The ICJ’s order on provisional measures requested by Ukraine

Today the order of the International Court of Justice (ICJ) on provisional orders requested by Ukraine in its contentious case against Russia was published.

The decisions of the order do not contain anything surprising. The Court has not taken a position on the merits of the application of Ukraine, it has found that prima facie it has jurisdiction, Russia is obligated to cease its military operations, and both parties shall refrain from escalating the situation any further. All other requests have been denied, so the president of Ukraine’s tweet about “complete victory” seems to be a bit exaggerating, but this is something inevitable in the current political situation.

You can also find some information in the published order about the Russian counterarguments, presented in the meantime. Those are based on the jurisdiction issues I have outlined in my earlier post. The Court has no jurisdiction to examine questions related to use of force, only related to the Genocide Convention, and Russia argues that it uses force not on the basis of that, but on the basis of customary law and Article 51 of the UN Charter, meaning the practicing of self-defense – this way the jurisdictional clause in Article IX of the Genocide Convention is not applicable. Currently the Court has tackled this argument with currently not dealing with the situation on the merits, but as international law dictates the peaceful settlement of disputes as a general obligation, it is entitled to create these obligations as provisional measures.

It is important to emphasize that this decision is not the judgment in the case. That will take months or even years to be adopted.

The first hearing in Ukraine’s case against Russia before the ICJ

The International Court of Justice (ICJ) has held the first public hearings yesterday on the request for the indication of provisional measures presented by Ukraine in its case initiated against Russia recently. As indicated earlier, the case is based on the Genocide Convention, its Article IX providing jurisdiction for the Court.

Video recording of the hearing can be watched online at the UN Web TV.

Not surprisingly, the Russian Federation was not represented by any delegation or agent. This is not rare, it has happened a few times, that the defendant state does not appear in the courtroom. Of course this sends a very bad message, but it does not have any effect on the proceeding of the Court. Currently, it will definitely be seen by everyone as Russia not even trying to defend its vocal position about the “genocide”, which will not help its credibility at all.

The Ukraine-Russia conflict before the ICJ

The president of Ukraine has tweeted today, that Ukraine turns to the Hague-based International Court of Justice (ICJ) against Russia, arguing it “manipulating the notion of genocide to justify aggression”. Some time later, the court has published the relevant press release, which has helped to clarify the exact claims and arguments.

Originally, based on the tweet itself, I was quite pessimistic about the application, and I thought that the court will come to the conclusion of not having the proper jurisdictional base and – after a few month – will end the case. As a consequence of this, the request of Ukraine to order provisional measures against Russia also seemed to have a weak base, as it requires jurisdiction at least “prima facie”, meaning that the court at least “at first sight”, based on a quick examination, has to take a position about the case being suitable for examination on the merits. Provisional measures, being possible in this case, mean legally binding orders from the court to specific behaviour or action to the states involved in the debate.

Why is it so? The answer is fairly simple. The current international legal order, being built on sovereignty of states, requires some form of the involved states’ consent to the proceedings leading to a legally binding judgment before the ICJ. The most clear case is, when the parties in the dispute jointly turn to the ICJ (like in the Gabcikovo-Nagymaros case between Hungary and Slovakia), but this consent may also be indirect: a so-called jurisdiction clause may be added to international treaties, based on which any state party can turn to the ICJ in the case of violation of that treaty. This is quite commonly used, and usually this is how the ICJ can get access to cases with serious tensions, when the states involved do not even talk to each other, and definitely would not go to the court hand-in-hand together. This was the base for example of more proceedings between the US and Iran, and this gave the possibility to Palestine against the US, to initiate a proceeding because of it moving its embassy into Jerusalem.

There may be hope for the proceeding to advance, if it is based on the UN Genocide Convention. The president’s tweet was vaguely referring to this option, and it is later reaffirmed by the press release. Both Ukraine and Russia is party to it, and its article IX contains a jurisdictional clause (“Disputes between the Contracting Parties 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, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”), meaning that the ICJ does not need an explicit consent from the defendant state, Russia. Still, its examination has to be narrowed to questions related to the Genocide Convention, and first, agression is not inseperable from this, second, so far genocide has only been present on the level of political propaganda, not reality. Still, some parts of the application, published by the press release indicates a very interesting argumentation line from Ukraine: it argues that the false accusations of genocide, used to provide legal grounds for recognising the breakaway regions as states and for its military invasion constitutes a violation of the convention. Smart. The court may not accept this argument in the end, but I believe it is capable of finding jurisdiction “prima facie”, proving the legal ground for provisional measures.

Still, this will not provide jurisdiction for the ICJ to examine the question of agression. In earlier proceedings, more states have tried to smuggle this question into cases on different jurisdictional base (see e.g. the case initiated by Georgia against Russia after their 2008 conflict, or the cases initiated by Armenia and Azerbaijan against each other last year, all of those being based on the jurisdiction clause included in article 22 of the UN Convention on the Elimination of All Forms of Racial Discrimination), but the court has always been reluctant to apply such an extensive interpretation, and even if it has ordered provisional measures, those have always been closely related to the given international treaty providing the jurisdiction.

At the same time, it may be worthy to add, that these cases are often not initiated by the states because they want legal results, rather to project the image of “fighting on all fronts”. Even if the governments know not to expect any results – this may be simple PR. Of course it does not neccessarily mean, that the state is not right on the merits, but it is not enough, if there is no jurisdiction of the ICJ…