Russia’s Submission to the ICJ in the Genocide Case; Russia’s Withdrawal from the Council of Europe

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A quick update on two important developments. First, the ICJ has put up on its website a submission it received from the Russian Federation in the Ukraine v. Russia genocide case, in which the Court’s provisional measures decision is pending. Because Russia has declined to participate in the proceedings – at least for now – this submission is the most formal statement of Russia’s various legal positions publicly available (see also Bill Schabas’ post from yesterday on Ukraine’s arguments in the case). Second, Russia announced its imminent withdrawal from the Council of Europe, inevitably to be accompanied by a denunciation of the European Convention on Human Rights.

Some key takeaways from Russia’s ICJ submission, which bears careful reading. Most of the arguments are anticipated and at the very least reasonable. The key point is that Russia is denying that the Court has jurisdiction over any use of force issues since they fall outside the scope of the Genocide Convention and are not covered by the compromissiory clause in Article IX thereof, and is arguing that it would be wholly inappropriate to somehow read the jus ad bellum into the Convention by implication. There are several steps to this argument, some more plausible than others. The absolutely most important one is that Russia is now firmly and explicitly denying that allegations of genocide against Russians/Russian-speakers in the Donbas have any kind of link to its use of force against Ukraine. Rather, Russia is saying that its only justification for the use of force is self-defence under Article 51 of the UN Charter (para 15):

The special military operation conducted by Russia in the territory of Ukraine is based on the United Nations Charter, its Article 51 and customary international law. The legal basis for the military operation was communicated on 24 February 2022 to the Secretary-General of the United Nations and the United Nations Security Council by the Permanent Representative of the Russian Federation to the United Nations in the form of a notification under Article 51 of the United Nations Charter. The relevant letter addressed to the UN Secretary-General with the request to circulate it as a document of the UN Security Council forwarded “the address of the President of the Russian Federation H.E. Mr. Vladimir Putin to the citizens of Russia informing them of the measures taken in accordance with Article 51 of the UN Charter in exercise of the right of self-defense” ( emphasis added) (attached).

Much of the submission consists of quotations from President Putin’s speech, the whole of which is also annexed thereto – like some kind of weird legalistic matryoshka doll, we now have a presidential speech that doubles up as an Article 51 letter and triples up as an ICJ written pleading. In making this move the Russian submission is firming up, in formal terms, the nature of Russia’s legal justification, although there is still substantial ambiguity about whether Russia is relying on preventive individual self-defence of Russia itself against Ukraine or on the collective self-defence of the two new supposedly independent states. Either way it’s impossible to argue now that Russia is putting forward a humanitarian intervention-type argument. But it’s by no means clear that – at least for provisional measures purposes – the Court will rely on this submission as a kind of post facto clarification of Putin’s speech, which as a matter of fact did invoke the concept of genocide to justify using force against Ukraine. Russia is now also essentially denying that there is a legal dispute between it and Ukraine under the Genocide Convention, since both states agree that nothing in the Convention can authorize the use of force.

Another move that Russia makes is to deny that references to genocide in Putin’s speech are to genocide as a concept under the Genocide Convention (para 20):

A reference to genocide is not equal to the invocation of the Convention or the existence of a dispute under it, since the notion of genocide exists in customary international law independently of the Convention. lt also exists in national legal systems of States including in the Russian Federation and Ukraine. There are no references to the Convention in the statement of the President of the Russian Federation to which the Government of Ukraine refers. The analysis of the dire situation in Donbass, including atrocities and genocide, provides a general humanitarian environment along with other factors and considerations.

This highly formalistic argument has little weight. There is no material difference between the concept of genocide under the Convention and under customary law, and its definition under the domestic laws of the two states is irrelevant. It can’t reasonably be said that there is a dispute between the two states about the meaning and application of the term ‘genocide’ under custom but not under the treaty, just like it can’t reasonably be said that there’s no dispute between the two states on the legality of Russia’s use of force under the Charter simply because the customary prohibition on the use of force exists alongside the Charter, treaty-based one. Disputes based on the treaty and custom exist in parallel and are not in any way mutually exclusive.

Interestingly, Russia is not making an explicit argument that a dispute under the Convention – or the Court’s jurisdiction – cannot exist on the novel ‘defamation’ type of claim where the applicant asserts that the respondent’s false accusation of genocide by the applicant, which the applicant denies, is a dispute about the interpretation, application or fulfillment of the Convention. But the gist of Russia’s claim basically is that use of force issues are entirely separate from those arising under the Convention, and that accordingly Ukraine has no plausible rights under the Convention that would need to be protected by provisional measures of the kind that Ukraine is asking the Court to indicate. This is not, by any means, a bad argument; yet as I noted in my earlier post the odds are still that the Court will indicate provisional measures, but we will see of what kind exactly.

Moving on to Russia’s withdrawal from the Council of Europe, there is some ambiguity there too, and on multiple fronts. The first level of uncertainty is in the nature of the relationship between Articles 7 and 8 of the Statute of the Council of Europe, which is textually uncertain and has only very limited subsequent practice. Article 7 sets out a member state’s power to withdraw, while Article 8 allows the organization to kick a member out for violating its fundamental rules, yet does so in part by reference to the Article 7 mechanism. Bit of a drafting mess really. And it’s also unclear whether Russia has formally filed an Article 7 notice of withdrawal, or is simply indicating its intention to do so – again there is quite a bit of ambiguity in the statements by relevant officials that are currently available (see here, here and here). Even if Russia triggered Article 7, it is an open question whether the remaining member states will nonetheless consider that the Article 8 procedure, with possibly different consequences, has somehow already been applied and prevails over the Article 7 mechanism. This is most relevant for the timing of Russia’s exit from the organization and its financial consequences (not that this will likely be of much practical relevance). And then there is the further issue of the possible denunciation of the ECHR – watch this space (and see also Kushtrim Istrefi’s analysis here).

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Ori Pomson says

March 11, 2022

Thank you for the quick and concise summary! I think the issue of parallel disputes concerning genocide is a bit more nuanced. In Belgium v. Senegal, Belgium raised arguments concerning alleged violations of an obligation to prosecute/extradite under both the Convention against Torture and customary international law. While the Court upheld its jurisdiction regarding violations under the Convention, it found itself without jurisdiction for claims under customary international law for the reason that there had not been a dispute regarding alleged customary obligations (paras 53-55). It hence seems plausible that the existence of a dispute regarding an obligation under one source of law will not suffice for substantiating a dispute on a parallel obligation under another source of law. (An argument could be made, as the late Judge Crawford opined in his dissenting opinions in the Marshall Islands cases, that the Court was less flexible in Belgium v. Senegal given that it had already found jurisdiction under the Convention, but the majority judgments in the Marshall Islands cases seem to have undermined that take.)
Having said all that, on the facts, given the official Russian statements Ukraine produced in its application and subsequently in the oral proceedings, the Russian argument does not seem to be convincing.

Tamás Hoffmann says

March 12, 2022

Dear Marko,

Congrats on another lucid analysis!
I'd like to remark on your remark that "there is no material difference between the concept of genocide under the Convention and under customary law, and its definition under the domestic laws of the two states is irrelevant."

While I agree with you that in fact there is no material difference between the conventional and the customary law definition, there is remarkable divergence between the internationally recognized conventional definition and the domestic genocide definitions, which led some scholars to speculate that this might have broadened the scope of the customary definition.
In fact, in my recent paper I have found that altogether 101 countries have diverged from the international definition, while only 41 states implemented it verbatim.

Marko Milanovic says

March 12, 2022

Many thanks for the comments Ori and Tamas! I completely agree that many domestic systems have implemented definitions of 'genocide' that vary from the one in the Convention. But no state that I am aware of has asserted that in customary international law genocide means anything other than what it means in the Convention. When presented with opportunities to depart from the Convention definition, e.g. when the ICTY/R and ICC Statutes were enacted, the Convention definition was just put there verbatim. My only point was that if the dispute is defined as one of the existence (vel non) of genocide - A asserts that B committed genocide and B denies this - that dispute is simultaneously one under the Convention and under CIL. Just as if A claims that B unlawfully used force against it, and B denies this, this dispute simultaneously exists under the UN Charter and under CIL. In this particular context there is no difference between the two, even though in other contexts there may well be a meaningful difference between legal obligations and disputes under treaties and parallel CIL.

Luka Jerinic says

March 12, 2022

Hi, thank you all for the valuable contributions to this ongoing debate.
What strikes me most is the possible futility of the whole endeavour. Namely, in Croatia v. Federal Republic of Yugoslavia, Croatia was unable to prove genocide despite overwhelming evidence provided.
Without trying to contradict the ruling, I would like to describe my personal experience. In the period between 1991 and 1995 I lived in the Croatian town of Karlovac. We (civilians) were shelled on a large scale. I barely survived the attacks in December 1991. Many people left the town. Hospitals, churches, schools, apartment blocks were targeted. In September of 1993 20 civilians were killed in a single day.

The odd thing is that these events where never tried in a court of law as evident war crimes?! They were not even prosecuted by Croatian authorities let alone ICTY. The only attacks on the town which merited 'observation' by International courts were the ones from May 1995. Martic was convicted for those by ICTY.

In my view, the similarities with Ukraine are evident. And still, I am sceptic the ICJ will find sufficient 'substrate' to deem the Ukraine situation as genocide.

So, why do we even have the Convention, when the whole events almost never amount to genocide - 'the destruction of a group'?

Sorry for taking this discussion to personal terms.

Kind regards from Croatia!