Ukraine has made international law a centerpiece of its war effort ever since Russia’s full-scale invasion on February 24, 2022. It came as something of a shock, then, to see the International Court of Justice deal Ukraine’s legal effort two blows in a pair of disappointing decisions last week. In both cases, Ukraine didn’t lose entirely, but the wins were so modest that a thoughtful observer called the results a “huge loss for Ukraine” and “a major disappointment in its ‘lawfare’ efforts against Russia.”
Do these decisions signal the limits of Ukraine’s strategy of placing international law at the center of its war efforts? How should the 32 states that intervened on its behalf respond? And do these lackluster decisions signal that the International Court of Justice is having second thoughts about weighing into highly political charged situations, especially in the wake of the blockbuster decision on preliminary measures sought by South Africa in its case against Israel alleging violations of the Genocide Convention?
The Cases
First, let’s step back and briefly review the two cases.
The first case, filed in 2017 by Ukraine under the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), challenged Russia on two fronts. In brief: First, it claimed that Russia’s support for Russian separatist groups in eastern Ukraine, including through in-kind contributions of weapons and training, violated the ICSFT. As part of that claim, it argued that Russia had also violated the convention by failing to investigate, prosecute, or extradite perpetrators of the financing of terrorism found within its territory. Second, it claimed that Russian authorities administering the illegal Russian occupation of Crimea violated Russia’s obligations under CERD by discriminating against a number of ethnic minority groups, including by suppressing Ukrainian language education, among much else.
The Court found that Russia violated its obligations by failing to take measures to investigate facts “regarding persons who have allegedly committed an offense” as set forth in the ICFST, but it rejected all of Ukraine’s other claims under the convention. It also found that Russia, “by the way in which it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language” violated the CERD. Again, it rejected all the other claims under the convention for lack of sufficient evidence or other reasons. Thus, the Court gave Ukraine a sliver of a win, but just a sliver, under both treaties. Ukraine lost on nearly every claim of significance.
The second case, which has garnered far more attention, was filed by Ukraine against Russia shortly after Russia’s full-scale invasion of Ukraine in February 2022. There, Ukraine had employed an exceptionally clever legal maneuver. Because there is no international court with jurisdiction over the violation of the UN Charter committed by Russia when it invaded Ukraine—and no international court with jurisdiction over the crime of aggression committed by Russian leaders in Ukraine—Ukraine instead used the dispute resolution provision in the Genocide Convention to bring Russia to court. In a cunning twist, it used Russia’s own disinformation against it, arguing that Russia’s false claims that Ukraine was engaging in genocide against members of the Russian ethnic minority in eastern Ukraine, which it had used to justify its unlawful acts of aggression, made for a “dispute” under the Genocide Convention that the Court should resolve. The Court agreed, and in its March 2022 order on provisional measures, decided that Ukraine’s claims were plausible and, among other things, ordered Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”—an order Russia had entirely and predictably ignored.
Ukraine’s big win on provisional measures had led some to predict a big win for Ukraine at following stages but in the decision last week on preliminary objections, the Court failed to deliver. It decided that Ukraine’s clever approach, which had won the support of 32 intervening states, was too clever by half: It upheld Russia’s objection that Russia’s uses of force based on allegations of genocide (even if false), fell outside the scope of the Genocide Convention and thus outside the Court’s jurisdiction. But it did not kill the case entirely. It decided that it will decide whether there is any “credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donetsk and Luhansk oblasts of Ukraine.” This is something of a pyric victory for Ukraine, as it means that Ukraine’s conduct, not Russia’s, will be the focus of the arguments on the merits. Even so, it does allow the Court to review a key justification Russia has offered for its military campaign. The leader of Ukraine’s legal team, Anton Korynevych, told reporters that: “It is important that the court will decide on the issue that Ukraine is not responsible for some mythical genocide, which the Russian Federation falsely alleged that Ukraine has committed.”
Russia’s violations of the Court’s provisional measures order might also leave Ukraine with some room to maneuver: The Court recognized that Russia “took the allegedly unlawful measures in and against Ukraine with a stated purpose of preventing and punishing genocide allegedly committed in the Donbas region” and that this gives Ukraine a “legal interest … under the Genocide Convention to resolve the dispute” over whether it committed genocide. Ukraine, then, might attempt to raise the issue of Russia’s unlawful invasion at the merits stage by raising Russia’s violation of the provisional measures, though whether the Court will accept the invitation to opine on an issue it has previously declined to reach for other jurisdictional reasons is far from clear. It is little surprise, then, that the general mood of Ukrainian supporters has been decidedly downcast.
The Limits of International Law?
Do these twin disappointments mean that Ukraine has been wrong to place international law at the center of its war efforts?
The short answer is no. Ukraine has done as well as it has against an overwhelmingly better resourced and more powerful foe precisely because it has succeeded in persuading much of the world that it is defending itself against an unlawful aggressor bent on ignoring the most fundamental rules of the global legal order. Indeed, even as the Court decided against Ukraine’s most robust claims in the genocide case, the judges emphasized the importance of abiding by international law in its closing paragraph:
The Court recalls, as it has on several occasions in the past, that there is a fundamental distinction between the question of the acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law. States are always required to fulfil their obligations under the Charter of the United Nations and other rules of international law. Whether or not they have consented to the jurisdiction of the Court, States remain responsible for acts attributable to them that are contrary to international law[.]
It’s not-too subtle message to Russia is that, while the Court may not have been willing to stretch to reach the issues Ukraine put before it, Russia is not off the hook. The law applies whether the Court has jurisdiction or not.
Indeed, Russia has paid a steep price for its violations of international law throughout this war, and it will continue to do so. Perhaps more important than the ICJ’s decisions last week was the decision by the EU on February 1 to vote a package of support of 50 billion euros over four years. As President Ursula von der Leyen explained in announcing the deal, “These EUR 50 billion for four years . . . send a very strong message to Putin, just ahead of the second anniversary of his brutal invasion.”
This is precisely how the states that intervened on Ukraine’s behalf can now best help Ukraine in fighting against Russia’s unlawful war: They must continue to follow the twin approach of sanctioning Russia and supporting Ukraine through financial and military assistance. That is what will make the difference in the war.
What Does This Mean for the Court?
Some might wonder whether these lackluster decisions signal that the International Court of Justice is having second thoughts about wading into highly politically charged situations. Indeed, the contrast between the decisions last week involving Ukraine and the decision on preliminary measures in the South Africa v. Israel case is striking. Is the Court getting cold feet?
All of these decisions were likely finalized well before last week, so there is almost no chance that the international response to its decision in the South Africa v. Israel case made any difference to the outcome in Ukraine’s cases before the Court. But there is, nonetheless, a way in which these cases may be related.
In South Africa v. Israel, the Court’s conclusion that South Africa made a plausible case that Israel is violating the Genocide Convention captured attention around the world. It placed the Court right in the middle of a highly charged political, legal, and military confrontation. The Court, which has no police or military to back its decisions, must conserve its legitimacy. That is all the more true when rendering decisions involving members of the Permanent Five Security Council members who hold vetoes over Council decisions, Russia and the United States among them. The only formal mechanism in the ICJ Statute for enforcement of decisions of the Court is referral to the Security Council. But when a state that is the subject of the decision—or a close ally of such a state—holds a permanent seat on the Council, the chance of any resolution enforcing the decision is zero.
The Court has to be careful, then, when deciding to issue such opinions. There may be reason still to do so. But the Court is likely to think twice when considering whether to stretch to reach issues that press the boundaries of its jurisdiction to issue a decision it is certain will be ignored. The cases Ukraine brought against Russia asked it to do just that. The theories were plausible—and the Court signaled as much in its favorable responses to the applications for provisional measures in both cases—but Ukraine asked the Court to go out on a legal limb on the second case especially. Ukraine asked the judges to do so, moreover, where it was unlikely the opinion would change anything on the ground. Russia had made clear it would ignore any orders from the Court, and the states likely to condemn it had already condemned it for unlawful behavior many times over.
What’s more, a declaration of illegality would be redundant. No one seriously contests that Russia is violating international law in waging its war of aggression in Ukraine. Over 140 states have repeatedly condemned the war in the General Assembly several times over, beginning with a March 2022 Resolution in which over 140 states “demand[ed] that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State.” True, they have not condemned precisely the same violations, but these cases were, after all, making arguments through treaties not well designed to get at the fundamental illegality at the heart of Ukraine’s complaints—the war itself. Not limited by the jurisdictional boundaries on the courts, states the world over have not just denounced Russia’s illegal aggression but have acted to put in place unprecedented sanctions against Russia in response. A positive decision by the Court here would have been satisfying, but it would have been ignored by Moscow. And it seems unlikely it would have changed much of anything on the ground. Such a judgment may have helped keep some parts of the world mobilized to support Ukraine, but this they can and should do regardless. Perhaps it should be little surprise, then, that the Court decided as it did.
The case brought by South Africa against Israel may be different. It is possible that here, too, the Court will step back when it comes to later stages in the case. After all, the Court appeared receptive to Ukraine’s arguments in both of its cases at the initial stage. And, as in Ukraine’s cases against Russia, there is little chance that the Security Council will act to enforce any decision by the Court.
But there’s one important reason to think that South Africa’s case may turn out differently: The Court’s decision can make a difference. Although Israel’s leaders publicly denounced the Court’s order, the Court’s decision has ratcheted up the pressure on the country and its allies, including the United States, to take steps to ensure that Israel respects the fundamental rights and basic human dignity of the civilians in Gaza. The United States’ rule of law traditions would make it difficult to ignore a decision by the Court that Israel is violating the Genocide Convention. There is also mounting political pressure on President Joe Biden to call for a ceasefire in Gaza. A similar dynamic is at work in other states that support Israel. Indeed, there is ongoing litigation in the Netherlands in which human rights groups are attempting to stop the Dutch government from exporting F-35 fighter jet parts to Israel, on the ground that exports could make the Netherlands complicit in war crimes. Similar litigation is pending in the United Kingdom. If the ICJ concludes, while the conflict is ongoing, that Israel is violating the Genocide Convention, we can expect a flood of similar cases. Thus, even if Israel is determined to ignore a ruling by the Court and the U.S. stands ready to block Security Council enforcement, the decision is still likely to have an impact if it comes in a timely fashion.
How will the Court forge ahead in the face of so many fundamental challenges to the international legal order of which it is a part? The decisions last week suggest the judges will proceed purposefully but cautiously. As Mariano-Florentino (Tino) Cuéllar and I wrote after the Court’s issued its order on preliminary measures in South Africa’s case against Israel, “Because tribunals exist in an unforgiving and difficult political environment, even the principled ones often have little choice but to consider the practical aspects of their potential decisions.”