Posted 05/08/2022 by Dr Shannon Maree Torrens
In seeking to pursue avenues of accountability, Ukraine has taken Russia to the International Court of Justice (the ICJ), the principal judicial organ of the United Nations (UN), using the 1948 Genocide Convention to which both Ukraine and Russia are States Parties.
In invading Ukraine, Russia argued that it was protecting Russian speakers in eastern Ukraine from genocide. The Genocide Convention (Article II) notes that genocide is certain acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.
Ukraine argues that Russia is making false claims about genocide and is erroneously using the Genocide Convention to justify its invasion.
The ICJ
ICJ contentious judgments, relating to disputes submitted to the Court by states who have consented to the Court’s jurisdiction, are final and binding on the parties to a case and there is no option for appeal. UN member states must comply with the decisions of the Court in cases where they are a party.
In terms of enforceability, if a state believes the other side has not followed an ICJ judgment, they may bring the matter to the UN Security Council (UNSC) which can take measures to give effect to the judgment. In the Russia and Ukraine context, however, Russia has a veto power in the UNSC.
Ukraine
On 26 February 2022, two days after Russia announced its ‘special military operation’ into Ukraine, Ukraine filed an application instituting proceedings against Russia at the ICJ and requested provisional measures from the Court. The dispute was ‘relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide’.
Ukraine argues that Russia ‘falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic”, and then declared and implemented a ”special military operation” against Ukraine’.
Ukraine requested that the ICJ indicate provisional measures ‘in order 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’.
Provisional measures as outlined in Article 41 of the ICJ Statute are intended to ‘preserve the respective rights of either party’ prior to the final judgment.
The provisional measures requested by Ukraine included that Russia ‘immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine’ and that Russia 'immediately ensure that any military or irregular armed units … take no steps in furtherance of the military operations’.
Russia sent a letter to the Court on 5 March 2022 noting that it did not intend to participate in the oral hearings at the Court for provisional measures on 7 March 2022. Following the oral hearings Russia argued that the ICJ lacked jurisdiction in the case.
Provisional measures
On 16 March 2022 by 13 votes to 2, the ICJ ordered provisional measures. The ICJ held that it was ‘necessary, pending its final decision, for the Court to indicate certain measures in order to protect the right of Ukraine that the Court has found to be plausible’.
The Court firstly ordered that Russia should ‘immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine’. Secondly, the Court, again by 13 votes to 2, ordered that Russia should ‘ensure that any military or irregular armed units which may be directed or supported by it … take no steps in furtherance of the military operations’.
The two judges in opposition to both measures were Judge Gevorgian from Russia and Judge Xue from China.
Thirdly, by a unanimous vote, the Court ordered an additional measure that both parties shall refrain from action which might aggravate or extend the dispute or make it more difficult to resolve.
Next steps
At a meeting of the ICJ on 22 March 2022 on the views of the parties with regards to the procedure of the case, Ukraine emphasised the urgency of the situation due to Russia’s military operation and requested that the case be decided expeditiously.
Russia reiterated its view that the ICJ lacked jurisdiction and that the Russian Government was still considering whether Russia would participate in the proceedings.
On 1 July 2022 Ukraine filed its Memorial (a formal pleading used at the ICJ) which it says ‘catalogs [sic] how russia, since 2014, has put forward a false narrative accusing Ukraine and its officials of committing genocide.’ Ukraine further said: ‘The russian [sic] federation has used these allegations as a pretext for launching a new phase of its aggression against Ukraine: invading more territory, committing atrocities against thousands of innocent Ukrainians’.
On 13 July, more than 40 states, including Australia, the UK, the US and also the European Union, issued a joint statement supporting Ukraine in its proceedings at the ICJ, noting: ‘It is in the interest of all States Parties to the Genocide Convention, and more broadly of the international community as a whole, that the Convention not be misused or abused.’
On 21 and 22 July respectively, Latvia and Lithuania both filed declarations of intervention in the proceedings as parties to the Genocide Convention. New Zealand filed a similar declaration on 28 July.
That the ICJ has ordered provisional measures on this matter alongside other legal responses to Russia’s invasion of Ukraine such as the International Criminal Court investigation, adds weight to the conclusion that Russia’s invasion of Ukraine constitutes a violation of international law.
Whether the ICJ provisional measures and final judgment will be of benefit in halting Russia’s hostilities in Ukraine is difficult to see given the challenges in enforcing decisions of the Court. That the Court’s judgments affirm international law at a time when international law is being violated might, however, be regarded as a benefit in and of itself.