Updated: Apr 27, 2022
By Dev Sharma
“We are here today in this building called the Peace Palace but, at home, my country faces a war of aggression. I am standing here in a room called the Great Hall of Justice but, at home, my countrymen see only the injustice of Russia’s bombs and missiles falling on our cities and neighbourhoods.”
These were the opening words of Mr Anton Korynevych, Agent for Ukraine in the International Court of Justice. [1] On 7 March, the Court heard the urgent application for provisional measures by Ukraine, subsequent to its original filing on 26 February. On 16 March, the Court delivered its judgement on provisional measures in favour of Ukraine, determining in a 13:2 majority that the Russian Federation must immediately suspend its ‘special military operation’ in Ukraine. [2] Whether this actually happens is perhaps another matter. So far, the invasion continues, and with it, the catastrophic impact on Ukrainian lives. [3] This article seeks to make sense of the provisional orders, and particularly what it means for human rights supposedly protected in international law, as the ICJ inches toward its jurisdiction and merits phases.
What is the ICJ and what does it do?
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. [4] A question that is raised in most proceedings before the ICJ is its jurisdiction – that is, does the Court have the power to resolve a dispute between States? This power is found by agreement between states - either by a Special Agreement [5] or a dispute resolution clause in a treaty - a key idea underlying the Russian Federation’s request to the Court to have the matter struck down, and a point which we will return to shortly.
What did Ukraine seek?
Ukraine filed its application against the Russian Federation as ‘a dispute… relating to the interpretation, application, and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide’ (the ‘Genocide Convention’). [6] The substantive issue, as Ukraine submitted, is that the Russian Federation’s allegation of genocide is a violation of the Genocide Convention.
The argument goes that if the Russian Federation justifies its actions on the basis that it is seeking to prevent an alleged genocide (as defined in the Genocide Convention), then it is bound by the inverse –that where there is no genocide, the Russian Federation is under a positive obligation to not intervene. If no genocide (committed by Ukraine) can be found, then the Russian Federation’s actions would be in breach of international law. [7]
To make its case, Ukraine first requests the court to ‘adjudge and declare that… no acts of genocide, as defined by… the Genocide Convention, have been committed in… Ukraine’. From there flows a number of consequences – that the Russian Federation cannot take any action under the Genocide Convention against Ukraine, that its recognition of an independent Donetsk and Luhansk region has no basis, and that its ‘special military operation’ also has no basis under the Genocide Convention. On provisional measures, Ukraine requested, among other things, that the Russian Federation ‘immediately suspend their military operations’. [8] The purpose is to ‘prevent irreparable prejudice to the rights of Ukraine and its people and to avoid aggravating or extending the dispute between the parties under the Genocide Convention’.
What did the Russian Federation argue?
They didn’t – and we know this from the row of empty chairs on the Respondent’s side. Well, they didn’t appear for the session on 7 March where oral arguments were heard. [9] They did, however, provide in writing their objections to the jurisdiction of the Court to hear the matter, and following on from this were objections to the provisional measures sought by Ukraine. [10]
The issue of jurisdiction starts on the interpretation of the dispute resolution clause of the Genocide Convention. Article 9 of the Convention, to which both Ukraine and the Russian Federation are signatories without reservation (and are therefore legally bound), provides that disputes can be resolved at the ICJ. [11] Jurisdiction of the ICJ would therefore be justified by the agreement of the disputing parties under Article 36(1) of the ICJ’s Statute if there is a ‘dispute relating to the interpretation, application or fulfilment’ of the Genocide Convention. However, referring to the ICJ’s judgement on the Legality of Use of Force (Yugoslavia v Italy), the Russian Federation calls upon the Court to first ascertain whether the breaches of the Convention alleged can even fall under the Genocide Convention. The Russian Federation pointed out that the Convention does not regulate the legality of the use of force – the real issue before the Court. [12]
As for provisional measures, the argument goes that the Court should not indicate measures for the protection of any disputed rights, other than those which might form the basis of a judgement. The use of force is not regulated by the Convention, and therefore is unlikely to form the basis of a judgement on the interpretation of the Convention – thus, the intended result was that the Court’s provisional measures cannot encompass Russia’s ‘special military operation’.
Understanding the Court’s reasoning
The majority dismissed Russia’s arguments relating to jurisdiction, pointing to numerous statements directly justifying its actions to prevent the alleged genocide – including statements made by Russian officials, including those of Putin himself (or ‘Poutine’, if one was to read the French translation). [13] As for the issue of the use of force, based on a false claim of genocide, this is a matter that can only be decided if the matter proceeded to merits. For the purposes of jurisdiction and provisional measures, the majority considered a plausible argument on a prima facie basis. The Court accepted that both parties have referred to the Genocide Convention with sufficient clarity to enliven the dispute resolution clause of the Genocide Convention – the upshot being that there is a dispute on the interpretation of the Genocide Convention which the Court can hear.
Now that the orders have been made, what’s next?
The 13:2 win (or 12.5:2.5 more realistically) appears at first optimistic, particularly in the famously divided ICJ. The provisional orders are legally binding, [14] and there seems to be unity in the judges’ distaste for the war in Ukraine. [15] However, the ratio of those separate and dissenting opinions is tempting for the reasonable pessimist on the fate of Ukraine’s case moving forward, as the Court moves to consider jurisdiction and merits.
Judge Bennouna voted in favour of the provisional measures out of his sympathy for the Ukrainian people. However, he seems unconvinced that the Genocide Convention was adopted to enable a State in Ukraine’s position to use the ICJ to declare that another State has falsely alleged it to be committing genocide, ‘even if those allegations were to serve as a pretext for an unlawful use of force’. [16] That is, the Genocide Convention does not speak to the rights of parties if there is an allegation of genocide, as the Russian Federation has been accused of doing. Judges Gevorgian and Xue in dissent did not find Ukraine’s arguments plausible. To them, the substantive issue is the use of force in Ukrainian territory – the use of force in any legal sense does not constitute an act of genocide, and therefore the ICJ does not have jurisdiction under the Genocide Convention’s dispute resolution clause. [17]
Remembering that what was decided was only on a prima facie basis, what these opinions reveal is a (reasonable) weakness in the jurisdiction argument of the Ukraine, reflective of a hole in the international legal system more broadly. Let’s consider the consequences if the Court were to accept Ukraine’s arguments on jurisdiction and merits. To do so may significantly widen the scope of those international legal instruments, potentially more so than was originally envisioned. Taken at its extreme, what does this say about other treaties and conventions – particularly those on human rights? Can one State be taken to the ICJ for incorrectly alleging that another State is committing acts of torture? Or does there need to be some physical intervention to enliven this right, and if so, why not simply strike to the heart of the matter and allege a breach of sovereignty? It is plausible that if Ukraine had argued on the basis of the use of force, then we may not be seeing the current procedural hurdles thus far.
However, even if Ukraine does win on those hypothetical grounds, there is little to suggest that the Russian Federation would engage, respect, or even meaningfully acknowledge such a verdict. Perhaps then, the idea of approaching the dispute through the lens of the Genocide Convention, a document and collection of norms that are so charged with historical atrocities, is more effective. Ukraine has pointed a spotlight, and a bright one at that, to the actions of the Russian Federation for the whole world to see – and that might be all that matters.
FOOTNOTES
[1] ‘Verbatim Record, Public Sitting Held on Monday 7 March 2022, at 10 a.m., at the Peace Palace’, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (International Court of Justice, General List No 182, 7 March 2022) 13 (‘Verbatim Record of 7 March’).
[2] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (Provisional Measures) (International Court of Justice, General List No 182, 16 March 2022) 19 (‘Ukraine v Russian Federation’).
[3] Lorenzo Tondo and Jon Henley, ‘Survivors leaving basement of Mariupol theatre after airstrike, says officials’, The Guardian (online, 18 March 2022) <https://www.theguardian.com/world/2022/mar/17/mariupol-theatre-ukraine-civilians-russia-war>, archived at <https://perma.cc/4MUR-E83K>.
[4] Charter of the United Nations art 7(1).
[5] Statute of the International Court of Justice art 36.
[6] Ukraine v Russian Federation (n 2) [1].
[7] ‘Application Instituting Proceedings’, Allegations of Genocide (Ukraine v Russian Federation) (International Court of Justice, General List No 182, 26 February 2022) [26]-[29]; Verbatim Record of 7 March (n 1) 41[14].
[8] Statute of the International Court of Justice art 41; International Court of Justice, Rules of Court (adopted 14 April 1978) arts 73, 74 and 75.
[9] Ukraine v Russian Federation (n 2) [20].
[10] ‘Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case’, Allegations of Genocide (Ukraine v Russian Federation) International Court of Justice, General List no 182, 7 March 2022) (‘Document from the Russian Federation’).
[11] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature on 9 December 1948, 78 UNTC 277 (entered into force 12 January 1951) art 9.
[12] The Russian Federation argued instead that its actions were founded in self-defence under Art 51 of the UN Charter.
[13] Document from the Russian Federation (n 10) [11].
[14] Statute of the International Court of Justice art 59; Note that while the decision of the Court is legally binding, the Court has no method of enforcement.
[15] Ukraine v Russian Federation (n 2) [18].
[16] ‘Declaration of Judge Bennouna’, Allegations of Genocide (Ukraine v Russian Federation) (International Court of Justice, General List No 182, 16 March 2022) [1]-[2] (‘Declaration of Judge Bennouna’).
[17] ‘Declaration of Vice-President Judge Gevorgian’, Allegations of Genocide (Ukraine v Russian Federation) (International Court of Justice, General List No 182, 16 March 2022) [5] (‘Declaration of Vice-President Judge Gevorgian’); Note that Judge Gevorgian did, however, vote in favour of the provisional measure that both Parties shall refrain from actions which may aggravate or extend the dispute or make it more difficult to resolve; ‘Declaration of Judge Xue’, Allegations of Genocide (Ukraine v Russian Federation) (International Court of Justice, General List No 182, 16 March 2022) [2] (‘Declaration of Judge Xue’).
Dev Sharma is a fifth-year Laws (Hons)/Arts student majoring in International Relations. Dev competed in the 2022 Philip C. Jessup International Law Moot Competition, focussing on procedural and substantive issues before the International Court of Justice, such as standing, as well as sovereignty in a cyber-dominated world.