TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): First of all, the nonsense that Russia was somehow neutral and that the South Ossetians, let's take them for example, were the innocent beneficiaries of an attempt to safeguard Russian civilians.
AP1 (Applicant): As you know, we say, and the evidence proves that that is a lie.
AP1 (Applicant): That Russia has been progressively occupying and exercising control over the administrations in the two regions over a period of decades that it had established its own laws, its own currency.
AP1 (Applicant): It was taking over over time.
AP1 (Applicant): But if there's any doubt about this, if there's any doubt about it, let me read you a statement by Edward Kokoyte, who was the separatist leader of South Ossetia.
AP1 (Applicant): And he's speaking in June 2006, two years before the war.
AP1 (Applicant): He says this, South Ossetia is already a de facto subject of Russia.
AP1 (Applicant): 95% of citizens of the Republic of South Ossetia are citizens of the Russian Federation.
AP1 (Applicant): On the territory of the Republic of South Ossetia are Russian laws.
AP1 (Applicant): On the territory of the Republic of South Ossetia, the monetary unit is the Russian ruble.
AP1 (Applicant): Criminal procedural codes of the Russian Federation are in effect on the territory of South Ossetia.
AP1 (Applicant): De facto, he said, South Ossetia is a subject of Russia.
AP1 (Applicant): What is left for us is to fix this in legal terms.
AP1 (Applicant): That was the leader of the South Ossetians in 2006.
AP1 (Applicant): It's an absolute distraction strategy to suggest to you that Russia was doing anything other than giving effect to a progressive plan, long held and put into effect, in order to do, as Mr. Kokoyte put it, ensure that we fix the legal position
AP1 (Applicant): by effectively annexing South Ossetia.
AP1 (Applicant): We didn't, neither side made any issue about exhaustion of domestic remedies, and the court hasn't asked a question.
AP1 (Applicant): But may I simply say two words, if I can?
AP1 (Applicant): First of all, our principal submission is that on the facts of this case, there could have been no requirement to exhaust any domestic remedies purportedly available in the Russian legal system, where an administrative practice is officially tolerated.
AP1 (Applicant): And of course, in an interstate case, there is no obligation to have recourse to remedies that are purely theoretical and illusory.
AP1 (Applicant): The pattern of violations here, we say, was more than just officially tolerated.
AP1 (Applicant): It was itself state policy.
AP1 (Applicant): It was an ethnic cleansing strategy.
AP1 (Applicant): So we say that proposition is axiomatic and should be an end to any talk of non-exhaustion.
AP1 (Applicant): But we would just draw the court's attention to just two specific aspects, which would demonstrate the pointlessness of having recourse to Russian remedies.
AP1 (Applicant): First, the total passivity of the Russian authorities in the face of these violations, and the evident bias of the Russian investigating authorities in refusing to investigate crimes that were committed by Russian military personnel and their delegates in the de facto militias.
AP1 (Applicant): There simply isn't any investigation at all.
AP1 (Applicant): Where is the evidence that these crimes, undoubtedly committed on a wide scale, were investigated ex proprio motu, or that there have been reasonable and credible numbers of prosecutions?
AP1 (Applicant): If there had been, you would know about it.
AP1 (Applicant): There haven't been.
AP1 (Applicant): That's because the Russian approach is to close its mind to the possibility of accountability for these systematic human rights violations.
AP1 (Applicant): The investigative committee of the Russian prosecutor's office, which was referred to, initiated investigations only into allegations made against Georgian service personnel.
AP1 (Applicant): And the conduct of this office, which is dealt with in detail in our pleadings, demonstrates beyond doubt that it acted then and continues to act as a political tool of the Kremlin and the Russian authorities, rather than, in any sense, an independent and impartial investigative mechanism.
AP1 (Applicant): The second aspect that I just want to touch on is Russia's continued unwavering military, political, and economic support for the de facto authorities to the present day.
AP1 (Applicant): What does this show?
AP1 (Applicant): How is it relevant to exhaustion?
AP1 (Applicant): Well, it shows that in failing to prevent or to punish these war crimes, Russia itself has adopted a stance of official tolerance, not just to the crimes committed or connived in by its own officials, but also those committed or connived in by the militias and marauding hordes that were let loose by Russia on Georgian civilians.
AP1 (Applicant): So we ask you to find that that is the answer to the non-exhaustion issue.
AP1 (Applicant): The point has been most recently underlined by the prosecutor of the International Criminal Court.
AP1 (Applicant): In a submission to the ICC in October of 2015, the prosecutor addressed pretty much the same violations as those which are alleged in the present proceedings.
AP1 (Applicant): And her conclusion, and I quote, was that, as far as Russia is concerned, no concrete and progressive steps have been taken in Russia to ascertain the criminal responsibility of those involved in the alleged crimes.
AP1 (Applicant): So that is the office of the prosecutor concluding three years ago, so seven years after the events, that Russia has done nothing to investigate the crimes committed either by its own officials or by the South Ossetians.
AP1 (Applicant): And clearly, it goes without saying, I should imagine, that any remedies theoretically available in South Ossetia are of no value whatsoever, because it's not possible for the Georgian victims to even cross the boundary into South Ossetia.
AP1 (Applicant): They are excluded entirely.
AP1 (Applicant): Mr. President, may I just say this in wrapping up?
AP1 (Applicant): This litigation represents a significant challenge for the court and a test of its unimpeachable reputation for independence from political interference.
AP1 (Applicant): It's an open secret that Russia has been lobbying in public and in private for a favorable outcome, mumbling dark threats that it will de-ratify the convention and starve the court of funding if the case goes against it.
AP1 (Applicant): It seems the Kremlin hopes somehow to pressurize the court into a ruling that flies in the face of the evidence, or at least to bolt together some face-saving judgment of Solomon.
AP1 (Applicant): And if that is indeed their political calculation, then they are reckoning without this court's well-deserved reputation for fearless and objective adjudication, regardless of the political consequences.
AP1 (Applicant): There is no middle ground in adjudicating this case.
AP1 (Applicant): The evidence is all one way.
AP1 (Applicant): This case calls upon the court to demonstrate that it is capable of dealing fully and faithfully, not just with cases involving the fine-tuning of domestic administrative law in Western Europe, but also with cases involving gross human rights violations committed on a mass scale in the eastern reaches of the continent.
AP1 (Applicant): That is this court's mandate, and it's its clear duty.
AP1 (Applicant): And it is the standard against which the credibility of the court's judgment will be evaluated.
AP1 (Applicant): The standard of proof has more than adequately been met.
AP1 (Applicant): There is plainly a coexistence of sufficiently clear facts and sufficiently strong inferences, establishing both the existence of an administrative practice and the commission of widespread violations.
AP1 (Applicant): Mr President, Georgia is confident that the court will reflect this in its judgment.
Guido Raimondi (JudgeP): Thank you very much Mr. Emmerson.
Guido Raimondi (JudgeP): Now I give you the floor to the Russian government and Senator Mr. Swainston.
GR2 (Government): unfortunately, you've just had an example of what we have been faced with, assertion and allegation, but often without evidence.
GR2 (Government): And unfortunately, it's necessary to look very carefully at the evidence to which Milone and Friend refers.
GR2 (Government): He made much of Mr. Putin's reference to a plan,
GR2 (Government): but please look at that interview.
GR2 (Government): It's entirely clear that the plan was defensive.
GR2 (Government): The South Ossetians had to hold the position until Russia was able to intervene.
GR2 (Government): There is nothing in the plan about any intention to occupy or any intention to drive out Georgians or anything of the sort.
GR2 (Government): Milone and Friend also relies upon support, economic support, to Russian pensioners and so on and nationals there.
GR2 (Government): That's hardly surprising.
GR2 (Government): These people are in part of the former Soviet Union.
GR2 (Government): There is a North Ossetia, which is within Russia.
GR2 (Government): It's not surprising.
GR2 (Government): It is striking that at no time in any of his submissions has Milone and Friend identified any advantage to Russia from this so-called invasion.
GR2 (Government): He talks about support, and indeed, there is an economic burden.
GR2 (Government): It's not an advantage to Russia, and Russia, you saw, withdrew its forces very quickly after the military objective of neutralizing the Georgian threat was eliminated.
GR2 (Government): Now, Milone and Friend doesn't want to talk about the attack on Skinval.
GR2 (Government): And he says it's irrelevant, but it's very relevant.
GR2 (Government): We must all examine our hearts and consider how we would feel if our families were bombarded as they slept at night, if civilians were attacked on such an appalling scale with totally indiscriminate weapons.
GR2 (Government): And there is no doubt about that.
GR2 (Government): The NGOs are certainly not misleading when they talk about the extent of that attack.
GR2 (Government): Human Rights Report up in flames, pages 41 to 52, pages 53 to 56, pages 57 to 63.
GR2 (Government): Amnesty International, civilians in the line of fire, pages 24 to 28.
GR2 (Government): The report of the Office for Democratic Institutions and Human Rights, pages 34 to 41.
GR2 (Government): Of course it's relevant, because what Georgia did in that treacherous way on the 7th to 8th of August during the night ignited the ethnic tension that led to lawlessness and criminality and revenge attacks.
GR2 (Government): It created precisely the situation that could not be controlled, not by the Assetian government, where Georgia had done its best to wipe out all mechanisms of civil society, and certainly not by the Russians, who were resisting a Georgian attack and positioned until they withdrew to resist a counterattack, which was always in the offing, because it was clear that Georgia was relying on its allies to bring back troops, to provide further support, to rearm, et cetera.
GR2 (Government): So there hasn't been benefit to Russia from this, except the humanitarian one of protecting peacekeepers, protecting its nationals, and by supporting the policing of borders, protecting the people of South Ossetia from what would happen to them if that support were withdrawn.
GR2 (Government): Now, another example of where one has to look carefully when Milerno-Friend refers to evidence.
GR2 (Government): He said that there was a report proving that Gori was hit with an Iskander missile that belonged to Russia.
GR2 (Government): Well, that puzzled me somewhat.
GR2 (Government): I could think of the Dutch report, but I thought, with respect, I'd dealt with that.
GR2 (Government): Turns out that he's referring to a document that makes clear there are two versions of the Iskander missile, the Iskander-M, which is used by Russian forces, and the Iskander-E, which is the export version with a more limited range.
GR2 (Government): That's all that it says.
GR2 (Government): It doesn't say that there was an attack on Gori.
GR2 (Government): It doesn't provide any answer to Isaac Newton and physics.
GR2 (Government): And the physics is not my evidence.
GR2 (Government): I'm not sure Milerno-Friend was in the room.
GR2 (Government): If he was, perhaps he drowsed.
GR2 (Government): Homer nodded.
GR2 (Government): Because it's entirely clear that there was expert evidence.
GR2 (Government): There was a man who knew more about the Iskander missile than most, and he gave details of the weight of the pieces.
GR2 (Government): I've said hundreds of kilograms, but you see the precise figures in his evidence.
GR2 (Government): And he also explained that they came down at hundreds of meters per second.
GR2 (Government): The references are page eight of the confidential exhibit that we prepared, but please be careful because the page reference is there to the uncorrected transcript.
GR2 (Government): So they can be out by one or two pages.
GR2 (Government): But the points are clear.
GR2 (Government): At page 80 of 423, he gave evidence of the speed.
GR2 (Government): And what's striking is that the Dutch experts didn't consider that at all.
GR2 (Government): It transpired at the hearing that they didn't think that it was their job to consider why a particular missile's piece came to rest on a sofa in a particular top floor flat.
GR2 (Government): And no, it wasn't necessary for them to consider the quality of the tarmac.
GR2 (Government): There was expert evidence, and my learned friend has got no answer to it.
GR2 (Government): My learned friend then said that we had no evidence, and we made up this story of cluster attacks.
GR2 (Government): Well, you've seen Human Rights Report in the open exhibit.
GR2 (Government): At page 30, they explain that they were misled based upon the accounts of nearly a dozen witnesses interviewed separately.
GR2 (Government): He says no evidence.
GR2 (Government): Well, at page 31, they refer to the sources through which researchers gathered evidence of M85s in or near a band of nine villages.
GR2 (Government): M85s are the Georgian cluster munitions, and I made reference earlier to them being found next to the bodies of people in Shindizi.
GR2 (Government): My learned friend chooses not to answer evidence.
GR2 (Government): He either mischaracterizes it, or he pretends that it's not there.
GR2 (Government): I note that he's given no answer to what caused the hole in Mr. Storeyman's skull, presented
GR2 (Government): in a picture from Georgia just three weeks ago, or why the particles left inside the head are clearly not Iskander bullets.
GR2 (Government): That was nothing to do with an Iskander, and my learned friend has no answer.
GR2 (Government): Now, it is important in this case that the court considers its role very carefully.
GR2 (Government): I am respectfully grateful to the court for the evidential hearing that we had.
GR2 (Government): But the court needs to consider whether it is feasible for it to determine these questions of international humanitarian law on a massive scale of conflict in the context that we have seen.
GR2 (Government): Because with respect, it is difficult to have a satisfactory evidential hearing in this context.
GR2 (Government): Not all witnesses are there.
GR2 (Government): Not all parties are there.
GR2 (Government): My learned friend suggested that while Russia stands behind the government of Ossetia, and it's got effective control over all of South Ossetia as a result, well, if one were applying that logic, I suppose the United States would be regarded as having effective control over many places, including Georgia, at the relevant time.
GR2 (Government): But we don't have evidence from any of those people.
GR2 (Government): We wanted, but didn't have, evidence from Human Rights Watch.
GR2 (Government): We wanted to ask questions of Mr. Garlasco.
GR2 (Government): We wanted to see what the extent of his influence was in some of the adverse findings within the Human Rights Watch report against Russians.
GR2 (Government): We wanted to check whether the people put up as witnesses at the evidential hearing were the same as the dozen witnesses who misled Human Rights Watch, as to which there is their admission and as to which there's the solid evidence of M85 cluster munitions made in Israel and bought by Georgia, which killed people.
GR2 (Government): People, whom a learned friend says, must have been killed by Russians in bombing raids.
GR2 (Government): Now, that is an enormous evidential burden, if the court is going to get into that.
GR2 (Government): And with respect, I'd suggest that we have shown enough to show that you can't trust just pictures and video in this context.
GR2 (Government): There's more in the written submissions.
GR2 (Government): Mr. Hoff took other pictures, and we found some,
GR2 (Government): before he took a picture of the street scene, where there's devastation from an alleged bombing raid.
GR2 (Government): And the main picture is very evocative.
GR2 (Government): There's a teddy bear there, designed to suggest that a child has probably died in this bombing raid.
GR2 (Government): But if you look at the picture taken earlier, the teddy bear isn't there.
GR2 (Government): That seems to be some kind of artistic addition, as part of an information operation.
GR2 (Government): Now, when the court is confronted with that, how is it feasible to get to the bottom of it?
GR2 (Government): We have shown some things, and we've been fortunate to do so with 15 minutes of cross-examination per witness.
GR2 (Government): But some of these questions are complex.
GR2 (Government): And it's difficult to imagine how one can deal with them in 15 minutes.
GR2 (Government): Eredvi, as a situation, was complex.
GR2 (Government): One's got conflict between different satellite evidence.
GR2 (Government): One's got, in fact, within that, corroboration of the witness evidence given by Russia, that Eredvi was also bombarded by Georgian forces, as Russian forces advanced on the night of 10th to the 11th.
GR2 (Government): And that's why you get all of the artillery craters and the smashing of houses that you see on the later UNICEF picture of the 19th.
GR2 (Government): But this is the kind of detail that you've got to get into.
GR2 (Government): And to do it in 15 minutes is impossible, to do it properly.
GR2 (Government): We've done enough to show that there are massive holes.
GR2 (Government): But one can imagine how those inclined to mislead the court, or to use it for propaganda purposes, could do a better job, perhaps, next time.
GR2 (Government): And that may have consequences.
GR2 (Government): It may mean that there's an incentive on states to penetrate NGOs and affect the reports that they produce and the work that they do.
GR2 (Government): And that detracts from the essential work of NGOs, which must be absolutely neutral.
GR2 (Government): And there are other consequences, too.
GR2 (Government): I talked about universality before in relation to international humanitarian law.
GR2 (Government): It's vital that the same rules apply across the planet and that they are clearly understood by commanders.
GR2 (Government): And if they are not, then civilians will suffer.
GR2 (Government): And even soldiers can suffer unnecessarily.
GR2 (Government): I recall from the UK an example where, at an inquest, the widow of a British soldier complained that it seemed to be British Army policy in Afghanistan that snipers could not shoot people they saw laying roadside bombs because of proportionality in terms of response to the threat.
GR2 (Government): They were not posing an immediate threat.
GR2 (Government): Shooting at them might put civilians in danger, this kind of point.
GR2 (Government): Of course, if the bomb layer is not shot when he's seen, he's going to go around the corner and lay another bomb and more soldiers or civilians die.
GR2 (Government): Now, in a situation like that, when a sniper is asking his commander what he should do, can I shoot this man, the answer from his commander should not be, oh, just wait a little while.
GR2 (Government): I've got to do some context-dependent interplay.
GR2 (Government): What does that mean?
GR2 (Government): He's got to look at the different rules for reconciliation of humanitarian law and convention law.
GR2 (Government): And perhaps he's got to read a few cases of this court.
GR2 (Government): It's no answer to say that the rules will eventually be settled by case law.
GR2 (Government): Lots of people will have died by then.
GR2 (Government): And even if this court comes up with its version of how to amalgamate and reconcile the rules, it may be different in another human rights tribunal.
GR2 (Government): And the universality of IHL, the laws of war, will be lost.
GR2 (Government): And I do urge upon you this.
GR2 (Government): Please go back to our merits submissions and our analysis of the Geneva Conventions and the way that we note that there was specific attention to whether there ought to be a court to adjudicate on matters of IHL in the way that this court adjudicates on the Convention.
GR2 (Government): And that was rejected because of concern for universality.
GR2 (Government): The clarity and universality of international humanitarian law rules must be paramount.
GR2 (Government): And there will be a great humanitarian cost if that clarity and universality is lost.
GR2 (Government): I do need to deal very shortly with one other point.
GR2 (Government): My learned friend, again without condescending to any particulars, suggested that there was no point in looking at domestic remedies in Russia.
GR2 (Government): Please look at our open exhibit at the back.
GR2 (Government): You will see that at pages 1 to 4 onward, there have been perfectly sensible questions asked by the Russian investigative committee of their Georgian counterparts.
GR2 (Government): They ask, well, the first point is made that no complaints were received in 2008.
GR2 (Government): But then an investigation into allegations involving Georgians was launched.
GR2 (Government): And requests were made for evidence in support.
GR2 (Government): And if you go beyond the exhibit to the actual correspondence, you see perfectly sensible questions.
GR2 (Government): Who was the victim?
GR2 (Government): Who was there and witnessed what?
GR2 (Government): What property was affected?
GR2 (Government): Is there evidence that the victim owned the property and so on?
GR2 (Government): Please provide evidence from any investigations that you have undertaken.
GR2 (Government): Now, the victims are in Georgia or in the buffer zone.
GR2 (Government): How can Russia investigate without such assistance?
GR2 (Government): It can't. Should such assistance be given?
GR2 (Government): Obviously, yes.
GR2 (Government): And I repeat that that was the view of the International Fact-Finding Mission, as quoted by Mr. Galperin.
GR2 (Government): Georgia has ignored that injunction.
GR2 (Government): And one has to ask why.
GR2 (Government): I respectfully suggest, from what you've seen today, it is because of the fact that Georgia is not willing to be investigated.
GR2 (Government): And if you ask why that should be today, it's because Georgia does not want proper evidential inquiry with more than 15 minutes per witness.
GR2 (Government): It doesn't want proper forensic analysis.
GR2 (Government): It's trying to survive in this application with propaganda, which it knows that this court cannot properly test with its current resources.
GR2 (Government): It demonstrates that this is a political application.
GR2 (Government): And as I said earlier, it's designed to take this court outside its proper jurisdictional ambit.
GR2 (Government): And that would not assist human rights.
GR2 (Government): It would undermine them.
GR2 (Government): Those are my submissions.
Guido Raimondi (JudgeP): Thank you very much Mr. Swainston.
Guido Raimondi (JudgeP): I thank the parties for their submissions.
Robert Spano (JudgeP): Good morning to all participants.