Lessons from litigating war (by other means)

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In this post, Professor Alexander Orakhelashvili comments on the decision of the International Court of Justice to dismiss the main jurisdictional claim of Ukraine in the case relating to the Genocide Convention

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Professor Alexander Orakhelashvili

On 2 February 2024, the International Court of Justice has ruled that it will not adjudicate on Ukraine’s claims regarding Russia’s conduct in Ukraine, because the invoked jurisdictional basis under Article IX of the 1948 Genocide Convention does not afford the basis for doing so. Hence, these claims are outside the Court’s jurisdiction. I have commented earlier on the Court’s indication of provisional measures and on oral pleadings at the preliminary objections stage of this case, outlining the reasons why these claims ought to have been dismissed.

Law, fairness, and plausibility

The Court’s main reason for dismissing Ukraine’s principal submission was that it did not raise the issue of violations of the Genocide Convention. Judge Charlesworth suggests that “Ukraine claims that the Russian Federation’s actions were taken on the basis of its accusation that genocide was being committed and that they were unlawful because this accusation was false.” (Separate Opinion, para. 5, emphasis original in both places; see also paragraph 26 of President Donoghue’s Separate Opinion, touching upon Ukraine’s “due diligence” point as a criterion to assess the legality of the use of force.) A strong implication could arise from this thesis that the Russian military action might have been permissible, had a real genocide been committed or had that military action been undertaken to prevent an imminent genocide in Ukraine. This would mean that, in principle, the Genocide Convention mandates States-parties to use force when facing the genuine occurrence or a risk of a genocide, and thus the Convention is an instrument regulating aspects of jus ad bellum the way that it second-guesses the regulation of this area of law under the Charter of the United Nations and corresponding customary international law. This would be a rather over-stretched view of this legal instrument. As a bottom line, moreover, in the absence of the actual or imminent genocide, the Genocide Convention simply does not become relevant.

Judge Charlesworth has also taken the issue with the majority’s thesis that the Respondent’s relevant conduct, if proved in fact, would not amount to the violation of the Genocide Convention (Judgment, para. 139). She emphasised that “although the Judgment announces that it will set out to explore whether the Russian Federation’s conduct could violate the Genocide Convention, its conclusion reveals that it examines whether the Russian Federation’s conduct would constitute a violation of the Convention.” (Emphasis original in both places.) She further suggested, by reference to Judge Higgins’s Separate Opinion in an earlier case, that the use of “would” “would seem to go too far”, because “because it is only at the merits stage that “could” may be converted to “would”.” (Separate Opinion, para. 19.) However, what Judge Higgins also said in that earlier case was that “to find that the facts would constitute a violation was to step into the merits”, while here in paragraph 139 the Court spoke in the negative, confirming that the relevant facts “would not constitute a violation of obligations” of Russia under the Genocide Convention. It would be pretty much the same thing if the Court had said “could not constitute a violation of [the same] obligations”. In either case, it would be dealing with alleged or putative facts and assessing them in the light of the plausibility criterion. If the Court were to be accused of stepping into the merits every time it makes such preliminary assessment, then it would be unable to carry out the plausibility exercise.

Moreover, the Court was clear that the issue in such cases always is “whether the facts at issue, if established, are capable of constituting violations of obligations under the treaty” (para. 135, emphasis added). Hence, the words “would not constitute” as used in paragraph 139 of the Judgment do not suggest anything different from the thesis that the relevant actions could not constitute violations of the Convention; and this is the case simply because the Convention goes nowhere near regulating the facts and actions in question. Therefore, “could” and “would” signify here the same thing and point to the hypothetical aspect of reasoning, because the preliminary objections stage does not involve an actual assessment of facts. More generally, both these words are generically suitable for judicial analysis at the stage of preliminary objections. At the stage of merits, facts of established violations would typically be identified by using words signifying certainty and present tense, namely “does”, “did” or “has”.

On a different front, Judges Sebutinde and Robinson have offered an essentially policy-based objection to the Court’s approach to the construction of Article IX, focusing on whether that approach benefits weaker or stronger States. The dissenting Judges also expressly allude to common sense considerations (paragraphs 3 to 6, Joint Dissenting Opinion). It will be recalled that Judge Sebutinde was the only Judge to argue the point of non-justiciability in South Africa v Israel, and she was “strongly of the view that the controversy or dispute between the State of Israel and the people of Palestine is essentially and historically a political or territorial (and, I dare say, ideological) one. It calls … for a diplomatic or negotiated settlement”, and that hence this “dispute or controversy is not a legal one calling for judicial settlement by the International Court of Justice.” (Separate Opinion, para. 4, emphasis original.) Quite apart from the fact that the Court’s jurisprudence has invariably and routinely rejected the notion of political or non-justiciable disputes as an impediment to its exercise of judicial function (see here, pp. 29 to 34 for an overview), even if “political disputes” amounted to a valid concept, it is difficult to see how the Ukraine-Russia conflict would not fulfil requirements stated by Judge Sebutinde above and thus be unsuitable for adjudication. Still, and even in a more far-reaching way, Judges Sebutinde and Robinson propose in Ukraine v Russia an essentially policy-based extension of the adjudicatory task to factor in the issue of whether the Court’s decision would (dis)advantage a stronger or a weaker State. If the Court were or were seen to be guided by this approach, nothing would remain of its impartiality, and it would essentially become an essentially political court, before which a State would (or would not) have a chance to obtain justice depending on whether it is weak or strong.

When an abuse of process is not an abuse of process

The Respondent had pleaded that the case had to be dismissed because its initiation and pursuit amounted to an abuse of process. The Court’s own discussion of this issue in paragraphs 113 to 118 of the Judgment shows that the threshold for rising the abuse of process point has not only always been very high, but also that there is no clear idea as to what could possibly constitute abuse of process on more concrete terms and how such abuse could be exemplified. If the Court adhered to Russia’s preliminary objection on this point, it would have to throw out the case on that basis for the first time, and this would both look as an instance of judicial law-making that the Court tries (as well as has) to avoid whenever it can, and risk the Court being accused of arbitrariness. Therefore, not even the Applicant’s invocation of a compromissory clause in relation to facts it has nothing to do with has been treated as an abuse of process. The Court has preferred, instead, to adjudicate on the dispute about the scope and content of the jurisdictional clause under Article IX. This may also explain the Court’s rejection of Russia’s third preliminary objection alleging that, in its Memorial, Ukraine had changed and modified the original claims contained in its application instituting proceedings; though concerns raised in President Donoghue’s Declaration, paragraphs 8 to 20, are rather obvious and easy to understand. On all aspects of this jurisdictional dispute, the Court adhered to the priority to clarify the scope of the applicable jurisdictional clause, rather than doing something that could resemble the striking-out or summary dismissal of a case.

This is bound to raise questions as to how far the manipulation of adjudication could be allowed to go. Nor is it unlikely that the near-unanimous adoption of an earlier flawed Order on provisional measures back in 2022 has encouraged the intervention of 32 States in this case, with arguments that would have involved a significant, indeed distortive, re-interpretation of the relevant provisions of the Genocide Convention (and see also, to the same effect, the “surprise” point in paragraph 48 in the Joint Dissenting Opinion of Judges Sebutinde and Robinson). If, after all, the provisional measures stage saw an almost unprecedented degree of judicial flexibility through a rather cursory examination of the plausibility issue, why would one not expect the same degree of flexibility at later stages of the case and, reinforced by such expectation, not only press ahead with an untenable case but also modify original submissions and let 32 States intervene in the proceedings?

Decades ago, Judge Fitzmaurice argued in the Northern Cameroons case, in favour of “postulating a certain latitude for the Court, on grounds of policy or propriety, to decline in limine to entertain claims that it might be competent to go into, and which might not be open to objection on grounds of straight inadmissibility.” Though Judge Fitzmaurice has admitted that in international law “there is nothing corresponding to the procedures found under most national systems of law, for eliminating at a relatively early stage, before they reach the court which would otherwise hear and decide them, claims that are considered to be objectionable or not entertainable or some a priori ground.” International adjudication did not admit any “corresponding “filter”” (pp.106-107). Nor did international tribunals get into the habit of using their inherent powers to accommodate these concerns, as Judge Fitzmaurice had also suggested they might do. Overall, this is a positive development that spares international courts and tribunals of political pressure at the outset of their consideration of many cases, and forecloses the chances of politically opportunist impediments to adjudication to be successfully advanced, for instance under the heading of “political disputes” or “non-justiciability”. Once again, international adjudication does not admit or recognise this phenomenon, unless the relevant constituent instrument were to make an express provision for it (e.g., Article 35(3)(a) of the European Convention on Human Rights).

Adverse consequences could still obtain from the above position, and they are part of the risks that the adjudication system tolerates. To illustrate, in Besserglik v Mozambique, the Respondent State has ended up in ICSID arbitration proceedings involving a significant amount of expense, even though it was clear from the outset to everyone involved that there was no basis for adjudication, because the relevant bilateral investment treaty (BIT) was not in force and hence the basis for adjudication was lacking. The situation in Ukraine v Russia was not that far away from that faced in that ICSID case, and both applicant and intervening States had pressed with the case regardless.

International adjudication in context

Carl von Clausewitz has stated two centuries ago that war is a continuation of politics by other means. On the other hand, law and politics are generally easy to separate and streamline. Politics is about dynamics of at times conflicting interests that among others leads to or obstructs the process of law-making and emergence of new international treaties and similar instruments, or leads to non-compliance with legal requirements. Law is about requirements agreed upon by States and valid regardless of whether respond to the contemporary interests. In that sense, law is not always a continuation of politics. There are, however two ways in which one can attempt making legal and judicial process a way of a continuation of war and politics. Over decades, international adjudication has been under two kinds of political pressure. On the one hand, in several cases, we see attempts to dismiss litigation on political grounds to prevent international judicial institutions from administering their judicial function by invoking the notion of political disputes (discussed above), and thus tailor the legal process to political interests. Another way of adapting law to politics is witnessed by the political drive to re-interpret the law to match the political interest of the relevant stake-holders and consequently use international judicial institutions for tasks and aims they have not been designed for; in other words make them perform tasks which they, according to terms of their constituent instruments, ought not to perform. In this case, the Court has faced the pressure to exercise its judicial function in a rather extensive way, through an over-flexible interpretation of the jurisdictional clause and through the consequent attempt of the extension of the subject-matter of the dispute by the applicant and intervening States. The Court giving into any of the above pressures would become an essentially politicised court. In this case, the Court proved resilient enough to see off the pressure from 32 intervening States that together possess much of the power, and certainly most of the wealth, available in the world. In concrete terms, the Court has regained control over this process of adjudication in order not to let it run wild and thus to preserve the integrity of its judicial function.

Judicial proceedings cannot be a feasible pursuit of war by other means. The attempted transfer of war to the courtroom has failed. For, it is one thing for several States to help Ukraine with arms, munitions, and funds to repel an unlawful invasion, and it is quite another thing to intervene in Court proceedings with a view to enhancing the Applicant’s untenable court case. Had the Court decided to proceed to the merits on the subject-matter of the Respondent’s second preliminary objection, it would have ended up with lengthy pleadings and hearings, covering facts and allegations of aggression, statehood, recognition, war crimes, crimes against humanity. In short, pretty much everything except genocide would be made part of proceedings under the rather discretely and tightly drafted compromissory clause of Article IX of the Genocide Convention.

It could be debated whose loss the Court’s judgment is in the first place or to a greater extent: of Ukraine who saw the rejection of their most important claim, or of 32 intervening States who have spent a lot of time, effort, and resource to enhance the applicant State’s untenable claims. Most importantly, however, and from the disciplinary point of view, the result of the last week’s litigation in the Hague provides a good opportunity for reflection to those international lawyers who think that it is acceptable for judicial institutions to adopt legally deficient decisions when political and ideological imperatives so dictate, and likewise acceptable if the academic community responds by offering a fine-tuned reaction in order not to fall out of what may be perceived as a political mainline.

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