(Ця стаття також доступна українською мовою тут.)
The International Court of Justice (ICJ) issued its order today on Ukraine’s application and request for provisional measures against the Russian Federation under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).
For more, 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, with additional assistance provided by UC Hastings law student Zoe Tatarsky. In previous Just Security Q&As, Keitner and Tatarsky shared their insights on Ukraine’s initial submissions and the ICJ hearing on Mar. 5.
Fifteen judges heard this provisional measures request: 14 ICJ members (Judge Cancado Trindade was unable to attend the oral hearing), plus an ad hoc judge appointed by Ukraine. The U.S. judge, Joan E. Donoghue, is currently President of the Court, and the Russian judge, Kirill Gevorgian, is Vice President. By a 13-2 vote, the ICJ ordered the following:
(1) The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine; …
(2) The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above.
By unanimous vote, the Court indicated a third provisional measure:
(3) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
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Corrarino: This seemed to be a very clear and absolute decision in Ukraine’s favor. Should we find that surprising? Does anything in particular stick out about the legal analysis?
Keitner: The first thing that jumps out is the degree of agreement among the judges. Only the Russian and Chinese judges voted against the indication of provisional measures, and the Court was unanimous in ordering the parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” (As a practical matter, it’s hard to see how Russia’s ongoing military campaign doesn’t “aggravate or extend the dispute” – so Judges Xue and Gevorgian’s votes could also be seen as calling upon Russia to cease offensive military operations, albeit implicitly.)
The Court was clearly mindful of the narrow basis for its jurisdiction in this case. The Order notes that: “The General Assembly of the United Nations adopted a resolution referring to many aspects of the conflict on 2 March 2022 (doc. A/RES/ES-11/1). The present case before the Court, however, is limited in scope, as Ukraine has instituted these proceedings only under the Genocide Convention” (para. 19). The opinion also emphasizes that a party’s non-appearance “cannot by itself constitute an obstacle to the indication of provisional measures” (para. 23, citing the Iran hostages case, in which Iran did not appear), and that “the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its decision” (id., citing Guyana v. Venezuela and Nicaragua v. United States). While the Court acknowledged receipt of Russia’s communication of Mar. 7, 2022, it indicated that it would take the document into account “to the extent that it finds it appropriate in discharging its duties” (para. 22).
Prima Facie Jurisdiction
The Order notes that both Ukraine and Russia (as “the State continuing the legal personality” of the USSR) are parties to the Genocide Convention, and that both States withdrew their reservations to Article IX (the treaty’s compromissory clause) in 1989, meaning that both have consented to the ICJ’s jurisdiction over disputes under the treaty. After restating the standard for finding jurisdiction at the provisional measures stage, the Court summarizes Ukraine’s and Russia’s positions on this question. It notes Russia’s view that “it is clear from the plain language of the Convention that it does not regulate the use of force between States” (para. 32). Moreover, Russia indicated in its written communication that the basis for its use of force was not the Genocide Convention (which, in its view, “cannot provide a legal basis for a military operation”) (id.), but rather Article 51 of the UN Charter and customary international law. Russia argued that the ICJ does not have jurisdiction over the case because the only basis for jurisdiction is the Genocide Convention which, in Russia’s view, does not apply to the facts presented here.
In the Court’s view, the multiple, documented exchanges between Ukraine and Russia involving allegations of genocide allow Ukraine to invoke the compromissory clause in the Genocide Convention as a basis for the Court’s jurisdiction (para. 44). This is so whether or not the dispute also touches other treaties or international legal obligations. As the Court observed, “the acts complained of by the Applicant appear to be capable of falling within the provisions” of the Genocide Convention (para. 45), whether or not they also fall “within the ambit” of other treaties. The Court’s conclusion that Ukraine has satisfied its burden to establish prima facie the existence of a dispute between the Parties under the Genocide Convention is not surprising given the extensive documentation of Russia’s invocations of genocide as a pretext for its invasion.
Vice President Gevorgian disagreed with the jurisdictional analysis. He repeated the well-established principle that “[u]ltimately, the jurisdiction of every international court emanates from the consent of States to subject a dispute between them to the binding settlement by a judicial body.” In his view, such consent by Russia is absent here. That is because the Genocide Convention does not regulate the use of force, and the use of force in itself does not constitute an act of genocide (para. 6). (Recall that Ukraine’s initial application does not accuse Russia of committing acts of genocide.) Although ICJ judges do not serve in a representative capacity, it is perhaps not surprising that the Russian judge was the least receptive to Ukraine’s argument that the Genocide Convention also provides a right not to be invaded based on pretextual allegations of genocide (para. 7). He also expressed skepticism of the idea that Ukraine could invoke the compromissory clause in the treaty as a basis for asking the ICJ to issue a declaration of “non-violation” by Ukraine (para. 8) – although, as Dapo Akande noted in a recent EJIL podcast, the respondent in contentious cases almost always asks the Court to find that it has not violated a given legal obligation. Vice President Gevorgian did, however, vote in favor of the “non-aggravation” measure, because “[t]he power to indicate such measure is a power inherent to the Court” and does not necessarily depend on a showing of prima facie jurisdiction (para. 10).
Plausibility of the Rights Asserted Under the Treaty
Having found a basis for jurisdiction, the Court must next determine whether provisional measures are required to preserve “the rights which may subsequently be adjudged by [the Court] to belong to either party” (para. 50). In addition, “a link must exist between the rights whose protection is sought and the provisional measures being requested” (para. 51).
The duty to implement treaty obligations in good faith animated much of Ukraine’s argument at the provisional measures stage and also informs the Court’s analysis (para. 56). Ukraine and Russia agree that the Genocide Convention does not authorize one party to use force on the territory of another party to prevent and punish genocide. Russia argues that, consequently, Ukraine cannot invoke the Convention as a legal basis for its right to be free from Russia’s use of force.
The Court notes, “[I]t 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” (para. 59). (The qualifier “doubtful” could be read as an attempt not to prejudge the United Kingdom’s doctrine of humanitarian intervention, although there is not currently a UK judge on the Court. In any event, at the provisional measures stage, the Court is not being called upon to interpret the Convention definitively, so there is no reason for it to phrase its observations conclusively.) In the Court’s view, the obligation of good faith and the lack of a treaty basis for using force to counter genocide make Ukraine’s claimed rights under the treaty plausible, rather than removing them from the scope of the treaty altogether.
Judge Bennouna (Morocco) voted in favor of the provisional measures, but he appended a declaration to express concern about the Court’s jurisdictional analysis. He notes that the Genocide Convention “does not cover, in any of its provisions, either allegations of genocide or the use of force allegedly based on such allegations” (para. 5). In his view, the plausibility analysis requires the Court “to found [an] alleged plausible right on one of the provisions of the Genocide Convention which the Russian Federation is said to have breached” (para. 6). He also notes that the Court previously declined to find jurisdiction under the Genocide Convention over claims brought by Yugoslavia against NATO countries relating to air strikes against Belgrade, which he deemed similar to the present proceedings because “the applicant invoked the Genocide Convention in the context of an unlawful use of force by the respondent” (para. 9). Despite this shortcoming in the Court’s legal analysis, Judge Bennouna voted in favor of indicating provisional measures 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” (para. 1).
Link Between Ukraine’s Plausible Rights and the Requested Provisional Measures
Although Ukraine asserted two rights – not to be subject to “a false claim of genocide” and not to be subjected to military operations on its territory based on such a claim (para. 52) – the Court focuses on the second asserted right (para. 60), which is the source of the immense suffering currently being inflicted on Ukraine. The Court reframes this right as “Ukraine’s right under Article I [of the Convention] to good faith performance of the Convention by any State party” (para. 62). The Court finds the requisite link between this right and the requested measures enjoining Russian military operations because, in its view, these measures “are aimed at preserving the right of Ukraine that the Court has found to be plausible” (para. 63). The logic works something like this: (1) Russia justified its “special military operation” in large part on fabricated allegations of genocide; (2) Ukraine has a plausible right under the Genocide Convention not to be subjected to military operations on the basis of such allegations; (3) Russia must cease its military operations in order to preserve Ukraine’s asserted rights pending resolution of the legal dispute on the merits. This reasoning supplies the requisite link between the requested measures and Ukraine’s plausible rights.
Judge Xue explained her decision to “reserve her position” on the first two provisional measures largely on the basis that she did not find the requisite link between the measures and the claimed rights. While she “fully endorse[s] 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” (para. 1), she notes that the purpose of Ukraine’s application “is apparently to seek a determination from the Court that the Russian Federation’s recognition of the Luhansk and Donetsk oblasts of Ukraine as independent republics and its military operations in Ukraine are unlawful” (para. 2). Like Vice President Gevorgian, she would not read the Genocide Convention so capaciously. However, she takes issue with the finding of a “link,” rather than with the finding prima facie of jurisdiction. She also finds the Court’s plausibility analysis unpersuasive because, in her view, “the rights and obligations which Ukraine claims are not plausible under the Genocide Convention” (para. 4). By contrast, Judge Robinson’s separate opinion states that “[t]he dispute between the Parties was defined eight years before by the several investigations carried out by Russia into alleged acts of genocide by Ukraine under the 1948 Convention” (para. 14), and that “the real issue in the case is not the use of force … Rather, it is the allegation by Russia that Ukraine was carrying out acts that constituted genocide under the Genocide Convention and Ukraine’s denial of that allegation” (para. 13).
The strength of the Court’s rationale finding a link between the requested measures and the asserted rights depends largely on the timeframe at issue in the litigation (i.e., the inception of hostilities or their continuation), and on taking Russia’s pretextual allegations of genocide sufficiently seriously to preserve the “hook” for ICJ jurisdiction. Russia’s written submission essentially disavowed alleged genocide as a basis for the invasion and sought to put all the legal weight on (equally pretextual) self-defense arguments. Putin is certainly not likely to retract his allegations of genocide, so the following point might be purely academic. But if Ukraine’s right is not to be subjected to military operations on the basis of false allegations of genocide, then the question becomes whether a retraction of those allegations would suffice to preserve Ukraine’s asserted rights. I think the answer must be “no,” since unfathomable damage has already been inflicted on Ukraine and is ongoing. But even posing the question illustrates some of the challenges posed by the Court’s limited basis for jurisdiction. That said, and as Judge Xue emphasizes with a string citation to the Court’s many Legality of Use of Force cases (para. 5), states remain responsible for acts attributed to them that violate international law, including international humanitarian law, and any disputes relating to the legality of such acts must be resolved by peaceful means.
Risk of Irreparable Harm
Needless to say, the criteria of urgency and imminent risk of irreparable prejudice were easily satisfied in this case. The speed at which the Court scheduled the oral hearing and issued its order further attest to how seriously it is taking this matter. It is worth noting that the figure of 1.5 million displaced civilians provided by Ukraine and referenced by the Court (para. 68) is now likely closer to 3 million refugees and a projected total of up to 6.7 million internally displaced people, according to UNHCR.
Corrarino: The provisional measures indicated by the Court used language that was in some respects broader and in some respects narrower than the language in Ukraine’s request. What to make of the daylight between the measures requested and the measures ultimately indicated?
Keitner: As Mike Becker noted, the measures ordered do not contain the limiting language that Ukraine had proposed in its request. The Court’s order emphasizes that “the measures to be indicated need not be identical to those requested” (para. 80). The Court’s order aimed at ensuring the non-aggravation of the dispute is self-explanatory, although the Court did not see fit to order Russia to provide periodic reports on its compliance (which Ukraine requested, and which Judge Robinson would have required). The Court also directed this order at both Parties, although Ukraine’s ad hoc judge, Yves Daudet, wrote separately to say that, in his view, “this measure of non-aggravation of the dispute should have been directed solely at the Russian Federation,” and Judge Robinson agreed. As noted above, the non-aggravation order attracted unanimous support, which certainly would not have been the case had it been one-sided.
The first measure orders Russia to “immediately suspend the military operations commenced on 24 February 2022.” Unlike Ukraine’s request, it does not further qualify the operations based on their stated purpose, but it does limit the order to operations “in the territory of Ukraine.” (It is difficult not to think in this context about Crimea and the portions of Ukraine’s eastern provinces that Russia occupied in 2014, but this order clearly targets the recent operations that were preceded by allegations of genocide.) Ukraine had included additional proposed language specifying that the operations to be ceased were “those that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine.” As a practical matter, it would have been impossible to distinguish those parts of the operation that do and do not have that stated purpose, and Russia’s statements have not differentiated among different aspects of its military advance. In any event, it is difficult to see how any of Russia’s ongoing attacks are designed to serve the goal of preventing or punishing genocide, even if that were their actual as opposed to pretextual justification. To the extent that Russia’s original aim appears to have been regime change in Kyiv, there is no need for the limiting language that Ukraine proposed. Moreover, clearly Ukraine wants Russia to stop all activity; the limiting language served only to link the measures more closely to the jurisdictional basis for Ukraine’s request.
The second measure also omits the proposed limiting language. Ukraine had requested an order requiring Russia to “ensure that any military or irregular armed units 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, take no steps in furtherance of the military operations.” The Court again omitted the genocide-linked limiting language proposed by Ukraine and instead indicated that the operations covered by this measure are the same as those referred to in the first measure.
The Court also omitted the portion of the order that would have required Russia to ensure that any organizations and persons subject to its influence take no steps in furtherance of the operations. The order therefore covers any military or armed units directed or supported by Russia, as well as any organizations and persons subject to its control or direction. Brian Finucane wondered this morning whether the inclusion of “support” represents “an expansion of principles of state responsibility.” Given the extensive discussions clearly going on within the U.S. government and between the United States and its allies on what types of support they can provide to Ukraine without crossing an invisible (political, not legal) line into provoking a wider response by Russia, this formulation could benefit from additional parsing – while recognizing that questions of state responsibility for providing support to a party to an armed conflict can be nuanced and context-specific. At the moment, however, this language seems to be aimed at preventing Russia from continuing the conflict by proxy, rather than at deliberately expanding the legal basis for attributing the acts of proxies to a state.
Corrarino: On this specific order, what do you think it means for international law to have a set of measures so strongly indicated in Ukraine’s favor but that everyone also recognizes will be difficult (if not impossible) to enforce? Might the order nevertheless have practical importance in other ways?
Keitner: I share both Judge Bennouna’s feeling that the World Court could not stay silent in the face of such a flagrant abuse of international law, and Judge Xue’s observation that political negotiations have more power than legal decisions to bring an end to this conflict. My immediate reaction to the decision was that it is indeed a victory for Ukraine, but that the strategy of isolating Russia also has potential down-sides if Russia decides that it does not want, or need, to be brought back “into the fold.”
The Court’s rules provide for the creation of an ad hoc committee of three judges to “assist the Court in monitoring implementation of provisional measures,” and to provide periodic reports and recommendations to the Court. Ordinarily, a briefing schedule would also be set for the merits phase of the case. At this juncture, it seems unlikely that Russia would participate in a merits phase, although it is noteworthy that Russia’s written communication appeared to blame its non-appearance on the timing of the oral hearing rather than a principled objection to the Court’s authority. If Russia intends to be a participant in ICJ cases going forward, it has an interest in shaping the Court’s jurisprudence on jurisdiction – which the Court could revisit after further briefing and argument, given that it needed only find a prima facie case for jurisdiction at the provisional measures stage.
As noted in my prior post with Zoe Tatarsky, Russia does not appear to have changed its behavior in response to the Court’s 2017 non-aggravation order in the case involving Crimea. The weakness of the United Nations system has always been the ability of P5 members and their protegees to exempt themselves, as a practical matter, from the enforcement of international legal rules. This might be an inevitable feature of an international system founded on the principle of state consent. The exercise of soft power and the use of persuasive, rather than coercive, diplomacy has furthered the central goal of protecting individuals, but the conditions for effectively deploying soft power cannot be taken for granted.
Because the ICJ adjudicates questions of state rather than individual responsibility, its provisional measures order will not have much practical significance for ongoing efforts to collect evidence for use in future war crimes prosecutions. The Security Council will remain paralyzed when it comes to passing resolutions under Chapter VII for the foreseeable future. However, the accountability frameworks developed following conflicts in recent decades can and will inform the imposition of consequences on individuals responsible for atrocities committed during the current conflict. Most urgently, we need to figure out how to stop the carnage. On this, all members of the Court appear to agree.