By Simply Alleging Genocide, A Country Can't Invade Another : Ukraine Argues Before ICJ In Case Against Russia

The International Court of Justice (ICJ) at The Hague, Netherlands on Monday heard extensive arguments from Ukraine while adjudicating upon an application moved by the Ukrainian government accusing Russia of carrying out and "planning acts of genocide in Ukraine." The application inter alia also urged the ICJ to urgently indicate provisional measures directing Russia to suspend its military actions in the region. 

The oral arguments were heard by a bench of 15 judges of the ICJ which also included Justice Dalveer Bhandari, former judge of the Supreme Court of India and presently India's nominee at the ICJ. Although time had been allocated to Russia to presents its counter arguments before the ICJ on Tuesday, President of the ICJ Judge Joan E Donoghue stated during the hearing on Monday that Russian Ambassador to The Hague Alexander Shulgin vide letter dated March 5, 2022 had indicated that his government did not intend to participate in the proceedings.

Expressing regret over such non-appearance, President Joan E Donoghue remarked, "The Court regrets the non-appearance of the Russian Federation in these oral proceedings."

Following the oral submissions made by Ukraine, the Court observed that it would pass an order on the question of provisional measures expeditiously. It was also stated that the date of the verdict would be indicated to the parties soon.

However, since Russia has refused to participate in the ongoing proceedings, it is of contention whether Russia would take steps to implement the Court's order on provisional measures. It may be noted that by signing the UN Charter, pursuant to Article 94, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. Both Russia and Ukraine countries have signed and ratified the UN Charter. 

The court judgments in the contentious cases are final and without appeal, though there is no way ICJ can enforce its decisions. However, parties have the option of approaching the United Nations Security Council which can compel the States to follow the Court's ruling.

However,  a judgement against one of the five permanent council members or its ally countries can be vetoed by that member. In the case of Republic of Nicaragua v. The United States of America the Court had decided in favour of Nicaragua and had awarded reparations to Nicaragua. The US (a permanent member of UNSC) had refused to participate in the proceedings and had also blocked enforcement of the judgment by the United Nations Security Council.

Jurisdiction of the ICJ

The ICJ is the principal judicial organ of the United Nations and is governed by its own statute- the Statute of the International Court of Justice. The Statute is an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter, which established the ICJ. All 193 UN member states are parties to the Statute by virtue of their ratification of the UN Charter. Under Article 93(2) of the UN Charter, States which are not a member of the UN may become a party to the Statute, subject to the recommendation of the United Nations Security Council and approval of the United National General Assembly.

The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States, which have a binding force and second, to give advisory opinions on legal questions referred to it by United Nations. Proceedings before the ICJ can be instituted in two ways- by means of an application, unilateral in character, submitted by an applicant State against a respondent State. In addition to the name of the party against which the claim is brought and the subject of the dispute, the applicant State must, as far as possible, indicate briefly the basis for such claim of compulsory jurisdiction of the Court. 

The second way to institute proceedings before the ICJ is through the notification of a special agreement which is bilateral in character and can be lodged with the Court by either or both of the States parties to the proceedings.  A special agreement must indicate the subject of the dispute and the parties thereto.

Ukraine's Application 

In its application, Ukraine has dubbed Russian justification for attacking Ukraine as – 'an absurd lie' and has further labelled Russia's claim that genocide has been committed by Ukraine government in the Luhansk and Donetsk oblasts as 'nonsensical and an unsupported claim.' 

Russia has defended its military action against Russia claiming, "the purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev (the USSR-era spelling of Ukrainian capital Kyiv) regime." Russia also asserted that it intends to "denazify Ukraine" and "bring to trial those who perpetrated numerous bloody crimes against civilians."

Furthermore, in the application Ukraine also accuses the Russian Federation of "planning acts of genocide in Ukraine" and contends that Russia "is intentionally killing and inflicting serious injury on members of the Ukrainian nationality  the actus reus of genocide under Article II of the [Genocide] Convention". 

The ICJ's jurisdiction has been sought pursuant to Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both States are parties. Furthermore, the following declarations have also been sought by Ukraine in its application, 

a. Adjudge and declare that contrary to what the Russian Federation claims, no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine;

b. Adjudge and declare that the Russian Federation cannot lawfully take any action under the Genocide Convention in or against Ukraine aimed at preventing or punishing an alleged genocide, on the basis of its false claims of genocide in the Luhansk and Donetsk oblasts of Ukraine;

c. Adjudge and declare that the Russian Federation's recognition of the independence of the so-called "Donetsk People's Republic" and "Luhansk People's Republic" on 22 February 2022 is based on a false claim of genocide and therefore has no basis in the Genocide Convention;

d. Adjudge and declare that the "special military operation" declared and carried out by the Russian Federation on and after 24 February 2022 is based on a false claim of genocide and therefore has no basis in the Genocide Convention;

e. Require that the Russian Federation provide assurances and guarantees of non-repetition that it will not take any unlawful measures in and against Ukraine, including the use of force, on the basis of its false claim of genocide.

f. Order full reparation for all damage caused by the Russian Federation as a consequence of any actions taken on the basis of Russia's false claim of genocide.

Provisional Measures sought 

Together with the Application, Ukraine has also filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court in light of the extraordinary urgency of the situation. As a provisional measure, Ukraine has sought directions to be issued to Russia to immediately suspend all military operations in Ukraine which is allegedly based on Russia's 'false and absurd claim' to be taking action to prevent and punish acts of genocide.

Other provisional measures sought are as follows, 

a. The Russian Federation shall immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine.

b. The Russian Federation shall immediately 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 which have as their stated purpose and objective preventing or punishing Ukraine for committing genocide.

c. The Russian Federation shall refrain from any action and shall provide assurances that no action is taken that may aggravate or extend the dispute that is the subject of this Application, or render this dispute more difficult to resolve.

d. The Russian Federation shall provide a report to the Court on measures taken to implement the Court's Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court.

Oral Submissions 

Prevention of genocide- Russia's justification for attack is a 'horrible lie' 

The agents appearing on behalf of Ukraine highlighted that the country is currently facing a war of aggression perpetrated by Russia which have put millions of people in imminent danger. It was further underscored that Russia's justification for waging a war to purportedly prevent genocide is a 'horrible lie'. It was further emphasised that Russia's claim that Ukraine has a war against its own people in Donbass is patently false. 

Further opposing the non-appearance of Russia, the agent further submitted, 

"The fact that Russian seats are empty speaks loudly. They are not here in this Court of law. They are on a battlefield waging aggressive war against my country. This is how Russia solves disputes. But Ukraine has another position and respects international law and this Court of law."

It was further highlighted that by falsely claiming genocide to justify its crime and acts of aggression Russia has defied the Genocide Convention, 1951. It was further submitted, "Russia claims that in order to stop a non existing genocide it can invade a State. Ukraine rejects this baseless crime."

Reliance was also placed on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 (Genocide Convention) to contend that the ICJ has jurisdiction to adjudicate the matter since both Russia and Ukraine are parties to the Convention and neither of them have any reservation which is currently in force.

"If Russia will not return to international law on its own, Court has the power to act. With respect, the Court has responsibility to act. Russia consented to your jurisdiction under the Genocide Convention", it was submitted further. 

Nothing in the Genocide Convention authorises a State to enter by force the territory of another State to prevent or punish genocide

Ukraine emphasised that the Genocide Convention does not authorise a State to use force upon another State in order to prevent or punish genocide. Reliance was placed upon the ICJ judgment in Republic of Nicaragua v. The United States of America wherein the Court had underscored that while each State makes its own assessment of the human rights situation in a third country, the use of force could not be the appropriate method to monitor or ensure the respect of these rights under the Convention.

Opining that Russia should have resorted to alternate measures instead of initiating a military attack, Ukraine submitted that Russia could have called upon the organs of the United Nations under Article VIII of the Genocide Convention. It was further averred that Russia could have also filed an application under Article IX of the Genocide Convention before this Court and initiated judicial proceedings. Russia has strictly no right under the Convention to take military action that began on Feb 24, 2022, it was argued further. 

Reliance was also placed on the ICJ judgment in Bosnia and Herzegovina v. Serbia and Montenegro wherein the Court in addressing actions pursuant to the duty to prevent genocide under the Genocide Convention had observed, "it is clear that every State may only act within the limits permitted by international law." 

"The dispute over the interpretation, application or the fulfillment of the Genocide Convention between Ukraine and Russia is not just about angry words. It is also forged in iron, in flames, in blood, in screams and tears", the agent submitted further. 

Claims of genocide aim at fabricating the text of the Convention to launch a military invasion of Ukraine 

During the proceedings, it was highlighted that less than a month ago on February 16, 2022 the US State Department had denounced the accusation of genocide put forward by Russia as aimed at fabricating the text of the Convention to launch a military invasion of Ukraine. Reliance was placed upon a communique dated February 26, 2022 issued by Ukraine's Foreign Minister dismissing Russia's accusations of violation of the Genocide Convention as being baseless. 

"Russia's claims are baseless and absurd. Russia's claims of genocide, its justifications for its lawless conduct are an insult to the Genocide Convention and to the work of the international community", the communique had stated. 

Enumerating further on the conduct of Russia, it was submitted that as recently as January 31, 2022 that in a meeting of the UNSC, the permanent representative of Russia had reacted angrily to suggestions that Russia planned to invade. Russia's ambassador, Vasily Nebenzia had remarked, "There's no proof to confirm these serious accusations" and had accused the US of calling the meeting to "whip up hysteria."

Repeated attack on Mariupol shows that Russia's claim to be the protectors of Russian speaking people in Ukraine is false 

The agent on behalf of Ukraine further averred that Russia over time has repeatedly attack the city of Mariupol in Ukraine which indicates that Russia's claim to be the protectors of Russian speaking people in Ukraine is false. It was highlighted that on January 24, 2015, Russia had attacked the residential district in the city of Mariupol resulting in the death of 30 civilians. 

" I should add that Mariupol is a Russian speaking city. Russia's claim to be the protectors of Russian speaking people in Ukraine could not protect the people of Mariupol from a barrage of Russian rockets. Just that it is not protecting Mariupol today", the agent submitted further. 

The Court was apprised that Russia has been bombarding the strategic port city and cutting off its power, water and heat. Opining further that Russia has provided no evidence to support its claim of genocide, it was further stated, 

"These are the circumstances in which Russia claims that #Ukraine has been committing genocide against its own people. It would be an understatement to say that Russia has provided no evidence for acts of genocide in the course of this conflict."

It was also argued that Ukrainian civilians on both sides of the contact line have suffered from a conflict which Russia has funded and fuelled and increasingly waged itself. 

"Tragically Ukraine's adversaries have had no regard to the lives of civilians on their side of the line. This is not Ukraine's position alone. It is a fact documented by the UN Human Rights monitoring mission", the agent remarked further. 

There is no good faith performance of the Genocide Convention by Russia 

Ukraine argued that an equally necessary implication of the duty to prevent and punish genocide is that it must be performed in good faith and not abused, and that one Contracting Party may not subject another Contracting Party to armed attack based on a wholly fabricated claim of preventing and punishing genocide. It was further stated that any other application of the Convention would undermine what the Court has described as the "moral and humanitarian" basis of the Convention.

"Simply alleging genocide cannot give a State the right under the Convention to carry out a unilateral military operation against the other State in order to prevent or punish the alleged genocide", the agent remarked, 

Reference was also made to the well established principle of "pacta sunt servanda"- every treaty enforced is binding upon the parties to it and must be performed by them in good faith as enumerated under Article 26 of the Vienna Convention on the Law of Treaties (VCLT). Further referring to the International Law Commission's Commentary on the Draft Articles on the Law of Treaties which formed the basis for the enactment of the VCLT, the Court was apprised that some members had felt that there would be advantage in also stating that a party must abstain from acts calculated to frustrate the object and purpose of the treaty.

"This conduct by Russia turns the Genocide Convention on its head. Asserting a right to commit aggression under the guise of a duty to prevent and punish a non existant genocide is not good faith performance of Arts I and IV of the Genocide Convention", it was averred further. 

Opining further that Russia has made a mockery to of a codified peremptory norm of international law, the agent remarked, 

"Indeed it is an abuse of the rights granted through the Convention by each State party to other State parties. Russia has taken a fundamental peremptory norm of international law codified in one of the most important human rights treaties and turned it into a sharade."

Risk of irreparable prejudice and urgency exists for indication of provisional measures 

Ukraine argued that the conditions of irreparable harm and urgency are satisfied that require the indication of provisional measures with the minimum delay possible. It was highlighted that the population of Ukraine is extremely vulnerable to the violence being inflicted on it by Russia and that millions of people are trapped in cities that are being ruthlessly bombarded. 

"In addition to irreparable harm, the condition of urgency is amply satisfied here. There is no doubt that unless this Court acts now irreparable prejudice will be caused to Ukrainian rights before the Court gives its final decision", it was argued. 

It was submitted that under Article 41 of the ICJ Statute, the Court can indicate provisional measures when irreplaceable prejudice could be caused to rights which are subject to judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences.

"Russia is resorting to tactics reminiscent of many evil siege warfare. In certain cities, Russia is cutting off the escape routes. Today that is the fate of Mariupol", the Court was further informed. It was also highlighted that Russia has been using cluster bombs and more pertinently it has deployed its TOS- 1 thermobaric rockets launchers which produce longer blast waves than conventional bombs.

The Court was further informed that in an attempt to deprive #Ukraine of fuel, Russia has attacked various fuel depos releasing vast clouds of toxic smoke into the atmosphere. Reference was made to the attack of a fuel depo in Vasylkiv.

"The risk of aggravation of the crisis is acute. Ukraine stands on the verge of a slaughter of more innocent civilians. As we have seen in Mariupol, Russia has no compunction once it has surrounded a city in simply bombing it into oblivion", the agent averred further. 

Neighbouring countries may be destabilised as a result of the humanitarian crisis in Ukraine

It was emphasised that the fragility of the situation reaches beyond Ukraine into Europe and across the world since Neighbouring countries may well be destabilised by the humanitarian crisis in Ukraine. A nuclear or other environmental accidents triggered by the Russian military action would have consequences beyond the region, it was argued further. 

"As hard is it to believe, President Putin alerting Russian nuclear forces has placed the entire world in the jeopardy of strategic miscalculation by an increasingly out of touch Russian leadership", the agent cautioned. 

If the Court does not act now, why should any P- 5 UN member see international law as a meaningful obstacle to whatever it may perceive as necessary?

Urging the Court to act decisively, the agent remarked, "What is the point of the UN bodies if they do not act strongly and decisively against transparent aggression? If the Court does not act now, this will not be the last instance of aggression from Putin ?"

Further opining that the conduct of the Court in the instant case will act as a litmus test to assert the relevance of international law and by extension the Court itself, it was submitted 

"If this Court cannot decisively order Russia to stop its military actions in flagrant abuse of the Genocide Convention, why should any P- 5 UN member see international law as a meaningful obstacle to whatever it may perceive as necessary?"

It was further averred,

"If this Court does not act decisively against this level of aggression and atrocity based on outrageous abuse of one of the world's most important human rights treaties, rest assured this would not be the last such case."

Whether or not Russia chooses to appear in these proceedings, it should be obligated to follow the measures indicated by the Court

Ukraine submitted that the Court must immediately ensure that Russia halts its military operations and accordingly placed reliance on the judgment in Democratic Republic of the Congo v. Uganda wherein the Court had granted similar relief. by declaring that both parties must forwith take all measures to comply with their obligations under international law particularly those under the UN Charter.

"There should also be no doubt that no act in this war is lawful or authorized by the Genocide Convention. So the only way to preserve the status quo, protect Ukraine's rights is to order a complete suspension of Russia's military operations", it was argued. 

Reliance was also placed on the ICJ judgment in Cambodia v Thailand wherein the Court had issued an order on provisional measures fifty years after the operative judgment directing that both parties shall immediately withdraw their military personnel currently present in the provisional demilitarised zone.

Further emphasising that Russia is under an obligation to follow the measures indicated by the Court regardless for its non-appearance, it was further submitted, 

"Whether or not Russia chooses to appear and defend in these proceedings, it would be subject to the Court's prima facie jurisdiction under the Convention and should be required to account for its compliance with binding orders of this Court."

Ukraine further apprised the Court that it would seek reparations from Russia and also final declarations of illegality, specific assurances and guarantees of non- repetition of such unlawful conduct as final relief. 

"President Putin's short game is force, the world's long game is law. For the other institutions to do their job inside and outside the UN system, first you must do your's", the agent remarked further. 

Ukraine is represented before the ICJ by a team of litigators from Covington & Burling LLP, along with Professor Jean-Marc Thouvenin of Paris-Nanterre University as well as Sterling Professor of International Law Harold Hongju Koh. Ukraine's Agents before the Court are Anton Korynevych, the Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea, and Oksana Zolotaryova, Director of the International Law Department in the Ministry of Foreign Affairs of Ukraine.

Also Read: Ukraine v. Russia : International Court Of Justice Concludes Hearing Ukraine's Application; Russia Refuses To Appear [LIVE UPDATES]