International Court of Justice Orders Russia to Immediately Suspend Military Operations in Ukraine
On 16 March 2022, the International Court of Justice (ICJ) in the Hague ordered Russia to ‘immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine’.
The ICJ’s emergency injunction or ‘provisional measures order’ was even broader, and less qualified than what Ukraine had requested on 26 February 2022, two days after Russia began its attack on Ukraine. While Russia can hardly be expected to comply with the ICJ’s order, in light of its total disregard for international law in recent weeks, this ruling will nevertheless very likely factor into ongoing negotiations between Ukraine and Russia.
Ukraine filed its case against Russia before the ICJ (also known as the ‘World Court’), under the 1948 Genocide Convention, to which both Ukraine and Russia are parties. This treaty contains a dispute settlement clause (Art. IX) that allows the parties to the treaty to refer disputes about its ‘interpretation, application or fulfilment’ to the ICJ. The relevance of the Genocide Convention in this conflict stems from the fact that Russia has justified its ‘special military operation’ in Ukraine partly on the basis that Ukraine is allegedly carrying out a genocide in the Luhansk and Donetsk oblasts of Ukraine. Russia has been using the term ‘genocide’ as a rhetorical device in relation to Ukraine for many years, and on the eve of its invasion, Russia claimed to be ‘demilitarising and denazifying’ Ukraine, with the purpose of preventing and punishing an ongoing genocide in Ukraine. Ukraine’s basic argument in this case is that the duty to prevent and to punish genocide, which is contained in Art. I of the Genocide Convention, must be performed by Russia in good faith, and not abused as a false pretext for an armed attack.
Ukraine’s request for provisional measures first asked the Court to order Russia to ‘immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine’. In addition, Ukraine asked the Court to order Russia to ‘immediately ensure that any military or irregular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations which have as their stated purpose and objective preventing or punishing Ukraine for committing genocide’. By a majority vote (13 for, 2 against), the Court granted Ukraine’s first two requests, but it omitted the qualifying language that Ukraine included, namely the reference to military operations ‘that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine’.
With the omission of this qualifying language in its first two orders, the Court’s ruling is unusually strong and also less susceptible to debate about compliance. The inclusion of such qualifying language might have left Russia with some room to argue that it could continue its military operation to the extent that it was based on other justifications, beyond purportedly preventing and punishing genocide in Ukraine. Such sweeping orders by the Court were not necessarily expected by observers and commentators, as the Court tends to proceed conservatively, with a view towards not overstepping the limits of its jurisdiction, meaning its competence to rule. After all, the Court depends on states to consent to its jurisdiction, such as through dispute settlement clauses contained in treaties like the Genocide Convention. In this provisional measures order, the Court acknowledged its jurisdictional limits, while at the same time emphasising – to an unusual extent – its responsibilities as the principal judicial organ of the United Nations.
The Court acknowledged that the scope of the present case is limited, as a result of having been instituted by Ukraine under the Genocide Convention alone (para. 19). Ukraine did not have the option of instituting a case squarely concerning Russia’s violation of the prohibition on the use of force in the United Nations Charter (Art. 2(4)) and/or its violations of international humanitarian law, because there would be no jurisdictional basis for such a case before the ICJ (or any other international court or tribunal for that matter). Instead, counsel for Ukraine managed to mould their case against Russia to fit the confines of the Genocide Convention’s dispute settlement clause.
At the same time, however, the Court’s ruling begins with some unusual language about the Court’s ‘own responsibilities in the maintenance of international peace and security as well as in the peaceful settlement of disputes under the Charter and the Statute of the Court’ (para. 18). The Court further emphasised ‘that all States must act in conformity with their obligations under the United Nations Charter and other rules of international law, including international humanitarian law’ (ibid). The Court does not typically describe itself as bearing responsibilities for the maintenance of international peace and security under the UN Charter, nor is this a standard description of its role in the UN system. Instead, this descriptor fits the UN Security Council, which is, of course, currently paralysed due to Russia’s permanent membership and veto power. As the principal judicial organ of the United Nations, the ICJ can indeed play a subsidiary role in maintaining international peace and security in the specific context of cases over which it has jurisdiction, and which concern armed conflict. The Charter itself conceives of ‘judicial settlement’, through institutions such as the ICJ, as one of the means by which parties may settle disputes, ‘the continuance of which is likely to endanger the maintenance of international peace and security’ (Art. 33).
The Court’s emphasis, at the beginning of its ruling, on its role in the maintenance of international peace and security, sets the stage for the sweeping orders contained in its last paragraph. While the Genocide Convention limits the Court’s jurisdiction, the Court evidently still considers itself competent to order Russia to cease the military operations that it began on 24 February 2022 in Ukraine – full stop. It remains to be seen whether the Court will interpret its jurisdiction in a liberal manner at the merits stage of these proceedings, assuming that the case goes forward (as always, the possibility remains that at a later point in time the parties could reach a settlement and/or Ukraine could decide to withdraw its case).
This blog post would be somewhat misleading if it stopped here, because the Court did not, in fact, grant Ukraine everything that it requested in this provisional measures order. Most significantly, the Court declined to grant Ukraine’s request that Russia report back to the Court on its implementation of the provisional measures order. Ukraine asked the Court to order Russia to provide such a report one week after the ruling, and on a regular basis thereafter, to be determined by the Court. The Court declined to indicate this measure, but it did not explain why. The Court tersely indicated only that ‘[i]n the circumstances of the present case … the Court declines to indicate this measure’ (para. 83).
The absence of any reasoning to support this decision is not necessarily unusual for provisional measures orders, which are issued by the Court on an expedited basis, and therefore include limited analysis. This provisional measures order was issued with particular speed, a little over a week after the oral proceedings. But some explanation was arguably warranted with respect to this decision on reporting, in light of the fact that the Court has the power to order reporting (ICJ Rules, Art. 78) and has required reporting in other provisional measures orders in cases brought pursuant to the Genocide Convention. For example, the Court recently required Myanmar to report back to it in its provisional measures order of January 2020, in the case brought by The Gambia against Myanmar under the Genocide Convention. The two cases can be distinguished from each other, especially as the factual circumstances giving rise to the two cases are quite different. But it would have been helpful to have some indication of what the Court sees as the difference between the two cases in this regard. Reporting on the implementation of provisional measures is one of a limited set of tools that the Court can use to bring about compliance with its rulings. As for why the Court orders reporting in some cases and not others, this is a good question but a difficult one to answer because of the general sparseness of the Court’s reasoning.
At the risk of ending on a sour note, Russia’s absence in these proceedings also merits brief mention. During the oral proceedings, held on 7 March 2022, the seats available in the Great Hall of Justice, for Russia’s agent and counsel, remained empty. The non-appearance of a respondent state, and Russia in particular, is by no means unheard of (another relatively recent example is Russia’s non-appearance in arbitration proceedings brought against it by the Netherlands concerning the Arctic Sunrise). But non-appearance is always regrettable from the standpoint of the good administration of justice and the legitimacy of the judicial or arbitral institution. Although Russia declined to appear, it did send a letter to the Court with some arguments about why it considers that the Court lacks jurisdiction. The Court duly took these arguments into consideration in its provisional measures order. It can only be hoped that Russia will see fit to appear before the Court should these proceedings continue.