On 18 September, 2023, hearings on a special case began in The Hague. Ukraine, along with 32 other countries from Norway to New Zealand, jointly accuses Russia of violating the Genocide Convention, one of the key conventions upon which the so-called post-war world order is based.
This joint lawsuit (Ukraine has won the first stage) is being considered by the International Court of Justice (ICJ) – the highest judicial institution in the world.
The hearings will last for two weeks. And there is already a sensation: Russia, which initially avoided this process, decided to participate. An international team of lawyers representing Russia has arrived in The Hague. However, even the legal team illustrates how poorly things are going for Russia internationally. Even Western lawyers who were willing to defend Russia have not joined the "genocidal" process.
Furthermore, Russia's agent built his presentation on fake historical claims about Nazi Ukraine and accused President Zelenskyy personally of supporting Nazism.
Overall, Ukraine's chances of winning this process look good, but they are not guaranteed. This decision will set a precedent since anything like that has never been considered in history. Ukraine used the Convention quite "creatively," and Russia is pressuring it.
Meanwhile, even a legal victory, which Ukraine continues to believe in, will only be an intermediate step. Based on it, Kyiv plans to file a lawsuit for compensation for the material damage caused by the war that began with Putin's slogans about genocide.
However, this process will not lead to the imprisonment of the guilty parties. Nevertheless, it is no less important because over 30 other states have joined the lawsuit.
What is Russia accused of? Ukraine's position:
The case began in February 2022 as Ukraine's response to Russia's full-scale invasion. The lawsuit was filed with astonishing speed, at least in terms of international law, on February 26, just two days after the invasion.
In international law, you cannot initiate an investigation against another state simply because that state is committing a crime. This is why Ukraine cannot sue Russia solely on the grounds that the Kremlin is committing the crime of aggression. There must be some convention ratified by the offending state that provides for a judicial procedure to resolve disputes.
Ukrainian lawyers found such a path and prepared a lawsuit against Russia based on the Genocide Convention, one of the key conventions in the modern world order, adopted at the very beginning of the United Nations in 1948. It allows for the prosecution of a state even without its consent.
But the main creativity of the Ukrainian lawsuit was
that Ukraine did not accuse Russia of committing genocide as such. Proving genocide is very complex, and in the first days of the invasion, there was no 100% evidence of genocide by Russia.
What is this lawsuit about?
Russian officials, in an attempt to justify aggression against Ukraine, publicly accused Ukraine of "genocide" in the early days of the invasion. The non-existent "genocide in Donbas" became one of the publicly proclaimed reasons to justify the invasion of Ukraine. President Putin, Foreign Minister Lavrov, and Russian ambassadors to the UN and EU all referred to this convention in this context.
So, Ukraine asked the UN Court to declare:
- That Ukraine did not commit any "genocide" in Donbas.
- That the Kremlin is abusing the Genocide Convention to justify its actions.
What does Ukraine demand?
In response to the question of what Ukraine seeks to achieve with the UN Court, any diplomat would answer: we seek justice.
Not the only on. There is more at stake in this situation.
The primary function of international courts is not to "punish" states. Therefore, establishing justice itself, i.e., determining who is right, is indeed the first goal of the case in The Hague.
First, Ukraine's lawsuit includes a demand for the UN Court to confirm that Russia's claims about "genocide in Donbas" are lies. Moscow continues to spread and use this fake, referring to it on international platforms, and in the Global South and among those who like to listen to both sides of the dispute," it sometimes works.
Second, if the International Court legally confirms that Russia launched an attack under a fabricated pretext, this will make Ukraine's task easier in all other proceedings against Russia. Even in commercial arbitrations, you can refer to the UN ICJ decision as an unquestionable authority, let alone political platforms.
Third, even a positive court decision will not stop legal proceedings against Russia. In Kyiv, it is no secret that after this victory, they plan to file another lawsuit with the UN ICJ – for financial compensation. However, this lawsuit will be possible only if the wording of the court's decision allows for such a chance.
Last, Ukraine simply cannot afford to lose.
This is now an image issue. One can only imagine the international consequences and the scale of how Russia would manipulate the decision in case of its victory in The Hague.
Ukraine's "genocide" case against Russia has become a global precedent not only because of its creativity but also because of how much support Ukraine has received in court. 32 countries have joined the lawsuit, declaring that they consider themselves harmed by Russia's actions because the use of false accusations of genocide to launch armed aggression destroys the world that everyone knows. Therefore, this concerns not only Kyiv. A simultaneous loss by all of these states to the aggressor will have consequences.
On Monday, 18 September, Russia presented its position at the UN Court. Moscow prepared much more seriously than Ukraine had hoped for.
The first hearings on the "admissibility" of the case and provisional measures in March 2022, were ignored by Moscow. Hearings in The Hague took place with only the "accuser" – Ukraine - participating.
Since then, waves of sanctions against Russia and its partners have begun to hit. In March 2022, Russia realised that it had no one to defend it in The Hague.
The Russian government has been working with a team of experts from the "axis of evil" countries. Its core consists of Iranian and Chinese pro-government professors of international law. These states and these lawyers have a long history of undermining the world order.
Furthermore, they refused the services of an African lawyer with a French license, Jean-Charles Chikaya, who had previously worked as a lawyer for the most notorious African dictators.
In Moscow, they understand how serious the matter is.
Therefore, Russia and its advisors have probably chosen the only effective tactic: to prove to the court that the allegations of "genocide in Donbas" were not the cause of the war.
Russian diplomats had to take a very atypical step and challenge the words of Putin and Lavrov personally, in addition. Throughout the day, representatives and defenders of Russia explained that the political statements of Russian leaders cited by Ukraine did not have any legal weight.
The main goal was to convince as many judges as possible that it is not about the "genocidal convention." Russian representatives argued that Kyiv is manipulating and "trying to impose its vision of what caused the special military operation" in the court. Ukraine, however, "somehow" denies that it bombed Donbas for eight years.
If it is indeed the case, then the lawsuit should be declared inadmissible. Kirill Udovichenko, a representative of the Russian law firm at the Russian Ministry of Foreign Affairs who concluded the Russian part of the hearings, added that the court should also reject Kyiv's request to answer the question of whether there were genocidal actions in Donbas, as politicians have claimed.
Ukraine’s Chances to Win
There were also some funny moments in the Russian reports, especially in the speech of the representative of the Russian Ministry of Foreign Affairs. Unlike international advisors, he largely built his speech on shaky ground, which only weakened the Russian line.
In general, Ukraine's legal line is clear. Ukrainian diplomats and legal advisors at the Ministry of Foreign Affairs have been working to convincingly demonstrate, with citations, that Russian claims of "genocide of Russian speakers in Donbas" were directly linked to Russian aggression. They argue that this is a real, not imaginary, violation.
Not only Kyiv but also 32 other capitals are convinced that the accusations are serious. And rejecting them in the light of this context will be much more difficult for the judges. Moreover, this is likely why the West decided to massively support Ukraine's lawsuit.
Whose position will be more convincing to the judges? We will find out fairly soon. This case is moving unusually quickly (for the UN Court). It is not impossible that a decision will be reached later this year or early next year. Hearings are scheduled for this week and the next.
States have sided with Ukraine in this dispute: 26 out of 27 EU members, Canada, Australia, and New Zealand, the United Kingdom, Norway, and Liechtenstein.
Written by Sergiy Sydorenko,
European Pravda, Editor, from The Hague