(Ця стаття також доступна українською мовою тут.)

As the International Court of Justice (ICJ) issues provisional measures requiring Russia to stop using force against Ukraine, it will not have escaped observers that one word is conspicuously absent from the operative clause of the Court’s order: aggression. Indeed, litigating state responsibility for aggression as such remains an elusive quest, even when aggression is otherwise blatant.

Predictably, States that commit aggression are likely to have made sure in advance that they will not be exposed to litigation. Russia does not recognize the compulsory jurisdiction of the International Court of Justice (ICJ). And although Article 2(4) of the U.N. Charter requires States to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” the Charter contains no compromissory clause that would make it possible to litigate a violation of Article 2(4) as such.

This has led to some creative strategizing over the last decade in search of neglected compromissory clauses that might serve as a jurisdictional foothold to nonetheless engage the responsibility of States for aggression – specifically, as it happens, the responsibility of Russia in relation to some of its neighbors. Below, I briefly evaluate these strategies, both retrospectively and prospectively, as instances of what I call “litigating aggression backwards” (or sideways), emphasizing their relative effectiveness but also their limitations.

Litigating aggression backwards may “work” in the sense of obtaining favorable judgments, but it can also create subtle distortions over what is at stake that are only likely to be amplified at the merits stage. One should be mindful, then, of the dangers in exhausting oneself in a short-term tactical game and of losing sight of the strategic goal of stigmatizing an unlawful use of force. As I argue, the choice of jurisdictional terrain and weapons will be critical.

Litigating Aggression Through CERD: the Georgia and Crimea Precedents

Abkhazia and South Ossetia are two provinces largely understood by the international community to be part of Georgia, but which sought to secede in the early 1990s. Rising tensions over the next decade plus led to the Russo-Georgian War of 2008, in which Russian-backed separatists, together with Russian forces, gained full de facto control of the territories. Both Russia and Georgia accused the other of aggression, but it was Georgia that instituted proceedings before the ICJ under the Convention on the Elimination of Racial Discrimination (CERD) to which both Georgia and Russia were party. This was a creative use of CERD, a treaty adopted in 1965 at the instigation of newly decolonized States and in the context of the fight against apartheid, which was not typically envisaged it as a means of settling territorial disputes or uses of force.

Russia argued that the “real dispute” was about its allegedly unlawful use of force, in a context where “annexation is not a matter that falls within CERD.” Georgia nonetheless insisted that it had put much emphasis on the question of ethnic cleansing in its dealings with Russia and the Court was satisfied that at least a dispute existed. Although the Court found that there was a dispute about the interpretation of CERD, it concluded that it did not have jurisdiction because of a failure to carry out negotiations mandated by CERD. Interestingly, this was partly because Georgia itself had not seemed to consistently act as if it believed that CERD was, in fact (except retroactively), the core of its dispute with Russia.

Notwithstanding this earlier failure to establish jurisdiction under CERD, Ukraine in 2017 instituted proceedings against Russia at the ICJ. Ukraine, like Georgia, alleged a violation of CERD, this time in relation to the invasion and occupation of Crimea. Russia insisted that, under cover of CERD, Ukraine was in fact trying to “inappropriately . . . shoehorn” “misplaced allegations of annexation and aggression” into the Court’s docket in ways that were highly artificial. Again, the Court was satisfied that there was a prima facie dispute, but this time found that bona fide negotiations under CERD had actually occurred. The case has not yet led to a judgment on the merits, which is now even more highly anticipated given its connection to current events. A somewhat similar case has since been launched by Armenia against Azerbaijan on the basis of CERD.

The fact that the Court found that there was a genuine dispute about CERD means that it bought the notion that the “very essence of the dispute” was not something else (aggression or annexation). Nonetheless and precisely for this reason, whatever its success on jurisdiction or even merits, the Ukraine v. Russia CERD case is likely to shine a rather oblique light on what is, ultimately, the primary issue of aggression. The case was only held admissible on an understanding that it was about the question of racial discrimination narrowly construed. The Court has made it clear in the past that it has an understanding of its jurisdiction based on what Lawrence Hill-Cawthorne has described as the “severability” of issues (e.g., that CERD violations can and should be considered independently from the broader use of force issue) rather than on an “expansive” view of its competence (the Court can address issues that are necessary to address issues about which it has jurisdiction).

It remains to be seen of course whether CERD on its own terms will be found applicable to the situation. But even so, a verdict may be expected to at best underscore what happens to be a particularly nefarious consequence of an invasion, but not necessarily because it is an invasion (obviously, racial discrimination occurs all the time purely domestically). This is still a fairly roundabout way of litigating aggression, which requires the court to focus on only one part of what makes it repugnant: its racist “results.”

Of course, the ICJ could go back through a sort of factual regression to the source and insist that racial discrimination flowed from aggression, i.e. that aggression is what Peter Tzeng has described as the “implicated issue” to discrimination and that it can, as a result, know of aggression incidentally to an inquiry about discrimination. In a literal sense, that is true: the opportunity for discrimination was afforded by Russia having acquired jurisdiction over the territory it invaded. But it will be difficult to argue that the annexation of Crimea was itself a violation of CERD; or that there is something inherent about aggression that leads to racial discrimination (which may exist without an act of aggression, and which does not flow from every act of aggression); or even that this particular aggression was fundamentally motivated, rather than merely tainted, by racism (as opposed to geopolitical or territorial motives).

The Genocide Convention as Jurisdictional Basis: Prospects and Limitations

On Feb. 27, 2022, Ukraine filed an entirely distinct application before the ICJ against Russia in response to Russia’s Feb. 24 invasion of its territory. Ukraine argued that the Court had jurisdiction under the Genocide Convention, which contains a compromissory clause at Article IX. Ukraine’s argument, however, is not primarily that Russia is committing genocide in Ukraine (although there are combative hints of this), but that Russia has wrongly invoked violations of the Genocide Convention to justify its invasion. In denying that Ukraine has, in fact, committed genocide, Ukraine argues that “Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.”

As smart moves go, this surely ranks pretty high, and so far, Ukraine has had considerable success at the provisional measures stage with the Court finding that it has prima facie jurisdiction. The new application targets the nearest thing to the aggression itself, namely the – allegedly largely pretextual – motivation for aggression: the idea, essentially, of genocide as “false flag.” There is no doubt that defending ethnic Russians from “genocide” featured highly in the stated aims of Russia’s cassus belli. In that respect, words matter, and it will be difficult for counsel for Russia (if they eventually show up) to walk back the loud and clear utterances of its president, especially given the extraordinary extent to which these were foregrounded in its written submissions. The move has Russia cornered, taken at its word as it were.

On the other hand, there may be worries that the tactic is “too smart for its own good.” A first concern is whether, once proceedings move past the provisional measures stage, the Court will be happy with the whole aggression-as-a-violation-of-the-genocide-convention line. Others have already written very cogently on whether the Court might be tempted to opt for a kind of “centre of gravity” approach, finding that the reference to the Genocide Convention is too tenuous, in a context of perennial sensitivity about the voluntary character of dispute settlement. Even if the Court finds that it has jurisdiction, this will inevitably affect what precisely it considers itself to have jurisdiction over.

One minor worry in that context is that, paradoxically, the case may involve Ukraine defending itself against allegations of genocide, if merely by “emphatically” denying them. This is somewhat reminiscent of domestic libel trials in which plaintiffs need to prove the falseness of claims about them or, highly problematically, victims of sexual assault are forced to prove their virtue in the process of putting their accusers to trial. True, this is with a view to making the point that Russia cannot avail itself of that pretext to launch aggression, but the risk is that the gist of debates will involve whether Ukraine has actually committed genocide, a strange stance to find oneself in in the midst of fighting an aggressive onslaught (although this may be the equivalent in chess of sacrificing a relatively weak piece for some greater gain). The point, at any rate, is that we cannot really know if the invocation of genocide by Russia was pretextual if we do not know that Ukraine did not, in fact, commit genocide.

To truly win, Ukraine will want to shift the debate away from whether it committed genocide to whether Russia would have any justification to resort to force even if it had, as Russia has implicitly argued. The agent of Ukraine has already argued before the ICJ that Russia is “using one pillar of modern international legal order to destroy the other,” i.e.: invoking the Genocide Convention to undermine the prohibition of the use of force in international relations. Here, Ukraine may find itself on ground notoriously made murky by decades of international lawyers toying with humanitarian intervention, the obligation to prevent genocide, and Responsibility to Protect. The case may provide a welcome opportunity to judicially clarify that area of the law, and the Court has already hinted that it is not favorably inclined towards that line of argument.

But it remains unclear what the very outcome of litigation on the merits might be. Would the Court (which has sometimes been tempted by the path of least resistance) opt for a narrow understanding of what Ukraine is asking (“not to be subject to a false claim of genocide”), merely requiring Russia to not use that argument anymore? On some level, this would be no small victory, contesting the very rhetorical basis of the invasion. But the provisional measures already suggest that the Court may be willing to go further. Indeed, even better would be a finding that Russia is responsible for a use of force that is in violation of the Genocide Convention (“a right under the Convention not to be harmed by the Russian Federation’s misuse and abuse of the Convention”). This is a line of reasoning that the Court has already recognized is “plausible” and comes very close to a finding of aggression, albeit one that makes the international regime on the use of force seem like it is an appendix to the prevention of genocide.

Still, the merits stage may highlight problems of jurisdictional overreach. The Court has previously recognized that states may only act to prevent genocide “within the limits permitted by international law,” which opens seemingly limitless, Lotus-like possibilities (prevention of genocide is allowed broadly unless it is specifically prohibited by a rule of international law). But the judges will be aware (even more so at the merits stage) that they are dangerously at risk of being ultra vires and of essentially adjudicating the whole international law on the use of force merely by a very implicit renvoi from the Genocide Convention. Indeed, every treaty’s implementation might be said to be implicitly conditional on respect of at least international jus cogens norms, thus providing an unexpected entry path for much broader litigation.

At any rate, beyond ongoing issues of jurisdiction, there would remain the oddity of, in the best of cases, conceiving of the harm of aggression as a violation of the Genocide Convention. This may paradoxically defer too much to Russia’s framing of the issue, even if to better challenge it. The point is aggression has long been seen as its own, self-standing harm whatever its motivation, notwithstanding the fact that it may also be weirdly justified by invoking the Genocide Convention. That the ICJ has already ordered provisional measures beyond what Ukraine was asking for – extending to the cessation of all hostilities (and not just those purportedly justified by genocide prevention) – suggests that the Court is alive to what is arguably the underlying issue, but only time will tell how far it is willing to peer behind the veil of the dispute that is, strictly, submitted to it.

Strasbourg and the Potential for a Human Rights Reading of Aggression

Very shortly after introducing its new case before the ICJ, Ukraine introduced a separate case before the European Court of Human Rights (ECtHR) alleging “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine.” One notable element is that aggression is actually mentioned in the request, albeit as it concerns violations of human rights. Contra the other cases discussed so far, the proximity of the claims to the actual question of an unlawful use of force is thus clearer.

The ECtHR’s record of dealing with such cases at the jurisdictional stage, to be sure, is not particularly encouraging. In Georgia v. Russia (ii), the Court found it lacked jurisdiction over “the military operations carried out during the active phase of hostilities,” in what turned out to be a widely panned decision. In the instant case, even a finding that Russia has competence in occupied zones of Ukraine because it exercises “effective control,” whilst tactically useful for the purposes of ascribing human rights responsibilities to a de facto sovereign, would tell us nothing about whether its jurisdiction was acquired legally or illegally. Indeed, it is unlikely at this stage that there would be more openness to the possibility that aggression is cognizable as a human rights violation. The ECtHR has in the past ignored questions of jus ad bellum, effectively orienting itself towards a more traditional humanitarian sensitivity focused on conditions on the ground (for example, the legality of the use of force was never an issue in Cyprus v. Turkey).

Nonetheless, the European Court should be less adverse than the ICJ, given its pro hominem bias, to interpret its jurisdiction in expansive ways. Indeed, instead of treating the existence of an aggression as a purely ancillary matter to whether human rights violations were committed in Ukraine (merely “setting the stage” for such violations as it were), the Court could find that aggression was part of the very production of human rights violations there. The question of aggression as a fundamental human rights violations has been canvassed elsewhere (see here, here, here or here) and this is not the place to restate that argument. Whilst long unorthodox, it has garnered increasing traction, laying the ground for a court to seize this opportunity.

Human rights law, proceeding from first rights principles (including the right to peace) and applying to States with strict obligations to respect, should be much less inclined to see aggression as merely a neutral background factor. As argued by Eliav Lieblich, the ECtHR would be uniquely suited to take up these ideas. It can build on significant early intellectual investment by the Human Rights Committee which has concluded that deprivation of life is arbitrary if in violation of international law, including as a result of aggression. In fact, before the ECtHR, Judge Keller at least has already hinted at the possibility of drawing inspiration from that General Comment and disagreed that in so doing the Court would usurp the jurisdiction of the ICJ or the ICC (see also here).

The future of litigation against Russia in the ECtHR is, of course, now complicated by Russia’s recent withdrawal from the European Convention, which the Court responded to by suspending examination of all applications against Russia while it considers the underlying legal implications of Russia’s withdrawal.

But whether before the ECtHR or elsewhere, the advantage of a human rights-centered a strategy is that it makes no concession to some not-immediately-connected instrument to make a merely oblique point about aggression via its pretextual motivation or a relatively narrow reading of its consequences. Instead, it is arguably the closest thing to litigating aggression qua aggression, short of being able to litigate the U.N. Charter itself. Not only would it provide the ECtHR, or other court, with a clear path to condemn aggression, but it would do so in ways that would simultaneously enhance our understanding of what is wrong with aggression, understood henceforth as a massive human rights violation. This would come close to a check-mate for Ukraine, pinning down Russia where it hurts most.

Conclusion: What’s Wrong with “Shoehorning”?

The situation in which Ukraine currently finds itself is not one that leaves it much choice, and its lawyers should be commended for making the most of the tools that are at their disposal. Ultimately, the predicament of Ukraine says more about the inherent limitations of a legal system that requires applicants to thread a camel through the eye of a needle. In an ideal world, Ukraine would simply have presented its grievance for what it is, namely a blatant violation of the U.N. Charter and the customary international law on the use of force. In the present conditions, any favorable judgment would already be a considerable success.

This article nonetheless hopes to have highlighted that, within Ukraine’s multipronged strategy, not all litigation stands the same chance ultimately of shedding light on what is truly problematic about Russia’s aggression of Ukraine. A general human rights framing of aggression has the greatest potential, as opposed to one based on racial discrimination or genocide. The challenge, in this context, will be to not let the complex tactical game of bringing any case that sticks against the aggressor make one lose sight of the strategic goal of minimizing the distortions of “litigating backwards.”

THE HAGUE NETHERLANDS – MARCH 07: In this handout provided by the International Court of Justice (ICJ), public hearings take place on the request for the indication of provisional measures submitted by the Ukraine in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), held under the presidency of Judge Joan E. Donoghue, President of the Court on the first day of hearings at the Peace Palace on March 7, 2022 in The Hague, The Netherlands. (Photo by Frank van Beek/ICJ via Getty Images)