Thread by @mariekedehoon

At Eur Court of Human Rights (ECtHR) for the #MH17 hearing on admissibility and jurisdiction. The cases of #Ukraine v #Russia and #Netherlands v Russia are joined and discussed together today. Things are heating up between UKR and RUS: now that’ll be fought out in court as well.

Placement sheet of ECtHR’s judges and delegations/counsel of today’s #MH17 oral hearing. Hearing will discuss admissibility & jurisdiction: exhausting domestic remedies, 6month rule and Art 1 ECHR: was RUS active (with BUK crew or effective control) in UKR at time of downing MH17

RUS starts with arguing ECtHR should reject cases because no extra-territorial jurisdiction: it occurred in UKR; RUS had no effective control over the area. RUS points to financial support to UKR and suggests that this instead is effective control by Western states there. #MH17

Arguing RUS had no effective control, RUS claims Dutch Prosecution agrees b/c they supposedly argued there was not international armed conflict and that Prosecution admitted it would otherwise have to clear defendants from prosecution. NL Prosecution did not argue this... #MH17

RUS argues it bears no responsibility since airspace was in UKR and under UKR control. That the BUK belonged to the UKR military. Suggesting that UKR shot down #MH17. Audience, with many relatives, mumbled discontent. RUS argues the complaint is manifestly ill-founded.

RUS also argues that application should be rejected by not adhering to 6-month rule as it has been clearly longer ago. It argues that special circumstances for an exception do not exist here. #MH17

RUS moreover argues that the complaint Russia did not conduct an effective investigation must be rejected because manifestly ill-founded. It is instead the Netherlands that blocks the investigation, they submit, because NL refused to hand-over the #MH17 criminal case to Russia.

RUS also argues that complaint of non-cooperation with mutual legal assistance requests by NL must be rejected as manifestly ill-founded and abuse of right of application b/c they sent all materials but NL refuses to use it, b/c it would not fit the Dutch narrative. #MH17

RUS continues to reject also all UKR claims of violations by Russia as manifestly ill-founded. #Ukraine now gets the floor. They have submitted complaints since 13 March 2014 when RUS occupied #Crimea and its occupations ever since in Eastern and Southern UKR and passportizations

While #Ukraine is under attack and further threat of invasion at home, here in Strasbourg at the #ECtHR they ask the Court to rule that #Russia violates the ECHR and Ukrainian human rights since 2014 on Ukrainian territory by its state agents and through effective control. #MH17

#Ukraine argues that #Russia maintains fiction that any RUS serviceman that is captured in UKR were tourists or got lost. RUS is gaslighting this court and the int'l community.The evidence is overwhelming and the "manifestly ill-founded"-threshold inapplicable, UKR submits. #MH17

UKR argues on jurisdiction (Art 1 ECHR) that RUS had military personnel and weapons & provided military and economic support in LPR and DPR. They also argue on basis of RUS physical power and control over the human rights violations in UKR territory. They argue both limbs. #MH17

Ukraine argues that Russia established effective control over Donbass in April 2014. It therefore completely differs from Georgia/RUS (II) that RUS referred to and is indistinguishable from Crimea, and S Ossetia since 12 aug 2008 which this court ruled that RUS had eff. control.

UKR continues: Rus argued that there was a legal vacuum. This is absolute nonsense and in line with strategy of passportizations, providing Ukrainians (just like Georgians) with Russian passports and then claiming they need to protect their own (by now Russian) citizens. #MH17

UKR argumentation goes through evidence of Russian influence up to the Kremlin, giving orders and operative instructions on the ground in #Ukraine straight from the Russian presidency. 56 Russian tanks and 24 armed vehicles moving across the border and used inside UKR. #MH17

#Ukraine submits that #Russia has not seriously engaged with or replied to evidence submitted, which it's obliged to do under ECHR. Counsel: "There is no end to the gaslighting" and if RUS is not found to have had jurisdiction, this leaves dangerous gap in protecting ECHR. #MH17

#Ukraine also discusses advanced strategy of passportization: #Russia now demands that people in DPR have Russian passports for them to have access to certain services. To further stress the complete dependance of these areas on Russia. Therefore jurisdiction, UKR submits. #MH17

Atmosphere is tense and Ukrainian counsel says that "nearly everything from Russia's counsel is gaslighting". The Russia/Ukraine war is certainly continued here in court: a war not just fought with weapons, but also with (dis)information and now also with lawyers in court. #MH17

Now the #Netherlands: NL also starts with the Russian strategy of confusing. Counsel also points out that the NL Prosecution in the Dutch criminal case DID NOT argue that the conflict was not an international armed conflict (see earlier tweet). #MH17

#Netherlands submits that #MH17 is shot down by a Russian BUK with a Russian crew and that #Russia is responsible for downing MH17, violating the ECHR, from area under the effective control of RUS. (So also both by RUS state agents AND from area under effective control)

Dutch agent Babette Koopman argues that to this day #Russia failed to conduct effective investigation and cooperate with the investigation,incl refusing to give information on the BUK TELAR. Russia has misled and failed to substantiate its claims about manipulated evidence. #MH17

NL argues exhausting domestic remedies and submits there were no available,effective, sufficient or adequate remedies to hold the state Russia accountable. They argue 4 special features, incl comp case law and lack of link with Russia b/c it was a plane in foreign airspace. #MH17

NL argues 6-month rule does not apply because it is an ongoing violation (continuing to spread disinformation, no remedies) and b/c it first did a thorough investigation before accusing another state of such serious violations; and then engaged in negotiations with Russia. #MH17

NL's submission eventually was prompted by developments in the ECtHR when NL learned that it continued with the Ukrainian cases and NL wanted to provide the Court with the evidence they by now had, relating to the same involvement of Russia in Ukraine. #MH17

NL further argues on 6-month-rule that rationale behind the rule is to not leave state in uncertainty over whether legal action will follow. NL argues RUS was never in uncertainty b/c they tried to negotiate. RUS itself caused delays by actively hindering the investigations.#MH17

NL now argues on Art 1 ECHR (jurisdiction) and submits that evidence shows Russian involvement in day-to-day operations in Donbass and control. "Without Russia, there would be no DPR," NL says. Russia has not submitted any evidence to show this is not true. #MH17

Moreover, NL submits that evidence shows that #MH17 must have been shot down by Russian state agents or at least with their assistance. The BUK was brought into UKR with RUS crew. A BUK requires expert knowledge. The separatists did not have such experts or the time to train them

Piet Ploeg, who himself lost his brother and family and is chair of #MH17 next of kin foundation, gets the final 10 mins of the time allocated to NL. In a moving statement, Ploeg explains the impact of launching that BUK on the lives of thousands of people, suffering daily still.

Ploeg explains how Russia's continued denial and disinformation prevents #MH17 next of kin to find closure.That it's terrible to be dragged into the war & become a pawn in RUS power game. They have great need for closure and hope ECtHR helps by urging RUS to give full disclosure.

Judge from Denmark asks RUS and UKR on effective control and the applicability of Georgia/Russia (II) to the present cases and the distinction there between active phase of hostilities and occupation. And whether parties argue that Art 2 or IHL applies, or both? #MH17

Another 8 judges asked questions. They mainly revolve around the applicability of the court's effective control standards, and which specific period(s) after Apr 2014 parties consider to be active military hostilities, referring to the Georgia/Russia (II) and Crimea cases. #MH17

But also whether local remedies were undertaken in the Donbass (for exhausting domestic remedies), Russian domestic laws for investigations and redress, the 6 month rule and the complaints of RUS non-compliance on mutual legal cooperation. #MH17

Russia now replies and argues - if I am getting it correctly - that applicability is only during active phase of hostilities; that IHL cannot apply; that "administrative practice" of transfer of children is not proven out of only 3 incidents; >

Russia continues: NL can launch criminal investigations in Russia (such a WEIRD argument) and can still do so for #MH17; NL has not used channels of mutual legal assistance to forward their requests; Russia did not conduct investigations in DPR b/c it cannot b/c a sovereign state

RUS now repeats that Prosecution in #MH17 criminal court would have said that they would not be able to prosecute if it would be an international armed conflict, which the prosecution did not do. So weird. Because so easy to refute: it was livestreamed!

Russia also replies to domestic remedies and 6-month-argumentation because 1 plane crash cannot qualify as an "administrative practice". And that there is no justification for the long period between #MH17 and the application of the Netherlands in 2020.

RUS says that JIT showed that the BUK is Ukrainian. This is again NOT TRUE. Next of kin in audience express frustration. RUS replies to the statement of Piet Ploeg that it wants to do everything to reveal the truth. Someone from audience says loudly: "You can start today." #MH17

UKR replies on effective control and invites the Court to revisit the Georgia/Russia (II) new rule with regard to active hostilities-test which only makes it (nearly) impossible to determine whether the territory was under the effective control of another state. #MH17

UKR to the judges: all the lies is an attack on this institution.And they do so knowing that you know it is a lie. Attacking Council of Europe. And seeing what you will do under that pressure. You got to ask yourself why. (This is lawfare for ya! #strategyofrupture #Verges) #MH17

Ben Emmerson QC continues on eff control: Georgia was very different: clearly Georgian until RUS came in and took eff control, which is when ethnic cleansing began. Same story here, but other way around: UKR tried to take territory back. Test you need to take is purposive. #MH17

UKR on IHL/article 2: Emmerson says the killing is an IHL violation, IHL is the lex specialis. And then for the ECtHR, this IHL violation constitutes an arbitrary killing in accordance with Article 2 ECHR. Articles 2 and 3 are straightforward in this way. #MH17

Now the Netherlands replies to judges questions. They also distinguish the RUS/UKR situation from the Georgia/Russia (II) case. The test developed there would mean that depending on the day, the jurisdiction and thus protection of the ECHR would be switched on/off per day. #MH17

Rene Lefeber continues after Babette Koopman replying to Russia's allegations that NL is misleading court related to legal assistance and investigation. Rejecting them. Closes the replies. Court is adjourned. Decision on admissibility and art 1 ECHR expected in few months. #MH17