On the Modern Practical Issues of International Law

Speech by the Director of the Legal Department of the Ministry of Foreign Affairs of the Russian Federation at the International Scientific and Practical Conference on International Law

The Director of the Foreign Ministry's Legal Department Mikhail Musikhin gave a short 20-minute speech on the 80th anniversary of Russia’s Foreign Ministry University MGIMO on the topic of international law and how Russia views the two main institutions for it, the International Criminal Court and the International Court of Justice, both of which have recently been in the news on almost a daily basis. IMO, this is a very timely speech, although as he notes the topic deserves a greater in-depth look and discussion than his overview:

Dear Colleagues,

The declared topic of my speech is "On Modern Practical Issues of International Law". Accordingly, on the one hand, I would like to draw attention to the importance of taking practice into account when conducting any scientific research. On the other hand, of course, theoretical research plays an important role in understanding various aspects of the application of international law. In our activities, we always try to find time to get acquainted with the latest scientific developments. This helps to consider legal problems from different angles and find non-standard solutions for them.

We pay attention to both foreign and domestic doctrine, and we attach special importance to the latter.

By the way, the UN International Law Commission is currently working on the topic "Aids to the Definition of International Law". In his first report, the Special Rapporteur on the topic, Charles Giallo, notes that "among the ten most cited scholars by the International Court of Justice, all 10 are from Western States".

In my opinion, this fact deserves close attention. Against the backdrop of this hegemony, it is important to actively promote domestic approaches to international law, hold meaningful scientific discussions and set high standards for scientific works.

For our part, we are ready to cooperate with the scientific community, including in terms of finding more effective ways to symbiosis national practice and science in the field of international law.

Now I would like to move on to specific practical issues. It would take too long to list all the relevant aspects, and I don't see the point in trying to cover everything in a 20-minute speech. In this regard, I would like to dwell on the current practice of international justice, including criminal justice.

International Criminal Court

A striking example of the degradation of international criminal justice is the so-called International Criminal Court. Great hopes were once pinned on this body, which was supposed to become the first universal, permanent criminal court. Russia took part in the drafting of the Rome Statute and even signed it in 2000, but in 2016 they were forced to withdraw their signature under this document, since the ICC very quickly turned into a puppet serving the foreign policy interests of Westerners.

The Court began its work in 2002 and for a long time dealt exclusively with African countries. It is not surprising that they began to perceive it as a new tool of neocolonial oppression. After this agency issued an arrest warrant for the current President of Sudan Omar al-Bashir and began demanding that various African states arrest him and hand him over to the ICC (which jeopardized the disruption of mediation services to resolve the conflict in that country), the African Union developed an Exit Strategy from the Rome Statute. Unfortunately, its implementation is lame, although there were results.

The first case outside the African continent that the ICC took up was the investigation of the South Ossetian conflict. The investigation was conducted for 14 years and ended with the issuance of "arrest warrants" against three citizens of South Ossetia, by a strange coincidence - two weeks after the start of the special military operation in 2022. At the same time, the ICC Office completely ignored numerous reports of crimes committed by the then Georgian political and military leadership against the South Ossetian civilian population. The fact of the attack on the peacekeepers was also ignored.

In February 2018, the ICC Prosecutor opened a preliminary investigation into the situation in the Philippines. At the same time, Manila decided to withdraw from the Rome Statute and, in accordance with the provisions of that treaty, the withdrawal took place. This, however, did not prevent the ICC Pre-Trial Chamber in 2021, two years after its withdrawal, from authorizing the launch of a full-fledged investigation into the situation in the Philippines, which is contrary to the basic norms of international treaty law.

In another case, the ICC interpreted its territorial jurisdiction broadly. Myanmar has never been a party to the Rome Statute. However, the ICC Prosecutor considered himself competent to investigate allegations of forced deportation of Rohingya from Myanmar to Bangladesh.

At the same time, the attempts of the former ICC Prosecutor, the Gambian Bensouda, to deal with the crimes of the Americans and their allies in Afghanistan were immediately suppressed by Washington. In 2020, the Trump administration imposed personal sanctions against her, her office staff, and even their families. Moreover, Washington has threatened to impose sanctions on any individuals or entities that assist the ICC in carrying out activities that are contrary to their interests. As a result, the investigation was suspended. Mr Khan, who replaced F. Bensouda, resumed the investigation into the situation in Afghanistan, but prudently decided to focus on the crimes of the Taliban.

Now, as you know, the main forces of the ICC are thrown at the "Ukrainian dossier", although neither Russia nor Ukraine are parties to the Rome Statute. Notably, Mr. Khan himself called on "interested States" to refer the situation in Ukraine to the Court in order to avoid having to apply to the Pre-Trial Chamber for permission to open an investigation. Of course, the Westerners readily agreed and generously and openly sponsored the anti-Russian investigation.

The "situation in Ukraine" allowed Khan to prove to the Westerners the continued usefulness of this structure, interest in which began to fade after many years of ineffective work. For the same purpose, the notorious anti-Russian "arrest warrants" were issued. This was done in violation of the generally recognized norms of international law on the immunity of State officials from foreign criminal jurisdiction. If, with regard to officials of the states participating in the ICC, it is possible to speak of a "collective waiver" of immunity by virtue of the provisions of paragraph 2 of Article 27 of the Rome Statute, no one gave the ICC the right to violate the immunities of officials of non-party states. I am not even talking about the absurdity of the charges.

Recently, it became known that the ICC prosecutor requested the issuance of "arrest warrants" for three Hamas leaders, as well as the Prime Minister and Minister of Defense of Israel. It should be noted that the situation in Palestine was referred to the ICC by Palestine back in 2009, but then the case was not pursued due to the uncertainty of the international legal status of Palestine. Palestine re-applied to the ICC in 2018, and in November 2023, this case was officially transferred to the ICC by a number of states (South Africa, Bolivia, Bangladesh, Comoros, Djibouti).

For a long time, the investigation stood still, but after another aggravation of the Middle East conflict, the situation got out of control. Against the backdrop of the catastrophic humanitarian situation in the Gaza Strip and daily media reports of massive war crimes, many countries began to accuse the court of obvious double standards. In this context, in order to "save face," the ICC prosecutor was forced to request warrants, even in the face of unequivocal threats from U.S. lawmakers to reimpose sanctions on members and staff of the court if he dared to do so.

Unlike Washington, we do not change our position depending on the current political situation, although the current situation in the Gaza Strip is, of course, outrageous and unequivocally requires a legal assessment, including for the presence of signs of such international crimes. Nevertheless, we continue to believe that the ICC has no jurisdiction over nationals of countries that are not parties to the Rome Statute, that it is bound by international law on immunities of officials and that its politicized activities cannot contribute to the resolution of conflicts.

However, the "split consciousness" of some Western leaders continued. Some of them welcomed the issuance of "arrest warrants" to Russian representatives, but criticized the same move against the Israelis.

I would like to inform you that this year the issue of the legality of the ICC's activities was the subject of a study by the International Legal Council under the Russian Foreign Ministry. His Conclusion is published in International Affairs. I advise all of you to read this publication.

International Court of Justice

The topic of the proper functioning of existing international legal mechanisms – courts, other dispute resolution institutions and some other out-of-court platforms – is more relevant than ever before not only on the example of the ICC, but also on the example of the International Court of Justice.

This structure was established by the UN Charter in order to guarantee all states the opportunity to settle differences between them on the basis of law. In this way, the principle of the peaceful settlement of disputes enshrined in the Charter does not remain an empty declaration.

But, on the other hand, the reality is that the collective West has been trying to crush international legal institutions for decades, forcing them to serve its political interests.

The Westerners are making full use of the legal "front" in their hybrid offensive against our country. The "legal aggression" unleashed by them did not begin today or yesterday, but was especially pronounced after the reunification of Crimea with Russia and reached its peak after the start of the NWO.

A whole system of complementary initiatives was organized, the purpose of which was to bring Russia to "responsibility", and in different dimensions – the criminal liability of individuals, compensation for material damage, the international legal responsibility of the state itself, and exclusion from participation in international organizations and conventions. It is important that we are talking not only about solving practical problems such as taking possession of our assets, but also about major political, symbolic goals.

Russia has experience in proceedings in this Court since 2008, but after 2014 a whole wave of far-fetched claims rolled against us in a variety of instances – from the International Court of Justice and "maritime" arbitrations to the ICAO Council. Westerners were feverishly looking for any excuse to portray Russia as a violator.

The largest of these cases is the case initiated in 2017 by Ukraine with the support of the West under the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. It combined absurd insinuations and demands. The Kiev regime branded the Donbass people fighting for the right to live and speak Russian as "terrorists", and accused Russia of financing this mythical "terrorism". At the same time, they tried to attribute to us a "campaign of systemic racial discrimination" against Ukrainians and Crimean Tatars in Crimea.

In addition, the Ukrainians initiated two proceedings with Russia under the 1982 UN Convention on the Law of the Sea, the first was about Moscow's alleged violation of Ukraine's rights as a coastal state in the Sea of Azov and the Black Sea. The second is based on the results of the provocation in the Kerch Strait, as a result of which three ships of the Ukrainian Navy and their crew members were detained for violating the state border of Russia.

Another aggravation awaited us after the start of the NWO. Kiev's Washington-based lawyers concocted an even more absurd planting on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, accusing Russia of allegedly abusing the Convention by launching an operation in Ukraine and recognising the independence of the Donetsk and Lugansk People's Republics.

Of course, the Genocide Convention has nothing to do with the use of force and the recognition of states. The legal basis for our actions was the right to individual and collective self-defense and the right to self-determination of peoples enshrined in the UN Charter.

The authors of the lawsuit themselves did not believe in the validity of their legal arguments. They remembered well how the Court, not without pressure from the West, had in the past rejected the 1999 lawsuit filed by Yugoslavia against the United States and a number of NATO countries under the Genocide Convention for the ruthless bombing that killed many civilians and destroyed civilian infrastructure.

The real reason for using the Genocide Convention against Russia was the lack of requirements for a pre-trial settlement of the dispute, which made it possible to file a lawsuit and seek interim measures "at lightning speed". Then they succeeded - against the backdrop of anti-Russian hysteria, the Court introduced unprecedentedly harsh temporary measures against us, demanding to stop the special military operation. In addition, the Court allowed as many as thirty-two states of the Western camp to participate in this process, which announced their accession allegedly as "third parties" – but in fact with the aim of supporting Ukraine.

However, this is where the successes of the opponents on the "legal front" against us – at least for the moment – can be said to end. Then everything went "not according to plan".

Despite the enormous pressure from the West, the International Court of Justice nevertheless heeded our arguments and made two fateful decisions at the beginning of this year.

On January 31, the Court issued a final verdict on Ukraine's claim under the Conventions on the Financing of Terrorism and on Racial Discrimination. The overwhelming majority of Ukrainian accusations against our country were rejected. The court refused to recognize Russia as a "terrorist state" and a "sponsor of terrorism", and the DPR and LPR as "terrorist organizations". Ukraine has failed to prove that the incidents it claimed as terrorist attacks (the MH17 crash, the shelling of Avdiivka, Volnovakha, Kramatorsk and Mariupol, the explosions in Kharkiv and Odessa, etc.) fall under the Convention on the Financing of Terrorism at all; The court did not recognize any involvement of Russia, the DPR or the LPR in these incidents. There was no evidence of a "systemic campaign of racial discrimination in Crimea." Moreover, the Court in fact disavowed its own decision on interim measures, recognizing that the ban on the extremist organization "Mejlis" does not amount to racial discrimination.

As a "handout" to Ukraine (and the West), the Court nevertheless looked for two minor violations – they say, Russia did not have time to adequately respond to 2% of Ukrainian requests for investigations (the remaining 98% was successfully fulfilled), and in Crimean schools, they say, the number of students studying in the Ukrainian language decreased too quickly.

This, however, did not change the overall picture. As a result, Ukraine was completely denied all claims for compensation. Moreover, they "shot themselves in the foot": the myth that seven years of shelling of Donbass by Ukrainian troops was allegedly an "anti-terrorist operation" was dispelled, because the Court did not find any terrorists there.

Another landmark judgment was delivered by the International Court of Justice on February 2 in our case concerning the Genocide Convention. In it, he completely rejected all Ukrainian accusations of Russia's alleged violation of this Convention, confirming that it does not regulate the use of force and the recognition of states. At the same time, the question of whether Ukraine itself committed genocide in Donbass remained under consideration by the Court. In other words, the Kyiv regime found itself in the position of a defendant in its own lawsuit.

In "maritime" arbitrations, both cases are still far from being completed. However, in one of them, we have already managed to achieve an important procedural victory – the recusal of two arbitrators (a German and a Canadian), who too zealously condemned Russia's actions and voted for the declaration of the Institute of International Law (IDI, Institut de Droit International), which groundlessly declared the special military operation "aggression".

Of course, Russia is not the only one against whom the West has unleashed "legal aggression". Only last year, the Westerners filed lawsuits with the International Court of Justice – under various pretexts – against Syria and Iran, and organized a massive entry of third parties into the case against Myanmar. Previously, China also fell under their crosshairs, against which an arbitral award was made on the status of the South China Sea. It is not difficult to see that all these are countries of a multipolar world.

Recently, however, the Global South has been increasingly snapping back. Iran has partially won a case against the United States for the confiscation of sovereign assets, and is now filing a similar lawsuit against Canada. The lawsuit of South Africa against Israel under the Genocide Convention in connection with the Israeli atrocities in Gaza caused a wide resonance in the world. Nicaragua, Colombia and Libya have already joined the case as third parties; Nicaragua has also filed a lawsuit against Germany for supplying arms to Israel.

We don't sit idly by either. We plan to file claims against unfriendly countries for violating their obligations in the fight against terrorism and racial discrimination. Such work is in full swing.

Against this background, there is a high demand for competent international lawyers who are familiar with the topic of international justice. Both we and our allies need such specialists. Experienced lawyers who could act as experts are also in demand today.

Finally, returning to the beginning of the speech, it is necessary to strengthen the global authority of the Russian school of international law and form a counterbalance to the dominance of Western doctrine. In this regard, we pin special hopes on MGIMO and the Diplomatic Academy, which are the forges of our ministry's personnel and international legal thought. But not only. We have a good international legal framework at Moscow State University, St Petersburg and Kazan. It is also important to strengthen scientific partnerships with friendly countries – our like-minded countries as much as possible. Many of them are as open as possible to this. [My Emphasis]

As noted, the Global Majority has decided to launch its own version of Lawfare to try and redress many wrongs of the past that continue to be made in the present. The current high-profile issue is the Gaza Genocide where it appears the ICJ as decided it can’t be a Western tool. Making the adjudication of international law neutral as it’s supposed to be will take some time and likely many screams from the previous manipulators as they find they can no longer manipulate. More of the above text might have been emphasized, but I left it untreated. It should be noted that Russia has formed its own special investigative team and court to deal with the crimes committed by the Nazis in Ukraine and would like to indict the foreigners that abet them, and verdicts are often announced during Maria Zakharova’s briefings.

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