Anything Goes? The ICJ’s Provisional Measures Order in Ukraine v Russia

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In this post, Dr Alexander Orakhelashvili critiques the ICJ’s Provisional Measures Order in Ukraine v Russia

Photo of Dr Alexander Orakhelashvili

By its Order of 16 March 2022, the International Court of Justice has concluded that it was plausible that, by falsely accusing Ukraine of genocide and consequently invading Ukraine’s territory, Russia has violated the 1948 Genocide Convention and ordered Russia to cease its military operations in Ukraine.

Article IX of the Genocide Convention, conferring jurisdiction to the Court, is drafted rather broadly. It stipulates that “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” Thus, prima facie at least, the Court’s jurisdiction extends to cases that do not involve accusation that a State-party, in this case Russia, has committed genocide. This may impress one to the effect that a State could be held responsible for breaching the Convention even if it does not itself commit genocide. This would be legally permissible, however, only if a State-party has done something contrary to the provisions of the Convention which includes a number of provisions not dealing with the actual commission of genocide. Without that condition being satisfied, a dispute concerning the interpretation, application or fulfilment of the Convention could not exist.

The Genocide Convention is not concerned with false claims or accusations of genocide at all. Its Articles II and III speak of commission or incitement of, complicity in, and conspiracy or attempt to, commit genocide. The Convention is not concerned with allegations of genocide any more than it is concerned with a denial of genocide. Alleging that genocide has been committed does not amount to the Convention’s violation.

The Court was clear that “the use of force by the Russian Federation for the stated purpose of preventing and punishing alleged genocide is a measure that can be taken in fulfilment of the obligation to prevent and punish genocide contained in Article I of the Convention” (Order, para. 45, emphasis added). The obvious flaw in this reasoning is that Article I of the Convention outlaws merely a State-party’s failure to adopt feasible and realistic measures in the face of an imminent or ongoing genocide, not with a State-party’s action in situations where genocide is neither ongoing nor imminent.

The Court alluded to Russia’s right under Articles VIII and IX of the Convention to bring allegations of genocide to the attention of competent organs of the UN (Order, para. 56). It continued that, therefore, “Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine” (Order,  Para. 60). However, the real question is not whether Ukraine has such right (which it has owing to general rules of jus ad bellum, whatever the stated or actual purpose of Russia’s use of force), but whether such right arises and operates on the basis of the Genocide Convention which is the only invoked basis for the Court’s jurisdiction in this case. Whether Russia’s use of force is illegal and whether the same use of force is prohibited by the Genocide Convention are not the same thing.

The Court alludes to the preliminary objections judgment on Alleged Violations (Iran v US), which suggests that “certain acts or omissions may give rise to a dispute that falls within the ambit of more than one treaty”. However, in that case the Court has held that the US withdrawal from one treaty did not entitle it to act contrary to another treaty (Judgment, paras 56-57), as opposed to suggesting that the Court could examine and hold a State responsible for activities not regulated by the treaty which was the sole basis of the Court’s jurisdiction. Moreover, as was clarified in another case on Certain Iranian Assets also litigated between Iran and US, the 1955 Iran-US Treaty did not itself regulate the issues of State immunity just because it did not prejudice the possible scope of State immunity under general international law (Judgment, paras 79-80). Divergence between various sources of law was, therefore, a key factor that was subsequently obscured in the Ukraine v Russia Order.

In the case at hand, the most that could be said is that the Genocide Convention leaves intact Ukraine’s right under the general law of the use of force not to be invaded by another State. This is, however, a far cry from the Court’s own pretence that the Convention actually regulates any use of force by a State, unless the use of force in question itself involves genocidal activities outlawed under Articles II and III of the Convention. Quite simply, therefore, whatever else she has violated, Russia did not violate any provision of the Genocide Convention.

This obvious distinction is looked at by the Court with its eyes wide shut. The Court has cited from its earlier 2007 judgment on Bosnia v Serbia that “every State may only act within the limits permitted by international law” (Order, para. 57, emphasis added). What that earlier Judgment was suggesting is, however, that those “limits” do not have to be ones stipulated specifically under the Genocide Convention, not that those extra-conventional “limits” provide for a cause of action under the Genocide Convention. In addition, it was merely a remark in passing, as the Court did not focus on any fact of Serbia having used means contrary to international law aimed at preventing genocide in Bosnia. These obvious distinctions are clearly obscured in the Court’s 2022 Order.

Agreeing with the majority judgment, Judge Nolte has suggested, in his Declaration, that the case at hand was different from earlier cases, such as the 1999 case of FRY v Belgium et al., in which the Court has declined to exercise jurisdiction under Article IX of the Genocide Convention because it did not see how the respondent States’ use of force got anywhere near to the commission of genocide. The only difference Judge Nolte’s Declaration invokes is that in FRY v Belgium et al. prevention of genocide was not the stated purpose of the respondent States’ use of force against FRY (paras 5-6). This does obscure the real issue, however, because the applicant State was alleging in 1999 that the respondent States were themselves committing genocide and cited concrete provisions of the Conventions, alluding to concrete facts (here, paras 3, 35). This is the most significant difference between the 1999 case and the case at hand. Judge Bennouna has expressly stated in his Declaration that Ukraine’s legal case was flawed and that he voted for the Court’s order out of moral considerations. We simply do not know how many other members of the Court had felt or acted the same way.

With or without the Court’s Order, Russia is obliged to cease military activities in Ukraine. The Court has simply created a bad precedent of manipulative reasoning through which it has allowed itself to be implicated in the political process, and did so for no obvious or rational purpose. The Court may have been motivated by the fact that its provisional measures are binding on litigating States, and is thus likely to have acted out of the motive to enhance the pressure of the international legal system on Russia to induce it to do what it has to do anyway. However, there is no such thing as binding force in the air. No decision is binding on anyone unless the decision-maker has acted in compliance with statutory limits on its own authority and has applied the law properly.

Issues of jurisdiction of the Court under Article IX of the Convention and of plausibility of Ukraine’s rights or claims under the same Convention are interlinked. For, it is still not clear exactly which provision of the Genocide Convention Russia has violated by either alleging that genocide is being committed or by using force to stop the alleged genocide, and hence what the potential reparation could be awarded to Ukraine and what for. Unless the Court could, at the merits stage, pronounce that Russia has violated some concrete provisions of the Convention, Ukraine’s rights and claims are implausible at this preliminary stage. The Court has staunchly refused to look ahead with a view to verifying the plausibility of Ukraine’s invoked rights from either the normative or the factual perspective. Its stated excuse was that it was only forming a preliminary or provisional view on the content of the Genocide Convention. Nevertheless, having witnessed the degree and extent of the Court’s manipulative reasoning at the provisional measures stage, it is difficult to predict how far the Court’s “anything goes” approach will be taken at the subsequent stages of jurisdiction and merits. After all, outcomes in adjudication may only be a question of drafting, which conclusion would certainly appeal to simple political minds. However, it should not be forgotten that, while paper can bear anything and everything that is written on it, certain things are likewise bound to remain on paper.

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