Russia’s Non-Appearance Before the ICJ Against Ukraine: Of Not So Vanishing Vanishing Acts and their Vanishingly Thin Justification

On 9^th March 2022, Russia announced through it Foreign Ministry that “in light of the apparent absurdity of the lawsuit” launched against it by Ukraine before the ICJ, it would not “attend the hearing” on provisional measures. One can certainly have reservations about the Ukrainian strategy of invoking the Genocide Convention even if one is sympathetic to their cause; but nothing suggests that it is anything other than a good faith attempt to resolve a dispute between two states over what is, evidently, a massive disagreement.

Indeed, at the same time, Russia did make a submission to the ICJ in which it seems to blame its absence on the fact that “it would be difficult, if not impossible, to take all necessary decisions regarding the participation in the proceedings and conduct proper analyses of the Request” in the short time allotted. It is thus somewhat unclear at this stage whether this initial non-appearance reflects a principled aversion to appearing to face Ukraine or an early fumbling amplified perhaps by traveling difficulties (resulting, ironically, from the very case at stake). However, given the language used by its Foreign Ministry and the fact that Russia is simultaneously pulling out of the Council of Europe, it may well be that this is a sign of things to come.

In this blog I want to briefly reflect on what non-appearance could portend for future proceedings in this case. There is a long history of states not appearing before the ICJ, especially when its jurisdiction results from compromissory clauses or even the recognition of the Court’s compulsory jurisdiction. This includes, most famously: Iran in US v. Iran (Hostages in Teheran); France in Australia v. France (Nuclear Tests case); and the US in Nicaragua v. US (military and paramilitary activities). In the case of some advisory opinions that have a strong under-current of contentiousness, some of the states “targeted” declined to let their views known, as was the case of Israel in the opinion on the wall. In that respect, the Russian non-appearance is certainly neither new nor particularly surprising, although it was not discreet.

However, it was once thought that such non-appearance before the Court was quickly becoming the exception. This instance, then, alongside similar precedents (for example China in UNCLOS arbitration proceedings brought about by the Philippines), is part of a worrying trend, by which some states feel as if they do not need to be present at hearings and even in some cases do not need to defend. The grounds vary and are not always clearly or fully elucidated (unsurprisingly, given that they are not aired in court) but often evoke an exceptional degree of defiance towards the Court or a particular case or adversary that leads a state to believe (or to act as if it believes) that a posture of non or limited engagement is preferrable to one of robust engagement. Of course, it is not as if non-appearing states do not have a case they could have made, although clearly some have been on stronger grounds than others. Turkey, for example, won a case that it did not even defend (although one would certainly hesitate to say that it won it because it failed to attend); it is unclear by contrast that Iran could have done that much to convince the Court that it did not have jurisdiction or that it had not violated international law (although it could have helped at least shape the narrative if it had been present). Russia’s arguments in its submission will certainly not convince all, but they do form the basis for a somewhat reasonable disagreement.

Its stance of not appearing but sending submissions is therefore an awkward mix of engagement and non-engagement. Put simply, however, not following through one’s submission by making one’s case in a hearing is not the best way to win it. Indeed, the most that may be said about non-appearance before the ICJ is that it has “rarely served the cause of the recalcitrant State.” There is something eminently paradoxical about claiming that a case against oneself is outlandishly wrong-headed and then declining to go all the way and make the (presumably easy) arguments in the courtroom that one could. It is true that having participated in proceedings “physically” may legitimize them marginally and that could be Russia’s calculation. But in most cases, putting all chances on one’s side by vigorously litigating a case in person surely outweighs the risk of losing it after having defended.

Not only does non-appearance seem like an ill-thought strategy to defend oneself, but it is also sure to inflict some damage to the ICJ and its authority. There is, it is true, no obligation to participate in international proceedings and this makes it unclear what is wrong about non-participation. Still, a core interest in adversarialism is affected as a result of “no shows,” for example in terms of ascertain facts or developing legal arguments. Non-appearing states deprive the Court of their particular juridical vision and of the spectacle of a dynamic, structured and interactive process with the applicants (for whom, incidentally, this particular vanishing act can have a weirdly deflating impact). Resulting judgments or advisory opinions are still binding of course, but they may be impoverished. That may be the point of course: that Ukraine will exhaust itself in making arguments that are not challenged in Court, in a case that already has it weirdly arguing that it did not commit genocide (if only to then allege that Russia has no business to use force to prevent such genocide).

To prevent this problem, the ICJ has gone out of its way to accommodate the interests of states that had threatened to not appear, including by granting postponements. Moreover, the Court will not enter any kind of default judgment by assuming that the allegations are uncontested. The Court has also made it amply clear that the door remains open and that states are not bound by their own declaration to not appear – in other words, that they can reappear at any time during the proceedings without any further formality. Russia could and may yet change its mind on this.

Most importantly, if a state continues to refuse to appear, the Court has sought to articulate what the arguments of the respondent might have been had it deigned to do so, notably on the basis of known declarations, because of its obligation to ascertain its jurisdiction (i.e.: whether it is contested or not). Russia has already shown that it may engage in writing at least but could also convey its opinion in whatever way it choses, directly or indirectly, letting the Court then piece together its argument. This is not exactly what one would describe as a helpful stance, but it would allow Russia to be “represented whilst not represented.” Whether the Court can go beyond that and suo ponte produce contradictory arguments without violating fairness to the applicants is a debated issue. In some cases, the Court did such a good job in its role in echoing the respondent’s imagined juridical interests that it found that it had no jurisdiction (see here and here).

The end result, though, is that the Court has made it difficult for non-appearing states to make their non-appearance a self-fulfilling prophecy that, in advance, impugns the character of international justice. States’ absence, in fact, is all the more regrettable because the ICJ has as a general rule been extremely scrupulous in ascertaining the limits of its competence and bended backwards to accommodate state concerns about sovereignty, voluntarism and consensual jurisdiction. By the same token, the Court has also insisted that a non-appearing state cannot prevent proceedings from taking place. The non-appearing state will be bound by the judgment just as much if it does not participate as if it had. Any harmful consequences that may result from the non-appearing party, in such circumstances, are entirely attributable to it.

What then is the true motivation to not appear? Sometimes non-participation, especially following a début de participation at the jurisdiction stage, merely reflects “sore loser” feelings by a state that did not win the argument (as was the case arguably of Kenya against Somalia and Pakistan against Marhsall Island). Other times non-appearance may be a way of sternly cautioning an international court against any creativity in the exercise of its mandate, even as caution is already much in evidence. Yet at other times, non-participation will be used as a sort of “joker” to subsequently discredit a decision or opinion on the basis that it did not benefit from as wide and deep an airing of fact and law as would have been made possible if the agent in question had participated. This is then used to further justify non-execution of a judgment one has ex ante dismissed as illegitimate – but it is hard to see how this is anything but the ultimate manifestation of profiting from one’s own wrong.

The reality, at any rate, is that Russia’s absence has probably little to do with the notion that the case against it is “absurd.” Indeed, the unwillingness to even appear in proceedings is part of a register of excessively outré defiance that has a long, if undistinguished, record. On its face, this defiance is premised on the idea that a process is so beyond the pale as to not even be worth engaging in. More often than not, however, such defiance has a make-believe quality – the lady doth protest too much. Clearly Russia did not think that the case was so absurd that it did not deserve some cogent written response. So why settle for this in-between position, except perhaps as a way of hedging one’s bets that ultimately betrays the weakness of its case, a fear of losing or, worse, an “insistence that the status of contested behavior should not be governed by international law” at all? At any rate, even if Russia “won” the case, on jurisdiction or on the merits, such a “victory” would have been obtained at the cost of having paradoxically contributed to delegitimize the very court that made such judgements possible.

In ultimate analysis, non-appearance can be analyzed as a form of “cheating”: of seeking the benefits of a favorable judgment if it be coming, whilst maintaining plausible deniability in the case of an unfavorable one. It is all the more shocking that one is facing a largely equanimous and fair-minded court that, throughout, takes notice of one’s absence and seeks to compensate for it. Perhaps more importantly, the vaguely autarchic character of such agitation often betrays a belief that one can withdraw into self-exile from international law. Not only has and will the world move on; but one will have further undermined one’s status as a member of the international community in good standing in the process.