ICJ Indicates Provisional Measures Against Russia, in a Near Total Win for Ukraine; Russia Expelled from the Council of Europe

This afternoon the International Court of Justice, by 13 votes to 2, issued its order on provisional measures in the case brought by Ukraine against Russia under the Genocide Convention. The Court essentially accepted all of the arguments made by Ukraine for the purposes of the provisional measures stage of the proceeding, and rejected those in Russia’s submission to the Court that followed its non-appearance. Some key takeaways – first, the language that the Court uses is often very direct, going out of its way to make points that it was not legally required to make but were required by the necessity of the moment. For example, in para 18:

The Court is profoundly concerned about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law. The Court is mindful of the purposes and principles of the United Nations Charter and of its 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. It deems it necessary to emphasize 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.

Similarly, when discussing the urgency of the measures requested (para 75) the Court took it as established that

the civilian population affected by the present conflict is extremely vulnerable. The “special military operation” being conducted by the Russian Federation has resulted in numerous civilian deaths and injuries. It has also caused significant material damage, including the destruction of buildings and infrastructure. Attacks are ongoing and are creating increasingly difficult living conditions for the civilian population. Many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large number of people are attempting to flee from the most affected cities under extremely insecure conditions.

Second, the Court rejected Russia’s jurisdictional argument (on a prima facie standard) that the Genocide Convention was inapplicable and the Court without jurisdiction, because Russia’s formal basis for using force was self-defence under Article 51 of the Charter. Rather, the Court found that numerous statements by Russian officials, including President Putin’s infamous speech on the eve of invasion, did expressly refer to stopping genocide as the purpose of the use of force (paras 36-46).

Third, the Court accepted as plausible Ukraine’s creative argument that it had a right under the Convention not to be subjected to a false claim of genocide which is then used as a basis for using force against it. In doing so the Court did not examine whether there is a freestanding implied right in the Convention not to be subjected for a false claim of genocide, a ‘defamation’ type scenario. Its focus was on the use of force that is based on such a false claim, even though it reiterated its prior view that the Genocide Convention duty of prevention operates only ‘within the limits of international law’, i.e. does not permit the use of force beyond the confines of the Charter (para 57). Thus (paras 59-60):

The Court can only take a decision on the Applicant’s claims if the case proceeds to the merits. At the present stage of the proceedings, it suffices to observe that the Court is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.

Under these circumstances, the Court considers that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine.

Fourth, after finding that there is a sufficient link between the plausible right of Ukraine and the provisional measures sought (which remember is true only because the right itself was framed as one not to have force used against it on the basis of a false allegation of genocide, rather than the false allegation as such), and that there is a risk of irreparable harm, the Court granted 3 of the 4 measures sought by Ukraine. It even reformulated the first and second measure sought so that no link to the Genocide Convention was required in the text of the measures as such (compare the operative paragraph with para 5 containing Ukraine’s proposed language).

Thus, instead of saying that ‘The Russian Federation shall 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,’ the Court simply orders that ‘The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.’ Similarly, instead of saying that ‘The Russian Federation shall immediately ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations 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’, the Court orders that ‘The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above.’

Why is this important? Because in changing the language – presumably used by Ukraine to buttress the jurisdictional link to the Genocide Convention – the Court is avoiding creating an abusive escape valve by which Russia could say that no military operations are being conducted that have as their ‘stated purpose and objective’ the prevention of genocide. The Court also issues the standard non-aggravation measure for both parties, but rejects Ukraine’s Gambia/Myanmar-type request for a reporting/monitoring mechanism (para 80).

All in all, a huge win for Ukraine, with a huge majority, with only Judges Gevorgian and Xue dissenting. In his dissent Judge Gevorgian finds the creative jurisdictional argument by Ukraine implausible, saying that this case was essentially no different from the failed Legality of Use of Force cases brought by Yugoslavia against several NATO states under the Genocide Convention, and also doubting that Ukraine’s ‘false allegation’ claim could succeed when the ‘defamed’ state was the applicant. Judge Xue‘s position is similar. Four of the judges in the majority also write separately. Judge Nolte’s opinion is essentially about why the Legality of the Use of Force cases are distinguishable from the present case, in that the stated purpose of the use of force was not the prevention of genocide. Judge Bennouna’s opinion appears to be hinting that he is not persuaded by Ukraine’s jurisdictional argument and that he will vote against it at the jurisdiction stage of the proceedings, even if he was happy to go with the majority now. Judge ad hoc Daudet laments the fact that the non-aggravation provisional measure was also directed to Ukraine and not just Russia. And finally Judge Robinson writes a very long opinion providing a more detailed defence of some aspects of the Court’s approach.

Bottom line – Ukraine got what it wanted from the Court in this case, which is the indication of provisional measures asking Russia to stop its military operation. And this is a major difference compared to similar cases brought under the Genocide Convention (e.g. Bosnian Genocide and the Legality of Use of Force), in which the applicant most certainly didn’t get what it wanted – all made possible by the creative jurisdictional argument made by Ukraine, and by Russia’s genocide rhetoric. The Court spoke strongly with a nearly-unanimous voice; the two dissenting opinions are also quite reasonable, and could have prevailed in a different case. Russia’s failure to comply with the order will have the same effect as its non-appearance – a showing of disrespect for international law and institutions, causing it reputational harm while presenting Ukraine as a state using legal methods of peaceful dispute settlement.

And while we’re on the topic of reputational harm, today Russia was kicked out of the Council of Europe, effective immediately. The Committee of Ministers refused to allow Russia to leave on its own terms, pursuant to a notice of withdrawal filed on the basis of Article 7 of the CoE Statute. Rather, the Committee pushed Russia out with no notice period on the basis of Article 8 of the Statute. See more the analysis of Antoine Buyse here. What remains to be seen is what precisely are the financial implications of an immediate expulsion (not that Russia will pay or even get a refund), and what happens to any pending or future ECtHR cases brought against Russia; in particular it is unclear whether Russia’s withdrawal from the ECHR under Article 58 of the Convention goes into effect immediately or upon the expiry of a six month period (not that Russia will engage with the Court regardless). We may also see an interesting issue regarding the term of office of the Russian judge in Strasbourg, with some parallels to the post-Brexist position of the British CJEU judge.