"Ukraine Needs the Court to Rule That Russia Is a Criminal State. Then We Will Move On to Reparations"

Wednesday, 20 September 2023 — , European Pravda, From The Hague

Oksana Zolotaryova is Ukraine's co-agent [deputy legal representative – ed.] in the case against Russia in the International Court of Justice (ICJ) in The Hague. She and the other co-agent, Anton Korynevych, are representing Ukraine at The Hague in one of the key "anti-Russian" cases on Russia's violation of the Genocide Convention, one of the fundamental conventions of modern international law.

In early February 2022, when Ukraine was preparing this lawsuit against Russia, Zolotaryova headed the Department of International Law at the Ministry of Foreign Affairs. 

In this interview, she talks about drafting cases while on an evacuation train, the decision that Ukraine wants to obtain from the ICJ, when it will happen, and why Russia will comply with it.

First of all, do we believe that we will win?

We’ve believed that we would win from the very beginning, on 26 February of last year, when we filed this case with the UN International Court of Justice.

How did that happen? 26 February was just two days after the invasion. How did you manage to prepare a pretty substantial package of documents for The Hague?

As everyone now knows from Ukrainska Pravda, after the invasion, part of the government moved to other cities in Ukraine. This case was "born" on an evacuation train from Kyiv to Ivano-Frankivsk.

At the same time, our foreign legal advisers were also preparing part of the submission. They happened to be in The Hague at that time because they were handling a case involving a Ukrainian company. We consulted with them and discussed how to proceed. While we were on the road, they started drafting our submission to the court on 24 February.

We would join them from time to time. We had limited internet access during our journey. In addition, the Ministry of Foreign Affairs' email system and website were down. We all had WhatsApp and sent each other ideas for the lawsuit via WhatsApp, discussing it with the leadership... By the way, I’m very grateful to the Minister of Foreign Affairs, Dmytro Kuleba, who quickly greenlighted us to take the case under the Genocide Convention to the International Court of Justice.

International law experts say that this is probably Ukraine’s most creative case against Russia. Because we are not claiming that Russia is committing genocide: we are accusing Russia of violating the Genocide Convention.

When we started preparing the submission against Russia, we first had to figure out how to do it. Because even though we understood that by starting this war, Russia had violated all possible norms and principles of international law, going to the ICJ has its own rules.

So we started looking at how the Russians, their president and other leaders explained the reasons, the 'trigger' for starting this war. When we realised that they used the alleged 'genocide' to justify the attack, the decision became clear.

It is the Genocide Convention that allows us to challenge and prove in court the unlawfulness of Russia's actions in starting and waging this war.

In the lawsuit, we argue that a fabricated 'genocide' cannot be used as a pretext for sending troops to Ukraine.

Is this the alleged 'genocide in Donbas' invented by Russian propaganda?

Yes, and for us, the Russian stories about it are very familiar rhetoric that we have been hearing from Russian propaganda since 2014. But for the international community, it was largely something new. They didn't quite understand what it was about.

We explained that it was fake and illustrated that with documents, because there are many decisions, including UN General Assembly resolutions, that prove the legitimacy of Ukraine's actions.

18 months have passed. We have seen Bucha, Mariupol, and much more. We know that Russia is actually committing genocide; it hasn’t merely invented a fake pretext for an attack. Will we prove that allegation at The Hague too?

No, not within the framework of this case. The lawsuit has already been filed. It is not advisable to change the subject of the dispute in the middle of the proceedings. Russia has already raised objections to similar amendments to our submission, trying to argue that we have changed our claims within the same subject. A more significant amendment would give them more leverage.

But there is nothing to stop us bringing another case to The Hague regarding the genocide that Russia is committing.

Ukrainian law enforcement agencies and international law enforcement agencies, such as the International Criminal Court, need to gather and present proper evidence of genocide in their criminal proceedings, issue arrest warrants, and so on.

I must emphasise that decisions by Ukrainian courts alone regarding the recognition of genocide may not be enough. The ICJ pays attention primarily to the accusations of international institutions, especially those working within the UN.

So we need conclusions from either the ICC or the UN's Fact-Finding Commission. If they find signs of genocide, then we can talk about filing a new lawsuit at The Hague.

When we sued Russia, no one had applied the Convention yet. Why are we confident that we will win?

Because the court's ruling must bring justice for our people, who are suffering from the criminal actions of the Russian Federation.

What kind of justice? There are no defendants in this court. Putin is not sitting in the dock. So in terms of the ICJ's decision, what will a victory look like for us?

For justice to be done, it is not enough to just put Putin in jail. The state's overall strategy is broader. Look at President Zelenskyy's 'peace formula', in which we talk about individual accountability for individuals who commit war crimes, crimes against humanity, and genocide...

Including Putin?

Yes, of course. Both at the level of the Ukrainian legal system and at the International Criminal Court, which is located here nearby.

In addition, Russia as a state must be held accountable for the violations of international law it has committed against Ukraine and Ukrainian citizens.

Ultimately, we need international recognition that Russia is a criminal state.

Furthermore, in the final stage, after obtaining a court ruling stating that Russia has violated the Genocide Convention, that this war is unjustified and it violates all norms and principles of international law, we expect that Russia will be forced to provide guarantees against the repetition of these actions, withdraw its troops from Ukraine and, of course, pay compensation for the unlawful war.

In addition, speaking of justice, I recall a moment from last March. At that time, I, along with our legal team, was here in The Hague. We’d won a decision from the ICJ in this case – interim measures.

I received a message from a very close friend of mine who joined the army in 2014, then returned to civilian life, and in 2022 came back to the Armed Forces of Ukraine. He wrote to me:

"Oksana, we’re sitting in a trench. We are very grateful to you for winning this case. I spent the whole night explaining the significance of this decision to my colleagues in the trench. We all send you great respect and thanks."

In general, international justice works very slowly. Lawsuits between states usually go on for years. Here we see a completely different picture: Ukraine filed the complaint in February 2022, received an interim decision within a month, and hearings have been going on for a year and a half now. Do you have an understanding of how quickly we will reach a decision?

We very much hope that things will continue to move faster than usual. We have a lot of confidence in the UN International Court of Justice because indeed, back in March, it was able to quickly schedule the first hearing, and less than ten days after the oral hearings, it issued an interim decision on provisional measures against Russia.

This was an exception to the rule. We were pleasantly surprised.

Considering the pace of the case over the past year and a half, we expect to receive a decision from the International Court of Justice by the end of 2023.

We will certainly not do anything to delay the process.

For example, last year, the court gave us six months to prepare our memorandum, but we managed to do it in three.

So the decision we are waiting for this year will be an interim one?

Yes.

The Court will not examine the evidence at this stage. Currently, it only needs to confirm that it has jurisdiction to hear this case – in other words, that it has the authority to decide this dispute between states.

Next, we will have the stage of exchanging written pleadings with the Russian Federation.

Afterwards, substantive hearings will take place, and they will also take some time. Only when we receive a decision on the merits will we move on to the issue of reparations.

These stages cannot happen instantly, based on the schedule and considering that the Russians will have time to respond. We can expect to reach oral hearings on the merits in 2025.

At the beginning of this process in 2022, the Russians ignored the hearings. But now they are here. What does this indicate?

This indicates that they are taking this case seriously.

By the way, although the Russians did not attend last year, they did submit their position in writing, arguing that the court lacks jurisdiction.

They want us to lose now, at this preliminary stage when the case has not yet been considered on its merits. For them, proving that the court lacks jurisdiction would be a victory.

But we have no other option than to win.

Just like here, on the battlefield, and everywhere against Russia.

After we win, what will force Russia to comply with the court's decision?

We all hope that we will have defeated Russia militarily by the time this relatively 'fast-moving' court reaches a decision on the merits.

So by then, it will be a different Russia that will be forced to comply with the decision on reparations.

Interviewed by Sergiy Sydorenko

Video by Volodymyr Oliinyk

European Pravda, from The Hague

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