Genocide Allegations in The Hague: Explaining Ukraine Claim Against Russia Before the ICJ

Monday, 28 February 2022 — MYKHAYLO SOLDATENKO, DMYTRO SOLDATENKO, FOR EUROPEAN PRAVDA
PHOTO: VISAR KRYEZIU / ASSOCIATED PRESS / EAST NEWS
Ukrainian refugees at the Medika border checkpoint. Poland, February 28, 2022

The war of the Ukrainian people against Russian invaders continues on many fronts – military, diplomatic, volunteer and informational.

Now another front is starting – a legal war.

Ukrainian government agencies and various organizations are beginning to gather evidence of war crimes committed by the Kremlin and Russian armed forces in Ukraine. This needs to be done now to be ready to act in the near future, because wars typically end with significant legal consequences: changes in the system of governance of the world order, the punishment of international criminals, and so on.

Kyiv has already taken the first step to bring the aggressor to justice.

Many did not take President Zelensky's statement that it was not Ukraine but Russia that was guilty of genocide seriously. Because, at first glance, this sounds illogical. Russia and its leadership are likely guilty of aggression, war crimes, etc., but there are no signs of genocide that could be proven in international court.

But Zelensky is not wrong.

It is the aggressor that handed us the opportunity to sue them based on the Genocide Convention.

On February 26, 2022, Ukraine filed a claim with the International Court of Justice (hereinafter referred to as the ICJ") alleging that Russia violated the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as the "Convention"). Ukraine also immediately filed a request for provisional measures, in which, in fact, it requests the ICJ to order Russia to stop the war in Ukraine.

In this article, we will explain in detail what arguments Ukraine is using to support the claim, why it relates to allegations of genocide, and how this claim will help in the fight against the aggressor.

 

Genocide, but not of the Ukrainian people

To clarify the questions that may have arisen after reading the previous paragraphs, let us say at once: no, Ukraine does not claim that the Kremlin committed genocide against the Ukrainian nation in February 2022.

There are really no grounds for this accusation.

However, Kyiv refers to the potential planning on the side of Russia

Ukraine refers to the fabrications of the aggressor state about the alleged genocide by the Ukrainian authorities in Donbass, it rejects these allegations, and at the same time notes: "it appears that it is Russia planning acts of genocide in Ukraine." In support of this statement, the Ukrainian government accuses Russia of deliberately killing and seriously harming Ukrainian civilians, citing Putin's statements about denying the existence of the Ukrainian people, and adding that this is "suggestive of Russia’s intentional killings bearing genocidal intent."

However, this is only a small fraction of the Ukrainian claim to provide context for the ICJ.

The essence of the claim is different.

In its submission to ICJ, the Ukrainian government focuses on the fact that Russia is grossly abusing its obligation to prevent and prosecute the crime of genocide set forth in the Convention.

Yes, the Convention does provide for the obligation of Member States to prevent genocide and to punish those responsible for it, regardless of where it occurs (the so-called "erga omnes" obligation). The need to comply with these norms (i.e. the alleged "fight against genocide in Ukraine"), was used as justification for:

- recognition of the so-called "LPR" and "DPR", committed under the pretext of a fictional "genocide" of the population of Luhansk and Donetsk regions.

- conducting a so-called "special military operation" against Ukraine with the clear aim of preventing and punishing alleged acts of "genocide", not confirmed by any factual evidence.

Ukraine claims that the armed attack against it for the "prevention and punishment" of artificially fabricated "genocide" is incompatible with the provisions of the Convention, distorts the obligation of states to prevent and punish genocide and contradicts the object and purpose of the Convention.

Russia is abusing the Convention, turning it into a fabricated basis for an armed attack on Ukraine.

Does the ICJ have the right to consider such a claim?

There are many restrictions in international law on claims against sovereign states.

States can be respondents in international courts and arbitral tribunals only if they have consented to such proceedings, either in a particular case or in respect of a specific convention.

The lack of such consent is a major obstacle to most legal actions. Such a problem could bury in advance the claim against the Ukrainian-Russian war, if not for one "but": the Kremlin's claim of "genocide."

By launching an armed attack on Ukraine under the pretext of an imaginary "genocide", the Russian Federation itself has opened a potential window for the jurisdiction of the International Court of Justice. Russia (like the vast majority of countries in the world) is a party to the Genocide Convention, and therefore agreed in advance to resolve disputes under this Convention in the ICJ.

It is this window, opened by the Kremlin itself, that Ukraine and its legal advisers are skillfully using.

The plaintiffs point out that there is a clear difference in the interpretation and application of the Convention between the parties. After all, Ukraine and Russia have different views on:

(1) whether genocide took place in Ukraine;

(2) and whether Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide justifies the use of military force against Ukraine.

The Convention provides the resolution of disputes between states regarding the "interpretation, application and implementation" of the Convention in the ICJ. Consequently, it is possible to initiate proceedings in the International Court of Justice, even if Russia would object.

Prospects of the claim

We do not yet know the exact answer to this question. The International Court of Justice has never considered such claims. Despite the fact that the Convention was adopted in 1948, Ukraine will be the first to try to use it in such a "creative" way.

Therefore, the decision in this case "Ukraine v. Russia" will be an important precedent in the practice of applying the provisions of the Convention.

And now to the point.

Ukraine, using this loophole, asks the ICJ to establish the following circumstances:

- that no crime of "genocide" was committed by Ukraine in the territories of Donetsk and Luhansk.

- that Russia has no right to take any action against Ukraine to prevent and punish this fictitious "genocide".

- that Russia's recognition of the so-called "DPR" and "LPR" was based on a fictitious genocide and cannot be based on the provisions of the Convention.

Ukraine asks the court to oblige Russia to:

- provide guarantees of non-repetition of unlawful actions, including the unlawful use of force;

- pay reparations for damage caused as a result of the violations.

Stop the war now

International proceedings can take years, but Ukraine needs results today, Ukraine has initiated an urgent procedure for obtaining provisional measures.

International courts, as well as national courts, often have the right to grant provisional measures while the proceedings are pending. Such an interim order, if adopted, will not hold Russia accountable, but may impose temporary obligations on it.

The ICJ uses the following criteria when deciding on the application of provisional measures:

(1) The court shall first ascertain that it has prima facie jurisdiction.

(2) the applicant shall prove that its rights are at least plausible.

(3) the urgency of the decision must be proved, namely the real and imminent risk of harm to the rights of the party.

Ukraine has a good position on these three criteria and has a chance to obtain an order from the Court.

This is a dispute over the interpretation and application of the Convention; this should be sufficient to establish the prima facie jurisdiction of the ICJ. The urgency of resolving the situation is obvious, as Ukraine wants to protect the lives of its people from an armed attack by Russia, which it is trying to justify on the basis of the Convention. Finally, Ukraine believes that it has a plausible right not to be subjected to armed attacks on the basis of accusations made by Russia under Article 1 of the Convention.

As provisional measures, Ukraine asks the ICJ to order Russia to:

- stop the so-called "special operation".

- not take additional steps to continue the "special operation".

- not take measures that could aggravate and complicate the dispute on the basis of the Convention.

- submit a report to the International Court of Justice on the implementation of provisional measures within a week.

In short, Ukraine demands that Russia stop the war.

How long will it take to obtain an order?

According to ICJ Statute, the decision on provisional measures takes precedence over all other cases of the Court.

Practice shows that in cases with an active phase of armed conflict, the court may take such interim decision in less than two weeks after the application is submitted (for example, the case of "Armed Activities on the Territory of the Congo").

In addition, the Ukrainian side requested the Court to schedule a hearing on the request for provisional measures this week, or as soon as possible thereafter.

So, we are waiting for the hearings in the near future. Maybe even in coming days.

As the issue of provisional measures is generally resolved quickly and on a temporary basis, the standard of proof (quantity and quality of evidence required) is lower than during the case consideration on the merits. At this stage, the Court does not go into a detailed analysis of the position of the party, it only needs to make sure that it is at least plausible.

Ukraine's position has a chance to meet this test.

The Court cannot ignore the ongoing active phase of the violent conflict in Europe. And the fact that Russia has escalated to threats of the use of nuclear weapons further increases the urgency.

An authoritative expert on international law, Professor Marko Milanovich does not rule out that the Court may grant Ukraine's request for interim measures, as it "will likely not want to appear cowardly".

It should be added that Russia has so far participated in all cases against it in the ICJ (including in the case against Georgia and in the ongoing case against Ukraine on the financing of terrorism in Donbass and racial discrimination in Crimea). Even if Moscow chooses a "poker face" and refuses to participate in the hearings, it will not prevent the case from being considered.

On the contrary, it will show Russia's contempt for the United Nations, which will be another step in destroying its international image.

What will this change for Ukraine?

As we noted above, Ukraine's request has a chance to succeed. But even if something goes wrong, the risks to Kyiv are minimal.

The worst-case scenario for us is that the ICJ rules that it has no jurisdiction and that the alleged violations of Ukraine are not covered by the provisions of the Genocide Convention. But given that we do not accuse Russia of genocide, this will not undermine Ukraine's position in the international arena.

On the flip side there is an opportunity that in the first part of March ICJ will request Russia to stop the war.

The reader may ask: will Russia agree to perform this decision?

In general, the decisions of the ICJ in the vast majority of cases are complied with by states voluntarily. But in this case, prospects that Russia will agree to comply with the Court's decision are not very high.

However, there is one scenario in which this could happen, which we detail later.

First, it must also be understood that Russia cannot be forced to comply with the Court's order.

However, Russia's refusal to comply with the Court's order will be another brick in building its image as a pariah state that has completely abandoned the UN's founding principles for the peaceful settlement of disputes. This will be another argument that Russia is violating the principles of the world order created after the Second World War and will contribute to its international isolation.

Additionally, in this process, Ukraine is in fact forcing Russia to explain its nonsense about the imaginary "genocide" to the whole world.

It is difficult to imagine how any authoritative international lawyer will undertake to prove the existence of "genocide" on the part of Ukraine, as this could very easily ruin their reputation in the international legal community. There is a chance that Russia will not turn to reputable foreign legal advisers and will limit itself to staff lawyers from the Ministry of Justice, the Ministry of Foreign Affairs or the international department of its Prosecutor General's Office, as was the case at recent ECtHR hearings.

Russia would rather not focus on the non-existent "Ukrainian genocide" but would likely argue that the Court has no right to consider such a dispute and that there is no violation of the Convention.

Finally, about the scenario in which an interim order of the ICJ could theoretically lead to the end of the war.

For everyone in the world (except consumers of Russian propaganda) over the past five days, it has become clear that the attack on Ukraine has not been as easy as Putin and his military leaders had hoped.

The occupying army suffers enormous losses. The rapid capture of Kyiv, which was planned to take place in 1-3 days, has become an insurmountable task. Resistance to the aggressor united Ukrainian society. Russian soldiers, who lived in the myths of Russian propaganda, suddenly found that ordinary Ukrainians met them with resistance and hatred, not with flowers and gratitude.

 

Day by day, there is a growing understanding in Russian society that they do not need this war, and that is even before it realizes the death toll to its army.

Therefore, it cannot be ruled out that in a week or two, when an order is issued, the Russian authorities themselves will be interested in finding a way out of this war, to save face. The decision of the International Court of Justice (in which Russian propaganda, of course, may see the influence of the United States and "anti-Russian hysteria") may be such a face saving solution for them.

Of course, the probability of this scenario is not very high. But even for a low chance it is worth a try.

After all, in any course of events in these proceedings, Ukraine risks nothing, but have chances to succeed.

An article by:

Mykhaylo Soldatenko, Asters;

Dmytro Soldatenko

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