In a significant order, the International Court of Justice (ICJ) at the Hague, Netherlands, on Wednesday directed that Russia must immediately suspend its military operations in Ukraine.
“The Russian Federation, pending the final decision in the case, must immediately suspend the military operations it commenced in the territory of Ukraine on February 24, 2022”,the Court ordered.
The Court further directed,
“The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organization or persons subject to its control and direction, shall take no steps in furtherance of the above military operations”.
Both these orders were passed by a majority of 13 votes against 2, with Indian judge at ICJ Justice Dalveer Bhandari voting in favour of the majority.
President of the ICJ Judge Joan E Donoghue (USA), Judge Peter Tomka (Slovakia), Judge Ronny Abraham (France), Judge Mohamed Bennouna (Morocco), Judge Abdulqawi Ahmed Yusuf (Somalia), Judge Julia Sebutinde (Uganda), Judge Dalveer Bhandari (India), Judge Patrick Lipton Robinson (Jamaica), Judge Nawaf Salam (Lebanon), Judge Iwasawa Yuji (Japan), Judge Georg Nolte (Germany), Judge Hilary Charlesworth (Australia), Judge ad hoc Daudet voted in favour whereas Vice-President Kirill Gevorgian (Russia) and Judge Sue Hanqin (China) voted against.
However, all the judges of the ICJ unanimously directed both Ukraine and Russia to ensure that they refrain from any action which can aggravate or extend the dispute before the Court.
“Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”, the Court ordered unanimously.
The Court was delivering its Order on the request of Ukraine for the indication of provisional measures in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide against Russia. The application moved by the Ukrainian government had accused Russia of carrying out and “planning acts of genocide in Ukraine” and had inter alia urged the ICJ to urgently indicate provisional measures directing Russia to suspend its ongoing military onslaught.
On Wednesday, the ICJ at the outset expressed its regret at the non-appearance of Russia in the proceedings and accordingly observed,
“The Court regrets the decision taken by the Russian Federation not to participate in the oral proceedings on the request for the indication of provisional measures, as set out in the above-mentioned letter of 5 March 2022. The non-appearance of a party has a negative impact on the sound administration of justice, as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court must proceed in the discharge of its judicial function at any phase of the case”
The Court noted that it has prima facie jurisdiction under Article 9 of the Genocide Convention to entertain the application of Ukraine. The Court also observed that there are grounds of urgency and irreparable loss to consider provisional measures in favour of Ukraine pending the final decision in the case.
“Ukraine has a plausible right not to be subjected to military operation by Russian federation for the purpose of preventing & punishing an alleged genocide in the territory of Ukraine”, the Court observed.
The Court further observed that its provisional measures create binding obligations.
In its order indicating provisional measures, the ICJ observed that the Genocide Convention does not permit unilateral military action by one state on another state for preventing genocide. The Acts taken by a State to prevent genocide must be in conformity with the convention and the charter of the United Nations in letter and spirit.
The “Special Military Operation” of Russia has caused innumerable civilian deaths and caused significant material damage. Very large people are forced to flee under insecure conditions”, the Court noted. The Court said that it is “profoundly concerned with the use of force by the Russian federation in Ukraine which raises international law violations”.
A bench of 15 judges of the ICJ had concluded hearing the matter on March 7, 2022. Oral submissions had been advanced only by Ukraine as Russia had refused to participate in the proceedings.
However, subsequently Russia has responded to the case instituted by Ukraine vide a written document filed before the United Nations Security Council (UNSC) averring that the ICJ lacks jurisdiction in hearing the case. It has been claimed that Russia has not invoked the provisions of the Genocide Convention, 1951 as a justification for attacking Ukraine and that the military attack is instead based on Article 51 of the United Nations Charter (self -defense) and customary international law.
The Court on the last date of hearing had expressed regret over such non-appearance and accordingly President of the ICJ Judge Joan E Donoghue had remarked, “The Court regrets the non-appearance of the Russian Federation in these oral proceedings.”
Remedies available if Russia refuses to comply with the Court’s order on provisional measures
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.
Oral Submissions By Ukraine
The agents appearing on behalf of Ukraine had highlighted that the country is currently facing a war of aggression perpetrated by Russia which have put millions of people in imminent danger. It had been further underscored that Russia’s justification for waging a war to purportedly prevent genocide is a ‘horrible lie’. It had been further emphasised that Russia’s claim that Ukraine has a war against its own people in Donbass is patently false.
Some of the other pertinent arguments advanced have been mentioned in a nutshell below,
a. Prevention of genocide- Russia’s justification for attack is a ‘horrible lie’
b. Nothing in the Genocide Convention authorises a State to enter by force the territory of another State to prevent or punish genocide
c. Claims of genocide aim at fabricating the text of the Convention to launch a military invasion of Ukraine
d. Repeated attack on Mariupol shows that Russia’s claim to be the protectors of Russian speaking people in Ukraine is false
e. There is no good faith performance of the Genocide Convention by Russia
f. Risk of irreparable prejudice and urgency exists for indication of provisional measures
g. Neighbouring countries may be destabilised as a result of the humanitarian crisis in Ukraine
h. 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?
i. Whether or not Russia chooses to appear in these proceedings, it should be obligated to follow the measures indicated by the Court
In its application, Ukraine had dubbed Russian justification for attacking Ukraine as – ‘an absurd lie’ and had 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 had 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 had 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 had 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.