(Ця стаття також доступна українською мовою тут.)

Ukraine on Monday presented oral arguments to the International Court of Justice (ICJ) in support of its request for provisional measures against the Russian Federation. The ICJ had originally scheduled hearings for Monday and Tuesday, but the Russian Federation failed to appear, and at the end of the day on Monday, the ICJ announced that it was taking Ukraine’s application under submission and would begin deliberations.

For an expert analysis of what happened at Monday’s hearing and what might come next, our Managing Editor Megan Corrarino turned to Chimène Keitner, Alfred & Hanna Fromm Professor of International Law at UC Hastings College of the Law in San Francisco and former Counselor on International Law at the U.S. Department of State, and UC Hastings law student Zoe Tatarsky. Keitner and Tatarsky previously shared their insights with Just Security in a Q&A on Saturday, Mar. 5, in advance of Monday’s hearings.

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Editors’ note: Updated Mar. 11, 2022. At the time that we spoke for the Q&A below, published Mar. 9, Russia had failed to appear for scheduled hearings. Since then, the ICJ posted a submission received from Russia. The authors offered these additional thoughts:

Keitner/Tatarsky: The Russian Federation’s submission is noteworthy in that it signals Russia is taking the case seriously enough to respond. Russia stated that it did not appear at Monday’s oral argument because it lacked adequate time to prepare. Although Russia challenges the competence of the Court to exercise jurisdiction in this case, it does not dispute the legitimacy of ICJ proceedings generally. Instead, its core argument against the Court’s exercise of jurisdiction (at para. 12) is that “[n]owhere in the [Genocide] Convention may one find any reference to the use of force between States or recognition of States, which are regulated by the United Nations Charter and customary international law. To read them into the Convention by implication would be to substantially amend and distort the object and purpose of the Convention.” In any event, Russia says that its use of force was justified as an act of self-defense (para. 15), as indicated in its Article 51 notification to the Security Council, which attached Vladimir Putin’s Feb. 24, 2022, address in full.

It’s notable that, even as Russia has quickly become a global pariah, it is still choosing to engage with the international legal system – albeit belatedly and on its terms. Russia’s engagement then raises the question: Who are its arguments for? Does Russia genuinely intend to convince the ICJ? The international community? For context, it’s worth looking at other sources, like this recent statement from the Russian Branch of the International Law Association, which is virtually devoid of legal reasoning and instead reiterates Russia’s talking points about the international community’s failure to condemn the United States’ past actions. As one of us [Chimène Keitner] has previously written, the “culture of justification” and process of reason-giving are integrated into the making of international law: actors compete to define the parameters of internationally permissible conduct in a way that ensures their own actions fall within its bounds.

Currently, Russia’s invocations of international law feel like theater. With concerns building that Russia might resort to using chemical weapons, it is difficult to fathom what justificatory role law could possibly play, except as the thinnest possible veneer for making Russia’s acts more palatable, although it is unclear for what audience.

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Mar. 9, 2022:

Corrarino: The first big news about Monday’s hearing, of course, was that the Russian Federation did not participate, a decision they announced in a letter on Saturday. What sorts of considerations might have been behind Russia’s decision? What legal significance, if any, does their non-appearance have?

Keitner/Tatarsky: Russia’s absence was not a foregone conclusion. By way of background, Russia currently has two pending cases against it in the ICJ: one brought by Ukraine in January 2017 under the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the newly filed case under the Genocide Convention. To date, Russia has participated fully in the first case. There, the ICJ issued provisional measures against Russia in April 2017. Those measures were “aimed at safeguarding the rights of Ukraine under Articles 2 and 5 of CERD” with respect to both “the ability of the Crimean Tatar community to conserve its representative institutions,” and “the need to ensure the availability of Ukrainian-language education schools in Crimea.” In addition, the Court “deem[ed] it necessary to indicate an additional measure aimed at ensuring the non-aggravation of the dispute between the Parties.” In this context, the Court referenced the “package of measures” signed at Minsk on Feb. 12, 2015. By a unanimous vote that included the ad hoc judge appointed by Russia, the Court ordered both Parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” As recently as last October, Russia was still participating in the merits phase of the case. Ukraine’s Reply brief is due on Apr. 8, 2022, and Russia’s Rejoinder is due on Dec. 8, 2022. It remains to be seen whether that briefing continues as scheduled. Meanwhile, Russia has clearly failed to comply with the Court’s existing order to “refrain from any action which might aggravate or extend the dispute.”

Fast-forward to Monday’s hearing, at which Russia declined to appear. There are a variety of possible reasons for Russia’s decision, including: (1) the inability to mount a convincing case that Ukraine has engaged in genocide; (2) the absence of an accepted legal right to intervene unilaterally in another state in response to genocide, even if one were taking place; and (3) a belief that the Court will likely issue some sort of provisional measures, which Russia will attempt to portray as illegitimate because it did not appear (even though it was invited to do so). Whatever Russia’s considerations were, its failure to appear will not prevent the Court from issuing an order, as provided in Article 53(2) of the ICJ Statute.

Non-appearance before the International Court of Justice is not a new phenomenon. The Institut de Droit International adopted a resolution on the practice of non-appearance in 1991; scholars have discussed the practice; and some have analyzed it through the lens of litigation strategy. The United States has attempted to promote the ICJ as a forum for the peaceful settlement of international disputes. But its promotions lost moral force after its decision in 1985 not to appear for the merits phase of the Nicaragua case. (The United States has appeared in other cases, including cases brought in 2016 and 2018 by Iran and in 2018 by Palestine.) Although Russia’s non-appearance is not unique, it highlights the paradox of Russia’s pretextual invocations of international law as a basis for launching a blatantly unlawful invasion. By refusing to defend its allegations of genocide against Ukraine before the ICJ, Russia appears to have abandoned the pretense that its actions are legally justified.

Corrarino: Seven representatives of Ukraine – two government officials and five counsel – made statements at Monday’s hearing. We previously discussed how, were the Court to have any doubts about Ukraine’s application, those would likely center on the relationship between the basis for jurisdiction (a dispute about interpretation of the Genocide Convention) and relief requested (indication of provisional measures focused on Russia’s military actions). From the way that Ukraine’s counsel framed their statements, it was clear this was forefront in their minds, too. Harold Koh’s argument in particular really cut to the heart of that question, as here, in paragraph 11:

To decide what measures are appropriate under these circumstances, you should treat this as a singular case which until now, most of us have contemplated only in the hypothetical: a Permanent Member of the United Nations Security Council decides, with planned premeditation, to commit naked aggression and war crimes by launching a broad and brutal military campaign against an innocent neighbour and its civilian population, based on the false pretext that the target State is committing genocide. When confronted by such open illegality, is this Court utterly powerless to stop it? And can that P-5 Member stubbornly continue that abuse, paralyse the United Nations system, and immunize its actions from international law?

Can you talk a bit more about Ukraine’s argument on this point, and how the Court might respond?

Keitner/Tatarsky: The Court has proved quite willing to issue provisional measures where warranted, including in Ukraine’s other pending case against Russia. In the past, it has attempted to tailor the measures to the rights asserted by the parties, for example by declining to issue provisional measures against Russia in 2017 under the Terrorist Financing Convention while agreeing to issue them under CERD.

As summarized by the President of the Court at the outset of Monday’s hearing, Ukraine “states that it submitted the Application ‘to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.’” The ICJ is well-placed to opine on the absence of a legal basis for Russia’s invasion. But unlike the Security Council or the General Assembly, it is confined in its ability to do so here by the scope of the jurisdictional grant in the Genocide Convention and the doctrinal requirements for ordering provisional measures.

Here, the basis for the ICJ’s jurisdiction lies in a disputed interpretation of the Genocide Convention and Russia’s alleged misuse of the Convention as a pretext for military action. Ukraine has come notably close to accusing Russia of the act of genocide, but it has not (yet) crossed this line. As noted by the ICJ President, Ukraine “accuses the Russian Federation of carrying out the actus reus of genocide by intentionally killing and inflicting serious injury on Ukrainian nationals, accompanied by what Ukraine considers rhetoric suggestive of genocidal intent.” Anton Korynevych, Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea, argued on Monday: “It is not Ukraine who commits genocide, it is Russia and its political leadership and military personnel who commit crimes against humanity and war crimes on the territory of Ukraine.” The Genocide Convention provides the hook for the ICJ’s jurisdiction, but what Ukraine really wants is for Russia to stop committing crimes against humanity and war crimes, and waging a war of aggression.

At the provisional measures stage, the Court traditionally asks whether an applicant has asserted plausible rights under a treaty. Marney Cheek, co-agent for Ukraine, explained on Monday that Ukraine asserts the rights “to demand good faith performance of the Genocide Convention and to not be subjected to an abuse or misuse of the Genocide Convention.” She argued that Russia’s allegations of genocide against Ukraine were not plausible and that, consequently, “Russia’s abuse of its obligations under the Genocide Convention has the character of a breach of the Convention.” Ukraine certainly has a plausible right not to be subjected to military attacks based on allegations of genocide. The extent to which that right flows from the Genocide Convention as opposed to other sources of customary and treaty law is debatable, but need not be decided definitively at this stage of the proceedings.

The specter of the ICJ being “utterly powerless to stop” Russia, which Harold Koh evoked on Monday, is a vivid one. Yet, it is not an unfamiliar dilemma for a Court that relies primarily on voluntary compliance with its pronouncements. Even if Russia were to stop using allegations of genocide to justify its invasion of Ukraine, it is unlikely Russia would stop the invasion itself. Abandoning these allegations would not remove the dispute entirely from the purview of the Genocide Convention, since Ukraine makes a persuasive case that the theme of genocide figured prominently in the Russian build-up to the war.

Of course, Ukraine’s core interest is not simply for Russia to cease invoking genocide as a pretext for its military operations. Rather, Ukraine wants the attacks to stop. As Koh argued, “the only way to preserve the status quo and protect Ukraine’s rights is to order a complete suspension of Russia’s military operations.” In Ukraine’s view, the ICJ should exercise a leadership role amidst the various international organizations that are examining and weighing in on the legality of Russia’s conduct. Indeed, in 1950 the General Assembly adopted the Uniting for Peace procedure to address the very paralysis in the Security Council that Ukraine calls out today. However, General Assembly resolutions passed under that procedure do not technically have the force of law. ICJ judgments and orders, by contrast, are legally binding.

Ukraine asks the ICJ to “vindicate the rule of international law under these most dire of circumstances.” In concluding Ukraine’s oral argument, Koh referenced the U.S. Supreme Court case Marbury v. Madison to urge the ICJ to use its power to pronounce what the law is. This idea certainly resonates with international lawyers and jurists. Yet, the Marbury court did not order Madison to hand over Marbury’s commission. Instead, it took the perhaps more radical step of establishing its power of judicial review. By analogy, Ukraine is absolutely correct that there ought to be some binding way of declaring Russia’s actions unlawful and compelling it to cease unlawful behavior. Yet the impulse to avoid a direct confrontation between law and political power is also a feature of judicial self-preservation and could shape the Court’s approach to Ukraine’s request.

Corrarino: The Court originally scheduled hearings for Monday and Tuesday, but in light of the Russian Federation’s failure to appear, it announced at the end of Monday’s arguments that it had taken Ukraine’s request under submission and will begin deliberations. What will likely come next? Is there any sense of what the timeline might be?

Keitner/Tatarsky: The Court is certainly taking this matter very seriously and considering it on an expedited basis. The President suggested that one reason the oral hearings were set for this week was to give Russia time to prepare. Now that submissions have been made,  questions remain as to how detailed the Court plans to be in its analysis, and how many judges will take time to write separate opinions.

Under Article 56, of the ICJ Statute, the court must give reasons for its judgment. Although the ICJ orders provisional measures well before it issues final judgments, this practice of giving reasoned decisions applies to interim measures as well as final judgments. As Andreas Zimmerman et al. note in their commentary to the ICJ Statute, “in its rulings on orders dealing with points of law (such as those disposing of preliminary objections to jurisdiction or granting or denying provisional measures), the Court has considered itself obliged to state the reasons for its decisions.” Even though the Court appears to be treating this matter as a high priority, the judges still need time to agree on a decision and to formulate their rationales.

In a contrasting example of almost immediate action, the European Court of Human Rights (ECtHR) has already granted interim measures under Rule 39 of its Rules of Court. Like the ICJ, the ECtHR had previously issued interim measures against Russia – in this case, in 2014, in response to events in eastern Ukraine. As Eliav Lieblich wrote in Just Security, the interim measures issued on Mar. 1, 2022 (one day after Ukraine’s request), are aimed at protecting “civilians and civilian objects” and “medical establishments, personnel and emergency vehicles.” Because Ukraine’s request to the ECtHR is not in the public domain, it is unclear whether Ukraine sought a more extensive order and what the ECtHR’s rationale was for the scope of the order it issued. Nevertheless, the speed with which the ECtHR issued its order reflects how seriously the international legal community is taking Russia’s challenge to the international rule of law. That said, the current situation is also a stark reminder of the limitations of an international system in which might too often makes right, and in which greed and cruelty still pose a formidable threat to the lives of millions.

IMAGE: Judges’ robes at the ICJ. (Jeroen Bouman via Wikimedia Commons.)