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When Does the Obligation to Comply with Provisional Measures End?

Observations on the Allegations of Genocide Case (Ukraine v. Russian Federation)

28.10.2024

In the pending case of Allegations of Genocide (Ukraine v. Russian Federation) before the International Court of Justice (ICJ), the question arises as to the effect of the ICJ’s partial dismissal of jurisdiction on the provisional measures order that Russia suspend its military operation against Ukraine. In its Judgment on Preliminary Objections, the ICJ ruled that Ukraine’s claim of Russia’s wrongful invocation of the Genocide Convention as a basis of its military operation in Ukraine could not be addressed on the merits. This leads to the question of whether the provisional measures regarding Russia’s military operation remain in force.

This blog post addresses the question of when the obligation to comply with interim measures orders ends in cases where jurisdiction is only partially upheld.

Allegation of Genocide Case

Following Russia’s military invasion of Ukraine in 2022, Ukraine initiated proceedings before the ICJ based on the Genocide Convention. It argued that Russia had falsely accused Ukraine of perpetrating genocide in the Luhansk and Donetsk oblasts and launched its ‘special military operation’ because of this accusation. The ICJ indicated provisional measures pursuant to Article 41(1) ICJ Statute, noting that it had prima facie jurisdiction under the Genocide Convention (Order paras. 24 et seq.), and held that ‘Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine.’ (Order para. 60). As a result, the ICJ ordered that ‘the Russian Federation must, pending the final decision in the case, suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.’(Order para. 81).

In its judgment on Preliminary Objections in 2024, the ICJ noted that the dispute before it contained two aspects, namely first, the Ukrainian request that the ICJ find that Ukraine has not committed genocide; secondly, that it finds that Russia breached the Genocide Convention by starting a military invasion on the basis of false allegations. The ICJ found that it had jurisdiction over the first aspect but not over the second aspect. It held in particular that ‘it is not the [Genocide] Convention that the Russian Federation would have violated but the relevant rules of international law applicable to […] the use of force. These matters are not governed by the Genocide Convention and the Court does not have jurisdiction to entertain them in the present case’ (Judgment para. 146). Given that the ICJ upheld this objection to jurisdiction, the question arises whether the provisional measures essentially relating to the use of force have been implicitly terminated.

Intervening States

Some intervening States (see here, here, and here)  have already addressed the issue. For instance, the joint declaration of intervention of Austria, the Czech Republic, Finland, and Slovenia discusses it at some length. It points out that ‘even if the Court were to decline jurisdiction over a claim which formed the basis for the indication of certain provisional measures, such interim measures remain in force and binding until they are revoked or modified by the Court or the final decision in the respective case is rendered, i.e., the judgment in the merits.’  The ICJ ‘may at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification’ (Article 76 of the Rules of Procedure). The joint declaration also argues that revocation or modification ‘would not retroactively deprive the provisional measures of their legal effects. Rather, any modification or revocation only applies ex nunc’.

The Obligation of Compliance – When Does It End?

Provisional measures orders are legally binding (see LaGrand para. 109) and create legal obligations for the party against whom the provisional measures orders are addressed. Thus, they must be complied with. When does this obligation of compliance end?

In principle, a temporal limitation of the obligation of compliance is inherent in the function of interim relief. The rights of the parties must be preserved until the ICJ can definitively rule on whether these rights indeed exist and have been breached.

Once a final judgment on the merits has been delivered, the principal proceedings are terminated and the obligation to comply with the provisional measures must end, ‘though it may be replaced by the obligation to comply with the decision on the merits’ (Thirlway p. 152; cf also Avena para. 152). Judgments disposing of a case on jurisdictional grounds also terminate the principal proceedings. Such judgments have repeatedly stated that the respective order on provisional measures ‘ceases to be operative upon the delivery of this Judgment.’ (Georgia v. Russia, para. 186; see also Anglo-Iranian Oil, Nuclear Tests). Arguably, such statements did not have a constitutive effect because the ICJ did not explicitly revoke the orders in question. According to Lando, not revoking these orders is the correct approach: provisional measures ‘should be considered terminated by virtue of declaring the want of jurisdiction’ (Lando pp. 37-38).

The Allegations of Genocide Case, however, is concerned with a partial dismissal of jurisdiction only. The Ukrainian claim was aimed at obtaining a ruling on the merits that Russia’s military intervention was unlawful under the Genocide Convention. Similarly, the request for provisional measures was aimed at a suspension of the military intervention. On the one hand, the judgment reveals that upon closer examination there was never jurisdiction with respect to this order and thus one ought to assume that upon the delivery of the judgment on preliminary objections, the provisional measures cease to have effect. The lack of explicit wording to this effect does not necessarily alter this conclusion since such statements in previous judgments were not explicit revocations either. Also, some of these judgments did not even contain such statements (see e.g. Qatar v. UAE). On the other hand, the jurisdictional decision did not end the case. It has proceeded to the merits with respect to the first of the two aspects. This implies that no final decision has been rendered yet. Given that the ICJ ordered that Russia ‘must, pending the final decision in the case, suspend the military operations’, one could argue that the obligation is still in force and given that the ICJ still has jurisdiction over part of the dispute, it could have revoked the order to the extent that it should no longer apply. Also, the provisional measures have arguably not ceased to be in force in their entirety: the order to ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve’ probably still applies (Order para. 86(3)).

Nonetheless, one ought to be skeptical whether the provisional measures with respect to the suspension of the military operation are still in force, since ‘the plausible right not to be subjected to military operations’ is no longer plausible under the Genocide Convention (see also Alexianu). It ‘only’ exists under general international law. Thus, the provisional measures relating to the suspension are arguably no longer in force following the delivery of the ICJ’s judgment on jurisdiction.

Non-compliance Without Consequence?

The cessation of the obligation of compliance arguably only has ex nunc effect (see Panagis pp. 15-16). The ICJ has repeatedly pointed out that the orders on provisional measures cease to have an effect upon the delivery of final judgments on jurisdiction (e.g. Georgia v. Russia, para. 186). Accordingly, it is only when the ICJ finds that it has no jurisdiction, that the order loses its binding effect from that date onward (Thirlway p. 152). The previous obligation of compliance is not retroactively removed.

Non-compliance with provisional measures has typically been addressed on the merits stage by the ICJ, which has made declarations of wrongfulness as a form of satisfaction (see e.g. Bosnia Genocide Case para. 469; Certain Activities paras. 126-129). The ICJ has found violations of provisional measures orders even when it has not found a violation of the respective treaty obligation (cf CERD/ICSFT Case (Russia v. Ukraine) paras. 275, 392). In Allegations of Genocide, the ICJ may still have jurisdiction to sanction, in the merits phase, the non-compliance with the provisional measures which were in force until the delivery of the judgment on preliminary objections (see Alexianu). However, the ICJ may wish to avoid pronouncing upon this matter given that it has essentially realized that it never actually had jurisdiction over this aspect of the dispute. At the very least, it is worth noting that in final decisions rejecting jurisdiction, the ICJ has never addressed non-compliance with provisional measures, despite requests to do so (cf Georgia v. Russia).

Conclusion

The provisional measures order requiring Russia to suspend the military operation against Ukraine arguably ceased to have effect upon delivery of the judgment partially dismissing jurisdiction, notwithstanding the arguments presented by the intervening states. Still, the obligation is not retroactively rescinded and the ICJ might still have jurisdiction to rule on a breach of the order, although it might be reluctant to address this issue on the merits.

Author
Johannes Tropper

Johannes Tropper is a Postdoctoral Researcher & Lecturer at the Department of European, International and Comparative Law of the University of Vienna.

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