Ukraine v Russia: A “Reverse Compliance” case on Genocide

Disputes before international courts and tribunals typically arise out of an allegation by one State that another State has violated international law. The State making the allegation takes the initiative to bring the dispute before an adjudicator. The new dispute initiated by Ukraine against Russia is novel in this respect, since Ukraine invokes the International Court of Justice’s (“ICJ”) jurisdiction under the Genocide Convention, asking the ICJ to find that the allegations of genocide against it by Russia are unfounded (see EJIL: Talk’s discussion here, here, here and here).  While Ukraine also asks the ICJ to find, as a consequence, that Russia’s use of force against Ukraine with the purported justification of genocide, is unlawful, the crux of the dispute under the Genocide Convention is Ukraine’s assertion of a negative – that Ukraine did not commit genocide.

In this piece, I first offer a comparison of Ukraine’s strategy with the concept of “reverse compliance proceedings”, a feature of dispute settlement at the World Trade Organization (“WTO”). Second, I argue that such proceedings can be a useful tool when a State seeks the cessation of another State’s conduct, which is factually premised on, and seeks legal justification from, the alleged violation of law subject to the “reverse compliance” proceedings. 

The WTO origins of “reverse compliance” proceedings

A State approaching an international adjudicator with a request to find that it did not violate international law is not entirely unprecedented. The possibility of such a procedure was recognized by the Appellate Body of the WTO in the US/Canada – Continued Suspension cases in 2008, and has since become a fairly common procedural manoeuvre in WTO dispute settlements.

By way of background, the US/Canada – Continued Suspension dispute arose out of disagreements, between the United States and Canada on one side, and the European Union, on the other, as to whether the European Union had complied with the adopted panel report in the earlier EC – Hormones dispute.  The Dispute Settlement Body of the WTO had authorized the US and Canada to suspend certain obligations towards the European Union due to its failure to implement the adopted panel report.  The European Union argued that it has subsequently complied with the report, and thus, the US and Canada were under an obligation to cease suspension of obligations.

Article 21.5 of the WTO’s Dispute Settlement Understanding (“DSU”) provides a procedure to adjudicate disagreements about compliance with adopted reports.  Typically, this procedure was initiated by complainants, claiming that a respondent had failed to comply with adopted findings.  The European Union, being the respondent in EC – Hormones, was of the view that it was for the US and Canada, the complainants in that case, to initiate proceedings under Article 21.5 regarding the EU’s compliance. Accordingly, rather than initiating Article 21.5 proceedings in EC – Hormones, the EU initiated a new dispute challenging the legality of the US and Canada continuing to maintain the suspension of obligations in place.

The Appellate Body clarified in that case that an Article 21.5 procedure is available to either party to a disagreement about compliance with an adopted report, not just the complainant. The Appellate Body derived this conclusion from the wording of Article 21.5, which makes the procedure available “[w]here there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings”, without specifying which party to the disagreement could initiate proceedings. Since US/Canada – Continued Suspension case, reverse compliance proceedings have become a well-established feature of WTO dispute settlement.

In WTO law, the attractiveness of reverse compliance proceedings is that they provide an avenue for the respondent in the original dispute to bring any authorised countermeasures to an end. Under the DSU, countermeasures are authorized after several procedural stages of dispute settlement, as a last resort remedy against continuing non-compliance, and must be terminated as soon as compliance is achieved. Reverse compliance proceedings allow the respondent to establish before an adjudicator that it has achieved compliance with the relevant obligation, and thus bring countermeasures to an end.

Utility of “reverse compliance” proceedings outside WTO

Outside the WTO, there are many treaties which confer jurisdiction on an adjudicator “in disputes arising out of this agreement”, without specifying who should bring the dispute. Article IX of the Genocide Convention, on which Ukraine relies, confers jurisdiction on the ICJ over “[d]isputes  between  the  Contracting  Parties  relating  to  the  interpretation,  application or fulfilment  of  the  present  Convention”. There is no reason why a State facing what it considers to be an unfounded allegation of breach of the Genocide Convention (or another relevant treaty with a similar jurisdictional clause) cannot, on its own accord, bring the matter before an adjudicator.

Logically, reverse compliance proceedings outside the WTO should have the same consequence as those in the WTO. If the party initiating them is successful, any action premised on the assumption that that party had violated the law (and claiming international legality on the basis of such violation) must cease. This could include unilaterally imposed countermeasures, suspension of treaties for alleged breach, and in some cases, use of force.

That said, it remains to be seen whether international adjudicators of limited jurisdiction can spell out the consequences of them finding that the party initiating proceedings had not violated law.  In the present context, if the ICJ finds that Ukraine did not violate the Genocide Convention, the legal consequence would be that the Russia could not rely on alleged genocide as justification for its use of force. But does the ICJ have jurisdiction under the Genocide Convention to expressly determine the legality of Russia’s use of force?

The difficulty the Court would face in attempting to pronounce on the legality of use of force by Russia, in and of itself, is that the disagreement is no longer one (solely) under the Genocide Convention. Two solutions seem available. First, if the Court finds that Ukraine did not violate the Genocide Convention, the Court can spell out that in consequence, Russia was not entitled to take forcible measures premised on the existence of such a violation. Second, the Court may be able to make a conditional/”to the extent” finding, saying that to the extent that Russia’s legal justification for the use of force is the existence of a genocide, the use of force is unlawful. Neither solution is ideal, since they leave open the question whether there is any justification, outside the Genocide Convention, for Russia’s use of force. But, they would offer a better alternative to the Court finding that Ukraine did not violate the Genocide Convention, and then simply declining to comment on Russia’s use of force citing jurisdictional limitations.

Finally, it is worth noting that in many cases, reverse compliance proceedings can be useful even if the adjudicator does not expressly spell out the consequences of a finding that the party initiating them did not violate the law. In many instances, the parties could be relied upon to carry that finding to its logical conclusion, acting in good faith. 

The views expressed in this article are exclusively those of the author and do not necessarily reflect those of Sidley Austin LLP and its partners. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.