Professor Alexander Orakhelashvili
In an earlier post, I addressed the International Court’s provisional measures order in Ukraine v Russia. Since then, 32 States have intervened to support the applicant State’s position. Oral proceedings at the preliminary objections stage have been concluded and raised multiple issues of interpretation and application of the Genocide Convention. I discuss those issues in turn.
The scope of the compromissory clause
Russia has invaded Ukraine claiming, among others, that the latter was committing genocide in Eastern Ukraine. Pretty much without adducing supporting evidence, Germany has suggested to the Court that, apart from disputes as to compliance by States-parties with the Genocide Convention, “Article IX of the Genocide Convention also covers disputes in which one State party of the Convention alleges that another State party is committing acts of genocide and where, relying on such accusations, the former State party then takes action in the form of using military force against the latter.” (Germany CR2023/15, 37)
Overall, the argument here is developed in two parts. First part of it about the standing to seize the Court under Article IX, and Germany says that “the State party accused of acts of genocide may do so as well. The wording of Article IX makes this clear when it states that “any” of the State parties to a dispute may seise the Court. … Otherwise, a State party that is being portrayed without even a hint of evidence as being involved in a genocidal campaign or, as in the case at hand, is even invaded by a neighbouring State on such a pretext could not seek protection from the Court despite the broad language of the Convention’s compromissory clause” (Germany CR2023/15, 37). Germany’s reasoning here is circular, in essence suggesting that a matter must be included within the scope of the compromissory clause, because otherwise it would be excluded from it; or that protection has to be granted to certain States because otherwise they would be left unprotected.
Whether a State seeks protection from something that has been done in violation of the Genocide Convention depends on proving that accusing someone of genocide itself amounts to a violation of the Convention. Germany goes on that “A State party accused of acts of genocide in particular has a vested legal interest in obtaining a resolution of the dispute by the Court.” Canada has followed up with the suggestion that “There is nothing in Article IX that limits the Court’s jurisdiction to cases where it is an applicant State accusing a respondent State of breaching its obligations under the Genocide Convention. It can equally apply to situations where an applicant State disagrees with accusations of a respondent State with respect to breaches of obligations under the Convention” (Canada, CR2023/15, 56; see also Spain, id., 71; Slovenia, CR2023/16, 60). Austria suggests that “the Court is competent to adjudge and declare the absence of responsibility for genocide, that is the non-violation of the Genocide Convention by an applicant State” (Austria, CR23/14, 43).
Apart from being premised on the otherwise unsupported assumption that accusations of genocide are as such prohibited by the Convention, Germany’s argument also puts the cart before the horse because, in order for a State-party to have such vested interest, the matter before the Court has to involve another State’s conduct contrary to the Genocide Convention. In other words, Article IX is not about libel proceedings to protect general reputation of States who are “being portrayed … as being involved in a genocidal campaign”. It is by no means clear that, reprehensible as this may be, it is also mentioned in or prohibited by any of the Convention’s provisions.
The Court has heard from the applicant as well as intervening States that its past practice witnessed cases in which the Court was asked to pronounce that the applicant State has not committed a violation of international law. Such “no violation” claims are generically different from the argument the Court has heard in the case at hand, namely that Ukraine commits no genocide, and that Russia violates the Convention by accusing Ukraine to have committed it. What the Court is asked here is to let a “no violation” claim get transformed into the claim that the respondent State has violated the Convention. This cannot be lawfully done unless a specific provision of the Convention suggests upon its proper interpretation that the accusation of genocide comes within its scope. Article IX of the Genocide Convention is about “Disputes … relating to the interpretation, application or fulfilment of the present Convention”. This may be a “broad” clause as Germany puts it, but every single element mentioned in it nevertheless requires to focus on the content of the Convention provisions, and the enquiry in all those cases has to boil down to whether a State conduct (in this case an accusation of genocide) violates or would violate a particular provision of the Convention.
The Netherlands suggests here that, “If a Contracting Party accuses another Contracting Party of committing genocide and takes corresponding actions purporting to respond to the alleged genocide, the “interpretation, application or fulfilment” of the Convention is clearly at stake”, and the Court could then “decide on the lawfulness of any measures taken to prevent and punish an alleged genocide” (Netherlands, CR2023/15, 58). Spain suggests that “the adoption of preventive measures that exceed the limits permitted by international law can also constitute a violation of the obligation to prevent stated by the Convention” (id., 64). There are two possibilities here. One possibility is that the accusation of genocide is itself a violation of the Genocide Convention, which position is hardly supported by anything in the Convention. Latvia has gone as far as to assert, without adducing any evidence, that “Article I does prohibit allegations of genocide that are abusive” (Latvia, CR2023/15, 78, emphasis original). Another possibility is that those “corresponding actions” must be generically regulated by the Convention, which (as we shall also see below) they are not either.
Belgium and eight other intervening States suggest that “The case law of the Court shows that the Genocide Convention can be about “non-action”, i.e. about allegations that a Contracting Party is not honouring its obligations to prevent and punish genocide.” (Belgium et al., CR23/15, 46). However, the previous jurisprudence on the Genocide Convention (Bosnia v Serbia, Croatia v Serbia) suggest that there has to be an obligation incumbent upon Russia to prevent genocide that is likely to occur, and then it has to be an obligation that that Russia could feasibly implement. And all that does not sit well with the parallel claim advanced by Ukraine and intervening States that Russia acts on false accusations of genocide; in which case there is simply nothing for Russia to prevent. The Court is asked here to substantially extend and re-interpret the scope of the Convention – something that is clearly beyond its judicial authority.
From abuse to violation?
Some delegations have raised the issue of the abuse of rights and action contrary to the principle of good faith which is, on its face at least, different from violation claims. Australia suggests that “Contracting Parties must … abstain from actions that frustrate the Convention’s purpose or abuse its provisions, including actions that are taken or allegedly taken “to prevent and punish” genocide” (e.g., Australia, CR2023/15, 39; see also Belgium et al., CR23/15, 47). UK suggests that crimes such as aggression, war crimes, or crimes against humanity “may generate responsibility outside the Genocide Convention under different rules of international law. Their commission may also be inconsistent with the constraints in Article I of the Genocide Convention, including the requirement for good faith” (UK, CR23/16, 58, emphasis added). And the same sequence of argument comes out even more vividly in Ukraine’s own argument that “Russia’s statement that the “Genocide Convention does not authorize, confer a right or impose an obligation to use force to prevent or punish genocide” is not the only question before this Court, … . Ukraine claims that Russia has abused Articles I and IV of the Convention by taking unilateral action in and against Ukraine based on false allegations of genocide” (CR23/19, 58-59, emphasis added). In other words, violation and abuse are (correctly) acknowledged to be two legally separate issues. The initial basis of Ukraine’s claim is abuse of rights by Russia, not its outright violation of the Convention. This sequence of argument is presumably owed to the fact what Russia does in Ukraine is not within the scope of Article I of the Convention could otherwise not be countered.
Similarly, Ukraine’s memorial states in relation to Russia’s action (at para.123) that “Nothing could be a greater abuse of the serious rights and obligations set forth in Articles I and IV of the Genocide Convention,” i.e. of rights and obligations that allegedly exist at some level and then could be either properly used or abused. Note also that a great deal of Ukraine’s argument is also based on the thesis that Russia acts to repress a pretended genocide, not a real one, and the abuse point relates primarily to the fact that the alleged genocide has not taken place. That is correct as a matter of fact, but rather problematic as a matter of the interpetation of the Genocide Convention, because the Convention does not authorise any use of force and Ukraine does admit that much in its Memorial. Use of force is simply not a prevention measure, and it is generically outside the scope of Article I. Russia’s action could amount to an abuse of rights if it were to involve the exercise of a right under Article I of the Convention, but for improper purposes.
The Court has itself stated in the Armed Actions case that “The principle of good faith is … not in itself a source of obligation where none would otherwise exist”, i.e., be derivable from one or another source of international law. Similarly, it is not clear at all what exact right or provision under the Geneva Convention has Russia abused by invading Ukraine. Typically, an abuse of rights consists in reliance and use of a right that is available to the State involved in the first place, but in the wrong or “abusive” manner. There is practically no finding of such occurrence in international judicial pronouncements. If, as Australia suggests, Russia did not act “in good faith in determining what measures of prevention or punishment are appropriate in response”, what are the measures that were available to Russia in law, especially under the Genocide Convention, which it has ab(used)? Russia’s military activities in Ukraine are not among ones that is permitted to any State under international law or specifically under the Convention. They are generically outside the measures that a State could undertake when acting pursuant to Article I of the Convention with a view to preventing genocide; hence they are not regulated by the Genocide Convention.
Treaty interpretation and the scope of prevention obligations
The essence of the argument of Ukraine and intervening States is that anything that is done in pretence of the prevention of genocide or fulfilment of obligations under the Genocide Convention and is contrary to other conventional or customary rules of international law, is in itself also a violation of the Convention. Australia points out that “Ukraine has submitted that Articles I and IV both contain an implicit obligation to act within the limits of international law when preventing and punishing genocide” (CR23/15, 40). It is very difficult, however, to see what those “implicit obligations” are over and above what those two Articles expressly state in relation to a genocide that in fact occurs or is likely to occur.
In the provisional measures order of 16 March 2022, the Court has stated in addition to its 2007 Bosnia v Serbia pronouncement that, with regard to prevention of genocide, “every State may only act within the limits permitted by international law”. The Court has suggested that “The acts undertaken by the Contracting Parties “to prevent and to punish” genocide must be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the United Nations Charter”. This point has obviously been found appealing by, and informed the argument of, several delegations arguing the case before the Court at the preliminary objections stage. As such this point is correct, but the nuance is that a (claimed or actual) prevention measure not in accordance with the UN Charter would violate the Charter, but not the Convention. By contrast, the Convention would only be violated by a State-party only if it has feasible and lawful prevention measures at its disposal to prevent an impending genocide, it does not use those means, and as a consequence, genocide occurs. None of these elements are present in Ukraine v Russia. The Convention does not mention accusations of genocide; Russia would not (owing to its political relations with Ukraine over the past decade) have any lawful leverages to dissuade Ukraine’s government to desist from genocide in a hypothetical case it was about to commit it; and no genocide has in fact been committed. It is therefore entirely artificial as well as distortive to transpose the Bosnia v Serbia legality point to the present case that is based on entirely different factual and normative constituents. The fact that there is no sign of genocide on the ground means that there is not even a prima facie case of the Convention applying to the conflict between Ukraine and Russia. The applicant and intervening States’ argument invites the Court to substantially enlarge the Convention’s scope beyond what States-parties have intended it to be: an instrument of cooperation against actual or potential genocide.
The above analysis shows that the letter, plain and ordinary meaning, of the Convention does not sustain a broad interpretation advanced by applicant and intervening States. The latter however resort to other means of interpretation admissible under 1969 Vienna Convention on the Law of Treaties. UK suggests that constraints not to commit aggression, war crimes or crimes against humanity “are not extrinsic to the Convention. Rather, they are embedded within it, consistently with the object and purpose of the Convention. It is unthinkable that a State fulfilling its undertaking to prevent genocide in good faith could do so through aggression or other international crimes.” (UK, CR2023/16, 58).
Object and purpose of a treaty has served in several cases a potent tool for interpreting a treaty, but it is invariably connected to a treaty’s subject-matter. The Genocide Convention’s object and purpose is about international cooperation “to liberate mankind from such an odious scourge”, as its preamble indeed determines, and hence only about the prevention and punishment of genocide that is actually or potentially taking place. All provisions of the Convention are about that, and the Convention’s object and purpose of the Convention cannot be about matters generically different from what the Convention provisions relate to. If States-parties had intended to deal with a social problem other than the prevention, occurrence and commission of an actual genocide and regulate other unpleasant matters such as accusation or denial of genocide, they might as well have drafted a treaty with the different content. And, as though intuitively reflecting this concern, UK’s above submission speaks of “object and purpose” in conjunction with the principle of good faith (as discussed above), not in conjunction with the plain and ordinary meaning of any specific clause in the Convention.
Let us compare the above position with what has happened in another case involving a compromissory clause. In Oil Platforms (Preliminary Objections Judgment, 1996, 810), the Court has said that “the object and purpose of the Treaty of 1955 was not to regulate peaceful and friendly relations between the two States in a general sense. Consequently, Article 1 [of 1955 Iran-US Treaty that was one of the elements of that object and purpose] cannot be interpreted as incorporating into the Treaty all of the provisions of international law concerning such relations.” Correspondingly, Article I was seen by the Court to fix an objective rather than impose discrete rights and obligations on States-parties or provide the basis for the Court’s jurisdiction (id., 814). And that happened even as Iran was able to point to a specific treaty clause it thought it could cite towards the expansive construction of the Treaty’s object and purpose – something that applicant and intervening States in the case at hand have not been able to do. It is also noteworthy that in Oil Platforms the Court has said that “A violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means” (id., 811-812). To paraphrase that for the present case, it would obtain that “A violation of the rights of one party under the Genocide Convention by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means”, i.e., one first has to identify a clause in a treaty that has been violated and then speak about means used to violate it. Ukraine and intervening States are doing it the other way around.
Another interpretation argument that has been raised by States before the Court relates to “systemic integration” and the thesis that a treaty is to be interpreted in the light of the rest of international law. “Systemic integration”, does not seem to be part of the core of Ukraine’s argument or pursued by it with enthusiasm, but it is pleaded by Austria (CR23/15, 44), Bulgaria (id., 51-52), and Latvia (id., 80). While Article 31(3)(c) of the Vienna Convention is useful in some cases where a treaty in question and its specific provisions depend, for their operation, on other rules of international law, the wider thesis of “systemic integration” does not have a comparably valid basis. In most cases where the “systemic integration” thesis has been used, the case in question could have more feasibly been determined on alternative grounds (see also here). Most importantly, the ICJ has rejected the arguments based on that thesis in several cases, such as Djibouti v France, Costa-Rica v Nicaragua, Jadhav, or Certain Iranian Assets.
One case in which general international law was relevant for construing a treaty was the merits decision in Oil Platforms (see for discussion here, here (Chapter 6), and here). Latvia argues that Oil Platforms supports the thesis that Oil Platforms supports the thesis that the Court’s jurisdiction in the case at hand extends to “determination of whether action alleged to be taken as a means for prevention and punishment of genocide was within the limits of international law, including law on the use of force” (CR2023/15, 80). But in Oil Platforms it was about an express provision under 1955 Iran-US Treaty that the US has expressly invoked (Article XX). There was no doubt that the “essential security” measures’ clause under Article XX was part of that Treaty’s ordinary and plain meaning. By contrast, the “systemic integration” argument is advanced in the case at hand through an extended and presumptive argument in relation to something that the Convention does not even mention, but which a number of States propose the Court to read into the Convention. A proposition that the Genocide Convention outlaws any single action following a false allegation of genocide would turn on its head the rationale of the Convention that deals with the responsibility of a State for not taking feasible and adequate measures in the face of genocide that is likely to occur or in fact occurs. Furthermore, and contrary to Latvia’s above suggestion, the Oil Platforms case was not about the steps undertaken by the US to enforce the 1955 Iran-US Treaty, but ones that US argued could validly excuse what would otherwise amount to a violation of that Treaty.
Also relevant to the above “implication” or “integration” arguments is that, in an earlier case on Croatia v Serbia, the Court was crystal clear that “there can be no doubt that, as a general rule, a particular act may be perfectly lawful under one body of legal rules and unlawful under another.” Accordingly, Russia’s use of force against Ukraine is contrary to the UN Charter and customary rules on the use of force. But it involves nothing that violates any provision under the Genocide Convention. Quite simply, a State’s conduct does not contradict any possible legal requirement simply because something that State does is bad and emotionally disturbing.
Just how far the “systemic integration” argument could be taken is illustrated by other arguments in this case. Harold Koh, representing Ukraine, has alluded to a previous statement by the Court that it is not prevented “from considering, in its reasoning, whether a violation of international humanitarian law or international human rights law has occurred to the extent that this is relevant for the Court’s determination of whether or not there has been a breach of an obligation under the Genocide Convention” (ICJ Reports 2015, 45-46, emphasis added) (Koh, CR2023/19, 43). All this passage means is, however, that those other violations have to be of such character and magnitude to qualify prima facie at least as candidates to amount to one or another element of genocide. Also, all the Court has said here is about factoring certain matters in the reasoning as opposed to deciding on those matters. Otherwise, the Court would have to apply to the merits of a case the law other than that embodied in the Genocide Convention, and then see whether violations of that extraneous law amount to the breach of the Convention, in this case its prevention obligations, for instance whether the commission of war crimes fails to prevent genocide, or whether aggression fails to prevent genocide. But the bottom-line is that there is no genocide to be prevented in the first place.
Koh went on to argue that “in due course, as the United Kingdom urged, this Court might decide to look to governing jus ad bellum and jus in bello rules to decide whether such Russian use of force measures as aggression, crimes against humanity or war crimes taken in the name of punishing genocide are ever compatible with the Genocide Convention. But such considerations are for the merits and pose no barrier to this Court’s jurisdiction to reach that stage.” (Koh, CR2023/19, para.31) citing CR2023/16, p. 58, para. 12 (Prentis), even though that part of UK’s oral pleading is by no means that express on the point advanced here; and the Attorney-General’s suggestion that “Such [other] crimes […] generate responsibility outside the Genocide Convention under different rules of international law”, CR23/16, 58 (emphasis added), is far more revealing as to what the applicant and intervening States’ arguments actually involve). However, the range of applicable law that could be applied at the merits stage is precisely a jurisdictional issue going directly to consent of States-parties. Koh’s argument sounds as though a musketeer’s sword could be pushed through the eye of the needle and, through that exercise all the international law applicable to Russia’s conduct in Ukraine be brought within the scope of a compromissory clause that is relevant to one specific Convention only and nothing but that Convention.
Conclusion: not demonstrably rubbish?
In this case the Court is invited to discuss whether conduct that does not amount to genocide, and substantially differs from genocide, amounts to a violation of the Genocide Convention, just because the respondent State has accused the applicant State of the commission of genocide. Implications for the rest of the international legal system could not be insignificant. Think of a State-party to a BIT which uses countermeasures, or even force gunboat-diplomacy style, in support of its false claim that another State-party has committed expropriation contrary to the terms of that BIT. Would the BIT thereby be violated? Think of a State violating a trade agreement it has with another State and refusing to import fish from that latter State, further to a false allegation that the latter State conducts fishing in violation of the relevant fisheries agreement, or even using force against that latter State with that pretext. Would the fisheries agreement be thereby violated? If the Court shares an expansive interpretation of the Genocide Convention proposed to it by the applicant and intervening States, it will implicitly confirm that all the above questions would have to be answered affirmatively, and regardless of the subject-matter of a treaty. And no erga omnes element would make a feasible difference because one first has to identify the content of treaty obligations before one speaks of their erga omnes character.
It is impossible that lawyers representing parties and interveners in this case have not been aware of all the above problems. But lawyering is not always about correctness. Sir Arthur Watts has once mentioned the possibility “that all that States need … is to be able to advance a legal justification for their conduct which is not demonstrably rubbish. Thereafter, political factors can take over, and the international acceptability or otherwise of a State’s conduct can be left to be determined by considerations of international policy rather than of international law. In this light, if politics is the art of the possible, then international law is merely art of the plausible.” In that sense, an argument that is “not demonstrably rubbish” could be one that a practising lawyer advances before the Court and hopes that it will be plausible. The context surrounding this case, its moral and humanitarian dimension, or the number of States appearing before the Court, could indeed increase the plausibility of the legal argument involved. But this is not the same as the correctness of that argument under the legal framework and legal authorities that operate based on State consent and agreement – the only factor that accounts for the Court’s authority in this case and in all other cases.