By Miłosz Gapsa, Dr. iur. candidate at the University of Łódź (Poland), Doctoral School of Social Sciences
Parents usually teach their children not to compare themselves with their peers to justify their bad behaviour. This good practice is even reflected in a basic rule of mathematics that adding two minus doesn’t give a plus. All the more reasons to wish that States, as the primary and (still) most important subject of international law, would behave in this way. Unfortunately, Russian explanations for non-compliance with the Order on provisional measures in Allegations of Genocide under the (Ukraine v. Russia) continue to follow the pattern of ‘we don’t comply because others haven’t either and we are no worse’. This post aims at analysing the speech of the Russian Ambassador to the UN on the aforementioned topic, especially as the Order under review underlines the importance of such statements.
Order on provisional measures of 16 March 2022
On 24 February 2022, Russia started (with the words used in its letter to the Security Council) a ‘special military operation’ on the territory of Ukraine for its ‘demilitarisation’ and ‘denazification’. Just two days after, Ukraine instituted proceedings before the ICJ, seeking its jurisdiction under Article IX (jurisdictional clause) of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. None of the other possibilities under Art 36 ICJ Statute could confer jurisdiction on the ICJ, and the Genocide Convention was used as numerous Russian representatives referred to an alleged genocide in Donbass (Order, paras 36 and following). Together with the Application, Ukraine asked the ICJ to indicate four provisional measures: to immediately suspend all military operations against Ukraine by both Russia and ‘any military or irregular armed units which may be directed or supported by it’, for Russia to refrain from any aggravation of the dispute, and to report back to the ICJ on the implementation of the measures (Request, para 20).
As to the Application itself, it represents an innovative approach by invoking a non-violation claim that Ukraine has a right not to be falsely accused of committing genocide and thus not to be subject to a military invasion to prevent it (Application, paras 2-3). Under Art 41 ICJ Statute, the Court has the power to grant provisional measures. The jurisprudence of the ICJ (Practice Direction XI) recognises 3 requirements for their indication: prima facie jurisdiction, fumus boni juris together with a link between the requested measures and the main case, and urgency with the risk of irreparable prejudice (see Armenia v. Azerbaijan).
On 16 March 2022, 18 days after the Request was filled, the ICJ delivered its Order. Noteworthy, Russia did not participate in the oral proceedings, claiming that the ICJ lacked jurisdiction (Letter). The ICJ affirmed its prima facie jurisdiction, finding that the dispute between the parties concerns the subject matter of the Genocide Convention (Order, paras 36-48) and rejecting that the dispute concerns only Art 51 UN Charter and the possibility of use of force (Letter). The condition of fumus boni juris was satisfied as the ICJ considered that the Genocide Convention should be implemented following principles set in the UN Charter (Order, paras 50-64), making it questionable to use force on the territory of another state to prevent an alleged genocide (ibid, para 59). The last condition was equally met, due to the seriousness of the war noted, inter alia, in the United for Peace Resolution (ibid, para 76). As a result, the ICJ indicated three provisional measures: the first two consistent with Ukraine’s Request, and non-aggravation directed to both parties. Surpisingly, the ICJ did not oblige Russia to submit regular reports, in contrast with previous practice (see Rohingya genocide, para 86(4)), perhaps anticipating a highly probable non-compliance.
The Statement of Russian Ambassador to the UN
The Statement by the Permanent Representative Vassily Nabenzia at the UNSC open debate ‘Strengthening accountability and justice for serious violations of international law’ clarified any possible doubts about the Russian position on compliance with the said measures. Nabenzia reiterated the accusation that the ICJ lacked jurisdiction and stressed that the ICJ acted solely because of political pressure. A long section of his speech is devoted to factual and legal situations in which the Western States acted on the edge of legality. The factual part covers the NATO ‘attacks’ on Yugoslavia, Iraq, Afghanistan, Libya and Syria, British plans to extradite the ‘courageous’ Julian Assange, and the use of the International Criminal Court as a political tool, like the fact that the new Prosecutor has halted all proceedings ‘unwanted by the West’. The legal part concerns the United States’ refusal to implement the Nicaragua decision and the use of the veto power before the Security Council, British actions after Chagos Archipelago, political pressure on the ICJ to consider the cas d’espèce differently to Legality of Use of Force cases.
While part of these allegations are manifestly unfounded, , it must be underlined that grave violations of international law by Western states are widely recognised in international legal scholarship. The illegality of the 2003 aggression of Iraq is affirmed in ordinary textbooks (e.g. Grant, International Law Essentials) and the recent book on the Chagos Archipelago, Sands, The Last Colony, is exemplary.
The obligation to implement provisional measures
Despite numerous explanations as to why Russia will not implement the Order, its unilateral arguments will not change the existing law. At least since LaGrand, there have been no doubts that provisional measures are binding and States are obliged to comply with them. Lando strongly advocates that enforcement should not be confused with compliance. He states that they are distinguishable because of ‘the existence of an entity charged with compelling adherence to the terms of the decision’, and the power of the said body to ‘use coercive means in order to achieve its objective’ (p 25). For this reason, he speaks in favour of using the term ‘compliance’ while considering provisional measures. Under Art 94(1) UN Charter, the parties are under an obligation to comply with any decision rendered by the ICJ. If the party fails to implement a judgment, the other party may have recourse to the Security Council in order to give it effect (Art 94(2) UN Charter). Whether provisional measures are covered by the aforementioned provision remains disputable, but they appear not (Oellers-Frahm, p 1967).
Other solutions analysed by scholars to ensure compliance include countermeasures following ARSIWA (Miles, pp 319ff; Lando, pp 27ff), self-help (Lando, pp 26ff), recourse to the UN General Assembly (ibid, pp 33ff) and employing domestic courts (ibid, pp 38ff). Particularly captivating seems all analyses concerning the ‘powers’ of the ICJ itself. First, they are limited by the principle of non ultra petita. Second, as Miles elaborates, they are usually limited to a declaration of a breach (pp 328ff). The possibility of obtaining a remedy has been rendered impossible by setting a high threshold in Bosnian Genocide (p 234). Other possibilities may include taking the breach into account when deciding on the merits (Border Area, pp 368-69), or ordering one party to pay the other’s legal costs. Even though there have been requests to do so (e.g. Eastern Greenland, p74), the ICJ has not departed from its rule that each party covers its costs (Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, p 212), but some judges seem willing to do so (Border Area/San Juan River, Joint Declaration Tomka, Greenwood, Sebutinde, ad hoc Dugard). Overall, it suffices to summarize that there is no single effective way of ensuring compliance with provisional measures.
In summary, Russia has tried to escape the well-established, albeit weak, rules on compliance with provisional measures by comparing itself to Western states. However, the fact that one state has violated international law does not allow another to do the same. Furthermore, states are obliged not to recognise as lawful actions that are contrary to international law (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), para 126). Ultimately, compliance with any decision of an international court is a political issue. Although the PCIJ stated in Factory at Chorzów (indemnities) that an order on provisional measures isn’t equal to interim judgment, at least from a political perspective it is. Particularly in non-democratic states, it is difficult to convince the public that the State ‘wins’ by complying with provisional measures ordered against it. Nevertheless, all proceedings against Russia should continue, as they symbolise the sword of Damocles (Wyrozumska). In so doing, they remind with firmness that international legal institutions keep requiring the implementation of the rule of law, despite the many violations occurred in the past.
Image: Members of the Court at the opening of the hearing, Monday 7 March 2022, Copyright: UN Photo/ICJ-CIJ/Frank van Beek.