By Molly Quell and Thierry Cruvellier, Justiceinfo.net
“The Russian Federation shall immediately suspend the special military operations it commenced on 24 February 2022,” said court president Joan E. Donoghue, looking directly into the camera live streaming the hearing from the Peace Palace in The Hague.
In a 13-2 decision, the International Court of Justice (ICJ) broadly granted on March 16 a request for provisional measures which Ukraine had asked for three days after Russian forces began their full-scale invasion of the country. Kyiv argued that Russia violated the Convention on the Prevention and Punishment of the Crime of Genocide, commonly called the Genocide Convention, by falsely claiming that Ukraine was engaged in an ongoing genocide against Russian-speaking people in the eastern part of the country.
Immediately after the decision was announced, Ukrainian President Volodymyr Zelensky hailed the ruling on Twitter. “Ukraine gained a complete victory in its case against Russia at the International Court of Justice,” he wrote. His legal team in The Hague was also extremely happy with the result. “This is a victory for international law and for the Ukrainian people,” Oksana Zolotaryova, of the Ukrainian Ministry of Foreign Affairs, told reporters from the steps of the Peace Palace.
Invoking the genocide convention
Ukraine asked the court for a number of measures intended to quell the conflict. Kyiv wanted Russia to cease its invasion, avoid any action that might worsen the conflict, and provide regular updates to the court about its progress.
In total, the court ordered Russia to do two things: immediately suspend the military operations, and ensure its military units and any other unit or individual it has control over take steps not to further the conflict. In a third measure, the court also told both countries to refrain from any action that might aggravate the conflict. It did not grant Ukraine’s request for regular updates. “Measures don’t have to be identical to those requested,” Donoghue said in her reading.
Ukraine wasn’t arguing that Russia is committing genocide against Ukrainians. Rather, that Russia lied about its justification for the invasion and in doing so violated the Genocide Convention. “The lie is the Russian Federation’s claim of genocide in Ukraine. The consequences are unprovoked aggression, cities under siege, civilians under fire, humanitarian catastrophe and refugees fleeing for their lives,” David Zionts, a member of Ukraine’s legal team, told the court in a hearing last week.
While the crime of aggression – the literal invasion of another country – is forbidden by the UN Charter, neither Russia nor Ukraine have signed declarations giving the court jurisdiction, forcing Ukraine to find another route to The Hague-based court. The Genocide Convention, created in response to the horrors of the Holocaust, outlaws genocide and is signed by 152 countries, including both Russia and Ukraine.
A symbolic victory
Russia boycotted a hearing on the provisional measures request last week, claiming Ukraine’s complaint was frivolous. Russia’s ambassador to the Netherlands, Alexander Shulgin, informed the court that “his government did not intend to participate in the oral proceedings.” Ukraine’s representative, Anton Korynevych, said Russia’s absence was telling. “The fact that Russia’s seats are empty speaks loudly. They are not here in this court of law: They are on a battlefield waging an aggressive war against my country,” he told the court in his opening statement last week.
Moscow later submitted written arguments, claiming the court didn’t have jurisdiction in the case. In fact, the Court wrote that, at this stage, “it need[s] not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case.” The ruling opened the door for the possibility of more legal action. When asked if Ukraine was considering other options for complaining about Russia’s actions before the ICJ, Zolotaryova did not want to speculate. “We don’t want to tell our entire plan,” she said.
Few believe Moscow will comply with the order. Ukraine said they will give Russia 24 hours to abide by the decision and President Zelensky called on Russia to do so. “Russia must comply immediately. Ignoring the order will isolate Russia even further,” he said on Twitter.
The court has no enforcement mechanism. It can refer countries who refuse to heed its rulings to the UN Security Council, where Russia has a permanent seat and would almost certainly veto any action against it.
“We are engaging in lawfare”
In its order, the ICJ said it “is acutely aware of the extent of the human tragedy that is taking place in Ukraine and is deeply concerned about the continuing loss of life and human suffering. The Court is profoundly concerned about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law.”
Protestors who had gathered wearing Ukrainian flags and holding banners saying “Stop Putin” were happy the court had sided against Russia. “This is the UN’s court and they say Putin must stop. That is important,” said a Ukrainian woman who did not want to be identified by name. She lives nearby and came with two neighbors to show their support for her country.
Ukraine’s legal action before the ICJ is part of a broader strategy. The European Court of Human Rights (ECHR) issued a similar set of measures against Russia two weeks ago, after Ukraine brought a complaint before the Strasbourg-based court. (Moscow has only increased its attack on its neighbor since then.) “We are engaging in lawfare, Russia is engaging in warfare,” Ukraine’s representative, Korynevych, told reporters before the ICJ hearing last week. Since then, the Council of Europe, the ECHR’s oversight body, has kicked Russia out, citing the invasion as evidence that Moscow was no longer participating in the international legal order.
Just before the ruling was announced on Wednesday, the International Criminal Court’s (ICC) chief prosecutor turned up in Ukraine for a surprise visit with Zelensky. The pair met virtually to discuss the court’s ongoing investigation into war crimes and crimes against humanity in the country. “I was pleased to hold important exchanges with the president while in the country. We agreed all efforts are needed to ensure international humanitarian law is respected and to protect the civilian population,” prosecutor Karim Khan said in a statement after the meeting.
The ICC, the world’s only permanent criminal court for such atrocity crimes, opened an investigation on March 2 following 8 years of “preliminary examination” during which it took no action. A record-breaking 41 countries referred the matter to the court in the days following the invasion.
“Turning the genocide convention on its head”
Noting that “Ukraine considers that the Russian Federation “has turned the Genocide Convention on its head”, making a false claim of genocide as a basis for actions on its part that constitute grave violations of the human rights of millions of people across Ukraine,” the ICJ judges observed “that since 2014, various State organs and senior representatives of the Russian Federation have referred, in official statements, to the commission of acts of genocide by Ukraine in the Luhansk and Donetsk regions. The Court observes, in particular, that the Investigative Committee of the Russian Federation – an official State organ – has, since 2014, instituted criminal proceedings against high-ranking Ukrainian officials regarding the alleged commission of acts of genocide against the Russian-speaking population living in the above-mentioned regions “in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide”. It further recalled “that, in an address made on 21 February 2022, the President of the Russian Federation, Mr. Vladimir Putin, described the situation in Donbass as a “horror and genocide, which almost 4 million people are facing”. The court further said: “In his address, pronounced on 24 February 2022, the President of the Russian Federation (…) specified that the “purpose” of the special operation was “to protect people who have been subjected to abuse and genocide by the Kiev regime for eight years”. He stated that the Russian Federation had to stop “a genocide” against millions of people and that it would seek the prosecution of those who had committed numerous bloody crimes against civilians, including citizens of the Russian Federation.”
The judges’ order specified that the ICJ “is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide. Under these circumstances, the Court considers that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine.”
“Russia’s submission is quite entertaining,” Melanie O’Brien, a law professor at the University of Western Australia and an expert on the Genocide Convention, told the media before yesterday’s hearing. O’Brien says Russia’s arguments were more tailored to a domestic audience rather than purely attempting to convince the judges of its positions.
Russian and Chinese judges vote against
However, a closer read of dissenting and separate opinions attached to the ICJ’s order give a more complex insight into the debates within the bench and how judges’ political sensibilities may play out.
Both the Russian and Chinese judges voted against the two main measures. Russian Judge Kirill Gevorgian, who is also the vice-president of the Court, asserted that the ICJ had no jurisdiction in the case. “It is evident that the dispute that Ukraine seeks to bring before the Court, in reality, relates to the use of force by the Russian Federation on Ukrainian territory. However, neither is the use of force regulated by the Genocide Convention nor does the use of force in itself constitute an act of genocide,” he wrote in a declaration.
The Chinese judge Hanqin Xue also tended to mirror China’s balancing act over the war in Ukraine. “While I fully endorse the call that the military operations in Ukraine should immediately be brought to an end so as to restore peace in the country as well as in the region, I reserve my position on the first two provisional measures indicated in this Order. (…) More importantly, given the complicated circumstances that give rise to the conflict between Ukraine and the Russian Federation, the measures that the Russian Federation is solely required to take will not contribute to the resolution of the crisis in Ukraine. The Court, in my view, should be cautious in entertaining the request submitted by Ukraine and avoid prejudgment on the merits of the case. (…) Ukraine’s contention that the Russian Federation’s allegation of genocide against Ukraine is just “an excuse for Russia’s unlawful aggression” raises doubt that this is a genuine case about genocide.”
In her view, “Ukraine’s contention (…) is based on a mischaracterization of the Russian Federation’s position on its military operations. The document communicated by the Russian Federation to the Court shows that the legal grounds that the Russian Federation invokes for its military operations are Article 51 of the United Nations Charter on self-defence and customary international law. (…) Although the Russian Federation did refer to the alleged genocidal acts committed in the Luhansk and Donetsk regions of Ukraine in its official statements, it appears that the issue of the alleged genocide is not just one aspect of a broader political problem between the two States which may be separately examined, or the very reason for the Russian Federation to launch military operations against Ukraine, as claimed by Ukraine; it is an integral part of the dispute between the Russian Federation and Ukraine over the security issue in the region.” As a result the Chinese judge said there was no plausible legal basis for Ukraine’s grievances under the Genocide Convention.
“This is not the first time that the Court is confronted with a tragic situation caused by the use of force,” Judge Xue continued. “The present Order, to my regret, prejudges the merits of the case (…). Moreover, in the context of an armed conflict, one may wonder how those provisional measures can be meaningfully and effectively implemented by only one Party to the conflict.”
It appears that both the Russian and Chinese judges agreed to vote in favour on the third measure – to refrain from any action which might aggravate or extend the dispute or make it more difficult to resolve it – in particular because it was addressed to both Russia and Ukraine.
NATO invites itself in the debate
Moroccan Judge Mohamed Bennouna voted in favour of the Order because he “felt compelled by this tragic situation, in which terrible suffering is being inflicted on the Ukrainian people, to join the call by the World Court to bring an end to the war.” But he quickly added that he wasn’t “convinced that the Convention on the Prevention and Punishment of the Crime of Genocide was conceived, and subsequently adopted, in 1948, to enable a State, such as Ukraine, to seize the Court of a dispute concerning allegations of genocide made against it by another State, such as the Russian Federation, even if those allegations were to serve as a pretext for an unlawful use of force.” In his opinion, “the Court clearly failed in” establishing that any of the provisions of the Genocide Convention applied.
He also criticized what he sees as a drifting application of the law, referring to NATO’s interventions in Kosovo in 1999 as well as in Libya in 2011. “NATO forces deviated from their initial mandate, by favouring regime change in that country,” he wrote. In his view, the case brought in 1999 by Serbia against NATO’s strikes in Kosovo was “similar to the present proceedings, in so far as, in both instances, the applicant invoked the Genocide Convention in the context of an unlawful use of force by the respondent.” He noted that back then the ICJ ruled it had no jurisdiction. As his Chinese colleague stressed, Judge Bennouna recalled that states “remain in any event responsible for acts attributable to them that violate international law, including humanitarian law”. But “the fact remains that artificially linking a dispute concerning the unlawful use of force to the Genocide Convention does nothing to strengthen that instrument.”
German judge Georg Nolte wished to stress that he disagreed with the argument that the 1999 Yugoslavia case was similar. In that case, “neither the applicant State [Serbia, in short, then known as Federal Republic of Yugoslavia] nor the respondent States [NATO] stated before the Court that the use of force by the respondent States had the purpose of preventing an alleged genocide. In the present case, in contrast, the Russian Federation has made allegations that Ukraine is committing genocide and has affirmed that its “special military operation” serves the purpose of preventing genocide. (…) The subject-matter of the Application by the Federal Republic of Yugoslavia in 1999 was whether the use of force by the intervening States amounted to “genocide”. In contrast, in the present case, the subject-matter of the Application concerns the question whether the allegations of genocide and the military operations undertaken with the stated purpose of preventing and punishing genocide
are in conformity with the Genocide Convention. It is true that, in 1999, certain respondent States came close to justifying their use of force by stating that their actions were taken with the intent to prevent genocide and that certain of their officials made allegations of genocide in that context. However, such justifications were not the stated purpose of the military operations by the respondent States, nor was that purpose so perceived by the applicant State.”
Beyond the legal dispute it won’t escape some actors that Morocco is not a member of NATO while Germany is.
The French Judge’s direct Challenge to Putin
Jamaican judge Patrick Robinson fully endorsed the order. But regarding the third measure, he wrote that, in his view, “there is no justification for directing this measure to Ukraine. It should have been directed solely to the Russian Federation.” He also found “regrettable” that a fourth provisional measure requested by Ukraine – that the Court should order the Russian Federation to “provide a report to the Court on measures taken to implement the Court’s Order on Provisional Measures one week after such order and then on a regular basis to be fixed by the Court” – was not granted. “In light of the very grave situation in Ukraine caused by the “special military operation”, it would have been advantageous for the Court to examine periodic reports by Russia on its implementation of the provisional measures and to make appropriate orders,” he wrote.
All judges’ individual declarations or separate opinions appeared grounded in legal language. It was very different with French judge Yves Daudet, who was chosen by Ukraine because it had no judge sitting in the panel.
Alongside Judge Robinson, Judge Daudet said that “this measure of non-aggravation of the dispute should have been directed solely at the Russian Federation, which I recall was designated by the United Nations General Assembly as the perpetrator of aggression against Ukraine. (…) I would like to make it clear here that this vote, as far as Ukraine is concerned, is in my view meaningless. Indeed, it is going against the evidence to think that Ukraine is likely to “aggravate” the conflict, when the reality shows that the Russian Federation alone is constantly amplifying military operations and making them more painful and tragic every day for a growing number of Ukrainians.”
Then the French judge went into a straightforward plea for Ukraine’s plight. “The heroic defence of Ukrainians, both military and civilian, is taking place in a totally unbalanced way, in an unequal conflict marked by numerous and profound violations of international law and humanitarian law attributable to one side – the Russian Federation – which has military means of which the other side – Ukraine – is deprived, so that the possibilities of aggravation can only come from the former. In the current conflict, it is clear that the obvious escalation of the conflict, as it is developing day by day, is largely (but not only) due to the control of the skies by the Russian air force, which can bomb any target it decides to attack in more and more parts of Ukraine. Ukraine is under bombardment and can only fight a defensive war and resist as best it can against an attack by the world’s second largest army. If the Russian military operation is not going as smoothly as President Putin had hoped, it is certainly not because the Ukrainians are escalating the conflict, nor because they are in danger of doing so, but simply because they are showing a courage and determination that is admired the world over. I hope that they will not regard the Court’s position as a form of insult to their courage, which it clearly does not intend to be.”
Then he made a much more direct address to Russia’s president. “Finally, it should be recalled that more and more victims are to be deplored among the civilian population, among women and children, victims of the unspeakable cruelty of a Head of State whose designs violate the most elementary principles of humanity and civilization. Ukrainians (…) want peace and their State has turned to the Court to obtain it through international law. (…) Public opinion was informed by the media of Ukraine’s referral to the Court and many people placed their hopes in the voice of international law that the World Court would carry. I believe that this Order will meet their legitimate expectations. To this hope, I would add a wish: President Putin cannot be reproached for willingly referring to Russian history and sometimes to the period of the Empire. I hope that he will remember the initiative of Tsar Nicholas II in convening the first Peace Conference in The Hague in 1899, which was the cornerstone of the construction of a world order for peace and the peaceful settlement of disputes.”
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