Ukraine Files ICJ Claim against Russia

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Earlier today President Zelenskyy announced that Ukraine has filed an application against Russia before the International Court of Justice:

This is apparently a separate case to the one pending under the Terrorism Financing Convention and the Convention on the Elimination of Racial Discrimination. The basic problem here (compliance issues notwithstanding) is the jurisdictional basis. Russia does not have an Article 36(2) declaration accepting the ICJ’s compulsory jurisdiction. There is no treaty vesting the Court with jurisdiction over aggression or the breach of the prohibition on the use of force under Article 2(4) of the Charter. So what exactly is the jurisdictional basis here?

The application isn’t available yet publicly. But from Zelenskyy’s tweet it would seem that Ukraine would be trying to ground jurisdiction in the compromissory clause in Article IX of the Genocide Convention, to which both states are parties, without reservation to that article (nota bene, the USSR and Ukraine did use to have such reservations, but they were withdrawn in 1989). That article gives the Court jurisdiction over ‘[d]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III.’

As I see it (again without having had sight of the application, so this is very much an initial take), there are two possible jurisdictional arguments that Ukraine could make here: the not-so-smart and the surprisingly-creative-it-might-actually-work one. The not so smart one is that Russia is currently committing genocide in Ukraine. This was basically the strategy of Bosnia and Croatia when they sued Serbia/the FRY for the wars of the 1990s. Why is this not so smart? Because however horrible the ongoing war is there is simply no basis in fact to argue that Russia is waging it to physically or biologically destroy ethnic Ukrainians as a group. Even on the prima facie jurisdictional standard that applies to ICJ proceedings on interim measures, this argument is bound to fail. There basically is no way of pigeonholing aggression into genocide, as the facts stand now. And even for Bosnia and Croatia, where there was an international criminal tribunal to establish the facts, the ICJ proceedings ultimately did not work well (see more here and here).

What then is the surprisingly creative argument that might yet work? Well, note how President Zelenskyy says that ‘Russia must be held accountable for manipulating the notion of genocide to justify aggression.’ Basically, because it was Putin who has argued that Ukraine was committing genocide in the Donbas and that it was necessary to intervene militarily to stop it, Ukraine can now say there is a ‘dispute’ between two states, in the sense of Article IX, relating to the interpretation, application or fulfilment of the Genocide Convention. This might work – especially for the provisional measures stage – because aggression is not being pigeonholed into genocide; rather, the argument is essentially that falsely claiming genocide to start a war is a violation of the Genocide Convention, over which the Court has jurisdiction. This sort of makes sense, although it is hard to see which article precisely would Russia be violating in so doing – perhaps the overarching duty to prevent and punish in Article I? To be clear I’m not saying that Ukraine would win on this argument that Russia’s genocidal disinformation is an internationally wrongful act under the Genocide Convention, but it’s most likely enough to get the Court to issue provisional measures. Not that Russia is likely to comply, but still – rhetorically and symbolically there is some power to this. But let’s see, maybe my initial take on this is completely wrong and they have some third argument on the cards I haven’t foreseen.

UPDATE: The application and provisional measures request have now been published on the Court’s website. Re jurisdictional basis Ukraine is indeed pursuing a variant of the second creative argument I fleshed out above – essentially that Russia’s action is conducted pursuant to Article I of the Convention and on the basis of a false claim of genocide (with a tangential reliance on Article VIII, and a hint in para 24 of the application that Ukraine might also pursue the first argument above, that Russia is committing genocide). Para 11 of the PM request sets out the parameters of the dispute and the jurisdictional basis. Para 12 of the PM request then sets out the rights that Ukraine seeks to preserve: ‘its rights not to be subject to a false claim of genocide, and not to be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention.‘ I can’t be sure that this will work for provisional measures, but if I was a betting man I’d say yes, with a bunch of interesting separate opinions – the Court will likely not want to appear cowardly, and it has enough meat on the bones here to grant the measures.

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    Zacarias says

    February 27, 2022

    Fascinating!

    Daniel Peat says

    February 27, 2022

    Hi Marko,

    Considering that Art. IX of the Genocide Convention gives the Court jurisdiction over disputes related to the 'fulfilment' of Convention, I think that the easiest way to argue that the Court has jurisdiction would be to say that – in light of Putin's claim that Ukraine is committing genocide in Eastern Ukraine – there is clearly a dispute between the parties regarding Ukraine's fulfilment of the Convention. The problem with this might be how to then link PMs to the rights at issue in the dispute.

    Best,

    Daniel

    Svitlana Starosvit says

    February 27, 2022

    Dear Marco, I may have missed it, correct me if I am wrong, but is there going to be any statement of the EJIL on the war in Ukraine? Thank you!

    https://www.asil.org/sites/default/files/pdfs/ASIL_Statement_Situation_in_Ukraine.pdf

    Marko Milanovic says

    February 27, 2022

    Thanks for the comments!

    Daniel, I think that is one way of arguing it, but basically it turns the whole thing into something like a state defamation claim - we've been publicly accused of committing genocide, and now we have a legal right to sue the state which made that claim and prove that it is false. And then there is the preservation of rights issue, as you say.

    Hi Svitlana ESIL - the Society - did make a really good statement, here it is https://esil-sedi.eu/statement-by-the-president-and-the-board-of-the-european-society-of-international-law-on-the-russian-aggression-against-ukraine/ .

    Daniel Peat says

    February 27, 2022

    Hi Marko,

    Yes, but I think that approach might not be a bad idea.

    Let's take as a given that Russia won't comply with any order/judgment. Then the real question is why go to the ICJ? Perhaps the principal reason I see is that bringing a case before the Court would allow Ukraine to get an objective statement that genocide is not being committed in Eastern Ukraine, which would contradict Putin's justification for invasion and might affect Russian domestic support for the invasion. From a strategic point of view, I think that's where the real benefit of going to Court lies for Ukraine.

    Best,

    Daniel

    Gregory Fox says

    February 27, 2022

    Thanks as always for the quick and trenchant analysis, Marko. Wouldn't the easier route be for Ukraine to introduce a resolution asking the GA to seek an advisory opinion? It could be narrow (legality of Russia recognizing the two republics) or broad (legality of the invasion). Since Ukraine is apparently going to the GA anyway for a resolution under Uniting for Peace, they could probably get a reasonably accurate head count on how such a resolution would fare.

    Marko Milanovic says

    February 27, 2022

    Hi Greg, that's definitely an option. And it's not excluded by doing this, i.e. they can pursue both in parallel. The disadvantage of the AO route is the advisory nature and no possibility for provisional measures. Plus there is a line of authority in the case law of the Court having discretion to refuse to give an advisory opinion if the request is being done for the purpose of circumventing the consent requirement for a bilateral dispute (unlikely to work, but still).

    Svitlana Starosvit says

    February 27, 2022

    Dear Marko, thank you!

    Mike Becker says

    February 27, 2022

    Here's what I'm wondering about: If you bring a dispute under the Genocide Convention to the ICJ pursuant to Article IX, do you also need to allege a violation of the treaty? If so, what obligation under the Genocide Convention has Russia breached? It's not clear to me that Russia’s baseless genocide claims against Ukraine, which served as a pretext for Russia to engage in other unlawful acts, amount to violations of the Genocide Convention. Otherwise put, is there standing under Article IX without a corresponding invocation of state responsibility that relates to the treaty?
    Similarly, it’s also not clear that actions purportedly taken to prevent genocide (pursuant to Article I), where there clearly is not a situation of genocide, violate the Convention. Russia has blatantly violated and continues to violate other rules of international law, but the ICJ’s jurisdiction under Article IX presumably could not go beyond claims relating to the obligations set forth in the treaty. So it may come back to whether Russia’s bad faith accusation against Ukraine itself engages Russia’s responsibility, apart from the separate violations for which that bad faith accusation provided a pretext.
    There is a different question here about whether Ukraine has established the existence of a legal dispute between it and Russia prior to filing the case, since we know that the Court takes a lamentably strict approach to the ‘dispute requirement’.

    filippo fontanelli says

    February 27, 2022

    Dear Marko,

    you're right that we'll need to read the application to know more. I believe the "manipulation" reference speaks to your second hypothesis. A (largely declaratory) case could be made that Russia's allegations contravene the notion of genocide of the Convention. I find hard to see how that dispute could bleed into meaningful provisional measures, other than a (largely declaratory) order that Russia cease to accuse Ukraine of genocidal acts.

    Anastasiia Moiseieva says

    February 27, 2022

    Dear Marko, it seems that the second argument is most plausible. Here's the brief explanation from Ukraine's MFA: 'The Court has jurisdiction to hear Ukraine’s case, and to order emergency measures, on the basis of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The Genocide Convention is one of the most important international treaties, drafted in response to the horrors of World War II and the Holocaust. Russia, however, has twisted the concept of genocide, and perverted the solemn treaty obligation to prevent and punish genocide. It has made an absurd and unfounded claim of alledged genocide as a justification and pretext for its own aggression against Ukraine and violation of the sovereignty and human rights of the Ukrainian People. Ukraine’s case before the ICJ will establish that Russia’s aggression against Ukraine is based on a lie and a gross violation of international law, and must be stopped.'

    Daniel says

    February 27, 2022

    @Mike – I can't see that there would be any need to allege a violation for the Court to have jurisdiction? The text of Art. IX certainly doesn't suggest as much – jurisdiction over disputes related to interpretation, for example, need not necessarily allege breach. Perhaps this is clarified in the travaux?

    Gregory Fox says

    February 27, 2022

    Marko -

    Yes, the timing problem for an AO is real. But if the Russian invasion is successful -- and I dearly hope it is not -- there may be long term consequences that might not be apparently during a quick provisional measures phase. For example, what if Russia implants a stooge regime that in turn sends an ambassador to the UN (and other IOs)? Or Russian controls Ukraine but denies it is an occupying power? Or te stooge regime and Russia enter into an annexation treaty a la Crimea (perhaps following a rigged referendum)? An AO that asked about the legality of the invasion and, assuming illegality, the follow-on legal consequences for Russia, other states and IOs could be quite helpful.

    Marko Milanovic says

    February 27, 2022

    Hi Greg, thanks a lot for that, completely agree. Unfortunately regime change still appears to be the most likely scenario, and then all these issues arise. But the same will happen to representation of the state before the ICJ, as in the ongoing Gambia v Myanmar case, where Myanmar is currently represented by the junta-appointed agent. We were actually planning on recording an episode of EJIL The Podcast on Friday dealing with various representation issues (including e.g. Afghanistan etc), but we'll now refocus it on Ukraine.

    Aldo Zammit Borda says

    February 27, 2022

    Dear Marko,

    As always, an insightful comment on a pressing and shocking situation relating to Russia’s aggression in Ukraine in blatant breach of the UN Charter. As you note, it is of course difficult to comment in detail on Ukraine’s application to the ICJ without sight of the actual application.

    Another potentially related factor here is Putin’s recent order to put nuclear deterrence forces on high alert. In the ICJ Advisory Opinion on nuclear weapons, the Court noted how the threat or use of nuclear weapons could potentially violate the prohibition against genocide (para. 26 of the Advisory Opinion). And the Court further noted that the prohibition of genocide would be pertinent if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such. Could Putin’s recent order, which of course is aimed at Ukrainians as a national group, trigger the duty of states (including Russia’s duty) to prevent genocide?

    In any case, as you say, this avenue is rhetorical and symbolic, but very important. The UN has, thus far, proven to be impotent in face of an ongoing war of aggression that goes directly against its founding principles. This is an opportunity, however limited, for the ICJ to say something on the matter.

    Finally, could the General Assembly asking the ICJ for an Advisory Opinion on Russia’s “special military operation” in Ukraine also be potentially another avenue?

    Aldo

    Gregory Fox says

    February 27, 2022

    Marko -

    Fascinating. I look forward to the podcast.

    I'll stop beating this dead horse after this post, but the possibility of a Russia (or Russia-installed regime)-appointed agent taking over at the ICJ might be another argument for an AO. Such an agent could not withdraw the request for an AO unless he/she could get a majority in the GA to agree (seems unlikely). All that would happen is that the Ukrainian submission would turn from opposing to parroting the Russian view. But Ukraine would only be one of dozens of state submitting to the Court.

    But I agree with your initial point that both cases should be pursued similtaneously.

    Marko Milanovic says

    February 27, 2022

    That's a great point Greg - if the GA asked the question, any shift in Ukraine's government (lawful or not) would be immaterial, the advisory proceedings would continue.

    Diane Alferez Desierto says

    February 27, 2022

    Marko, that was a very prescient call, given the Application that's now available online at the ICJ website.

    Regardless of whether the Russian Federation is willing to comply with any provisional measures orders that the Court is asked to issue at this point, the push to submit the dispute to the ICJ appears multi-pronged with a de-escalation strategy to get Russia back to negotiations (including tomorrow's first set of talks), and opening a door for a return to peaceful dispute resolution through the Court. This might well be precipitous rules-based exit strategy opened for Russia to move back towards law, since Russia admitted today that their troops also incurred casualties and injuries from the unexpected and protracted strong Ukraine resistance. If Russia is unable to secure a blitzkrieg victory on the ground and increasingly deals with sanctions from the world and protests at home, the return to law might still be a viable tactical option for Russia to make its case authoritatively at the Court about the alleged genocide against Russian separatists.

    André de Hoogh says

    February 27, 2022

    Dear Marko,

    Could Ukraine's argument not be raised in relation to the 'fulfilment' of the Convention, and then more particularly Article VIII? This would not per se require a claim of violation of the Convention, and it would raise issues of interpretation.

    Russian representatives have been alleging genocide before competent organs of the United Nations, and one may argue in an abusive manner. As an example one may mention the statement made 23 February in the Security Council (S/14803).

    The request for provisional measures might then have as object to bar the Russian Federation from raising it again before organs of the UN.

    Best André

    Marko Milanovic says

    February 27, 2022

    Many thanks again for the comments, especially Andre and Diane. Post updated with a single para because the application and provisional measures request are now available. Andre there is in fact a mention of Art VIII there, but the main game is Art I.

    Eleni Micha says

    February 28, 2022

    Dear Marko,
    It seems that Ukraine’s application before the ICJ would be a great opportunity for the Court to examine “the means reasonably available” (Bosnia & Erzegovina v. Serbia & Montenegro, ICJ 2007, par.430) for a state party to prevent genocide from being committed in the context of art.I. Since this is an obligation of conduct and not of result, meaning “the state’s capacity to influence effectively the actions of the persons responsible likely to commit genocide”, the evidentiary threshold is very high and difficult to attain. To award the provisional measures requested by Ukraine would be an effort to preserve the available evidence. Such decision by the Court would be worth it, at least for interpretation purposes.

    Will Worster says

    February 28, 2022

    At least initially, Ukraine appears to be following the new playbook other states use by peppering their adversary with multiple international law claims at every forum that will take them. I would not be surprised to see an ECtHR case as well as a WTO one too, maybe a CERD committee claim and CRC too, in addition to the monitoring by the ICC OTP and other international organizations. What else? Qatar even raised issues it had with the UAE and other Gulf states at the UPU.
    The Ukraine v Russia genocide application at the ICJ also appears to fall into the pattern where the objective is really provisional measures, not necessarily the merits. Sure, a win on the merits would be a desirable outcome, but that decision would be years away. And as you have discussed, the argument is certainly debatable, so a win on merits is not an easy case. That said, many, many arguments on the interpretation and application of the Genocide Convention are at least plausible, given that there are so few applications of the Convention to guide us. The conversation here shows this already. Provisional measures are set at such a low bar that just about any argument would suffice to secure provisional measures. Even better if Russia fails to appear at the ICJ. Then Ukraine probably gets its provisional measures and proof that Russia is not complying with the peaceful settlement of disputes. With provisional measures in hand, then Ukraine will possibly seek a settlement before the ICJ can rule on the merits. Assuming, of course, that Putin will ever be open to settlement.

    Omar says

    February 28, 2022

    Dear Marko

    Thanks for the ongoing updates on this situation. The basis for the application is a creative one. One potential counterargument here is that Russia did not expressly invoke the 1948 Genocide Convention, still less the obligation under Article I to “prevent and […] punish” genocide, when justifying its military action. It would be essential to Ukraine’s application to argue that the mere invocation of the term genocide in the Russian President’s speeches as a justification for force, was sufficient to trigger the application of the Convention, and a “dispute” concerning its "interpretation, application or fulfilment" under Article IX.

    Even more interestingly, should the case ever reach the merits stage, the Court would have an opportunity to consider a resort to force by a State in order to "prevent" genocide under the Convention, in other words, a humanitarian intervention case. As you know that issue has to date not been addressed by the Court ( Serbia and Montenegro did not reach the merits stage in its application on the Legality of Use of Force vs. various NATO-member States) or at the regional level (Bankovic). While the Court would not have jurisdiction to address the jus ad bellum issue, it would have to address whether a resort to military force is a legitimate action under the Convention for preventing genocide. But, let’s not get ahead of ourselves...

    Best

    Lorenzo Palestini says

    February 28, 2022

    Dear Marko (If I may),

    Thank you very much for this very interesting post and the reactions that it prompted. Though adjudication is but a small issue in the context of the ongoing conflict, I believe the Ukrainian ‘creative’ approach you foreshadowed is a sensible strategy that should largely overcome jurisdictional hurdles and might even result in some useful pronouncements for Ukraine. There is clearly a dispute over whether Ukraine committed genocide in the Luhansk and Donetsk oblasts, simply because Russia itself publicly made the claim (no matter the soundness of that claim or lack thereof). This is enough to demonstrate awareness and, therefore, to meet the ‘dispute requirement’, no matter how ‘lamentable’ it may actually be as suggested by Mike Becker. In fact, the Court itself, after the cases brought by the Marshall Islands, stressed that it does not matter which of two prospective parties (the applicant or the respondent) raises the claim and which one opposes it (Alleged Violation of Maritime Areas, § 50 of the 2016 Judgment). Put simply, there is a dispute over whether Ukraine committed genocide because Russia, the prospective respondent that now has become a respondent, previously said so. Whether there is a dispute in relation to Russian alleged acts of genocide in Ukraine is a different issue that presently need not be resolved since this is not the focus of the formal submissions raised by Ukraine’s in § 30 of its Application. Admittedly, the issue may become relevant in the course of the proceedings, especially if Ukraine seeks to amend its submissions by bringing new formal claims in that respect. Whether that will be a ‘smart’ choice or not will largely depends on the evolution of the conflict. Let us hope it does not come to that.

    What makes the Application original is that, even though Ukraine is the Applicant, its position largely resembles that of a respondent insofar as one of the main aims is to show that Ukraine did not violate the Convention, not that Russia violated it (see submissions a) and b) in § 30). To respond to Mike Becker and Daniel Peat, I see absolutely no problem of ‘standing’ here. There is nothing wrong with bringing a case with a view to being cleared of responsibility for the breach of the Genocide Convention. While it is uncommon, we have seen after all that Applicants (Bosnia and Herzegovina and Croatia) may very well found themselves in the position of Respondents when the other party (Serbia), that is, the respondent to the main case, raises counter-claims, thus becoming the ‘demandeur reconventionnel’.

    Ukraine’s approach is sensible and clever because, even though it acts as an Applicant, it is actually the burden of Russia to demonstrate that alleged acts of genocide took place in Luhansk and Donetsk oblasts. Russia is at a difficult crossroad because, if it chooses not to appear in the proceedings, this will reinforce the suspicion that its claim is but a pretext based on scant evidence. If it chooses to appear, which would be the sensible thing to do, chances are that it will fail to substantiate its claim and this will also detrimentally impact its position on the recognition of the independence of the two republics and the supposed legality of its military operation (as suggested by Daniel Peat).

    Though one can imagine objections to jurisdiction ratione materiae with regard to some of the formal submissions, I share the view expressed by Marko that overall there is no issue of ‘pigeonholing’ aggression into genocide. As for the provisional measures phase, Filippo Fontanelli suggests that the link between the measures requested and the rights sought to be protected is not altogether obvious. It is worth stressing that the Court may indicate other provisional measures from those requested by Ukraine if it is believes that condition is not met.

    On the possible request for an advisory opinion and how change of governments would not end the procedure (though the issue of representation of Ukraine would remain), I have nothing to add to the interesting comments made by Gregory Fox. As usual, under this scenario, we would hear arguments (in my view mostly unfounded, though the way the questions are formulated would matter), according to which advisory proceedings should not be used to resolve disputes between States that have not consented to the Court’s contentious jurisdiction. It did not work for Western Sahara. It did not work for the Construction of the Wall and it did not work for the Chagos Archipelago. Why would it work under this hypothetical scenario? Interestingly a request for advisory proceedings would put a number of allies of Ukraine in a somewhat difficult position, considering the view they expressed on the advisory judicial function and when should the Court exercise it.

    Marco Longobardo says

    February 28, 2022

    Thanks, Marko, for the excellent post.

    I've a longstanding interest in the relationship between the Genocide Convention and the ICJ, and I find most of the things that I read here fascinating.

    However, I have a silly doubt: who says that Russia alleged a violation of the Genocide Convention by Ukraine? Is there any specific reference to this? If the answer is no, then one could argue that Russia is concerned by a violation of the CIL notion of genocide - outside the jurisdiction of the Court.

    Just one more thought.

    All the best,

    Marco

    Itzchak E Kornfeld says

    February 28, 2022

    Thank you Marko for an excellent and quick analysis.

    I tend to agree with Gregory Fox regarding a GA AO. Although, as you point out there are no provisional measures under an AO. I belive that it would still be beneficial because it would demonstrate the GA's and the world's condemnation of the Russian Federation and Putin. It might further demonstrate to Putin how isolated he is. Although I don't think he cares about that.

    Mike Becker says

    March 6, 2022

    I appreciate all of the comments and reactions that Marko’s post generated. Now that we have more information, and having had further time to consider this case, I wanted to make a point here (and respond to some earlier comments) about plausibility of rights and Ukraine’s provisional measures request (which the Court will hear on 7-8 March). Ultimately, I do not think there is a plausibility problem that will prevent the ICJ from indicating some form of provisional measures.

    To be clear, I do not take issue with the view that Ukraine has identified a dispute with Russia (that is, about whether Ukraine has committed acts of genocide) falling within Genocide Convention Art IX (although I think Marco Longobardo’s point about whether a dispute specific to the Genocide Convention crystallized should not be disregarded).

    But I want to focus on the provisional measures request. Under Article 41 of the ICJ Statute, provisional measures may be indicated ‘to preserve the respective rights of either party’. What are the rights at issue in the case, arising from the Genocide Convention, that face irreparable harm and for which Ukraine seeks urgent relief?

    Ukraine refers in its request to a right ‘not to be subjected to a false claim of genocide, and not to be subjected to another State’s military operations on its territory’ in 'brazen abuse' of Article I. This has intuitive appeal but these are not express rights granted by the Convention. However, the flipside of that description of Ukraine’s rights is that Russia’s obligation under Article I to prevent and punish acts of genocide must be carried out in good faith, including by the means provided for in the Genocide Convention (recourse to UN organs under Article XIII; recourse to the ICJ under Article IX). Russia’s obligation to fulfil Article I in good faith is an obligation owed to all contracting parties, including Ukraine (which is also specially affected). In other words, Ukraine can be said to have a right to see Russia act pursuant to Article I in good faith.

    In my view, such a right meets the plausibility threshold for purposes of provisional measures, and the measures requested are directly linked to preventing further irreparable harm (death and destruction) flowing from Russia’s alleged failure to have respected that right.

    Finally, I would also point out that the ICJ sometimes shows greater flexibility on provisional measures requests in situations involving genuine risk of loss of life, even where the risk of irreparable harm may be linked only indirectly or tenuously to the underlying legal issue. I have in mind here the 2011 order on provisional measures in the Preah Vihear interpretation case. What this means is that even if the risk of irreparable harm is linked only indirectly to the underlying legal question in this case, the gravity of potential harm may be enough to soften the ‘plausibility’ and ‘link’ requirements.