Genocide or Salvation? UA vs RU in The Hague

The International Court of Justice in The Hague has resumed hearings in the case brought by Ukraine against russia under the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (the Convention).

The International Court of Justice in The Hague is the highest judicial institution of the United Nations, established after the Second World War to hear complaints of alleged violations of international law. The decisions of the International Court of Justice are binding, but unfortunately, they do not have direct means of enforcement.

As a reminder, on 26 February 2022, Ukraine filed a lawsuit with the International Court of Justice regarding the interpretation, application and enforcement of the Convention by the russian federation.

Please note that the essence of this dispute is not the accusation of genocide committed by the russian federation on the territory of Ukraine. The subject of this lawsuit is to establish whether the russian federation abused the provisions of the Convention in justifying its military invasion of Ukraine. In fact, it is an accusation of unlawful accusation of genocide to justify military aggression.

Thus, despite all the absurdity of the russian side’s statements, they boil down to the fact that the reason for russia’s full-scale aggression was Ukraine’s genocide of its own citizens on its own territory, which was the reason for the invasion, i.e. “protection”. When making such statements, high-ranking officials of the aggressor state have the courage to refer to the provisions of the Convention.

Thus, in its statement of claim, Ukraine asks the court to recognise and declare the following:

1. The russian federation cannot legally take any action under the Genocide Convention on the basis of its false allegations of genocide in Ukraine.
2. The recognition by the russian federation of the independence of the so-called “DPR” and “LPR” is based on a false claim of genocide and therefore has no basis in the Convention.
3. The “special military operation” declared by the russian federation on 24 February 2022 is based on a false claim of genocide and therefore has no basis in the Convention.
4. Require that the russian federation provide guarantees of non-repetition that it will not take any measures in or against Ukraine based on its false claim of genocide.
5. Order full compensation for all damages caused by the russian federation as a result of any actions taken on the basis of the russian federation’s false claim of genocide.

Subsequently, 32 more countries joined the lawsuit on behalf of Ukraine (in particular, all European Union countries except Hungary, the United Kingdom, Canada, Australia, New Zealand, Norway and Liechtenstein). These countries are represented by ambassadors or international legal advisers of the respective MFAs. As a general rule, states that are parties to the Conventions have the right to intervene in the proceedings if they consider that they “have an interest of a legal nature which may be affected by the decision in the case”.

The interest of 32 countries is unprecedented. All of these countries have expressed support for the Ukrainian side, which is unprecedented in the practice of international law. At the same time, each state must submit written materials to the court, which should contain arguments on the case.

Hearings in the case take place from 18 to 27 September 2023 in The Hague. On 18 September, the russian federation presented its arguments, on 19 September – Ukraine, and on 20 September, the arguments of the other 32 states that joined the case were heard. Thus, the process does not seem to be quick.

What is genocide in the sense of the Convention?

Ukraine’s right to apply to the ICJ is provided for by the Convention. Thus, according to Article 1 of the Convention, the contracting parties confirm that genocide, whether committed in time of peace or war, is a crime under international law which they undertake to prevent and to punish.

According to the provisions of Article 2 of the Convention, genocide is defined as the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

1. killing of members of the group;
2. causing serious bodily or mental harm to members of the group;
3. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. imposing measures intended to prevent births within the group;
5. forcibly transferring children of the group to another group.

Thus, the very fact of russia’s invasion of the territory of a sovereign state, combined with the systematic commission of war crimes against Ukrainian citizens, the destruction of vital infrastructure, along with constant threats of the use of nuclear weapons, the blowing up of the Kakhovka hydroelectric power station, the mining of the Zaporizhzhya NPP, the killing and transfer of Ukrainian children to its territory, together with official systematic statements by the President of the russian federation and other high-ranking officials regarding the intention to destroy the Ukrainian nation, are undoubtedly a direct sign of genocide of the Ukrainian nation within the meaning of Article 2 of the Convention.

At the same time, Article 3 of the Convention defines the following acts as punishable:

1. genocide;
2. conspiracy to commit genocide;
3. direct and public incitement to commit genocide;
4. attempt to commit genocide;
5. complicity in genocide.

Particular attention should be paid to the numerous evidences of the forced transfer of children from the territory of Ukraine to the russian federation with their subsequent re-education, the imposition of the russian language, culture, and identity, which undoubtedly has signs of the russian federation’s intention to destroy the Ukrainian national group and constitutes genocide. This intention is confirmed, in particular, by Putin’s signing of a decree on the deportation of children from Ukraine to russia.

As of September 2023, the Children of War portal recorded 19,546 cases of children deported to the territory of the russian federation, but this data is obviously not complete. At the same time, according to various russian sources, the russian federation has transferred more than 744,000 children from Ukraine to its own territory.

Such systematic and planned crimes, which are the embodiment of the russian government’s policy, and are publicly encouraged by it in every way, aimed at the destruction of the Ukrainian nation, have the corpus delicti of a crime against humanity – a crime of genocide.

It should be noted that the above circumstances of the illegal deportation of children were established in the course of the case by the International Criminal Court, whose jurisdiction is recognised by 123 countries. Thus, on 17 March 2023, the Second Pre-Trial Chamber of the International Criminal Court issued an arrest warrant for Putin as a suspect in the illegal forced transfer of Ukrainian children.

Thus, the numerous, long-lasting and pre-planned crimes of the russian federation on the territory of Ukraine committed since 2014 no longer require additional proof, and in conjunction with official statements and calls by russian officials regarding the intentions to destroy the Ukrainian nation, give grounds for their qualification as a crime against humanity.

Pursuant to Article 4 of the Convention, persons committing genocide or attempted genocide shall be punished, regardless of whether they are constitutionally responsible rulers, officials or private individuals. At the same time, in order to give effect to the provisions of this Convention, the Contracting Parties undertake to enact the necessary legislation, and in particular to provide for effective measures to punish those responsible for genocide.

Persons accused of committing genocide or other listed crimes must be tried by a competent court of the state in whose territory the act was committed, or by such international criminal court that may have jurisdiction over the parties to this Convention that have accepted the jurisdiction of such court.

However, unfortunately, the ICJ in the above case of Ukraine’s claim against russia under the Convention does not have the authority to establish the fact of genocide, but it can establish that russia has abused the provisions of the Convention in justifying its military invasion of Ukraine. The facts established in this way serve as an additional lever of influence in the investigation of the genocide of the Ukrainian nation.

Thus, using the above-mentioned rights under the Convention, which were brutally and repeatedly violated by the russian federation, Ukraine has rightfully filed a lawsuit with the competent ICJ.

At the next hearing, the Court will consider the jurisdiction and admissibility of Ukraine’s application on the merits. The russian side filed its objections on 18 September.

The analysis of the russian side’s objections shows that they are focused on preventing the process from reaching the hearing on the merits and delaying the hearing as much as possible at the stage of resolving the jurisdictional issue.

Jurisdiction of the dispute

It should be noted that today the jurisdiction of the dispute is crucial, as the possibility of hearing the case on the merits depends on its resolution.  The Court is currently examining the jurisdictional issue, and a separate decision will be issued. However, it is important to note that the Court has already made a preliminary legal assessment of this issue in favour of Ukraine (prima facie) when applying provisional measures.

Thus, Ukraine and russia are parties to the Convention on the Prevention of Genocide. According to the Convention, each party to the Convention may request the ICJ to take all measures necessary, in its opinion, to prevent and suppress acts of genocide.

Disputes between the contracting parties on the interpretation or application of the Convention, including disputes concerning the responsibility of a state for genocide, shall be referred to the International Court of Justice at the request of any of the parties to the dispute (Article 9 of the Convention).

According to Article 36 of the ICJ Statute, the Court’s jurisdiction includes all cases referred to it by the parties provided for in the UN Charter or the Conventions. States Parties may at any time declare that they recognise, without any special agreement to that effect, ipso facto, with respect to any other State which has accepted the same obligation, the jurisdiction of the Court in all legal disputes concerning, in particular: the interpretation of a treaty; any question of international law; the existence of a fact which, if established, would constitute a breach of an international obligation.

In its claim, Ukraine argues that the dispute between the Parties concerns the question whether, as a result of the unilateral allegation of genocide by the russian federation, the russian federation has a legitimate basis for taking military action in and against Ukraine in order to prevent and punish genocide under Article I of the Genocide Convention. Ukraine believes that the russian federation has “turned the Genocide Convention on its head” by making a false claim of genocide as a basis for its actions, which constitute serious human rights violations against millions of people throughout Ukraine.

At the same time, the russian federation argues that its “special military operation” on the territory of Ukraine is in fact based on Article 51 of the UN Charter and customary international law, and that the Convention cannot provide a legal basis for a military operation that goes beyond the scope of the Convention.

Here is the content of Article 51 of the UN Charter, which is being treacherously used by the russian federation as a legal justification for its military invasion of Ukraine:

“… Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security…”

Further, the russian side in its objections submitted to the ICJ officially refutes everything said (also officially) earlier:

“…although Putin’s address “to the citizens of russia” may in certain contexts refer to genocide, this reference is not identical to a reference to the Convention as a legal justification for his actions, nor does it indicate that the russian federation recognises the existence of a dispute under the Convention. The russian federation emphasises that there is no mention of the Genocide Convention in the address of its President on 24 February 2022…”

Thus, the russian federation manipulates the provisions of the Convention, the norms of international law, and abuses its powers as a member of the UN, asking the court to remove the case from its list due to lack of jurisdiction.

At the same time, the ICJ, in its decision of 16 March 2022 on the application of provisional measures, established the following:

“… since 2014, various State organs and senior representatives of the russian federation have referred, in official statements, to the commission of acts of genocide by Ukraine in the Luhansk and Donetsk regions. The Court observes, in particular, that the Investigative Committee of the russian federation — an official State body  — has, since 2014, instituted criminal proceedings against high-ranking Ukrainian officials regarding the alleged commission of acts of genocide against the russian-speaking population living in the above- mentioned regions “in violation of the 1948 Convention on the Preven- tion and Punishment of the Crime of Genocide”.

… The Court recalls that, in an address made on 21 February 2022, the President of the russian federation, Mr. Vladimir Putin, described the situation in Donbass as a “horror and genocide, which almost 4 million people are facing”.

Thus, by deciding on the application of provisional measures on 16 March 2022, the ICJ officially recognised that the actions complained of by the Ukrainian side may fall under the provisions of the Genocide Convention and prima facie, it has jurisdiction under Article IX of the Convention. This decision is a very important step that confirms the validity of the Ukrainian side’s claim in the further resolution of the dispute.

Provisional measures

According to Article 6 of the Convention, a Contracting Party which considers that genocide is taking place in the territory of another Contracting Party may call upon the competent authorities of the United Nations to take measures to prevent and terminate acts of genocide.

In order to secure the claims, even at the pre-trial stage of the case, the ICJ may apply provisional measures requested by the Ukrainian side, in particular, to urgently stop the russian federation’s armed aggression on the territory of Ukraine.

In these circumstances, the ICJ, having examined the circumstances of the case, concluded that Ukraine has a plausible right not to be subjected to military operations by the russian federation in order to prevent and punish the alleged genocide on the territory of Ukraine. The Court granted Ukraine’s request for provisional measures, stating the following:

“…. The Court considers that the civilian population affected by the present conflict is extremely vulnerable. The ‘special military operation’ being conducted by the russian federation has resulted in numerous civilian deaths and injuries…

…. In this regard, the Court takes note of resolution A/RES/ES-11/1 of 2 March 2022, of the General Assembly of the United Nations, which, inter alia, “[e]xpress[es] grave concern at reports of attacks on civilian facilities such as residences, schools and hospitals, and of civilian casualties, including women, older persons, persons with disabilities, and children”, “[r]ecogniz[es] that the military operations of the russian federation inside the sovereign territory of Ukraine are on a scale that the international community has not seen in Europe in decades and that urgent action is needed to save this generation from the scourge of war”, “[c]ondemn[s] the decision of the russian federation to increase the readiness of its nuclear forces” and “[e]xpress[es] grave concern at the deteriorating humanitarian situation in and around Ukraine, with an increasing number of internally displaced persons and refugees in need of humanitarian assistance”.

As a result, the ICJ, in its decision on provisional measures of 16 March 2023, ruled that the russian federation must suspend the military operations it launched on 24 February 2022 on the territory of Ukraine until a final decision is made in the case. In addition, the russian federation must also ensure that any military or irregular armed groups that it may send or support, as well as any organisations and individuals that may be subject to its control or direction, do not take any measures to facilitate these military operations.

Regarding the legal force of such a decision, it should be noted that according to Article 41 of the Statute of the ICJ, orders on provisional measures are “binding” and create international legal obligations for any party to which the provisional measures are addressed.

In other words, on 16 March 2022, the ICJ effectively recognised the main legal fact confirming the illegality of the war. This judgement will be important for the future of the special tribunal and for resolving the issue of repatriation, compensation for damages and other disputes where Ukraine’s interest will be defended.

Unfortunately, in the vast majority of cases, the decisions of the ICJ are to be implemented voluntarily by states. At the same time, despite the fact that the russian federation is a member of the UN and the decisions of the authoritative court of the ICJ are binding on this state, the russian federation has not complied with the said court decision.

What’s next

Given the number of participants and certain peculiarities of the process, the case will be heard for a long time. At the same time, any decisions and rulings made by the ICJ in the course of consideration of this case will serve as a basis and indisputable evidence in courts in other disputes between Ukraine and the russian federation on compensation for damages caused by illegal armed aggression, etc.

Despite the fact that the establishment of the facts of genocide committed by the russian federation on the territory of Ukraine is beyond the scope of this case, the circumstances undoubtedly established by the ICJ, which is authoritative and competent on genocide issues, will serve as a basis for initiating and protecting other interests of Ukraine in disputes concerning the restoration of violated rights. Undoubtedly, Ukraine has every chance of a positive resolution of this dispute and restoration of justice at the legal level for further application of such conclusions in other systemic protection mechanisms.

On 27 September, the last preparatory hearing was held, at which a record number of states (32) supported the Ukrainian claim. Next, the court will have to determine whether it has jurisdiction to hear the case and issue a decision at an open hearing to be announced later. In practice, such a decision can be expected in a few months. Only after the jurisdiction has been determined can the case be heard on the merits.

It is difficult to predict the timeframe of the trial. For example, the Bosnia and Herzegovina v. Serbia genocide recognition trial took 14 years. Given that the fact of genocide recognition is not the subject of Ukraine’s lawsuit, we hope for a quicker trial. In any case, all the facts that will be established during the trial by the highest judicial body in the world can be used as a source of law in favour of Ukraine.

 

By Ilona Mylostyva, attorney at law, EQUITY Law Firm

Posted in Expert Opinion