Matteo Colorio, LLM
On 27 February 2022, the President of Ukraine, Volodymyr Zelenskyy, announced on Twitter that Ukraine filed an application against the Russian Federation before the International Court of Justice (“ICJ” or “Court”). The official application was released later the same day. This is the second application filed by Ukraine against Russia before the International Court of Justice since the outbreak in 2014 of the conflict over the self-proclaimed-independent republics of Donetsk and Luhansk and over the Crimea peninsula. The first application was filed by Ukraine in January 2017, and it relates to the events occurred in the Russian-annexed Crimea. The first application was grounded on the compromissory clauses present in the Convention on the Elimination of All Forms of Racial Discrimination and in the Convention for the Suppression of the Financing of Terrorism. Such strong Ukrainian activism before international courts – not only the ICJ but also the European Court of Human Rights and the International Criminal Court (see a recent post by Giulia Pecorella for a detailed account) is a strategic attempt to acquire new arguments to spend in negotiations with Russia. Inevitably, this attempt, at the same time, will have the positive effect of strengthening the international rule of law, in particular in the light of its proved capacity to catalyze the efforts of other States by way of referrals or request to participate in the proceedings.
The second application Ukraine filed on 26 February (but only made public the following day) concerns instead the “special military operation” the Russian President Putin launched against Ukraine in the early hours of 24 February. In particular, this second application deals with the legal justification allegedly relied on by Russia to legitimize its use of the armed force and raises interesting questions on if and under what conditions is a military intervention aimed at preventing or suppressing genocide permissible in international law.
Genocide as the triggering factor for the use of force against the UN Charter framework
In a recent post, Marko Milanovic analyses President Putin’s speech aired the morning of the first day of the Russian military operation in Ukraine. The ICJ previously held in Nicaragua, para. 266, that it is not for the Court to “ascribe to States legal views which they do not themselves formulate”. Accordingly, the analysis of President Putin’s words is critical to determine what are the legal reasons given by Russia to justify the armed conflict we are witnessing. President Putin seems to ground the legitimacy of his resort to armed force on: i) preemptive self-defense made necessary by the NATO’s expansion to the East – which is most likely incompatible with Article 51 of the UN Charter; ii) an argument of collective self-defense of the (supposedly independent) Donetsk and Luhansk republics which is on its face contrary to the territorial scope of Russia’s military intervention, and iii) an humanitarian intervention/responsibility to protect argument, i.e. Russia is acting to stop a “genocide” of Russians in Eastern Ukraine.
The third of the above arguments is the one that comes to the fore with Ukraine’s second application to the ICJ. This application, indeed, relies on the compromissory clause of Article IX of the 1948 Convention on the Prevention and Punishment of Genocide (“Genocide Convention”). Both Ukraine and the Russian Federation are parties to this treaty and with no reservation to Article IX as of 1989. Ukraine maintains that there is a dispute with Russia within the meaning of Article IX relating to the “interpretation, application or fulfilment” of the Convention. Indeed, Ukraine argues (paras 2 and 3 of the application) 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 with the express purpose of preventing and punishing purported acts of genocide that have no basis in fact. On the basis of this false allegation, Russia is now engaged in a military invasion of Ukraine involving grave and widespread violations of the human rights of the Ukrainian people.
Ukraine emphatically denies that any such genocide has occurred and brings this Application to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.
Against this background, Ukraine asks the ICJ to determine that i) Ukraine has not and is not committing a genocide against the Russians in East Ukraine; and ii) because there is no genocide to stop or prevent, the military operation launched by Russia on the Ukrainian territory constitutes a prohibited use of force and, as such, an internationally wrongful act for which Russia should be held accountable. In addition, Ukraine attached to its application a request for provisional measures available here.
The arguments Ukraine directed to the ICJ have a lot to do with the theory of the Responsibility to Protect (“R2P”), an international law theory first formulated in paras 138 and 139 of the 2005 World Summit Outcome Document. Fundamentally, the R2P is articulated in three pillars. Pillar One: Every State has the Responsibility to Protect its populations from four mass atrocity crimes: genocide, war crimes, crimes against humanity and ethnic cleansing; Pillar Two: The wider international community has the responsibility to encourage and assist individual States in meeting that responsibility. Pillar Three: If a State is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. Some pressing issues surrounds R2P: Does R2P justifies a resort to military force to stop or prevent atrocity crimes? Does R2P constitute a legitimate exception to the prohibition of the use of force? Does the military intervention always have to be authorized by the UN Security Council or is it possible to act also outside the framework of the UN Charter?
The Ukraine’s application to the ICJ of 26 February is interesting as it provides some clues about the position of the two States regarding the above issues. Simply clues because we deduce the legal framework of the Russian position mostly through the lenses of its counterpart in the dispute. Further, Ukraine’s position might be an opportunistic one dictated solely by the desire to bring (again) Russia before the ICJ to gain favor with the international community in these dramatic times. Is this opportunistic nature of the argument enough to set aside the value of State practice and/or opinio juris? Probably not, but this is only to say that Ukraine’s position may change with changing circumstances over time.
Ukraine position can be summarized as follow. A military intervention aimed at stopping or preventing at least genocide, if not atrocity crimes in general, is legitimate under international law. Ukraine frames the legitimacy of this resort to armed force under Article I of the Genocide Convention. Accordingly, the use of armed force constitutes an available measure – although one of last resort – to prevent and to punish genocide. However, because Ukraine denies having committed or being about to commit genocide against the Russians around Luhansk and Donetsk, it consequently contests the justification of the Russian invasion. Further, Ukraine affirms that the unlawfulness of the Russian military operation is also based on Article VIII of the Genocide Convention which mandates the necessary involvement of UN bodies in the prevention and suppression of genocide through the adoption of “such action under the [UN Charter]”. Accordingly, the fact that Ukraine grounds its claim of the unlawfulness of the Russia operation also on Article VIII can be interpreted as an implicit recognition of the R2P limits: the need to prevent or punish genocide or other atrocity crimes justifies only measures adopted according to the UN Charter and following UN procedures.
Russian position can be deduced from the public statements released by prominent representatives of its government, first of all President Putin’s speech of 24 February (see the Ukraine’s application for a detailed list). President Putin affirmed that: “[the goal of the military operation] is to protect people who have been subjected to bullying and genocide by the Kiev regime for eight years.” The prevention and/or suppression of genocide, thus, emerges as one of the cumulative legal justifications relied upon by Russia to launch its armed operation into Ukraine. Ukraine frames the Russian use of force into its territory in the same vein. However, Russia’s interpretation of the R2P deviates from the Ukrainian one as outlined above. Indeed, as a matter of fact, Russia sent its army against Ukraine without prior obtaining an authorization by the UN Security Council. Russia also did not prior inform the relevant UN bodies as envisaged in Article VIII of the Genocide Convention. Irrespective of whether the allegation of genocide is well-founded or not, the underlying theory is that a humanitarian intervention aimed at preventing or suppressing genocide may be decided also outside the UN framework. It should be acknowledged that in the same speech and in a contradictory way, President Putin condemned the Western allies for their military intervention in Serbia, Iraq, Libya, and Syria without any UN Security Council authorization.
Issues and alternative routes
The likelihood that Ukraine’s arguments will convince the judges of the ICJ remains to be seen. Certainly, the first request addressed to the Court – the one concerning the alleged commission of genocide around Luhansk and Donetsk – may encounter some legal obstacles being a request for a determination of a non-breach of an international obligation by the applicant-State. The only other case where a negative determination of this kind was addressed to the ICJ is Rights of the Nationals of the United States of America in Morocco (France v. United States of America), 1950. In that case, France – as protectorate of Morocco – instituted proceedings against the USA with reference to certain laws France has passed on Moroccan territory and that the USA contested as in violation of its rights under treaties with Morocco. Thus, France acted as an applicant arguing that it had not breached its international obligations. However, the ICJ did not cover this peculiar aspect in the judgment and limited itself to addressing each submission of the parties. Ultimately, it is always a question of applying a legally binding rule to a concrete factual situation. The Court could also – regardless of the formal role of the parties in the proceedings – apply the general rule that “it is for the party alleging a fact to demonstrate its existence (Croatia v. Serbia, para. 172). In this case, because it is alleging the commission of genocide by Ukraine to legitimate its resort to armed force, Russia should bear the burden of proof despite being the respondent.
The Ukraine application may also suffer if Russia succeeds in imposing a change of government in Ukraine as this most likely will lead to a change also in the representation of the State before the ICJ. Against this background, Ukraine may benefit from pursuing at the same time the approval of a resolution of the UN General Assembly (an emergency session on Ukraine crisis is ongoing) requesting the ICJ an advisory opinion. This request can indeed be withdrawn only with the consent of the majority of the General Assembly, which does not seem likely at the moment.
The path of conveying a request for an advisory opinion through the General Assembly could prove effective in particular with reference to the second request Ukraine addressed to the ICJ. Indeed, Ukraine’s request to adjudge the legality of the Russian use of force runs the risk of clashing with a determination of lack of jurisdiction by the Court. The ICJ has previously determined that it lacked jurisdiction ratione materiae (even at the provisional measures stage) when confronted with a request to equate an act of aggression with genocide in order to bring the dispute under the compromissory clause of Article IX of the Genocide Convention (see a series of cases initiated by Serbia and Montenegro v. some NATO States). Considering that the compromissory clause of Article IX of the Genocide Convention covers those “[d]isputes […] relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III”, a determination on the legality of the use of force by Russia could be as well considered to be outside the scope of the jurisdiction devolved to the Court by means of Article IX. This issue is arguably an issue involving neither interpretation, application nor fulfilment of the Genocide Convention unless we consider a humanitarian intervention to prevent or suppress genocide as implicitly included under the obligation “to prevent and to punish” of Article I. Ukraine followed the path of implicitly recognizing an obligation to perform the duty to prevent and to punish in good faith and without abuses. Following this line of reasoning, Ukraine argues (para. 27) that: “one Contracting Party may not subject another Contracting Party to unlawful action, including armed attack, especially when it is based on a wholly unsubstantiated claim of preventing and punishing genocide.”
The situation at present
The ICJ has not yet made any substantive decisions concerning the application filed by Ukraine on the basis of the Genocide Convention. So far, Judge Donoghue, the President of the ICJ, issued an order requesting the participation of the Russian authorities in the urgent proceedings on the provisional measures sought by Ukraine. The Court scheduled – for 7 and 8 March – the first round of public hearings in this case. On 2 March, the UN General Assembly also passed a Uniting for Peace resolution with a large majority (with only five States voting against) demanding to end the Russian offensive in Ukraine. The numbers for the General Assembly to take further measures therefore seem to be achievable.
In the last decades, international law has witnessed lively discussions about the opportunity to stretch the existing exceptions to the prohibition of the use of force of Article 2(4) of the UN Charter. These tensions mostly did not come from aggressive warlords but from a large group of international lawyers with the laudable intention of making the famous “Never Again” of Nuremberg a reality. Thus, the theories formulated aim to strengthen the overarching duty to prevent and punish atrocity crimes through the inclusion of, at least, the threat of military action. These efforts are not only desirable but also necessary in the light of the paralysis of the UN Security Council, increasingly blocked by the exercise of veto powers. However, the introduction of new exceptions to Article 2(4) runs the risk of manipulation in an attempt to cover up acts of aggression, as the recent example of Russia’s operation against Ukraine shows. This holds true especially when the proposed new exceptions are vague as the ones of humanitarian intervention and R2P. The current state of the affairs shall evolve because it proved incompatible with the prevention and suppression of the most heinous crimes. A renewed balance anyway should be drafted giving careful consideration to the opposing tensions at stake. Perhaps this balance could also consider the – albeit challenging – possibility of institutional reforms of the UN.