrity protected by international treaties and laws of Ukraine," the Prosecutor General's Office said in a statement.
Moscow's accusations
The day before, the Russian Investigative Committee opened a criminal case on the “genocide of the Russian-speaking
population” in Luhansk and Donetsk regions. The investigation established that from 12 April 2014 and until now ...
unidentified persons from the top political and military leadership of Ukraine, the Armed Forces of Ukraine, the National
Guard of Ukraine and the "Right Sector" gave orders aimed at the complete eradication of Russian-speaking citizens
living in the Donetsk and Luhansk republics", - the Russian agency said in a statement.
According to Russian investigators, the "killings of Russian-speaking citizens" were carried out using the "Grad" and
"Uragan" systems, unguided missiles and other heavy weapons.
According to Russia's Investigative Committee, at least 2,500 people died as a result of these actions.
“PR noise for the separation of Donbas”
In a comment to the BBC Ukraine, Adviser to the Minister of Internal Affairs Anton Gerashchenko said that the opening
of this case was "outright nonsense." "This kind of case is a PR noise made specifically to justify the elections in Donbas
to completely separate Donbas from Ukraine," Mr. Gerashchenko said.
According to him, all this coincides in time with the elections announced last week “to the so-called governing body of
the Donetsk and Luhansk People's Republics.”
“For the same purpose, mass burials of civilians were announced, who were allegedly shot by representatives of the
Ukrainian army. This is just an addition to the PR noise, a justification for the fact that the so-called "Novorossiya" is
separating from Ukraine," said the adviser to the Minister.
Earlier, Kyiv repeatedly accused Moscow of military support for the so-called "DPR" and "LPR" separatists.
214
Annex 32
Lyubov Chyzhova, It is Putin Who Should be Tried for Genocide—Adviser to the
Head of the Ministry of Internal Affairs of Ukraine, RFE/RL (1 October 2014)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
215
216
Radio Svoboda
POLITICS
It is Putin who should be tried for genocide — Advisor to
the Head of the Ministry of Internal Affairs of Ukraine
01 October 2014, 18:39 Lyubov Chyzhova
Volodymyr Putin. Archive photo
The Prosecutor General's Office of Ukraine has initiated criminal proceedings
against a number of representatives of the Investigative Committee of Russia.
Shortly before, the Investigative Committee opened a case on the "genocide" of
Russian-speaking residents of Donbas against high-ranking Ukrainian officials and
the military. Specific surnames are not listed. Russian investigators "suspect" that
the Ukrainian military and politicians have issued orders violating the 1948
Convention on the Prevention and Punishment of the Crime of Genocide and aimed
at eradication of the Russian-speaking population, according to the website of the
Investigative Committee of Russia. Lawyers believe that the case of genocide
opened by the Investigative Committee of Russia was initiated for propaganda
purposes and has no serious legal prospects.
217
According to the Investigative Committee of Russia (the IC of Russia), "an
unidentified group of Ukrainian politicians and law enforcement officials" took part in
the genocide of Russian-speaking residents of Donbas. They, according to
investigators, should be prosecuted under Article 357 of the Criminal Code of the
Russian Federation titled "Genocide". The staff of the IC of Russia found that "the
killing of Russian-speaking citizens were carried out with the use of multiple rocket
launchers "Grad" and “Uragan", aviation unguided missiles that have a cassette
head unit, tactical missiles “Tochka-U”, as well as other types of heavy offensive
weapons of indiscriminate action. As a result of these actions, at least two and a half
thousand people died."
According to the official representative of the IC of Russia Vladimir Markin, facts
have already been collected that confirm "violations by Ukrainian politicians and law
enforcement officers of not only Russian but also international law." Those
responsible for these crimes may face punishment of up to 20 years in prison or the
death penalty, the Investigative Committee warned.
. . .
Adviser to the Minister of Internal Affairs of Ukraine, politician and lawyer Zoryan
Shkiryak believes that a criminal case on the genocide of the Ukrainian people
should be initiated against Russian President Vladimir Putin.
“I have to tell you that commenting on another nonsense of the Investigative
Committee of the Russian Federation is a thankless task. Especially when they use
terms like genocide. Speaking frankly about the genocide, today it is really
necessary to raise the issue of bringing the President of the Russian Federation
Putin to the international tribunal for genocide, including of the genocide of Ukrainian
people, the consequences of which affect us today. First of all, we are talking about
the war unleashed by the Russian Federation on the territory of Ukraine, in Luhansk
and Donetsk regions. We could talk about Chechnya, we could also mention
Georgia," Shkiryak said.
"The masters of genocide are sitting in the Kremlin today. They are those who act by
the method of destroying those who disagree with Putin's imperial policy. Of course,
this will not have any serious consequences because there are no legal or any other
grounds to even raise this issue. This is another kind of information fake of the
current Russian propaganda and the information terror unleashed by the Russian
Federation against Ukraine. Therefore, the matter can only be in an attempt to
escalate the conflict again in the conditions of the so-called "truce", which is violated
daily and hourly by terrorist gangs created by Putin on the territory of Ukraine. But
even the fragile so-called peace, which today makes it possible to exchange
prisoners of war and hostages who are in torture chambers in the territory of
Donbas, even such a peace may be broken. This is a very serious precedent, and it
is not just about the statements of the Investigative Committee. The Prosecutor
General's Office of Ukraine, for its part, has initiated a criminal case against the
Investigative Committee of Russia, and this is the response of the Ukrainian side to
the blatant facts, if you will, of the legal schizophrenia demonstrated by the Russian
imperial government today”, says the Adviser of the Minister of Internal Affairs of
Ukraine.
218
Annex 33
BBC News, Investigative Committee of Russia Accused the Military Leadership of
Ukraine of “Genocide” (2 October 2014)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
219
220
221
DJD)[iNEWSIlnvestigative
Committee of
Russia accused the military
leadership of Ukraine of
''genocide''
02 October 2014
1 Minister Geletey is also accused of organizing killings and banned methods of warfare
The lnvestigative Committee of Russia opened a criminal case against Defense
Minister Valeriy Geletey and Chief of the General Staff of the Armed Forces Viktor
Muzhenko, accusing them of "genocide" and other crimes.
Brigade commanders and other representatives of the Ukrainian army were also under
investigation.
Earlier, the lnvestigative Committee of Russia opened a criminal case about the "genocide of
the Russian-speaking population" in Luhansk and Donetsk reg ions and accused a soldier of
the Ukrainian battalion "Dnipro" of killing civilians in the east of Ukraine.
In response, the Prosecutor General's Office of Ukraine launched criminal proceedings
against employees of the Investigative Committee of Russia for supporting militants in the
Donbas and interfering with the activities of Ukrainian law enforcement officers.
Responsibility is inevitable
According to the official representative of the Investigative Committee of Russia Vladimir
Markin, in addition to Valeriy Geletey and Viktor Muzhenko, the commander of the 25th
Brigade Oleh Mykas, "unidentified persons from among the commanders of the 93rd Brigade
and a number of senior officials from the military leadership of Ukraine" were under
investigation.
They are accused of organizing killings, using prohibited means and methods of warfare and
"genocide".
“Geletey, Muzhenko, Mykas and the commanders of the 93rd Brigade, who led the fighting
near the Donetsk airport from 3 July to 5 September, intentionally violated the 1948
Convention on the Prevention and Punishment of the Crime of Genocide and other
international legal acts which condemn genocide, gave orders to completely eradicate the
national group of Russian-speaking people living in the self-proclaimed Luhansk and Donetsk
People's Republics," Markin said in a statement published on the website of the Investigative
Committee of Russia.
He argues that as a result of the execution of orders of the leadership of the Ukrainian army,
more than 3,000 civilians were killed, more than 5,000 civilians were injured, and more than
500 residential buildings, communal facilities, hospitals, children's and general educational
institutions were completely or partially destroyed and burned.
"Until now, despite the declared truce, civilians are dying in Donbas every day. And it is quite
obvious that this is due either to the direct orders of the Minister of Defense or with his tacit
consent. And he will bear responsibility for this, and no trick of signing the oath with a pen with
a closed cap will not save him" said Vladimir Markin, noting that "such crimes have no statute
of limitations."
Response of the Prosecutor General's Office of Ukraine
Earlier this week, the Investigative Committee of the Russian Federation stated that it had
opened a criminal case on the "genocide of the Russian-speaking population" in Luhansk
and Donetsk regions, allegedly committed by "unidentified persons from the top political and
military leadership of Ukraine."
Russia's Investigative Committee also said that Serhii Lytvynov, a private in the Dnipro
Ukrainian battalion, allegedly "came to Russia under the guise of a civilian to go to a hospital
in the Rostov region." He was accused of killing civilians in eastern Ukraine.
Private Lytvynov allegedly testified about how he "personally committed the killings of
civilians" in the villages of Milove, Shyroke, Makarov and Komyshne.
222
The Ministry of Foreign Affairs of Ukraine reported that the information about the fighter is
being checked. The Dnipropetrovsk Regional State Administration stated that the Dnipro
Battalion had never been stationed in the cities as was claimed by the Investigative
Committee of the Russian Federation.
After those steps of the Investigative Committee of the Russian Federation, the Prosecutor
General's Office of Ukraine initiated criminal proceedings against employees of the
Investigative Committee, whom it suspects of supporting militants in Donbas and interfering
in the activities of Ukrainian law enforcement agencies.
According to the Prosecutor General's Office of Ukraine, the Russian agency has initiated
criminal proceedings against servicemen of the Armed Forces of Ukraine, the National Guard
and activists of the “Right Sector.”
The Prosecutor General's Office of Ukraine calls those proceedings groundless and believes
that they are aimed at supporting the activities of the so-called "DPR" and "LPR."
Advisor to the Ministry of Internal Affairs Anton Gerashchenko told BBC Ukraine that the
Russians are trying to “justify the separation” of Donbas from Ukraine.
Russia's Investigative Committee called the actions of the Prosecutor General's Office of
Ukraine "an inadequate protective response."
Earlier, Kyiv repeatedly accused Moscow of military support for the so-called "DPR" and
"LPR" separatists. Moscow denies the allegations.
223
224
Annex 34
Ria Novosti, Investigative Committee Accuses the Ukrainian Military of 374
Crimes Against Residents of Donbas (28 June 2019)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
225
226
RIA Novosti
17:38 06/28/2019
Investigative Committee accuses Ukrainian military of
374 crimes against residents of Donbas
[Photo]
MOSCOW, June 28 - RIA Novosti. The Investigative Committee of Russia has charged
Ukrainian servicemen with 374 episodes of crimes against the civilian population of
southeastern Ukraine. These are the use of prohibited means and methods of warfare,
genocide, murder, and kidnapping, said the chairman of the Investigative Committee Alexander
Bastrykin.
"Three hundred and seventy-four episodes of criminal activity we impute today to the
servicemen of the Armed Forces of Ukraine. These are the use of prohibited means and
methods of warfare, genocide, murder, and kidnapping," Bastrykin said.
According to the official representative of the department, Svetlana Petrenko, Bastrykin made
such a statement at an international scientific and practical conference at St. Petersburg State
University.
Petrenko noted that in his speech, the head of the state entity spoke about the application of the
norms of international law by the IC to the actions of the armed forces of Ukraine in the southeast
of the country.
At the same time, Bastrykin explained that "while recording the episodes of these crimes, as
well as crimes against humanity in South Osetia, the investigators of the Investigative
Committee are guided by the norms of international law."
In April 2014, the Ukrainian authorities launched a military operation against the self-proclaimed
LPR and DPR, which declared independence after the coup in Ukraine in February 2014.
According to the latest UN data, about thirteen thousand people became victims of the conflict.
The issue of resolving the situation in Donbas is being discussed, including during meetings of
the contact group in Minsk, which since September 2014 has already adopted three documents
regulating steps to de-escalate the conflict. However, even after the armistice agreements
between the parties to the conflict, skirmishes continue.
227
228
Annex 35
Ria Novosti, Gryzlov Called Putin’s Decree on Donbas a Response to Kyiv's Actions
(18 November 2021)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
229
230
RIA NEWS
15:21 18.11.2021
Gryzlov called Putin's Decree on Donbas a response
to Kyiv's actions
Gryzlov: Putin's Decree on Donbas is a response to Kyiv's actions to escalate the
conflict
© RIA News / Dmitriy Astakhov/ Go to the photobank
Read ria.ru at
MOSCOW, Nov 18 - RIA News. The Decree of the President of the Russian Federation
Vladimir Putin on providing humanitarian support to the self-proclaimed DPR and LPR is
a forced response of Moscow to the actions of Kyiv, the authorized representative of
Russia in the contact group on the settlement of the situation on the east of Ukraine
Boris Gryzlov told reporters.
231
"The Decree of the President of Russia is a forced response to Kyiv's actions, which are
aimed at escalating the conflict and actually fall under the UN Convention On the
Prevention of Genocide. It is necessary that the Ukrainian authorities begin to fulfill their
obligations on the settlement and bear responsibility for their aggressive actions. The
purposeful escalation of the conflict by Ukraine is a dead end, from which there is no
way out," Gryzlov told the reporters.
He recalled that the Decree provides for the provision of equal terms for the access of
goods from Donbas to participate in Russian public procurement, and also removes
quotas for the movement of goods across the customs border.
"In fact, this is the path to the revival and recovery of economies of Donetsk and
Luhansk, having significant resource potential, and opportunities in the fields of
metallurgy, energy and mechanical engineering. This is the strengthening of economic
cooperation with the regions of the Russian Federation in accordance with the (Minsk)
package of measures,” Gryzlov added.
Putin on Monday signed a Decree on providing humanitarian support to the selfproclaimed
DPR and LPR, according to which certificates of origin of goods issued in
the DPR and LPR are recognized in the Russian Federation, the admission of goods on
a par with Russian ones to public procurement is allowed. The document also cancels
export and import quotas for goods transported from Russia to the DPR/LPR and back.
The Ministry of Foreign Affairs of Ukraine regarded this as gross interference in the
affairs of the country and sent a note of protest to the Russian Federation. Commenting
on the Decree, the DPR authorities noted that this is an important humanitarian step,
which, in particular, will contribute to the creation of jobs.
Ukrainian Foreign Minister Dmytro Kuleba said that the Decree of the President of
Russia contradicts the Minsk agreements. Kuleba noted that he expects France and
Germany to condemn the actions of the Russian Federation. The official representative
of the Ministry of Foreign Affairs of the Russian Federation Maria Zakharova said that
Russia's assistance to Donbas is not a violation of the Minsk agreements.
232
Annex 36
Ria Novosti, The Situation in Donbas Meets All the Signs of Genocide, Says
Moskalkova (23 February 2022)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
233
234
RIA NEWS
Special military operation in Ukraine
20:01 23.02.2022 4147
The situation in Donbas meets all the signs of
genocide, says Moskalkova
Commissioner for Human Rights Moskalkova said that the situation in Donbas meets
all the signs of genocide
© RIA News/ press service of the Federation Council of the Russian Federation / Go to the photobank
Commissioner for Human Rights of the Russian Federation Tatyana Moskalkova at a
meeting of the Federation Council of the Russian Federation
MOSCOW, Feb 23 - RIA News. The situation that has developed in Donbas meets
all the signs of genocide that are enshrined in international documents and national
legislation, said Tatyana Moskalkova, the Commissioner for Human Rights of the
Russian Federation.
235
"We must admit that the situation that has developed there meets all the signs of
genocide that are enshrined in international documents and national legislation.
Since 2014 we have been observing a whole chain of events, including the
prohibition of pension payments, the prohibition of benefit payments. And how can a
person exist if he does not receive the minimum subsistence level that will provide
him with a normal life situation. Even those people who moved from the territory of
Luhansk and Donetsk, they were caught and punished absolutely intentionally and
purposefully by the normative act and document of Ukraine of the highest level,"
Moskalkova said in an interview with Russia 24 TV channel.
According to her, the politicians did not want to accept the choice of the people and
did not take measures to create appropriate conditions for the people.
“The people made their decision, it was possible to work with them as with a person
who decided to leave the family: he is persuaded to return, he has created those
conditions that are attractive to him in this territory. But if today there is a mass
exodus of women and children, it means that each of them felt a threat to life and
they leave their homes to save the lives of their children, to pray for their husbands,"
Moskalkova said.
She also noted that the male part of the population, who remained in their homeland
to defend their position, has such a right in accordance with general international
principles.
236
Annex 37
Interfax, Lavrov: Moscow Considers the Attitude of the Ukrainian Authorities
Towards the Residents of Donbas as Genocide (25 February 2022)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
237
238
MAIN EVENTS
25 February 2022 1:01 PM
Lavrov: Moscow considers the attitude of
the Ukrainian authorities towards the
residents of Donbas as genocide
© RIA Novosti. Evgeniy Odinokov
25 February. Interfax-Russia.ru - Russian Foreign Minister Sergey Lavrov intends to discuss
practical tasks arising from the agreements signed with the republics with representatives of the
DPR and LPR.
SOURCE Events in Ukraine
239
“Today we have our first meeting with you. And, obviously, we will pay the most attention to
discussing the practical tasks that follow from the treaties between the Russian Federation and
your countries on friendship, cooperation and mutual assistance,” he said on Friday, opening a
meeting with LPR Foreign Minister Vladislav Deynego and First Deputy Foreign Minister of the
DPR Sergey Peresada.
Lavrov also noted that the Russian side considers the attitude of the Ukrainian authorities
towards the residents of Donbas as genocide. “Throughout this period, the population of your
republics was subjected to humiliation, annual shelling by the Kyiv regime, which openly
embarked on the path of Russophobia and genocide,” he said.
The Head of the Ministry of Foreign Affairs of the Luhansk People's Republic Vladislav
Deynego, in turn, said that the special operation of the Russian Federation should give a
powerful effect to normalize the situation in Ukraine.
"For eight years now, Donbas has been living under the shelling of Ukrainian nationalists, and I
hope this decision brings much closer the date when this shelling will stop," Deynego said at a
meeting with Russian Foreign Minister Sergei Lavrov on Friday.
Deynego noted that the demilitarization operation is “an effective tool, the result of which should
lead Donbas to a peaceful life.”
Also, the representative of the Ministry of Foreign Affairs of the LPR handed to Lavrov a book
titled “The Shot Childhood of Donbas”, which, according to him, vividly describes the situation in
Donbas.
240
Annex 38
RBC, Lavrov Announced Non-Recognition of the Democratic Government of
Ukraine (25 February 2022)
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
241
242
Lavrov announced non-recognition of the democratic
government of Ukraine
rbc.ru/politics/25/02/2022/6218abd19a79479b432acb07
Russia does not recognize as democratic a government that carries out "genocide" of the
population and calls the inhabitants of one of the territories "not people, but inhumans,"
Lavrov said. According to him, Ukraine is now "under complete external control.”
Sergey Lavrov (Photo: Vladislav Shatilo / RBK)
Russia does not see an opportunity to recognize the current government of Ukraine as
democratic, said Foreign Minister Sergey Lavrov.
"We see no way to recognize as democratic a government that oppresses and uses
methods of genocide against its own people," he said.
The Minister asked whether it would be forbidden in a democratic society to use the
language "spoken by the majority of the population" in everyday life, and whether it
would be forbidden "to educate in Russian, in any language spoken by society, starting,
let us say, from the fifth grade".
243
“And is it customary in democratic societies to say that people who are now in one part
of the territory, in this case of Ukraine, are not people, but inhumans, or specimens, as
President [Vladimir] Zelenskyi called them?” Lavrov said.
According to him, the former president of Ukraine Petro Poroshenko also promised to
treat his people well after his election, and said that "there will be everything: schools
and prosperity." However, that president also said that "these people – he pointed a
finger at Donbas – will sit and rot in basements," Lavrov said.
Something similar, according to the Minister, was said by the current President
Zelenskyi, who “demanded those related to the Russian culture get out of Ukraine.”
244
Annex 39
U.N. Human Rights Council, Ukraine Refugee Situation: Operational Data Portal (as of 5
March 2022)
245
246
247
Refugee Arrivals..tffilM~~d:a.ta2.unhcr.orglpopulationlg"1sublocation'?geo ids::O&forcesublocation•1&wtdget idE283573&sv id=-54&c~or--%233c8dbc&color2-%23303030&popolation groups5460)
OPERATIONAL DATA PORTAL
UKRAINE REFUGEE SITUATION
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The military OffenSive in Ukraine has caused destructiOn of civitian infrastructure and civilian casuaJties and has torced people to nee their hOmes seeking safety, protecüon and assiStance. ln the
first week, more than a million refugees from Ukraine crossed borders into neighbouring countries, and many more are on the move both inside and outslde the country. Tiley are in need of
protection and support. As the SituatiOn continues to unfokl, an estimated 4 miftiOn people may flee Ukraine. ln light of the emergency and paramount humanitarian needs of refugees from
Ukraine, an inter-agency regional refugee response is being carried ou~ in support of refugee-hosting countries' efforts. The regional refugee response plan brings together UN, NGO and other
relevant partners and primarily focuses on supporting the hast country govemments ta ensure sale access to territory for refugees and third-country nationals fleeing from Ukraine, in Une with
international standards. tt also focuses on the provisiOn of critical protection services and humanttarian asSistance, while displacemenl dynamics and needs continue lo grow exponentially.
By country••
Location name
Poland
Hungary
other European countries
Slovakia
Republic of Moldova
Romania
Russlan Fedefation
Belarus
JSON ~ (https://data.2.unhcr.orglpoputationlget.1$ublociltion?widget id-=283575&n ki=S4&populiltion group=5459,54GO&forcesublocation=O&from0ilt.=:1900-01-41) )
Source Data date Population
5 Mar20ll 57.7% 885,303
5 Mar20n 11,Q'lf, 169,053
5 Mar20n 102"' 157,056
5 Mar20n 7.4% 113,967
5 Mar20n 5.5% 84,067
5 Mar20ll 4.7% 71,6-40
3 Mar20n 3.5% 53,300
4 Mar20ll 00'!1, 406
-Whera possible, statistics reflect further movements of refugees, to avoid double counting, such as in the Republic of Moldova and Remania.
As data continues to be triangula1ed and refined, the total number of refugees from Ukraine in Ille Republic of Moldova has been adjusted according ta the number of exits recorded. Since 24
February, and as of 6 March 20n 00:00 CET, the Repubic of Moklova had welcomed in tts territory 235,000 refugees corning !rom Ukraine, including some 207,000 Ukrainians. Over 123,000
Ukrainian refugees have Since then proceeded ta Remania.
By date
250k
200k
150k
100k
JSON ~ (https:/ld;1t.112.unhcuwglpopuli1tion/getltimHuin'?widget id=1:835n&sv id;54&popul;1tion group-5457&frequency•d;1y&fromOi1.te"'1900.01-41) )
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SOk~-----~-----~-----~~-----~-----~-----~------~-----~-----~
24. Feb 25.Feb 26. Feb 27. Feb 28. Feb 1.Mar 2. Mar 3.Mar 4.Mar S.Mar
28 fti) 2 Mo, 4 Mo,
Sourt:e - UNHCR. Govl!fflfflef\t
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248
1,000k
Feb '22
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UNHCR welcomes EU decision to offer Temporary Protection to Refugees fteeing Ukraine
UNHCR. 04 Mar 2022
Chisinau, Moldova - Yesterday's unprecedented decision by the European Union (EU) to offer Temporary Protection to Refugees fleeing Ukraine will provide immediate
(/en/news/22633) protection in the EU for Ukrainians and third country nationals with refugee or permanent residence status in Ukraine. Read more (/en/news/22633)
News Comment: 1 million refugees have fted Ukraine in a week
UNHCR, 03 Mar 2022
ln just seven days, one million people have fled Ukraine, uprooted by this senseless war. 1 have wor1<ed in refugee emergencies for almost 40 years, and rarely have I seen
(len/news/22632) an exodus as rapid as this one. Read more (/enlnews/22632)
UN seeks US$1.7 billion as humanitarian needs soar in Ukraine and neighbouring countries
UNHCR, 01 Mar 2022
The United Nations and humanitarian partners today launched coordinated emergency appeals for a combiled US$1.7 billion to urgently deliver humanitarian support to
(/en/news/22628) people in Ukraine and refugees in neighbouring countries. Read more (lenlnews/22628)
UNHCR mobilizing to aid forcibly displaced in Ukraine and neighbouring countries
UNHCR. 01 Mar 2022
Around 660,000 refugees have now fled Ukraine to neighbomg countries in the past six days, according to the latest govemment data compiled by UNHCR, the UN Refugee
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People across Poland show solidarity with refugees from Ukraine
UNHCR. 01 Mar 2022
From overflowing donation centres near the border to off ers of transport and accommodation around the country, Potes offer a warm welcome to people forced to flee. Read
more (/en/news/22631 J
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Refugee arrivais from Ukraine (since 24 February 2022)* JSON ~ (https:/ldata2.unhcr.oq)fpopulation/?widget id=283581&sv id=54&populatl0n group=5459,5460&year=fatest) )
1,534,792
Last updated 05 Mar 2022
Data is updated daily by 12:00 CET.
*Information is compiled from a variety of sources. While every effort has been made to ensure that al statistical information is verified, figures on some arlivals represent an estimate.
Triangulation of information and sources is performed on a continuous basis. Therefore, amendments in figures may occur, including retroactively.
An additional 96,000 people moved to the Russian Federation from the Donetsk and Luhansk regions between 18 and 23 February.
Ukrainian Refugees and Asylum seekers
World
53,474
(as of 30 June 2021, UNHCR)
Ukrainian diaspora:
World
6.1 Million
(as of 30 June 2020, UNDESA)
Help Information
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36,492
in UNHCR Europe Region
5.0 Million
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8111 6i>KeHeUb 3 YKpaïH111? YBK6 OOH MO>Ke AOnoMorr111 B
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1 ! ! •
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ln any other country: https://help.unhcr.org/
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5
250
..!,
Annex 40
U.N. High Commissioner for Refugees, Ukraine Refugee Situation: Operational
Data Portal (as of 21 June 2022)
251
252
253
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The tscalation of conflict in Ukraine has caused civilian casualties and destruction of civilian infrastruc ture, forcing
people to flee thei r homes seeking safet y, protection and assistance. Millions of refugees from Ukraine have crossed
borders into neighbouring countries, and many more have been forced to move inside the co1..n11y. They are in need of
protection 1nd suppon. ln hght of the emergency and t he scale of human,tarian needs. an intef-~ency regional refugee
response is bemg ca,ried oul in support of the efforts of ref ugtt-hosting countues. The Regional Refugee Response
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