(Ця стаття також доступна українською мовою тут.)
Ukraine on Saturday, Feb. 26, filed an application instituting proceedings and request for provisional measures against the Russian Federation before the International Court of Justice (ICJ). Ukraine has asked the ICJ to exercise jurisdiction under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), because the Russian Federation’s invocation of genocide as a pretext for invasion creates “a dispute between Ukraine and the Russian Federation relating to the interpretation, application and fulfillment of” the Genocide Convention. (This application is separate from Ukraine’s pending ICJ application arising out of Russian activities in Crimea and eastern Ukraine in 2014.) On Tuesday, Mar. 1, the ICJ announced that it would hold hearings on Mar. 7 and 8, just over a week after Ukraine filed its application – a remarkably fast time frame.
For context on Ukraine’s application and insights into what will likely come next, our Managing Editor Megan Corrarino turned to Professor Chimène Keitner with some questions. Professor Keitner is Alfred & Hanna Fromm Professor of International Law at UC Hastings College of the Law in San Francisco and previously served, among other positions, as Counselor on International Law at the U.S. Department of State. UC Hastings law student Zoe Tatarsky assisted in preparing these responses.
Corrarino: For readers who may not be familiar with the international legal system, can you provide some brief background on the ICJ and the sorts of cases it can hear? One question in particular that may be on people’s minds is how the ICJ differs from the International Criminal Court, where the Prosecutor recently announced he would open an investigation into the situation in Ukraine.
Keitner/Tatarsky: The International Court of Justice (ICJ) and the International Criminal Court (ICC) are both international courts with three-letter acronyms that sit in The Hague, in the Netherlands. They are often confused with each other, but they are actually quite different.
Both courts were created by treaties that provide a limited scope of jurisdiction and authority. The ICJ, which is also called the World Court, was created in 1945 to serve as the “principal judicial organ of the United Nations.” All States Parties to the UN Charter are also parties to the ICJ Statute, which governs the Court’s powers and procedures. Both Russia and Ukraine are parties to the UN Charter and can be parties to suits before the ICJ, if the Statute of the ICJ provides a basis for jurisdiction.
The International Criminal Court was created by a different multilateral treaty, which was negotiated in Rome and is referred to as the Rome Statute. That treaty entered into force in 2002. Russia and Ukraine are not parties to the Rome Statute (meaning that the ICC does not have automatic jurisdiction), but Ukraine has accepted the ICC’s jurisdiction over alleged international crimes committed on its territory since 2014, regardless of a perpetrator’s nationality.
Importantly in this situation, the ICJ adjudicates legal disputes between States, whereas the ICC exists to allow prosecution of individuals responsible for war crimes, genocide, crimes against humanity and, in certain circumstances (though not this conflict), the crime of aggression. For the purposes of Russia’s invasion of Ukraine, that means that the ICJ will be looking at Russia’s State responsibility. The ICC investigation will be looking at the individual criminal responsibility of Vladimir Putin and other high-level Russian officials.
Corrarino: Ukraine requested “provisional measures,” meaning that they’re asking the ICJ to move urgently to avoid irreparable harm. What next steps would we expect to see from the ICJ, and on what timeline?
Keitner/Tatarsky: Article 41 of the ICJ Statute provides the Court with the authority to indicate provisional measures, which can be viewed as the international law equivalent of a preliminary injunction. The goal of such measures should be “to preserve the respective rights of either party.” Provisional measures are meant for emergency or near-emergency situations, allowing the Court to act more quickly than if full proceedings were required. Even before ruling on the provisional measures, the ICJ can take steps to encourage the parties to mitigate future harm. In this case, Ukraine also requested that the Court “call upon the Russian Federation to immediately halt all military actions in Ukraine.” The Court granted that request and issued a communication under Article 74(4) of the Rules of Court “call[ing] the attention of the Russian Federation to the need to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.” Needless to say, Russia does not appear to have heeded this call.
Along with its call on Russia to preserve the status quo, the ICJ indicated that it would hold public hearings on Mar. 7 and 8 on the application for provisional measures. Harold Hongju Koh, one of the attorneys representing Ukraine, has stated that he hopes the Court will issue a declaratory order or judgment within the next three weeks. The U.S. Department of State has supported Ukraine’s request and stated that, in light of the ICJ’s call upon Russia under Article 74(4), “Russia must cease its military activities in Ukraine.” Moreover, the United States has stated that it “trust[s] the Court is taking into consideration the dire circumstances and rapidly unfolding events and hope[s] that it will act with utmost urgency on Ukraine’s request for provisional measures.”
Whereas the ICJ issued an order on The Gambia’s 2019 request for provisional measures against Myanmar 11 weeks after the request, and decided on Armenia’s 2021 request for provisional measures against Azerbaijan within approximately the same time frame, we might expect an earlier ruling on Ukraine’s request given the rapidly escalating situation there. For example, in the LaGrand case involving the death penalty, the ICJ, invoking Art. 75(1) of its Rules, issued an order on provisional measures the day after Germany filed its Application. (The Governor of Arizona proceeded with the execution on the same day, in defiance of the Court’s order.)
Corrarino: A lot of the initial analysis about Ukraine’s application seems to focus on jurisdiction – and understandably so. Ukraine argues not that Russia is in direct violation of the Genocide Convention, but that Putin’s allegations of genocide in the Donbas region as a pretext for invasion create a justiciable dispute about the proper interpretation of the Genocide Convention. Ukraine then requests provisional measures focused on halting Russia’s military activities. What’s the link between the disputed interpretation and the measures Ukraine is arguing should be indicated? What legal standards apply to the question of jurisdiction, and what other factors, beyond jurisdiction, is the ICJ going to look at?
Keitner/Tatarsky: Ukraine had to find a way to fit its claims against Russia within an existing treaty that has a compromissory clause giving the ICJ jurisdiction. It has based its application on the Genocide Convention, although Talita Dias suggests that other countries could rely on the International Convention Concerning the Use of Broadcasting in the Cause of Peace to bring a claim against Russia. Either way, Ukraine’s obvious goal is for Russia to halt its military invasion, not simply for Russia to cease claiming, as a false pretext for the invasion, that Ukraine has committed genocide. The task for the ICJ will be to determine whether Ukraine’s request satisfies the criteria for granting provisional measures, namely: whether there is a prima facie basis for jurisdiction over the dispute; whether the right to be protected by the requested measures is plausible; and whether there is a risk of irreparable prejudice to the right pending adjudication of the dispute.
Jurisdiction: The ICJ can only grant provisional measures “if the provisions relied on by [Ukraine] appear, prima facie, to afford a basis on which its jurisdiction could be founded,” although the Court “need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 9, para. 16. Under Article 36 of the ICJ Statute, the ICJ can exercise jurisdiction in contentious cases if the parties consent; if both parties have submitted declarations under Article 36(2) of the ICJ Statute (the Court’s so-called “compulsory jurisdiction”); or if there is a compromissory clause in a treaty to which both States are party that gives the ICJ jurisdiction over disputes arising under that treaty. Here, Ukraine is invoking the third basis for jurisdiction: the compromissory clause in the Genocide Convention, to which both Ukraine and Russia belong.
Article IX of the Genocide Convention authorizes parties to invoke ICJ jurisdiction over disputes concerning the “interpretation, application or fulfillment” of the treaty’s obligations. By relying on Article IX, Ukraine has framed the legal issue, put broadly, as a conflict under the treaty: whether Ukraine is committing genocide (which it denies), and whether Russia’s use of military force against it on that purported basis is legally justified (which it contests). Thus, step one of Ukraine’s upcoming legal battle will be to establish a prima facie case that this qualifies as a “dispute” within the meaning of Article IX of the Genocide Convention. The ICJ has over time developed a broad definition of qualifying disputes as “a disagreement on a point of law or fact, a conflict of legal views or of interests” between parties. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 849, para. 37 (quoting Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11).
As the Court emphasized in its Order on Provisional Measures in Armenia v. Azerbaijan, in determining whether there is a prima facie case for jurisdiction under a compromissory clause in a treaty, “the Court must ascertain whether the acts and omissions complained of by the Applicant are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain.” In other words, there must indeed be a link between the jurisdiction created by the compromissory clause and the substance of the dispute.
Plausibility: The Court has observed that provisional measures are designed to preserve “the rights which may subsequently be adjudged by it to belong to either party.” Consequently, the Court may exercise the power to indicate preliminary measures “only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible.” The plausibility threshold, which has attracted scholarly attention, is connected to the purpose of provisional measures in ensuring that an eventual judgment will not be moot or ineffectual. In addition, as the Court has stated, there must be a “link between the rights claimed and the provisional measures requested.”
Here, Ukraine claims the rights not to be subjected to false allegations of genocide; not to be subjected to military invasion based on pretextual allegations of genocide; and not to be subjected to genocide. (According to Ukraine’s Application, “Russia’s lie is all the more offensive, and ironic, because it appears that it is Russia planning acts of genocide in Ukraine.”) The third claim falls squarely within the scope of the protection offered by the Genocide Convention to a national group, even though the Application spends the least time trying to set out the factual predicate for Putin’s allegedly genocidal intent. Rather, Ukraine’s focus is on the misuse of false allegations of genocide as a pretextual jusfication for military action, including targeting civilians.
If the Court finds that Ukraine’s asserted rights under the Genocide Convention are plausible, then it is not too difficult to see a link between the preservation of those rights and the requested ICJ order. The requested provisional measures would require Russia to suspend its military operations, as well as any operations “which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence.” The premise of Ukraine’s request is that all Russia’s ongoing military operations “have as their stated purpose and objective preventing or punishing Ukraine for committing genocide.” An additional irony, then, is that Putin’s attempt to create a moral and legal pretext for invasion might have the result of subjecting that invasion to further legal scrutiny, including possible compliance reports if the ICJ orders provisional measures. This is so, even though preventing genocide is not, in fact, a valid legal basis for the use of force absent Security Council authorization.
If Russia appears at the ICJ on Monday despite the prominent resignation of one of its international lawyers, it will no doubt argue that Ukraine’s real complaint is a violation of Article 2(4) of the UN Charter prohibiting the use of force, not the Genocide Convention. As the ICJ made clear in the Nicaragua case, however, more than one body of law can govern the same conduct and thereby grant jurisdiction over a dispute. Although provisional measures are not supposed to prejudice the rights of either party, the demonstrable falsity of Putin’s claim that Ukraine is committing genocide means that Russia does not have a legitimate interest in continuing its operation. The only possible legal interest Russia could assert in this context is an interest in not having the Genocide Convention read as broadly as Ukraine argues it should be. It is difficult to imagine that the Court would treat an argument to that effect as being made in good faith, given the circumstances.
Irreparable Prejudice: Finally, Ukraine must also demonstrate it faces irreparable prejudice to its interests if the Court does not issue provisional measures. Given that Ukraine is currently under a sustained military attack, this prong of the analysis should not be difficult to satisfy. The ICJ’s jurisprudence has found irreparable prejudice where parties assert rapidly changing circumstances, or civilian deaths and injuries. In keeping with this standard, Ukraine’s request for provisional measures sets forth: “a certainty of significant and irreparable loss of life and property and a humanitarian crisis.” Ukraine’s request also details sustained “casualties among Ukrainian civilians and military personnel, the bombing of numerous cities across Ukraine, and the displacement of tens of thousands of Ukrainian citizens both within Ukraine and across its international borders.” Thus, the irreparable prejudice to Ukraine’s rights if Russia continues its current course of conduct is manifest.
Corrarino: What might we expect to happen next?
Keitner/Tatarsky: Although, as Marko Milanovic has noted, Ukraine’s legal theory for jurisdiction is unusual, it might actually work: in his words, “if I was a betting man I’d say yes, with a bunch of interesting separate opinions.” In addition, Rüdiger Wolfrum has observed that “[t]he ICJ has widely used the competence to identify provisional measures other than those requested,” which could create interesting opportunities for the Court to address Russia’s ongoing disinformation campaign. Under Article 41, the Court would be required to give notice of any measures ordered to the parties and to the UN Security Council. In the LaGrand Case (Merits), the Court ruled that provisional measures have a binding effect (at para. 100).
Although Russia’s veto on the Security Council has paralyzed that body, the General Assembly has already issued a resolution under the Uniting for Peace procedure (which is not subject to a Security Council veto) calling for Russia to withdraw. The pendency of the ICJ dispute could also preclude Russia from voting in the Security Council on whether to authorize an investigation or recommend terms of settlement by virtue of UN Charter Article 27(3), which provides that “in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.” On the one hand, not all Security Council members will want to turn the ICJ into a forum to adjudicate the lawfulness of aggressive wars based on the pretextual allegation of a treaty violation. On the other hand, Russia can veto robust Security Council resolutions under Chapter VII of the UN Charter, and General Assembly resolutions have the status of “recommendations.” Consequently, the ICJ might be the best-placed international body to pronounce – at least preliminarily – on the blatant illegality of Russia’s conduct.