{"id":17121,"date":"2022-04-04T09:05:24","date_gmt":"2022-04-04T07:05:24","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=17121"},"modified":"2022-04-04T17:07:49","modified_gmt":"2022-04-04T15:07:49","slug":"the-icjs-order-on-provisional-measures-in-ukraine-v-russia","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-icjs-order-on-provisional-measures-in-ukraine-v-russia\/","title":{"rendered":"Of Legal Creativity and Plausibility of Rights"},"content":{"rendered":"

On 16 March 2022, the International Court of Justice rendered its provisional measures order on the request by Ukraine in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide<\/em> (Ukraine v. Russian Federation)<\/a>. The Court, by 13 votes to 2, ordered Russia to \u201cimmediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine\u201d. By the same margin, it ordered Russia to \u201censure 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\u201d. Unanimously, it requested both parties to \u201crefrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.\u201d<\/p>\n

In order to indicate these provisional measures, the Court at this stage had to find Ukraine\u2019s claims prima facie<\/em> within its jurisdiction and the existence of the rights claimed at least plausible. These matters are, however, not as straightforward as the margin of votes might suggest.<\/p>\n

Ukraine\u2019s Challenges in Bringing the Case<\/strong><\/p>\n

The order is truly exceptional in various ways, starting with the \u201ccreative<\/a>\u201d legal arguments brought forward by Ukraine to initiate the proceedings. While Russia maintains that Ukraine is committing genocide in the oblasts of Donetsk and Luhansk as a premise for its military aggression, these \u201cdemonstrably rubbish justifications<\/a>\u201d \u2013 as termed by Fuad Zarbiyev \u2013 essentially facilitated Ukraine\u2019s legal action. Invoking Article IX of the Genocide Convention as a jurisdictional basis, Ukraine argues that Russia\u2019s behavior is a blatant violation and abuse of Article I of the Genocide Convention obliging States to \u201cprevent and punish genocide\u201d. Conversely, Ukraine argues it has the right \u201cnot to be subject to a false claim of genocide, and not to be subjected to another State\u2019s military operations on its territory based on a brazen abuse of Article I.\u201d (Ukraine\u2019s Request<\/a>, para. 12)<\/p>\n

This is not Ukraine\u2019s first legal action in its almost decade-long conflict with Russia. Even though there is no general basis for jurisdiction between the two States, different subsets of the conflict have found their way to the ICJ already under the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination<\/a>, two UNCLOS arbitral tribunals (see here<\/a> and here<\/a>), the International Tribunal for the Law of the Sea also by way of a provisional measures application<\/a> and the European Court of Human Rights by way of ten inter-State applications. The latest of these also resulted in the grant of urgent interim relief in relation to the present hostilities (on this decision, see Risini<\/a>).<\/p>\n

Ukraine\u2019s case is in part a negative declaratory action, aimed at determining that Russia must not use false claims of genocide as a means to justify its aggression. Furthermore, it is questionable whether Ukraine is additionally also entitled to demand from Russia the cessation of all its \u201cspecial military operations\u201d on the territory of Ukraine. A plain reading of Article I of the Genocide Convention suggests that no such \u201cextended right\u201d can be derived from the provision. However, and this will be the crucial question at a potential merits stage, such a right might be indirectly inferred from Article I, with significant consequences for future cases.<\/p>\n

The Court\u2019s Position on Prima Facie<\/em> Jurisdiction<\/strong><\/p>\n

In its \u201cnon-submission<\/a>\u201d to the Court, Russia emphatically denied the existence of a dispute between the two States regarding the interpretation, application or fulfillment of the Genocide Convention. Instead, Russia claimed that its \u201cspecial military operation\u201d was based on Article 51 of the UN-Charter and customary international law. Yet, beyond Russia\u2019s \u201cnon-submission\u201d, the Court also took into consideration various other statements made by Russian officials, including President Putin\u2019s declaration of war<\/a> of 24 March 2022. After carefully assessing the various statements, including Russia\u2019s wholly implausible invocation of Article 51 of the UN\u00a0Charter, the Court concluded that prima facie<\/em> a dispute under Article IX of the Genocide Convention existed.<\/p>\n

But the Court\u2019s methodology did not find support by all judges. Judge Gevorgian<\/a> succinctly declared not to believe in the Court\u2019s jurisdiction in the present case. To him, the conflict solely centers around Russia\u2019s use of force, which is neither \u201cregulated by the Genocide Convention\u201d nor does it \u201cin itself constitute an act of genocide.\u201d Referring to the Court\u2019s provisional measures decisions in the 1999 Legality of Use of Force<\/em> cases<\/a>, he suggested that the Court should similarly deny jurisdiction in the present case and remove it from the Court\u2019s docket. Judge Nolte\u2019s declaration<\/a> put the matter into perspective, emphasizing that the applications initiated by Yugoslavia dealt with the question of whether the intervening States had committed genocide. By contrast, the present case \u201cconcerns the question whether the allegations of genocide and the military operations undertaken with the stated purpose of preventing and punishing genocide are in conformity with the Genocide Convention\u201d (para. 5<\/a>).<\/p>\n

The \u2013 Plausible \u2013 Rights to be Protected<\/strong><\/p>\n

Judge Xue<\/a> brought forward a more subtle line of reasoning. According to her, Ukraine\u2019s complaints are not directly related to the rights and obligations enshrined in Article I of the Genocide Convention. Judge Xue seems to imply that States do not have a justiciable legal entitlement under the Genocide Convention to request the cessation of a military aggression based on allegations of genocide \u2013 even where, as in this case, the allegations possibly constitute a (quite obvious) abuse of the law and a violation of good faith performance of the Genocide Convention by another State. Even though Judge Xue\u2019s declaration appears to also indicate doubts as to the Court\u2019s jurisdiction, this is where she really took issue with the majority\u2019s approach (para. 1<\/a>).<\/p>\n

Despite Judge Xue\u2019s expression of regret that the Court\u2019s order as rendered prejudged the jurisdiction and\/or merits of the case, her declaration appears to do the same, just on the opposite side. Her concerns in substance were shared, however, by Judge Bennouna<\/a>. Even though voting in favor of the provisional measures \u201ccompelled by this tragic situation\u201d, he stressed that the Court had failed in founding \u201cUkraine\u2019s alleged plausible right on one of the provisions of the Genocide Convention which the Russian Federation is said to have breached\u201d (para. 6<\/a>). For Judge Bennouna, implicitly, humanitarian considerations seem to have outweighed the rather superficial engagement of the Court with this aspect.<\/p>\n

The majority, however, took the view that Ukraine\u2019s claims are at least plausible. While the use of this test at the provisional measures stage is not new to the Court\u2019s jurisprudence, it lacks in definition (Miles, BYIL 2018<\/a>), which the present order also does not provide. Especially the dogmatically challenging questions posed by Ukraine\u2019s application may have caused reluctance on the Court\u2019s part to add precision to the concept at this point. What is more, it appears to have been precisely this ambiguity of what \u201cplausibility\u201d requires that enabled the Court to indicate provisional measures. In particular, the Court\u2019s reasoning on plausibility left Russia\u2019s counter-argument that the justifications for its \u201cspecial military operation\u201d fall outside the Genocide Convention’s scope seemingly unaddressed for now. One may wonder, however, whether this really could have made a difference, in the sense that Ukraine\u2019s case would lack a reasonable (or \u2013 depending on the standard \u2013 any) chance of success.<\/p>\n

Conclusions<\/strong><\/p>\n

Overall, the ICJ\u2019s order added an important voice \u2013 in a legally binding, even if not necessarily enforceable manner<\/a> \u2013 to the plethora of legal and political statements calling for an end of Russia\u2019s aggression against Ukraine. The order showcases that \u201cdemonstrably rubbish justifications<\/a>\u201d also have the potential to backfire before the World Court.<\/p>\n

Understandably, the Court was under political and temporal pressure. It had to find a swift but elegant response for the challenges it was presented with. The Court\u2019s use of its concept of \u201cplausibility of rights\u201d at the provisional measures stage seems to have been its \u201crhetorical device\u201d to strike a balance between strict legal reasoning and the urgency of the highly sensitive and tragic situation. However, the more States use subject-matter specific conventions before the ICJ to bring claims not obviously or solely falling within such instruments\u2019 scope, which the present order may encourage, the more the plausibility test at the provisional measures stage needs further clarification (generally already Miles, BYIL 2018<\/a>, pp. 44 et seq.).<\/p>\n

Equally, further clarity is needed in relation to the potential justiciability of abuse of rights or law and good faith performance, which the ICJ might now provide as the case develops. Whether the Court will accept Ukraine\u2019s claim of a right under the Genocide Convention not to be subjected to the use of force by another State allegedly justified by claims of genocide at the merits stage, is an entirely different question. It will likely trigger more discussion on the bench than evidenced now by only two dissents.<\/p>\n

 <\/p>\n

The \u201cBofaxe\u201d series appears as part of a\u00a0<\/em>collaboration<\/em><\/u><\/a>\u00a0between the\u00a0<\/em>IFHV<\/em><\/u><\/a>\u00a0and V\u00f6lkerrechtsblog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On 16 March 2022, the International Court of Justice rendered its provisional measures order on the request by Ukraine in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). The Court, by 13 votes to 2, ordered Russia to \u201cimmediately suspend […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[4634,3862],"article-categories":[5108],"doi":[],"class_list":["post-17121","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-elisabeth-hoffberger-pippan","authors-sebastian-wuschka","article-categories-bofaxe"],"acf":{"subline":"The ICJ\u2019s Order on Provisional Measures in Ukraine v. Russia"},"meta_box":{"doi":"10.17176\/20220404-130943-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17121","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=17121"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17121\/revisions"}],"predecessor-version":[{"id":17142,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17121\/revisions\/17142"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=17121"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=17121"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=17121"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=17121"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=17121"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=17121"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}