The Damp Squib of Third Party Intervention in Ukraine v. Russia

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It looks like Ukraine scored an ‘own goal’ in the 2 February 2024 judgment of the International Court of Justice. Ukraine is left with a rather empty shell of its original application. The hope had been to address Russian aggression through the back door of the Genocide Convention. If successful, this might have brought a significant reparations order capable of enforcement against seized assets.

One feature of the proceedings has been the unprecedented number of interventions, all of them filed by Western States that are party to the Genocide Convention. Taken together, the 32 interventions themselves total several hundred pages.  A day of hearings in September 2023 was consumed with oral submissions by the intervening States.  According to the judgment, nearly 200 lawyers were in attendance representing the intervening States during the hearings on Russia’s preliminary objections. Their oral submissions consumed an entire day.

The result of this massive effort appears rather underwhelming. In the judgment of 2 February 2024, the Court makes occasional reference to the interventions in a general sense. For example, at paragraph 92 it notes that the intervening States argue ‘in general’ that nothing in article IX of the Convention precludes a form of declaratory judgment. Given that the Court reached the same conclusion, it could be tempting to think that the interventions were influential.

However, at paragraph 134 the Court makes the same observation about the views of the intervening States ‘in general’ that ‘any dispute relating to the Convention falls within the scope of Article IX, irrespective of whether the parties also have a dispute concerning rights and obligations under other rules of international law’. This was the argument rejected by the Court. Obviously there was nothing persuasive about the interventions on this aspect of the case, which is clearly the more important.

Judge Charlesworth observed that ‘[a]s in previous cases of intervention under Article 63, the intervening States’ arguments are presented only briefly in today’s Judgment. They nevertheless enriched the Court’s consideration of the Parties’ arguments.’ This was a polite assessment because there is little to show of this ‘enrichment’ in the judgment.

Russia had protested what seemed to be an orchestrated campaign. Its charge of ‘abuse of process’ was dismissed by the Court but only because there was no evidence of Ukraine’s involvement. The interventions themselves are entirely consistent in their support for Ukraine’s views on the jurisdiction and admissibility issues.

Article 63 of the Statute of the Court contemplates intervention in contentious cases by States Parties to a treaty that are concerned about its interpretation. However, it appears that some States treat this as a way of taking sides in a case. A recent example is Germany’s promise to intervene ‘in support’ of Israel in the case filed by South Africa.

The Statute specifies that when a State intervenes in proceedings, it agrees that ‘the construction given by the judgment will be equally binding upon it’. In the Ukraine v. Russia case, much of the substance of the intervention concerns measures of prevention undertaken in the name of compliance with the Genocide Convention. But this issue has been set aside by the 2 February 2024 judgment. Nevertheless, it will be difficult for the intervening States to retreat from the views they have expressed.

The interventions manifested considerable diversity in the views of States Parties on whether unilateral force could be used to prevent genocide. It will be recalled that in its Provisional Measures Order, the Court had said ‘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’. Some intervening States categorically excluded the use of force unless authorised in a manner contemplated by the Charter of the United Nations. The United Kingdom urged the Court not to discuss ‘the doctrine of humanitarian intervention’, an antiquated notion that it persists in supporting.

But several of the intervening States contended that such unilateral action was possible (e.g., Denmark, Norway, the Netherlands, Canada), but only after a ‘good faith’ assessment of the likelihood of genocide had been made and efforts to encourage multilateral initiatives had been unsuccessful. Yet in Bosnia v. Serbia, the Court had never insisted that Serbia make a good faith assessment or that it attempt multilateral measures before unilateral intervention. Of course, this is easy to explain. The Court never contemplated that Serbia would use force to prevent the Bosnian Serbs from committing genocide.

Perhaps States will be chastened by the damp squib of their interventions in Ukraine v. Russia. Attractive arguments in one case may also come back to haunt them in another. A good example is the intervention submitted in Gambia v. Myanmar in November 2023 by Canada and several European States. They propose a very generous and broad construction of article II of the Genocide Convention. This makes a good fit with the situation in Myanmar, which is obviously what they had in mind.

In its Application instituting proceedings of 26 February 2022, Ukraine asks the Court to declare that ‘contrary to what the Russian Federation claims, no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine’. It now seems to have set the bar much higher. Its Memorial of 1 July 2022 seeks a declaration that there is ‘no credible evidence’ it has committed genocide. Not ‘decisive’ or ‘convincing’ evidence, merely ‘credible’ evidence. Does this mean it will lose the case if there is a single report of an isolated Ukrainian soldier making racist statements? In addressing its very demanding burden to demonstrate there is ‘no credible evidence’, a narrow interpretation of article II rather than the one advocated by Canada et al. will be more helpful to Ukraine.

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