Article 2(3) UN Charter provides for an obligation upon states to settle their disputes by peaceful means. The Charter itself, under its article 33 (1), lists the means states can freely choose to this end. Among others, when it comes to the ongoing situation in Ukraine, negotiation and judicial settlement have been attempted by the Ukrainian authorities in the last few days. As for the latter, on 1 March 2022, the European Court of Human Rights (ECtHR) issued a rule 39 decision against Russia. On the same day, the President of the International Court of Justice (ICJ), addressed an urgent communication to the Russian Minister of Foreign Affairs on the request of provisional measures submitted by Ukraine in relation to its recent application before the Court. While leaving to others the task of critically analysing their impact on the outcome of the conflict, as well as the substantive or procedural issues arising or any possible limits, this post wants to stress the importance of these proceedings. Their significance is at least twofold. First, Ukraine’s approach towards international courts, even in such difficult times, confirms the centrality of the international rule of law and the authority vested by international courts in this respect. Second, the quick response of the courts in question shows their willingness to act promptly and tells us a lot about their ‘good health’ status as reliable means for the peaceful settlement of disputes. Besides the above-mentioned proceedings, another international court has seen some recent developments with respect to the situation in Ukraine, that is, the International Criminal Court (ICC). This post aims at providing an overview of the proceedings before the ECtHR, the ICJ, and the ICC.
The European Court of Human Rights and its decision pursuant to rule 39
On 1 March the ECtHR has issued one of its so-called interim measure decisions, pursuant to rule 39 of the Rules of the Court. This followed a request by Ukraine filed on 28 February 2022 to indicate urgent interim measures to the Government of the Russian Federation in relation to ‘massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine’. Such request has been registered as application number 11055/22, Ukraine v. Russia (X).
The Court considered that the current armed conflict which initiated on 24 February 2022 ‘gives rise to a real and continuing risk of serious violations of the Convention rights of the civilian population, in particular under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment) and 8 (right to respect for private and family life) of the European Convention on Human Rights’. As a result, the Court has indicated to the Russian Government ‘to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops’.
While it has most commonly indicated interim measures in cases regarding expulsion and extradition, the Court has referred to recent developments concerning the indication of provisional measures in other inter-state applications. In particular, the Court has cited its decision in relation to Georgia v Russia (II) (no. 38263/08), interim measure, 12 August 2008, Ukraine v Russia (no. 20958/14), interim measure, 13 March 2014, Armenia v Azerbaijan (no. 42521/20), interim measure, 29 September 2020, and Armenia v Turkey (no. 43517/20), interim measure, 6 October 2020. Moreover, the Court has recalled that the interim measure indicated on 13 March 2014 within the context of the case Ukraine and the Netherlands v. Russia (nos. 8019/16, 43800/14 and 28525/20) remains in force in relation to Eastern Ukraine. On that occasion, the Court has ordered both State parties ‘to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment)’. In that case too, the Court acted very rapidly by indicating provisional measures on the same day Ukraine filed its application.
As the refence to the case Ukraine and the Netherlands v Russia shows, this is not the first inter-state application filed by Ukraine against Russia. Besides the three applications (i.e, Ukraine v. Russia (re Eastern Ukraine), no. 8019/16, Ukraine v. Russia (II), no. 43800/14, and The Netherlands v. Russia, no. 28525/20),that in 2020 the Grand Chamber has decided to join under one case as well as the most recent one which is the object of the present post, there are currently four other inter-state applications and over 8,500 individual applications pending before the Court concerning the events in Crimea, eastern Ukraine and the Sea of Azova. This data is telling of the human rights context which preceded the present armed conflict and constitutes a helpful tool to better understand Ukraine’s approach towards the ECtHR, as the application filed on 28 February 2022 just confirms a consistent trend since 2014.
Ukraine and the Russian Federation before the International Court of Justice
On 1 March, pursuant to article 74 of the Rules of the Court, the President of the ICJ has issued an urgent communication to the Russian Minister of Foreign Affairs regarding the request of indication of provisional measures made by Ukraine. This followed an application filed by Ukraine on 27 February 2022, whereby Ukraine argued that “the Russian Federation has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’, and then declared and implemented a ‘special military operation’ against Ukraine’”. Ukraine also contented the Russian Federation is ‘planning acts of genocide in Ukraine’ and ‘is intentionally killing and inflicting serious injury on members of the Ukrainian nationality’. Ukraine asked the Court to indicate provisional measures ‘in order to prevent irreparable prejudice to the rights of Ukraine and its people and to avoid aggravating or extending the dispute between the parties under the Genocide Convention’. The Court will hold public hearings on 7 and 8 March 2022.
Notably, this won’t be the first application submitted by Ukraine against Russia. There is another pending case, initiated by Ukraine in 2017, on the occasion of which Ukraine asked the Court to order provisional measures pursuant to article 41 of the ICJ Statute, as ‘[i]n the course of the Russian Federation’s unlawful and ongoing aggression against Ukraine, the Russian Federation has committed and continues to commit violations of the International Convention for the Suppression of the Financing of Terrorism (“Terrorism Financing Convention”) and the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”). Provisional measures are requested in this case to protect the lives and basic human rights of the people of Ukraine, who are endangered by these acts of terrorism financing and racial discrimination committed by the Russian Federation’. In April 2017, the Court indicated provisional measures only with regard to the risk of irreparable prejudice of the rights provided for under articles 2 and 5 CERD, in relation ‘to the ability of the Crimean Tatar community to conserve its representative institutions and with regard to the need to ensure the availability of Ukrainian-language education in schools in Crimea’. At the same time, the Court concluded that she could not order any provisional measure in relation to the acts in Eastern Ukraine, as Ukraine had not submitted sufficient evidence concerning the knowledge and intent requirements, contained in article 18 of the Terrorism Financing Convention. Indeed, ‘[t]his Article provides in substance that States parties are obliged to co-operate to prevent the financing of terrorism, i.e., the provision or collection of funds with the intention that they should be used or in the knowledge that they are to be used in order to carry out acts of terrorism as defined in Article 2 of the Convention’. The Court also decided by unanimous vote that ‘[b]oth Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve’. On 8 November 2019 the Court has rejected the preliminary objections raised by the Russian Federation and held that they have jurisdiction concerning the claims submitted by Ukraine and that the application in relation to such claims is admissible.
The International Criminal Court and the situation in Ukraine
The ICC is the first permanent international criminal court, whose Statute was adopted in Rome in July 1998 and entered into force in 2002. Pursuant to article 5 ICC Statute the Court can have jurisdiction over genocide, crimes against humanity, war crimes and, more recently, the crime of aggression. Ukraine and Russia are not party to the ICC Statute, but in 2015 Ukraine issued a declaration under article 12(3) ICC Statute accepting the Court’s jurisdiction for all the crimes committed within in its territory since 2014. While for the crime of aggression States Parties to the ICC have restricted the Court’s jurisdiction to those aggressions committed on the territory or by nationals of those states that have ratified the amendment on the crime of aggression and, therefore, the Court cannot have jurisdiction in this respect, on 28 February 2022 the ICC Prosecutor has announced his willingness to open an investigation for war crimes and crimes against humanity committed in Ukraine. While this decision is based on the conclusion, in 2019, of the preliminary examination by the Office of the Prosecutor of the situation in Ukraine, the Prosecutor has clearly stated that ‘[g]iven the expansion of the conflict in recent days, it is my intention that this investigation will also encompass any new alleged crimes falling within the jurisdiction of my Office that are committed by any party to the conflict on any part of the territory of Ukraine’. On 2 March 2022, the ICC Prosecutor has confirmed receipt of 39 State referrals of the situation in Ukraine, which will expedite the work of the Prosecutor, as under article 14 ICC he does not need to seek any authorisation to open an investigation before the Pre-Trial Chamber. On the same day the Prosecutor has therefore notified the ICC Presidency of his decision to ‘immediately proceed with active investigations’.
Three of the most authoritative international courts have recently seen significant developments in relation to the ongoing armed conflict in Ukraine. This gives confirmation of the positive attitude of Ukrainian authorities towards the international rule of law and the judicial means at their disposal. The prompt reaction of all these courts should also be seen as a reassuring factor for the international community as a whole and, for once, should find all commentators in agreement that this is a sign of their ‘good health’.
Latest update 3 March 2022.