Time for another Ukrainian Genocide Case?

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In his as ever instant and persuasive reporting and analysis, Marko Milanovic has drawn attention to the rather unusual and, presumably for Ukraine, unexpected result in the jurisdictional phase of the Ukraine/Russian Federation genocide case. The case appears to reverse the thrust of the Preliminary Measures Order decided by the ICJ just weeks after the invasion of Ukraine by the Russian Federation. Now, it seems, Ukraine stands in the dock. The victim of the massive armed attack that has tortured the country for two full years now, has to defend itself against the allegation of genocide, rather than the other way around. And, perhaps somewhat gallingly for Ukraine, this is the result of its own application to the Court.

Two questions arise in consequence. One is whether Ukraine will likely continue the case.  The issue in these proceedings of greatest interest for Ukraine concerned the link between Russia’s claim that genocide had occurred in the Donbas region and its armed invasion. Demonstrating that there had been no genocide perpetrated by Ukraine would have removed the principal supposed justification for the use of force offered by the leadership of the Russian Federation for the use of force and other acts. These included the recognition by the Russian Federation of the Ukrainian provinces initially at issue, Luhansk and Donetsk, as purported states, and later forcibly annexing them, along with two other Ukrainian Oblasts.

Second, whether or not it continues the present action, Ukraine will also have to consider whether it now wishes to bring a fresh action, alleging that genocide is being committed by the armed forces of the Russian Federation on its territory. After the preliminary order in its own case rendered by the Court just weeks after the invasion commenced in February 2022, this would be the fourth genocide case on the docket of the Court, along with Gambia v. Myanmar and South Africa v. Israel.

Arguing the Remainder of the Application of Ukraine

The initial Provisional Measures Order of the Court, given only weeks after the commencement of the armed invasion, seemed to justify Ukraine’s bringing of the action in the Court. In its Order the Court demanded that:

The Russian Federation shall immediately suspend the military operations that it commenced on 24 February in the territory of Ukraine;

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 ;

Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

This provisional outcome seemed to be a spectacular success of an innovative use of the Genocide Convention and the Court, at a time when the UN Security Council, the body with primary responsibility for international peace and security under the UN Charter, was unable to take any action or even to pronounce itself in the face of a grave infraction of the prohibition of the use of force enshrined in Article 2 (4) of the Charter. While few would have expected that the Russian Federation would rush to implement the Order, it nevertheless had an important effect in apparently demolishing one of the rather artificial justifications put forward by the Russian Federation in support of the invasion. The Russian Federation can now argue that this Order was not in fact based in a title to jurisdiction enjoyed by the Court.

Framing of the Question before the Court

Now, in its Judgment on Jurisdiction, the Court found by 15 votes to one, that it only has jurisdiction to:

Adjudge and declare that there is no credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention the Donetsk and Luhansk oblasts of Ukraine.

The first issue that strikes the reader is the odd formulation of the scope of jurisdiction. It is not the question of whether genocide occurred in Ukraine at the time of the invasion, but whether there is any credible evidence for Ukrainian responsibility for committing genocide. This phrasing is drawn from Ukraine’s final submissions in its memorial (para 178 (b))—the only element of Ukraine’s case that remains. It can be explained with reference to Ukraine’s focus on the use of force element of its application. If there was not even any credible evidence for genocide having been committed in Ukraine, not to speak of an actual genocide taking place, the purported justification for the armed invasion by the Russian Federation would appear even more absurd. In other words, what Ukraine meant to ask was whether there was evidence sufficiently credible in favour of genocide occurring to allow the Russian Federation to use force in response (assuming a forcible response would be available under the terms of the Genocide Convention and the remedies it provides, which the Court seems to have doubted in the Interim Order).

The present outcome rather offers a warning with respect to framing a case mainly in relation to an application for interim protection, rather than the eventual hearing of the full case. Would the Russian Federation now win the argument, if it can point to any single item of credible evidence in favour of genocide, even if it was found that there had been no genocide taking place at the time when considering the totality of the evidence?

One would presume that the Court will follow its traditional approach of interpreting the question put to it in a balanced way. Genocide consists of a range of factors, including the commissioning of genocidal acts of a sufficiently wide-spread nature to amount to a campaign to destroy a protected population in whole or in part, along with genocidal intent. Hence, in order to amount to ‘credible evidence that Ukraine is responsible for committing genocide,’ more than the odd individual piece of supposed evidence would be required. Evidence of genocide would necessarily need to relate to a broad pattern of practice, supported by specific genocidal intent. Attribution would need to be established as well. And, such evidence would need to be ‘credible.’ That is to say, such evidence would need to be authentic, actually prove the point it supposedly makes, and offer an overall picture confirming that genocide was being conducted by Ukraine. This remains a high threshold and one which the ICJ seemingly did not believe, prima facie, to have been met when it issued its own interim order of protection for Ukraine in March 2022.

Burden of Proof

Another issue concerns the burden of proof. Would Ukraine, as the Applicant, have to prove a negative? That is, would it have to demonstrate that there is no credible evidence that Ukraine was responsible for committing genocide? This would mean that Ukraine would have to consider any possible evidence against itself and disprove its probative value—hardly a possible task, as it is not clear what evidence there is or might be. Or would the Russian Federation have to prove the case it made outside of the Court that genocide had occurred—the case on which it based its invasion at least in part.

In the Terrorism/CERD case between Ukraine and the Russian Federation, the Court held:

  1. The Court recalls the general principle that it is for the party alleging a fact to demonstrate its existence (see paragraph 79 above). Consequently, it is for Ukraine to demonstrate the existence of the facts alleged in support of its claims.

In this instance Ukraine alleges the absence of a fact, i.e., of credible evidence of genocide in the proceedings, while Russia would have claimed the existence of such facts, at least outside of the Court when justifying the military invasion. Judge Tomka notes in his Declaration appended to the Judgment that the Court has not addressed this issue consistently, pointing to the Diallo case:

… the determination  of the burden of proof is in reality dependent on the subject-matter and the nature of each dispute brought before the Court; it varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case. (para 54.)

The Court has also considered the burden of proof in relation to the phrasing of the question put, where that phrasing in itself prejudiced the answer to be given. In the Nuclear Weapons Opinion, it disregarded the wording chosen by the UN General Assembly of whether any threat of use of nuclear weapons is ‘permitted.’ Declaring initially that the issue of burden of proof raised by that phrasing was not relevant (para 22), it later reversed that phrasing, noting that international law was not based on permissions given to states, but on the Lotus principle of prohibitions (para 52).

The principle of good faith requires that the failure of a state to comply with a prohibition cannot simply be presumed. Hence the Court cannot find that there is credible evidence in favour of genocide having been undertaken by Ukraine unless it is presented with persuasive evidence to the contrary. As held by the Court in the Terrorism/CERD case, the threshold of persuasive evidence is higher where serious allegation of grave violation of human rights or humanitarian principles are concerned.

Ukraine obviously will not present evidence for its commissioning of genocide. At most, it can be expected to address any purported evidence already advanced by the Russian Federation. The Russian Federation in turn would need to produce any credible evidence that may be available. If, as it has argued, the decision to launch the invasion was based on its determination that genocide was occurring, it would presumably be in possession of such evidence.

Hence, the odd structure of what remains of this case after the ruling on jurisdiction would suggest that, unusually, the Respondent and not the applicant needs to substantiate the claim at issue in this case. That is to say, the Russian Federation will have to show credible evidence of a significant pattern of action and intent attributable to the government of Ukraine at the time of launching of its ‘Special Military Operation.’ Given the actual facts, it seems unlikely that it could succeed in this task.

Any Reason for Continuing the Present Case?

These considerations may make it easier for Ukraine to decide to continue the case, rather than seeking to terminate it. The Russian Federation might claim that abandoning it would be tantamount to accepting that credible evidence for genocide committed by Ukraine might be advanced in the proceedings if they continue. Moreover, from Ukraine’s perspective, it is still useful, in terms of law and in terms of history, to have the Court confirm that there is no credible evidence that it engaged in any activity that can be remotely classed as genocide.

True, there will be no finding that this confirms that the armed invasion perpetrated by the Russian Federation was unlawful. However, the finding that there never was any credible evidence of a campaign of genocide on the part of Ukraine will be of value in itself. The inference that there was in consequence no possible justification for the use of force by the Russian Federation on account of a claim that genocide had occurred will still be drawn, if not by the Court itself.

Bringing a Fresh Case?

Of course, when Ukraine brought its original application, the extent and nature of the occupation of its territory by the armed forces of the Russian Federation could not be predicted. Hence, it is understandable that this aspect was not addressed in the application. Since then, many in Ukraine believe that it is in fact the Russian Federation that is subjecting Ukraine, or at least the parts of Ukrainian territory it controls, to a campaign of genocide.

In its judgment, the court was quite reluctant to consider amending or expanding the original application brought by Ukraine. Addressing the conduct of the Russian Federation since the bringing of the application in February 2022 would thus likely require a fresh application.

According to Article II of the Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Following the recent ruling of the Court in the Gaza Genocide case, it seems clear that the ethnic Ukrainian population of Ukraine can be the object of protection of the Genocide Convention as a distinct national group. Similarly, the element of its population that has fallen under occupation by the armed forces of the Russian Federation would constitute a sufficiently significant part of that national group to qualify.

Since the discovery from April 2022 onwards of the atrocities committed by Russian Federation armed forces around Kiev and other areas formerly under the occupation by the armed forces, it is clear from UN reports that civilians have been subjected to killings specifically on account of their appurtenance to the Ukrainian national group. The Ukrainian government and NGOs have assembled evidence of killings and deliberate infliction of bodily and mental harm to members of the group by the tens of thousands. (For instance, the documentation assembled by the Nobel Peace-Prize winning Ukrainian Centre for Civil Liberties). Attacks on civilian concentrations, hospitals and on the civilian infrastructure necessary for the survival of the population are notorious. Attacks in and around particularly sensitive installations, including the major nuclear power plant in Zaporizhzia, have placed large population segments at immense risk.

According to independent expert investigators, systematic rape and other forms of sexual violence have occurred and are occurring in territories that have fallen under the control of Russian forces. These acts are directed both at the immediately affected individuals, as well as the members of the affected communities who are being forced to witness the events as a means to inflict trauma and to achieve forced displacement. Even the forcible transfer of children of the group to another group, from Ukraine to the Russian Federation, is sufficiently wide-spread and notorious to have impelled the International Criminal Court to issue arrest warrants, including against President Vladimir Putin himself, on that count.

Accordingly, it should be possible for Ukraine to make a strong case that the objective elements of genocide are fulfilled, extending to literally all of the proscribed acts listed in Article II. However, there is also the requirement of specific intent to destroy a protected group in whole or in part.

Ukraine might argue that President Putin and other leading members of his government have put the very identity of the Ukrainian nation in question, including in high-level international submissions, potentially supporting an argument that the atrocities systematically and widely committed against the Ukrainian national group are carried by genocidal intent. According to UN experts, state media have also been employed in way that may reveal an apparent concerted policy to incite to genocide. However, there have been few findings by international authoritative international bodies as yet that would reflect the sense of many in Ukraine that they are being subjected to genocide.

If it is difficult or impossible to confirm specific intent to commit genocide through official statements or documents, the argument might be that the pattern of activities is such as to imply genocidal intent. However, the examples of the Bosnia and Herzegovina and Croatia cases suggest caution. For instance, in Bosnia and Herzegovina, the Court ruled:

  1. Turning now to the Applicant’s contention that the very pattern of the atrocities committed over many communities, over a lengthy period, focused on Bosnian Muslims and also Croats, demonstrates the necessary intent, the Court cannot agree with such a broad proposition. The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.

At least in the areas that have fallen under the control of the Russian Federation forces, indiscriminate attacks against civilian concentrations mainly inhabited by Ukrainians, specific and large-scale killings of members of Ukrainian appurtenance by occupation forces, infliction of physical and mental harm, denial of what is necessary for the survival of the Ukrainian national population element, forced expulsions of Ukrainians, sexual crimes directed only against Ukrainian (mainly) women, and the removal of their children, can together demonstrate a consistent pattern of conduct of acts prohibited by Article II. The question is whether the Court would be persuaded that the ‘only’ inference that can be drawn from this pattern is the existence of specific intent to commit genocide.

Thus far, the interim measures phases in all of the Genocide cases, from Myanmar, Gaza to Ukraine itself, may have generated a sense that the Court will now be in a position to act more decisively in relation to possible cases of genocide. However, the hour of reckoning is yet to come, inasmuch as the only indication of the Court’s definite views thus far remain the very restrictive pronouncements in the cases stemming from the events in the former Yugoslavia three decades ago.

On the other hand, Ukraine as the victim of a brutal and persistent aggression, may find it unacceptable to have only its own conduct impugned before the ICJ—even if it is at its own request. There may be strong pressure from within Ukraine to bring a fresh application to balance those proceedings and perhaps seek interim measures of protection at the same time. This would offer an opportunity to highlight and record the unacceptable level of violence suffered by the people of Ukraine at the highest level of international law.

As in the Yugoslav cases, the Court would likely confirm the existence of a pattern of atrocities suggesting a campaign or acts of genocide according to Article II. That benefit would need to be weighed against the risk that the Court might find, in the end, some five or more years down the line, that there is not sufficient credible evidence demonstrating intent on the part of the Russian Federation and its leadership to commit genocide.

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Alberto Rossi says

February 6, 2024

Prof. Weller, thank you for your post.

Couldn't an advisory opinion request from the UN General Assembly be a solution to some of the problems you highlight? much would depend on how the request is framed. Or would the fact that the General Assembly has already determined that Russia has carried out an aggression (see ES-11/1 of 2 March 2022) make it more difficult to frame a request along those lines?