TrustHLT/LaCour huggingface dataset:
GR2 (Government): It's not Russia's fault, and it's not the court's fault, that Georgia has failed to prove its case with appropriate primary evidence at a proper time.
GR2 (Government): It shouldn't have relied on fake evidence in the first place, and it should have presented its evidence somewhat earlier during the past 10 years.
GR2 (Government): I'll refer very briefly to Georgia's other evidence at the evidential hearing.
GR2 (Government): In summary, some involved false witnesses.
GR2 (Government): Some involved witnesses who may very well have suffered in tragic ways, for example, because of an explosion.
GR2 (Government): But whilst one can be confident that there was suffering, there was not evidence about which side caused it.
GR2 (Government): And when it comes to explosions, and you've heard the evidence admitted by Human Rights Watch that Georgia fired cluster missiles on Georgian villages and blamed that on Russia, there can be no confidence in Georgia's current case that Russia was responsible.
GR2 (Government): The weakest part of Georgia's case was attempts to implicate Russian soldiers in alleged abuse.
GR2 (Government): And it was plainly coached.
GR2 (Government): For example, witness 19, a female witness, claimed to be a civilian detainee, and she alleged the repeated rape of another female detainee.
GR2 (Government): And she tried to implicate a Russian officer.
GR2 (Government): But the victim had made her own complaint.
GR2 (Government): And in it, she said that she was raped by Ossetians before being taken into protective custody, and she did not blame Russians.
GR2 (Government): Her statement, which Georgia evidently forgot about, was at annex 460 to Georgia's observations on the merits dated 5th of March, 2015.
GR2 (Government): Another example concerned POWs.
GR2 (Government): They told a terrible story about one of their number being executed.
GR2 (Government): And again, there were efforts to implicate Russian soldiers.
GR2 (Government): But the witnesses presented at the hearing could not agree on numerous details of the alleged hearing, including whether they were forced to bury the body or not.
GR2 (Government): Really fundamental points.
GR2 (Government): And moreover, the accounts given earlier to Amnesty International, which seemed to relate to this incident, there's only one like it, blamed Ossetians and not Russians.
GR2 (Government): And according to Amnesty, when they reached Russian custody, the POWs received proper medical treatment.
GR2 (Government): That's page 103 of the open exhibit.
GR2 (Government): Nothing in Georgia's latest material changes that. Annex 26 is falsely
GR2 (Government): described as supporting abuse of POWs.
GR2 (Government): Please look at that material.
GR2 (Government): The misdescription of it is another admission by conduct that Georgia doesn't have proper evidence, convincing evidence of Russian involvement in any abuse.
GR2 (Government): In relation to alleged organized destruction of Georgian villages after the conflict, Georgia tried to rely on NASA and the Collection 5 algorithm.
GR2 (Government): You have an expert report on that.
GR2 (Government): The important point is that in a test in Europe with a known fire at Sloka in Latvia, it produced three false positives and only one correct positive.
GR2 (Government): And two of the false positives had confidence levels at 90% and 100%.
GR2 (Government): And also, where it says there's a fire, it identifies an area of 1 kilometer by 1 kilometer as on fire with those false positives around.
GR2 (Government): So what's presented as sequential destruction of villages was not.
GR2 (Government): The evidence is quite clear that there were repeated criminal attacks.
GR2 (Government): And as to that, it's important, when one thinks about effective control, to consider what that needs to mean in a case like this to attach any responsibility to Russia.
GR2 (Government): You can't just adopt with respect a formulaic approach that there were lots of Russian soldiers.
GR2 (Government): They were fully occupied, facing rather more Georgian soldiers.
GR2 (Government): The highest number we've established on the Russian side is 4,901.
GR2 (Government): Georgia deployed 17,000 troops, 100 tanks, hundreds of artillery systems, and even after Georgia fell back after the initial conflict, they were trying to regroup.
GR2 (Government): America flew 2,000 crack troops back from the Middle East, and Georgia tried to mobilize its entire reserve of 45,000 men.
GR2 (Government): So the Russian troops, dealing with a conflict not of their choosing, at a time not of their choosing, could not control everything behind their lines.
GR2 (Government): They were rather busy looking forwards.
GR2 (Government): But they did try.
GR2 (Government): Russia tried to prevent these attacks.
GR2 (Government): You've got evidence of that, including from NGOs at pages 93 onwards of the open exhibit.
GR2 (Government): It's on the professionalism of Russian soldiers.
GR2 (Government): Witness 30 explained the roving patrols that were set up to try to respond to cases of attack and arson.
GR2 (Government): And at the evidential hearing, there was explanation for Witnesses 28 and 30 of the difficulties faced.
GR2 (Government): 150 villages, 200, if you count, smaller settlements, each with many routes of approach over land that was mountainous, with lots of groves and vegetation and twisted lanes, as it was put.
GR2 (Government): Please note the evidence of Witness 28, a peacekeeper, who described the problems they faced.
GR2 (Government): He said any case of arson was investigated.
GR2 (Government): A patrol group was four or five people.
GR2 (Government): When we saw flames, we would go to the house.
GR2 (Government): But all we could do was just take note that the house had been set fire to.
GR2 (Government): We didn't see the arsonists.
GR2 (Government): The arson tended to happen in the evening or at night.
GR2 (Government): And even Georgian witnesses accepted that these criminal attacks were attacks on Ossetians, too.
GR2 (Government): See Witness 24 at page 265 of 423.
GR2 (Government): And you also have in the open exhibit, page 101, a recorded interview with an Ossetian family who protested to looters that they were Ossetian, and that did them no good.
GR2 (Government): They were robbed and the house pillaged as well.
GR2 (Government): Now, because of these difficulties on the facts, he can't prove effective control in any meaningful sense, which means the ability to stop these attacks.
GR2 (Government): So Melenifren tries to do it in a thoroughly legalistic way on the basis that Russia supported the governments of Ossetia and Abkhazia and is somehow strictly liable for all that happened there.
GR2 (Government): But that should be hopeless before this court.
GR2 (Government): Russia intervened to protect its peacekeepers and Russian citizens and to neutralize the threat against them.
GR2 (Government): It did not support the Ossetian and Abkhazian governments during the conflict.
GR2 (Government): Rather, they were incidental beneficiaries of Russia's entirely justified protection of its own peacekeepers and nationals.
GR2 (Government): Second, as regards continuing economic support, we're helped on this by some jurisprudence after the written submissions on this point were prepared.
GR2 (Government): In the Moser case in 2016, the grand chamber explained the rationale behind the Elasku line of cases, which you've seen is Melenifren's tabula in naufragium.
GR2 (Government): At paragraph 110 in Moser, the court held that the MRT is only able to continue to exist and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region because of Russian military, economic, and political support.
GR2 (Government): The same point is made in Apkov and Moldova, paragraph 23, a decision of May 2017.
GR2 (Government): So in order to find that an outside state has effective control on the Elasku line, it must have excluded efforts by another government to restore democracy and the rule of law.
GR2 (Government): Please look again at pages 8 to 12 of the open exhibit.
GR2 (Government): Georgia was not trying to restore democracy and the rule of law in South Ossetia.
GR2 (Government): Georgia was raining death and destruction on the civilian population of a sleeping city in total disregard of the convention.
GR2 (Government): And moreover, as Mr. Galperin has noted, it's failed
GR2 (Government): to renounce violence even now.
GR2 (Government): The court has, with respect, clear evidence of what would happen if support were withdrawn and if Russia did not assist with the policing of borders.
GR2 (Government): Georgia attacked with ruthless force civilians in 1992.
GR2 (Government): It did so again in 2008.
GR2 (Government): It follows that it would be quite wrong for this court to impose any kind of strict liability on Russia for supporting the governments of South Ossetia without regard to the likely humanitarian cost if that support were withdrawn.
GR2 (Government): And in any event, Mlenod-Frend uses Elasku to try to confuse and conflate the issue of attribution.
GR2 (Government): On the clear evidence before you, including NGO reports, the perpetrators of attacks on both Ossetians and Georgians were criminals.
GR2 (Government): Criminals are not state agents.
GR2 (Government): On clear evidence, Russian forces tried to stop them.
GR2 (Government): And it follows in attribution terms that Russia bears no responsibility for alleged criminal abuses by Ossetians.
GR2 (Government): Indeed, with respect, it would be utterly absurd to hold Russia responsible for criminality that Georgia brought about by destroying civil society in Tskhinvali and criminality which Russia tried to prevent.
GR2 (Government): That would be perverse logic indeed.
GR2 (Government): The court has asked about whether it should deal with IHL.
GR2 (Government): And our reasons for saying no are set in writing.
GR2 (Government): International humanitarian law is inconsistent with human rights law.
GR2 (Government): And I repeat Mr. Galperin's observation
GR2 (Government): that the rules of IHL are important for commanders in the field.
GR2 (Government): And the cost may be high if they cease to be universal, if they are melded into different complementary regimes by different human rights tribunals around the world, and if commanders don't know what to do clearly on the spot.
GR2 (Government): Why should you not deal with IHL?
GR2 (Government): Well, this case, with respect, is a prime example.
GR2 (Government): The Evidential Commission saw material released by Edward Snowden.
GR2 (Government): It included training slides to security services of America and Britain showing how to produce false news and fake evidence for the purposes of information operations.
GR2 (Government): And you've got those, some of them, at pages 77 to 85.
GR2 (Government): And you've got those, some of them, at pages 77 to 84 of the open exhibit.
GR2 (Government): The methods include fake pictures and video, putting them on the internet through social media accounts, and then spinning that into received fact into the mainstream media.
GR2 (Government): But that supposedly received fact can be false.
GR2 (Government): And please finally bear in mind evidence from the court's own expert at the evidential hearing who was cross-examined on that material.
GR2 (Government): Again, I can't name him, but Witness 35 was a very experienced man who was very well placed to know.
GR2 (Government): And he said this about the deployment of fake video and pictures instead of primary evidence.
GR2 (Government): It's a contemporary flaw, in my view, of what happens, yes.
GR2 (Government): Also used to great effect, I may say.
GR2 (Government): The resources deployed in that fakery are huge, hundreds of operatives and hundreds of millions of dollars.
GR2 (Government): And they're rather larger than the resources of this court, with an evidence hearing with 15 minutes per witness, to challenge.
GR2 (Government): This court can't hope to see through the fog of war or deliberate smoke screens, as they've been thrown up by the Georgian side.
GR2 (Government): And it has no power to delegate to NGOs, which can be compromised or misled, as we've seen in this case.
GR2 (Government): Nor can it delegate to Dutch investigative missions, however much assistance they may have received from former employees of American intelligence services.
GR2 (Government): And it's clear from the confidential transcript that Mr. Garlasgo worked closely with the Dutch mission.
GR2 (Government): There is no basis for the charges put against Russia.
GR2 (Government): There is no convincing evidence to support them.
GR2 (Government): And this case is not put forward to serve the convention.
GR2 (Government): It's put forward in quite a cynical way, which would undermine the convention if Melenad Frenz succeeded in taking the court beyond its jurisdiction.
GR2 (Government): I would finally urge that the court should not accede to that.
GR2 (Government): And it should avoid getting in the way of real working life on the ground.
GR2 (Government): That is my suggestion.
Guido Raimondi (JudgeP): Thank you very much, Mr. Swainston.
Guido Raimondi (JudgeP): And now I invite my colleagues, members of the Grand Chamber, who wish to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): Are there questions?
Guido Raimondi (JudgeP): This does not seem to be the case, so the Court will now withdraw for 20 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions.
Guido Raimondi (JudgeP): And so the hearing is suspended.
Guido Raimondi (JudgeP): And I call Mr. Emmerson, please, to the floor.
AP1 (Applicant): Mr. President, the way I propose to structure this reply
AP1 (Applicant): is to deal with a number of points quite shortly and in relevant order, having looked at the overall position.
AP1 (Applicant): Can I just say, overall, now you have seen for yourselves the quality of the Russian response.
AP1 (Applicant): You have seen for yourselves the process of tortuous twisting, the paranoid ramblings about CIA stealing weapons or making up planted scenes.
AP1 (Applicant): You have seen for yourself all the absurdity, which is a way to hide behind the fact that Russia has failed to address the issues, has failed to acknowledge its own military strategy, or provide any explanation for it.
AP1 (Applicant): Instead, it's all about whether or not somebody's mother or the local village mayor was the man or the woman.
AP1 (Applicant): I mean, it's that sort of level.
AP1 (Applicant): This is blatant.
AP1 (Applicant): It's obvious.
AP1 (Applicant): It's quite characteristic.
AP1 (Applicant): Essentially, the aim here is to generate as much dust as possible.
AP1 (Applicant): And after that, I hope that that will obscure the court's ability to see the truth that the rest of the world is known as fact for 10 years, and thereby camouflage the reality from scrutiny, and then complain about the fog of war.
AP1 (Applicant): That's the strategy.
AP1 (Applicant): Let me just take an example.
AP1 (Applicant): So we have from Mr. Swainston a remarkable performance
AP1 (Applicant): of expert evidence from him about the physics of an Iskander missile.
AP1 (Applicant): Now, no expert evidence whatsoever.
AP1 (Applicant): They've had years and years and years to produce that via an evidential form.
AP1 (Applicant): Instead, Mr. Swainston gives evidence to you
AP1 (Applicant): about what he thinks Isaac Newton would have said.
AP1 (Applicant): Now, if there really was an answer to these allegations, you would have heard it.
AP1 (Applicant): This is advocacy posing as evidence.
AP1 (Applicant): And I'm sure it doesn't take me to point out not just the silliness of it, but the fact that it doesn't properly respect the intelligence of this court the whole way it's been handled.
AP1 (Applicant): I mean, it comes down to this.
AP1 (Applicant): The Iskander is characteristic and typical of the issues in the case.
AP1 (Applicant): And as far as Russia's concerned, either it's plywood, or if it's not plywood, it was nicked by the CIA, stolen by the CIA from an insecure store, and then broken apart and planted by the Russians.
AP1 (Applicant): Some of the Americans working with the Georgians, bits of it were somehow inserted into the flesh of Mr. Storobin.
AP1 (Applicant): I mean, it's really at that level.
AP1 (Applicant): It's hard, I think, to believe that a council of your member of state would embarrass this institution with those kinds of submissions.
AP1 (Applicant): But that's the way it is.
AP1 (Applicant): It's obfuscation and confabulation in an attempt to try to prevent you from doing your duty.
AP1 (Applicant): Let me deal with some of the specifics.
AP1 (Applicant): First of all, another aspect of the obfuscation, both from the minister and from Mr. Swainston,
AP1 (Applicant): is to start saying, but the Georgians attacked Skindvali.
AP1 (Applicant): Or the Georgians did this, or attacked civilians.
AP1 (Applicant): Either back in 1992 or in 2008.
AP1 (Applicant): So this was an issue that came up at the evidential hearing.
AP1 (Applicant): Because you will appreciate that it goes without saying, this is not a just ad bellum case.
AP1 (Applicant): This is not a case about the legality of war.
AP1 (Applicant): This is a just in bello case.
AP1 (Applicant): This is a case about how you wage war once it's begun.
AP1 (Applicant): And there is no determination of who was right to start or who was wrong to start, or any of that kind of thing.
AP1 (Applicant): And there has been no evidence about how the Skindvali incident occurred, or the chronology of attacks on either side.
AP1 (Applicant): What we know is that it's outside the scope of this case.
AP1 (Applicant): And that's why there is no evidence about it.
AP1 (Applicant): And it was excluded, all references to it were excluded by the presidents, or by the presidents of the fact-finding delegation during the oral hearing.
AP1 (Applicant): So that's one point.
AP1 (Applicant): The other point is, so Mr. Swainston
AP1 (Applicant): says this is a monstrous crime.
AP1 (Applicant): Not only is it outside the scope, because this is concerned with the manner of waging conflict, but there's been no counterclaim.
AP1 (Applicant): It was open to the Russian side to put it within scope if they thought there had been violations of the convention for which they could show Georgian responsibility.
AP1 (Applicant): But they chose not to do that.
AP1 (Applicant): And they cannot now make unsubstantiated submissions and invite you to draw conclusions about something that's A, outside scope, and B, has been deliberately excluded from the evidence.
AP1 (Applicant): It's a completely wrong approach.
AP1 (Applicant): But again, don't play the ball.
AP1 (Applicant): Play the man.
AP1 (Applicant): Keep to distract the court as much as possible for issues that are not relevant to the question of Russian state responsibility.
AP1 (Applicant): And hopefully, we might avoid the inevitable.
AP1 (Applicant): The same is true of the repeated allegations about Georgian cluster munitions.
AP1 (Applicant): Mr. Swainston was giving evidence to you.
AP1 (Applicant): There is no evidence at all that the Georgian side was responsible for bombing its own citizens.
AP1 (Applicant): He's made that up.
AP1 (Applicant): And he hopes that by twisting a footnote from a Human Rights Watch report, which is unverified anyway, it's just a factual footnote.
AP1 (Applicant): And then he says, and of course, probably those witnesses who gave Human Rights Watch an inaccurate account in the fog of war, they must have been put up by the Georgian government.
AP1 (Applicant): Therefore, it's all a framed case.
AP1 (Applicant): That's what he said to you.
AP1 (Applicant): No evidence for any of this at all.
AP1 (Applicant): It's just pure winging it.
AP1 (Applicant): And it's disappointing.
AP1 (Applicant): Substantive issues.
AP1 (Applicant): Reference was made to Bankovic in relation to the area of control.
AP1 (Applicant): I want to just make two quick points.
AP1 (Applicant): I think they're self-evident.
AP1 (Applicant): Obviously, in this case, unlike in Bankovic, we were concerned with two Council of Europe member states and an entire conflict which occurs within the Espace Juridique of the convention.
AP1 (Applicant): But more importantly, here, control is exercised by a combined military operation, which is both taking place in the air and taking place simultaneously on the ground.
AP1 (Applicant): The air cover weakens the enemy and allows the ground troops to move forward.
AP1 (Applicant): The ground troops move forward and take possession of areas under their control.
AP1 (Applicant): And it's in that point, with the Russians on the ground and circling the area, that their jets then circle backwards and drop their loads across Erevti and the other villages.
AP1 (Applicant): So you can't separate out the control on the air and the control on the ground.
AP1 (Applicant): They're part of the same military strategy.
AP1 (Applicant): And as we said before, Russia had absolute control in the air, and it had de facto absolute control on the ground as well.
AP1 (Applicant): Either, and certainly both, are sufficient to establish the Al-Skyni second head of extraterritorial applicability under Article 1.
AP1 (Applicant): Next, I wanted to touch upon the IHL-IHRL argument, the notion that it's not appropriate for this court to be examining international humanitarian law, even though the International Court of Justice and every other relevant tribunal has held that human rights treaties remain in force but must be interpreted and shaped through the prism of humanitarian law in times of armed conflict.
AP1 (Applicant): But it's not a difficult overmapping exercise in this case at all.
AP1 (Applicant): That is a false.
AP1 (Applicant): It's what we call in England Aunt Sally.
AP1 (Applicant): It's been put up to knock it down.
AP1 (Applicant): It's an unsound basis for the submission that there is something complicated.
AP1 (Applicant): It's had to be so complicated that even lawyers can't understand it.
AP1 (Applicant): And you can't heaven-forfend expect military commanders to understand it.
AP1 (Applicant): Well, first of all, military commanders are expected to understand the requirements of humanitarian law and to give effect to them.
AP1 (Applicant): It's an absolute basic requirement of state responsibility that education and conformability with international humanitarian law is a duty resting on commanders.
AP1 (Applicant): And there's nothing very complicated about knowing that you mustn't shoot an unarmed civilian, or you mustn't set fire to the house of somebody that you've just detained, or you mustn't drop bombs on a church or a town square, or you mustn't pull the teeth of a prisoner of war out with pliers.
AP1 (Applicant): I don't think it's very complicated.
AP1 (Applicant): I don't think this court would find it very complicated.
AP1 (Applicant): It's a simple exercise.
AP1 (Applicant): And if one goes through each violation, there really is absolutely nowhere where there is any significant divergence between the Convention's standards and the standards of humanitarian law.
AP1 (Applicant): And you wouldn't expect there to be.
AP1 (Applicant): That would be the case if Russia were saying, yes, we did bomb that village.
AP1 (Applicant): And we bombed it because there was a military target right in the middle.
AP1 (Applicant): And we know that the civilians were going to get killed.
AP1 (Applicant): But we took a view that that was such a high-value military target that there was a proportionality, an acceptable level of civilian casualties as collateral damage.
AP1 (Applicant): And then it would be a proportionality analysis.
AP1 (Applicant): But we're not in that decision because their strategy has been to deny and obfuscate and throw as much confusion as they hope that they can.
AP1 (Applicant): So that's the first.
AP1 (Applicant): Those are the sort of short scattergun points.
AP1 (Applicant): I want to make three final points, if I may.