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  • Ahan Gadkari

What Significance Do the ICJ’s Provisional Measures Bear in the Ukraine v. Russia Dispute ?


1. Introduction

On March 16, 2022, the International Court of Justice in The Hague (ICJ) issuedan order on provisional measures in the ongoing case between Ukraine and Russia(Case Concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, Request for the Indication of Provisional Measures, Ukraine vs. Russia, Order of 16 March 2022, hereafter referred to as the "ruling"). The court ordered Russia to stop all hostilities and ensure that conventional Russian forces, and other military groups under Russian command and control, do not engage in continued military action on Ukrainian territory. The provisional measures have effect until the fighting is stopped or until the dispute is settled in a final judgment. Thirteen judges voted in favor of the ruling, and two dissented.

Both Ukraine and Russia have ratified Genocide Convention. Ukraine stated that Russia is responsible for two separate violations of the convention. Ukraine first stated that Russia's seemingly untrue allegations that Ukraine had committed genocide against ethnic Russians in Donetsk and Luhansk in themselves constituted a breach of Russia's obligations under the Convention. Ukraine's second allegation was that Russia's ongoing military invasion constitutes a breach of obligations under the Convention (para. 2).

The court concluded that Ukraine's claims are plausible. The court further observed that there is a real danger of irreparable damage to Ukraine's rights under the Genocide Convention if Russian hostilities are not stopped immediately (para. 60).

The orderdoes not mean that the ICJ has made a final decision on whether the court has jurisdiction over the case. Nor does the decision mean that the court has ruled on whether Russia has violated the Genocide Convention. The court has only taken a preliminary (preliminary) position on these issues. At this stage of the case, it was sufficient for the court to establish that it may have jurisdiction over the case and that the plaintiff's substantive allegations are plausible, without having to consider in detail whether it is likely that Ukraine's allegations will succeed. The court concluded that the conditions for imposing a temporary injunction on Russia with an order to stop the fighting have been met (para. 63 and 64).

2. ICJ's Competence and Jurisdiction

The ICJ is a generalist court underArticle 7 of the UN Charter. It has jurisdiction to hear all disputes under international law which a State appeals to the Court of Justice, provided that the Court has jurisdiction, in accordance with Articles 34, 35 and 36 of ICJ Statute. Necessary jurisdiction may result either from a state having accepted the jurisdiction of the court on a general basis or in specific areas of law, or that the state has bound itself through a so-called binding clause / provision in a specific treaty, as described in Article 36 of the statutes.

The conflict between Russia and Ukraine is in fact about Russia's obvious violation ofArticle 2(4) of the UN Charter. It follows from the provision that the "use of force" against the "territorial integrity or political independence" of other states is prohibited.

According to the ICJ, this is a customary law jus cogens rule; that is, a lex superior norm, a rule that takes precedence over other obligations under international law (seeCase Concerning Military and Paramilitary Activities in and Against Nicaragua(Merits), ICJ Reports (1986), 14, paragraph 190), and alsoArticle 103 of the UN Charter.) An unprovoked war of aggression falls within the core area of the provision. Armed aggression can only exceptionally be used in the territory of other states. In this case, there is no evidence that Russia can invoke the exceptions of self-defenseunder Article 51 of the UN Charterre also seems to be broad agreement among the vast majority of the world's states that Russia's use of force constitutes a gross violation of the prohibition on power. InGeneral Assembly resolution of 2 March (ES-11/1)entitled "Aggression against Ukraine", Russia's use of force was condemned in strong terms and classified as unlawful use of force under Article 2 (4), see section 20 of the resolution. 141 of the 193 UN member states voted in favour of the resolution.

Unlike a Security Council resolution, a General Assembly resolution is not legally binding. It is merely "advisory" perArticle 11(1) of the UN Charter. Due to Russia 's position as a veto power in the UN Security Council, and Russia's use of this veto power, the Security Council has not been able to adopt a resolution that Russian use of force is illegal and order that the fighting be ceased. If Russia had not exercised its right of veto, the Security Council would have had the authority to make such a decision perArticle 39 and 40 of the UN Charter. At the time Ukraine filed a case against Russia in the ICJ, there was therefore no legal order from an authoritative body ordering Russia to stop the fighting.

The ICJ has the competence to deal with questions of law jus ad bellum, the use of force between states, and to order a state to stop illegal fighting, provided that the court has jurisdiction in the case. Like the United States and China, however, Russia has not bound itself to the ICJ’scompulsory jurisdiction over disputes concerning the question of use of force. Ukraine could therefore not sue Russia alleging breach of Article 2(4) of the UN Charter.

In order for the ICJ to have the competence to order provisional measures ordering the cessation of Russian hostilities, Ukraine had to choose a different approach to the matter. Ukraine stated that Russia had violated the Genocide Convention by making false allegations of genocide, and used these false allegations as a basis for the invasion of Ukraine. As both Russia and Ukraine have given jurisdiction to the ICJ in disputes concerning the interpretation of the Genocide Convention and the implementation of treaty obligations under the Convention, the Court will have jurisdiction over such a dispute perArticle IX of the Convention.

The questions that the court had to decide at this stage of the case were whether the conditions were met for being able to issue provisional measures ordering Russia to stop all hostilities.

3. Prima facie jurisdiction

The jurisdiction of the court to decide on an interim injunction in an ongoing case before the court follows from Article 41 of the ICJ Statutes. An interim injunction may involve an order for an action or an order to stop an ongoing action. The provision states that the court may adopt a provisional measure if "the circumstances so require" and the court considers it necessary with such an order to protect the rights of one of the parties until the case is finally decided. The detailed conditions for this have been developed through the court's own practice; it must be possible to establish prima facie (preliminary) jurisdiction and establish that there is a potential violation(s) of one of the parties' rights.

Furthermore, it must be possible to establish an adequate causal link between the alleged violation of rights and the claim for ordering provisional measures. Finally, it must be possible to prove that there is a real danger of irreparable damage to rights covered by the dispute, and that the risk of damage can be remedied by the provisional measure requested.

It follows from Article IX of the Genocide Convention that the parties to the Convention have committed themselves to resolving disputes concerning the interpretation, implementation and observance of the Convention for the ICJ. Since both Ukraine and Russia have ratified the Convention, jurisdiction ratione personae , party jurisdiction, has been fulfilled in the case.

To establish prima facie jurisdiction ratione materia, that is, preliminary jurisdiction over the subject matter of the dispute, the court must determine that there is a certain degree of probability that there is a dispute between the parties over which the court has jurisdiction. A dispute arises when there is a real disagreement about either fact or law in connection with the dispute issue.

It was not surprising that the ICJ accepted Ukraine's allegation that there is a possible dispute between the parties covered by the Genocide Convention. The ICJ concluded that there is a potential disagreement, both about the fact - whether Ukraine has committed acts that qualify for a genocide, and about the law - whether the use of force is a legal countermeasure against a state that commits genocide.

Although Russia has accused Ukraine of genocide, the court found that there is no evidence that Russia has explicitly accused Ukraine of violating its legal obligations under the Genocide Convention. However, the Court emphasized that it is not a requirement that the respondent must have explicitly mentioned a specific legal obligation prior to the action, in order for the ICJ to be able to establish that there is a potential dispute over the fulfilment of obligations covered by the dispute. It was therefore sufficient that the possible disagreement was in reality about the fulfilment of obligations under the Genocide Convention.


4. Plausible breaches of Russia's Obligations Under the Genocide Convention and the Causal Link Between the Alleged Breaches of Duty and the Demand for an end to Russian Hostilities

Following the establishment of prima facie jurisdiction, the ICJ had to decide whether Ukraine's allegations were plausible. In other words, the court had to consider whether it is plausible that Russia's apparently undocumented allegations of genocide against Russians and whether the ongoing invasion of Ukraine constitutes a breach of Russian obligations under the Genocide Convention.

The Genocide Convention imposes - in essence - the convention states three things: 1) It obliges the parties to the convention to do everything practically possible to prevent genocide from taking place in their own territory, 2) to make genocide punishable under national law and 3) to do its utmost to prosecute people responsible for planning and / or carrying out genocide, either nationally or by having the person (s) transferred to a competent international tribunal, per Articles I, IV, V and VI of the Convention.

The Convention is silent on the consequences of false or erroneous accusations of genocide. A duty not to spread false accusations of genocide must therefore be interpreted in other obligations. For this to happen, the court must make a purposeful and comprehensive interpretation of one or more of the articles of the Convention.

Provisions of the Treaty shall be construed in accordance with its "ordinary meaning", in accordance with Article 31(1) of the 1969 Vienna Convention. In other words, the interpretation must be objective and in line with a general understanding of the language. However, treaty provisions cannot be interpreted in isolation without the law enforcer taking into account the purpose and intent of the provision - and the treaty. Individual rules must always be interpreted in the light of the Treaty's preface and read in the context of other rules in the Treaty per Article 31(2).

The ICJ has previously made a liberal interpretation of the wording of the articles of the Genocide Convention. In the judgment on the case concerning the application of the Genocide Convention betweenSerbia and Bosnia, the ICJ stated that a State party that commits genocide, either through a clear and adopted policy or by having effective control over the criminal group, violates its obligations under the Genocide Convention (para. 234). Such an obligation cannot be read directly from the articles of the Genocide Convention. However, the Court interpreted the duty to prevent and prosecute genocide under the Genocide Convention Article I extensively, so that the perpetrator of genocide violates the obligation to prevent and prosecute genocide. By interpreting these obligations in the light of the purpose of the Convention, the court concluded that a prohibition on "carrying out" genocidal acts is embedded in the rule.

An erga omnes obligation, a universally binding obligation, not to commit genocidealready follows from international customary law. The interpretation of the ICJ that customary international law for State responsibility for genocide and the genocide convention complement each other, therefore makes perfect sense. It would also lead to absurd results if States responsible for carrying out genocidal acts were to escape State responsibility under the convention, while States that fail to prosecute genocide offenders violate the convention.

It cannot be ruled out that Ukraine will be heard with its allegation that a prohibition on false accusations of genocide can be interpreted as an obligation under Article I of the Genocide Convention. But compared to the question of state responsibility for carrying out genocide, such an obligation is further from the wording of the terms "duty to prevent and prosecute" genocide in Article I of the Convention. and to "create" a new obligation to which the parties to the treaty have not committed themselves. The latter is outside the jurisdiction of the court. It will probably take a long time for Ukraine to be heard in a final sentencing judgment with its allegation that undocumented accusations of genocide qualify as a breach of the obligations of the Genocide Convention.

Nor does the Convention say anything about the possibilities of using force to prevent or stop an ongoing genocide. However, the Convention states that states must resolve disputes under the Convention for the ICJ - by peaceful means per Article IX andArticle 2 (3) of the UN Charter, and that States otherwise have the opportunity to refer matters to the UN Security Council, per Article VIII.

The last provision is a reference to the rules below Chapter 7 of the UN Charter, which allows the Security Council to authorize the use of force on the territory of states if necessary to ensure international peace and security, perArticle 39, 41 and 42 of the UN Charter. The Security Council's practice shows that even internal conditions, such as an ongoing genocide taking place in the territory of a single state, may qualify for a threat to international peace and security that may trigger a Chapter 7 mandate from the Security Council, with the consequence that the territorial state's right to not to be subjected to armed force in one's own territory is disregarded (see Security Council resolutions S / RES / 918 and S / RES / 955(1994)).

The use of force against another state, which is not authorized in a Security Council resolution or is done in self-defense, is therefore illegal. This applies even if the reason for the use of force is the desire to prevent or stop a genocide. There are currently only a few States thatargue that it is permissible to legally carry out a humanitarian intervention without a Security Council mandate.

The status of Russia's invasion being illegal, therefore, few doubt, with the exception of Russia itself and a few States (only four states voted against General Assembly resolution ES-11/1, while 35 states abstained). At the same time, it is doubtful whether Russia's use of force is an issue that falls within the scope of the Genocide Convention. Questions about the rightful use of force jus ad bellum is, as mentioned, a question the ICJ cannot take a position on, since Russia has not accepted the ICJ’s compulsory jurisdiction on this. It is therefore not a given that Ukraine's claim that a military invasion constitutes a breach of obligations under the Convention will stand up in a possible main hearing.

However, because the case is at a preparatory stage, it was not necessary for the court to rule on whether Ukraine's allegations that Russia has violated the Genocide Convention will prevail. It was sufficient for the court to rule that there is no evidence that Ukraine has committed genocide in Donetsk and Luhansk, and that it is (in any case) doubtful whether the convention allows a state to use force to prevent or stop a genocide. Against this background, the Court concluded that it cannot be ruled out that Ukraine has a right not to be subjected to a military invasion of Russia (para. 59 and 60).

Once the Court had opened up the possibility that Russia's actions would affect Ukraine's rights, it was not surprising that the Court concluded that the provisional measures demanded by Ukraine would be an adequate measure to protect those rights (para. 62, 63 and 64).

5. Risk of Irreparable Damage to Ukraine's Rights Under the Genocide Convention if Hostilities are not Stopped

The last thing the court had to decide was whether the condition of real and immediate danger of irreparable damage to relevant rights was met. More specifically, the court had to conclude that Ukraine's rights under the Genocide Convention were in immediate danger of being irreparably damaged. Basically, it is a separate condition that its urgency to adopt an interim injunction. As a rule, the condition that it is urgent to have provisional measures adopted istreated together with the danger condition, as one condition.

In its ruling, the court thoroughly reviewed the damage that the Russian invasion has inflicted on the Ukrainian civilian population and Ukrainian society (para. 75 and 76). These damages are thoroughly documented by credible and objective sources. The court ruled that there was a real and immediate risk that Ukraine's plausible rights under the Genocide Convention could be violated as a result of the Russian invasion (para. 77).

Previous rulings by the ICJ indicate that when a dispute raises issues that in some way concern the danger to life and health, the court will go to great lengths to order adequate provisional measures, even if the right of individuals to life and health lies on the periphery of what the case is legally involved. In thePreah Viharruling from 2011, for example, the court concluded that the danger of loss of life and health of Cambodian citizens entailed an element of danger of harm to Cambodia's territorial rights, and Thailand was therefore ordered to withdraw all military personnel from Cambodian territory, The case concerned a dispute over border matters.

It was therefore not surprising that the ICJ also this time went to great lengths to temporarily stop the hostilities in Ukraine, even though the rights of the Ukrainian people are not directly covered by the dispute in the case. Although Ukraine has prevailed in the first round of the case, it is far from certain that Ukraine will prevail when the dispute is finally decided during a possible main hearing. As explained in this article, such a result requires that the court must move to the limit of what it has jurisdiction and jurisdiction in the present case.

6. Concluding Remarks

The ICJ's ruling is the third decision by an international court, where Russia has received a court order in connection with the hostilities in Ukraine.

The European Court of Human Rights (ECtHR)ruled on March 1, 2022, stating that Russian fighting is likely to pose an immediate risk of irreparable damage to rights protected under Article 2 of the European Convention on Human Rights (ECHR) - the right to life, by that acts of war committed by Russian soldiers (and other units under Russian command and control) do not comply with the obligation to provide unimpeded access to civilian population and humanitarian aid. The ECtHR ordered Russia to act in accordance with the international law of war. But this ruling is more like water off a duck’s back as all states have a duty to act in accordance with the international law of war, regardless of a binding order from a court and Russia seems indifferent to this obligation.

The ECtHR issued anew ruling on 1 April, 2022, in which the provisional measures of March 1 were continued. In the latest ruling, the ECtHR ordered new provisional measures that Russia must ensure safe evacuation routes for the civilian population. In addition, Russia was required to ensure the population's access to necessary food, medicine and health care. Russia was also required to ensure the free movement of humanitarian personnel. These, too, are obligations that Russia is bound by under international law of war, regardless of whether this is confirmed in a ruling. Russia has now been expelled from the Council of Europe. However, the State is still bound by the ECtHR’s two rulings, as the Russian hostilities were carried out while Russia was still a member State perArticle 58(2) of the ECHR.

The ICJ's decision is the first and so far only decision by an international dispute resolution body that directly orders Russia to stop all hostilities. Russia is bound by the decision perArticle 94(1) of the UN Charter. Russia has alreadymade it clear that it will not respect the ruling.

There is no international coercive force under the UN Charter that can carry out physical measures vis-à-vis Russia, to pressure the state to stop the invasion of Ukraine. International law is based on the premise that the states themselves carry out legal orders from dispute resolution bodies to which they are bound. When Russia one day hopefully stops the fighting in Ukraine, it will hardly be due to a legal order to do so.

The current circumstances show once again that the question of the use of force between States can hardly be resolved in an international dispute resolution body, at least where the court lacks jurisdiction over jus ad bellum issues. The Court's provisional measures may nevertheless have an important symbolic function in the initial phase of an armed conflict when atrocities against the civilian population are committed. Through provisional measures from the ICJ, a State that is subject to abuse of power can receive recognition that there is a violation of the State's rights under international law, from a respected and (mainly) objective international body. An order for provisional measures can also help shape the political narrative in favour of the state that is attacked.

There is broad agreement that a war of aggression, a clear and significant violation of Article 2 (4) of the UN Charter,constitutes a leadership crime under customary international law. Because Russia has not ratified thestatutes of the International Criminal Court in The Hague (ICC), the Rome Statute, Putin will hardly be able to be prosecuted and convicted of aggression in the ICC.Ukraine has admittedly accepted the ICC's jurisdictionin connection with war crimes that take place on Ukrainian territory, but the ICC's jurisdiction over the Ukraine war does not include a potential aggression crime under Article 8 bis of the Rome Statute.

Time will tell whether the Russian president, will one day be held responsible for starting an illegal war of aggression. Unless the UN Security Council establishes an ad hoc tribunal based onArticle 29, 39 and 41 of the UN Charter - modeled on the Nuremberg Tribunal and the Rwanda and Yugoslav courts - with jurisdiction over aggression crimes, it will be demanding to have the President of Russia prosecuted and convicted for starting a war of aggression. As long as Russia has veto power in the Security Council, such a solution today seems practically impossible.

But one possibility that remains is for individual states to prosecute Putin under national law, based on the doctrine of universal jurisdiction for international crimes. Due to procedural restrictions (criminal immunity for heads of state), Putin can be arrested on the day he resigns as president.

Today, it seems far-fetched to think that in a couple of decades, the world community may wake up to the news that Vladimir Putin has been arrested. But there were probably not many who during World War II had envisioned an international criminal settlement after the war. And from recent times, the example of thearrest of Rwandan war criminal Felicien Kabuga by French police on May 16, 2020 came as a big surprise to the international community, and was something few had imagined a couple of years ago.

Perhaps history will once again show that international law and cooperation can win over autocracies, dictatorships and despots.

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