On 17 March, the International Court of Justice (ICJ) granted Ukraine its first victory against Russia in the case on the allegations of genocide under the Genocide Convention of 1948. The order for Russia to halt its military operation was one of the three provisional measures indicated in the ICJ’s ruling, which also recognised the Court’s prima facie jurisdiction over the case. Rather than a decision on the merit of the dispute, however, the Order referred specifically to Ukraine’s 27 February request to protect its “rights not to be subject to a false claim of genocide, and not to be subjected to another State’s military operations on its territory” (paragraph 12). Controversial despite the majority ruling, this case is nonetheless an ingenious way that Ukraine has found to bring Russia’s aggression under the scrutiny of the International Court of Justice.
Indeed, according to its Statute, the ICJ can only consider legal disputes involving States that have accepted its jurisdiction. States can do this either through a general declaration, recognising the Court’s compulsory jurisdiction ipso facto, or by ratifying a treaty or convention that submits disputes between the contracting parties to the ICJ. Neither Russia nor Ukraine have made general declarations accepting the Court’s jurisdiction – which is why Ukraine could not start proceedings against Russia for breaching article 2(4) of the UN Charter. However, Russia and Ukraine are both parties to the Genocide Convention of 1948, whose article IX establishes that any dispute involving its interpretation, application or fulfilment should be submitted to the ICJ. And that was exactly what Ukraine did.
In essence, Ukraine’s argument for bringing this case to the ICJ’s appreciation is that there is a dispute between the two parties to the Genocide Convention regarding whether “genocide has been committed in Ukraine, and whether Article I of the Convention provides a basis for Russia to use military force against Ukraine to ‘prevent and to punish’ this alleged genocide”. Unsurprisingly, Russia has contested Ukraine’s line of argumentation. In a submission to the Court, the Russian Ambassador to the Netherlands stated that Russia’s “special military operation” in Ukraine was based on Article 51 of the UN Charter and on international customary law, falling thus beyond the scope of the Genocide Convention and, consequently, of the Court’s jurisdiction. The ICJ, however, has dismissed Russia’s allegations, declaring that it has indeed prima facie jurisdiction to consider Ukraine’s Application for provisional measures.
It is important to highlight that the ICJ’s Order of 17 March is not a decision on the merit of the case. Rather, it is a ruling on Ukraine’s 27 February request for provisional measures. Article 41 of the ICJ’s Statute grants the Court the power to indicate provisional measures to preserve the rights that the Court has been asked to protect while it is still considering the case. As long as the Applicant provides enough evidence that it has a right that is at imminent risk of irreparable damage, then the Court can indicate provisional measures without prejudice to its final decision once it has analysed the merit of the case.
This means that, regardless of its 17 March Order, the ICJ can still find, for instance, that genocide has indeed been committed in Ukraine and that the Russian Federation has thus acted in accordance with the Genocide Convention. As of now, however, the Court has stated that it is not “in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorises a Contracting Party’s unilateral use of force in the territory of another state for the purpose of preventing and punishing an alleged genocide” (paragraph 59).
Recognising that “Ukraine has a plausible right not to be subjected to military operations” (paragraph 60), and that “the civilian population affected by the present conflict is extremely vulnerable” (paragraph 75), the Court has thus concluded that the conditions required for it to indicate provisional measures were indeed met. Interestingly, however, the Court only granted the first two of the four measures originally requested by Ukraine, extending the third one to Ukrainian forces as well as to Russia’s, and declining the fourth one – which asked for Russia to update the Court on the implementation of the provisions.
The provisions indicated were the following:
- By thirteen votes to two: the Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;
- By thirteen votes to two: the Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organisations 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;
- Unanimously: both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
Whilst ICJ’s decisions are binding, in practice, the Court has no power to enforce them. Even if the case was referred to the UN Security Council, Russia’s veto would still prevent that organ from effectively taking any measures against it. Yet, this was an important victory for Ukraine. In a system where international law can hardly be enforced, soft power becomes an important tool for de-legitimising other States’ behaviours. A favourable decision from the world’s highest court may not halt Russia’s military invasion, but it will certainly contribute to furthering Russia’s global isolation.
Flávia Salazar Sousa is an Intern within the Nuclear Weapons Law Programme at BASIC, and a Rotary Peace Fellow at the University of Bradford, where she is finalising her MA in Peace, Conflict, and Development. She previously worked as a Policy Officer and Political Analyst for the UK Embassy in Brasília, where she helped to advance the UK’s security and development priorities for Brazil. Flávia holds a BA in International Relations from Estacio-FIR and a Bachelor of Laws from the Federal University of Pernambuco. Her research interests include international law, conflict prevention, and peacebuilding.
Views expressed belong solely to the original author of the article and do not necessarily represent the views and opinions of BASIC.