On March 7, or the 12th day of Russia’s all-out war against Ukraine, the International Court of Justice (ICJ) held the first hearing in the “Ukraine v. Russian Federation” case.
One of the six United Nations principal organs based in The Hague, ICJ heard Ukraine’s request for indication of provisional measures against Russia in the proceedings instituted by Ukraine on Feb. 26.
Though Russia refused to participate in the ICJ hearings in its letter of March 5, the Court will proceed without hearing Russia’s arguments.
“The fact that Russian seats are empty speaks loudly,” Anton Korynevych, Ukraine’s representative to the ICJ, said in his opening speech before the Court.
“They are not here in this court of law. They are on the battlefield waging aggressive war against [Ukraine]. This is how Russia solves disputes.”
Two days after Russia launched a full-scale war against Ukraine, Kyiv filed an application to the ICJ instituting proceedings against Russia under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
Both Ukraine and Russia are parties to the Genocide Convention and submitted disputes “relating to the interpretation, application or fulfillment of the Convention, including those relating to the responsibility of a State for genocide” to the ICJ’s jurisdiction.
Ukraine’s application addresses Russia’s unjustified use of genocide as a pretext for aggression against Ukraine.
In its address to Russian people on Feb. 24, Russian President Vladimir Putin stated: “I have taken the decision to carry out a special military operation. Its goal will be to defend people who for eight years have been suffering persecution and genocide by the Kyiv regime. For this we will aim for demilitarization and denazification of Ukraine, as well as taking to court those who carried out multiple bloody crimes against civilians, including citizens of the Russian Federation.”
Ukraine’s claims are wide-ranging: from the request that the Court declares that no acts of genocide have been committed in the Luhansk and Donetsk oblasts of Ukraine to the request that Russia’s subsequent actions taken on this false premise – namely, recognition of Russian-occupied parts of Donbas as independent states on Feb. 22 and launch of special military operation on Feb. 24 – are illegal.
As the ICJ proceedings may be lengthy – in certain cases up to 15 years – Ukraine applied for indication of provisional measures against Russia. It seeks immediate suspension of the military operations commenced against Ukraine by Russia and its proxies and assurances that no action is taken that may aggravate the dispute.
As stated by Harold Koh, lawyer for Ukraine, during the hearing: “The risk that Russia will irreparably harm Ukraine and its people in the name of preventing and punishing a non-existent genocide is very real. Unless Russia halts its military operation, Ukraine’s plausible claim that Russia is violating and abusing the Convention will only be heard when it is too late.”
It is expected that the Court’s order in relation to Ukraine’s request for indication of provisional measures will be rendered shortly. Whilst in practice it takes around 11 weeks, it is expected that the ICJ would move faster given the urgency of the situation in Ukraine.
The situation is complicated with Russia being a permanent member of the UN Security Council. Only the latter may determine the existence of any act of aggression and decide what measures shall be taken to maintain or restore international peace and security under Chapter VII of the UN Charter.
The UN Security Council consists of five permanent members – Russia, China, the U.K., the U.S. and France – and 10 non-permanent members. Unless there are concurring votes of all five permanent members, the UN Security Council cannot decide on substantive matters such as restoration of international peace and security.
On Feb. 25, Russia vetoed a draft resolution intended to end its military offensive against Ukraine. The draft, submitted by Albania and the U.S. garnered support from 11 members, which was sufficient for the resolution to be adopted absent Russia’s veto.
Other international bodies were more supportive of Ukraine. In the following days, on Feb. 28, the Prosecutor of International Criminal Court (ICC) opened an investigation into the situation in Ukraine. As Ukraine is not a party to the Rome Statute of the ICC, it could not itself refer the situation to the Prosecutor’s Office. That is why the Court based its jurisdiction on Ukraine’s declarations of 2014 and 2015 accepting the ICC jurisdiction with respect to alleged crimes committed on Ukrainian territory from February 2014 onwards.
The ICC, unlike the ICJ which deals with the issues of state responsibility, may hold individuals accountable of crimes within its jurisdiction, namely, genocide, crimes against humanity, war crimes and crime of aggression.
On March 1, in response to Ukraine’s request of Feb. 28, the European Court of Human Rights ordered the Government of Russia to refrain from military attacks against civilians and civilian objects in Ukraine.
In view of the UN Security Council’s inability to address Russia’s war against Ukraine, on March 2, the UN General Assembly adopted a resolution demanding that Russia immediately end its military aggression. A total of 141 countries voted in favour of the resolution, with Russia, Belarus, North Korea, Eritrea and Syria voting against it and another 35 states abstaining.
Finally, on March 4, the UN Human Rights Council adopted a resolution calling for the “swift and verifiable” withdrawal of Russian troops and Russian-backed armed groups from the entire territory of Ukraine and agreed to establish a commission to investigate violations committed during Russia’s military attack on Ukraine.
By blocking and/or ignoring various international avenues discussed above, including an opportunity to defend its far-fetched genocide allegations before the ICJ, Russia sends a clear signal to the world that what it calls a special military operation is nothing but a pure act of aggression.
As Koh stated during the March 7 hearing, addressing the ICJ, “President Putin’s short game is force. The world’s long game is law. For other institutions to do their job inside and outside the UN system, first [the ICJ should do its job]. … But if [it] does not act decisively … rest assured this will not be the last such case.”
By Mariana Antonovych, Senior Associate, Avellum