Goliath vs David (and Friends): A Recap of the Preliminary Objections Hearings in Ukraine v. Russia

Introduction

Never before in the history of the Court have so many States’ representatives squeezed into the Great Hall of Justice for a contentious proceeding, as occurred in the preliminary objections hearings in Ukraine v. Russia which concluded on Wednesday. Not merely offering Ukraine and Russia a platform to trade political barbs, the proceedings raise a number of important questions including the proper role of intervenors, the Court’s capacity to issue a declaratory judgment of compliance with a treaty (rather than breach) and the limits of a compromissory clause. In this (long-ish) post, we endeavour to summarise the key arguments and important procedural points, offering some preliminary views on the likelihood of success for Russia’s objections.

That’s … a Lot of Speeches

The Court organised the proceedings carefully and some of the Judges had already raised concerns about the fairness of proceedings with so many States intervening as part of the Court’s decision on the admissibility of the intervention declarations. Article 86(2) of the ICJ’s Rules of Court requires that all intervening States are ‘entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention.’ But when all of the intervenors have, rather explicitly, come in support of one of the parties, this essentially results in one side of the case having a much longer time to put their point across than the other. The Court addressed this by, first, limiting the intervenors to ten or fifteen minute timeslots (depending on whether the statement was made on behalf of a single or multiple intervenors) – a process derived from Advisory Opinions where there can be dozens of speakers, though more truncated. Second, the Court limited the intervenors to a single round of oral pleading, while the parties had the benefit of the usual two rounds. Third and finally, Russia was granted twice as much time in the second round. This was an important step to confirm the actual and performative equality of the parties, even if Russia used much of this time to engage in political barbs and whataboutism. The Court is taking great pains to ensure that its proceedings in this case are, and are perceived as, impartial and legitimate.

The Court also did not give intervening States too much time to submit their written observations. In its Order on the admissibility of the intervention declarations dated 5 June 2023, the Court gave the intervenors one month to submit their written observations leaving limited time for States to get organised and coordinate efforts. Nevertheless, some of the intervenors were able to contribute to streamlining the proceedings by grouping their submissions. However, not all of the States that indicated in their written submissions a willingness to co-operate ended up doing so. Germany, Poland, Spain, and Greece all stated they were open to joining with ‘like-minded States’ (in the case of Spain and Greece explicitly limited to other EU States) in order to ease the burden of administration for the Court. But for the hearings, these four States are presented individually.

The short window for States to submit written submissions and the oral hearings being scheduled to take place only a month later could be a possible practical explanation for these shifting groups. Indeed, the interventions represent something of an ever-moving feast, as those States which did elect to present joint submissions were not necessarily those States with the most overlapping written declarations. Certainly, Russia was quick to seize on the repetitive nature of the intervenors’ arguments, blasting the failure of intervenors’ to make joint submissions, despite the Registrar’s urging to do so, though it remains to be seen if and how the Court or individual judges will comment on this issue.

Moreover, while the majority of States confined their remarks to the interpretation of Article IX, a number went further. Some States traversed into the merits; Lithuania emphasised Russia’s ‘blatant disregard of international law’, while the United Kingdom at some length submitted its views on the scope of Article I. New Zealand’s presentation was focussed on Russia’s refusal to comply with the Court’s provisional measures order and its argument that this constitutes ‘a substantive breach of Article IX’. Norway on the other hand spent time on why the interventions in and of themselves should be considered to be in accordance with the good administration of justice. This is despite the Court’s warning, in its order on admissibility, that it ‘will not consider’ arguments from the intervenors related to ‘the existence of a dispute between the Parties, the evidence, the facts or the application of the Convention in the present case’.

A Summary of the Arguments

Russia objects to the Court’s jurisdiction on six grounds: the lack of a dispute between the parties, the lack of jurisdiction ratione materiae, and a four-part objection to the admissibility of the case. Given that it is impossible to summarise all of these arguments in the present forum, we focus only on those which raise particularly interesting questions.

Regarding the first objection, it may seem surprising that parties engaged in a full-scale war could be considered not to have a ‘dispute’, but the legal standard for the existence of a dispute before the Court is a different beast; one that has grown new arms and legs in the 2010s, culminating with the Court’s (in)famous decision in the Marshall Islands cases. In those cases, the Court ruled that for a dispute to exist, the respondent must be ‘aware, or could not have been unaware, that its views were “positively opposed” by the applicant’, and that, moreover, the dispute crystalised prior to seising the Court. Russia sought to distinguish between two purported disputes and demonstrate that neither existed: one on the issue of whether the parties were in dispute over whether Ukraine committed genocide in eastern Ukraine, and another on whether they were in dispute over whether Russia’s invasion (the so-called ‘special military operation’) constituted a violation of the Genocide Convention. Russia’s argument on the first aspect seems quite weak – particularly given the extensive information presented by Ukraine on exchanges between the parties since 2014. Conversely, the second aspect seems more complex, raising questions as to whether it is merely an aspect of the broader (existing) dispute over purported genocide in Ukraine, and whether – even if it is a dispute which must be identified independently – it arose prior to Ukraine’s seising of the Court. It seems to us that this could prove a point of difficulty for this aspect of Ukraine’s case moving forward. Belgium v. Senegal would seem to indicate that it is problematic to subsume within a broader dispute an issue which ‘raises quite different legal problems’. Indeed, the legal assessment of whether Ukraine is responsible for genocide in Donetsk and Luhansk is different from whether Russia has violated the Genocide Convention by invading Ukraine. Additionally, it was only really hours prior to instituting proceedings that Ukraine expressly articulated for the first time, through a statement on its Ministry of Foreign Affairs’ website, its claim on Russia’s violation of the Convention. It may be difficult to prove Russia was in fact aware of this contention.

Russia’s second preliminary objection emphasised two points. First, that Ukraine is attempting to ‘shoehorn’ a claim regarding the legality of the 2022 invasion into a claim about the interpretation of the Genocide Convention. Secondly, that there is no obligation under the Genocide Convention itself to act within the limits of international law when taking steps, pursuant to Article I of the Convention, to prevent or punish genocide. Regarding the first point, it has become somewhat ritualistic for respondents to make a variation of this argument in their objections to cases brought under compromissory clauses; nevertheless, in response the Court has consistently recognised that the existence of a broader dispute does not prevent it from adjudicating a narrower set of legal questions falling within the compromissory clause. However, the second mentioned point is intriguing. The Court in the Bosnian Genocide case stated, in the context of an allegation that Serbia had failed to prevent the genocide at Srebrenica, that the obligation to prevent genocide is one of conduct not of result, and that in assessing whether the State’s conduct was adequate various factors must be taken into account, including that ‘every State may only act within the limits permitted by international law.’ In that case, this meant not expecting Serbia to act unlawfully to prevent the genocide. It should be noted, as well, that this second point is a preliminary issue, since it is for the Court to determine whether the acts as alleged by Ukraine are capable of falling within the jurisdiction provided by the Genocide Convention, whereas at the merits stage the Court would need to determine whether those acts have been established as a matter of fact.

On the basis of the statement in Bosnian Genocide, Ukraine submits that if State A believes that State B is committing genocide, it cannot act unlawfully (in this case, use military force) to prevent that genocide. It has an obligation to prevent the genocide, yes, but only by lawful means. Russia has sought to argue that while the obligation to prevent and punish under Article I only extends to taking lawful acts, it does not encompass an obligation not to violate international law. Russia’s concern is that by adopting such an interpretation, the Court will then be empowered to rule on the legality of the invasion which is not governed by the Genocide Convention but by Articles 2(4) and 51 of the UN Charter and customary international law.

It is open to the Court to declare that State obligations under Article I are limited to acts falling within the ‘limits of international law’ but go no further than that. Although Ukraine has requested the Court to find that Russia’s use of force is a violation of Article I (and Article IV), the Court may decline to reach that conclusion, instead making the general statement that Article I does not permit the use of force but that there may be other lawful justifications for the use of force which cannot be adjudicated in this case. We would observe that while it is axiomatic that a treaty must be performed in good faith, there is little precedent for the proposition that relying on – let alone abusing – an obligation (where none arose) to engage in some conduct constitutes a violation of that very obligation. It should be noted that Ukraine and several intervenors relied on the principle of abuse of rights – or abuse of law – to demonstrate otherwise. Probably since Russia argued that Ukraine engaged in an ‘abuse of process’ – arguably involving an application of the principle of abuse of rights to procedural rights – it refrained from making the argument which we believe would be the correct legal assessment; namely, that under international law there is no rule on abuse of rights. Yet, even if there is a rule on abuse of rights, the consequence of an abuse would be the absence of the right – not a violation of international law. Of course, like in the present case, the consequence of an absence of a right means that a State cannot rely on that right to evade a legal obligation. However, in the present case, that legal obligation – the prohibition on the use of force – is not encompassed within the Genocide Convention, and therefore adjudication of its violation falls outside the Court’s jurisdiction. Either way, it should be noted that Russia’s argument that ‘[t]here is no basis in the text, object and purpose, or even travaux of the Convention, nor in the Court’s jurisprudence, to support the existence’ of an obligation to act within the limits of international law when acting pursuant to Article I is unpalatable, at best.

The inadmissibility arguments are quite complex, and we do not anticipate that many of them will pose serious issues for the Court – at least at the present stage of the case. However, it is worth highlighting one objection, due to its novelty in ICJ proceedings. Russia argues that Ukraine’s submission, requesting the Court to declare that it has not committed genocide in eastern Ukraine, is inadmissible because it amounts to a ’reverse compliance request’. Certainly, in the World Court’s 100 year history, disputes concerning alleged violations of international law are typically brought by applications which claim that the respondent State has violated its international obligations, or occasionally by special agreement. However, Ukraine pointed to two instances where the Court was willing to adjudicate an applicant’s submission that it had not violated its legal obligations: US Nationals in Morocco and the parallel Lockerbie cases. Russia raises several arguments for why Ukraine’s ‘exoneration’ claim is inadmissible, while seeking to distinguish the two mentioned precedents on the facts. Perhaps Russia’s most intriguing argument – which in a case not involving brazen aggression could raise sympathy – is that upholding the claim would ‘exonerat[e] the applicant from responsibility before other States have had the opportunity to prepare their respective claims’. However, in addition to failing to identify a legal ground for not exercising jurisdiction, the argument is speculative. It also remains open to Russia to bring evidence of the genocide which they allege was taking place – evidence they have supposedly been collecting since 2014 – and defeat the ’reverse compliance request’ on its merits.

Finally, Russia brings a sweeping accusation of abuse of process, including that Ukraine is explicitly engaged in lawfare and has ‘arranged an abusive mass intervention’. Given that the Court has never accepted an abuse of process argument and has already held that the interventions are not in and of themselves an abuse of process, this argument seems unlikely to succeed.

Before concluding, we should make a broader observation on the implications for the present stage of the case of the Court’s provisional measures order, where the Court considered it had prima facie jurisdiction and that the rights claimed by Ukraine were plausible. Experience demonstrates that successfully obtaining provisional measures does not necessarily correlate with success in the case as a whole. Indeed, in two somewhat recently culminated cases – Georgia v Russia and Qatar v UAE – the Court found in its judgment on preliminary objections that it lacked jurisdiction, despite finding at the provisional measures stage that it had prima facie jurisdiction. In another recent case – Equatorial Guinea v France – the Court rejected the existence of certain rights on the merits which it had upheld at the provisional measures stage as plausible. After all, the Court’s often laconic reasoning in provisional measures orders – which would be a fair description of parts of the order in the present case – provides it sufficient wiggle room to engage in what may appear to the passive spectator as a volte-face. Additionally, in the present case, the judges’ individual opinions appended to the Court’s provisional measures order would seem to indicate that the case is proverbially up for grabs. Three judges – Vice-President Gevorgian and Judges Bennouna and Xue – expressed significant doubts regarding the prospects of Ukraine’s arguments, whereas the three other judges who appended individual opinions – Judges Robinson and Nolte and Judge ad hoc Daudet – did not provide too many clues on their thoughts on the case moving forward.

Conclusions

The fact that 32 States chose to intervene in the jurisdiction phase perhaps indicates that the Court accepting the case was never a certainty. Or it perhaps reveals the opposite: as Germany pointed out, 1 in 5 State Parties agree on the interpretation of Article IX and the Court’s power to proceed to the merits. Either way, this case continues to set new records at the Court and no doubt the preliminary objections judgment will provide yet another landmark moment. And as the case develops, there are lessons to be learned both for the Court in dealing with such a large number of intervenors and for intervenors in considering strategies that are most well-suited for judicial proceedings at the ICJ. Finally, while we have expressed pessimism regarding certain aspects of Ukraine’s case on jurisdiction, even if we are proven correct, this would not necessarily mark the end of the road for this case. Ukraine’s so-called ‘reverse compliance request’ can survive a finding that there was no existing dispute regarding Russia’s alleged violation of the Convention or that the latter allegation does not fall within the compromissory clause.