Ukraine “emphatically denies” any such genocide occurred. Ukraine’s submission to the ICJ is that Russia has no lawful basis to act against Ukraine for the purpose of preventing any purported genocide. Russia argues that it has the right to prevent and punish the alleged genocide by Ukraine. Russian President Vladimir Putin claimed the legal justification for the invasion was genocide which had taken place in Luhansk and Donetsk. This emphasises that international law retains some rhetorical significance, as Putin used Article I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as the basis of Russia’s invasion, without direct reference to it. Yet, as argued by Professor Ingrid Wuerth of the International Law at Vanderbilt Law School, it simultaneously underscores how weak the legal restraints are in practice to ensure territorial integrity. [2]
Ukraine has successfully sought the court’s jurisdiction on the basis of Article 36(1) of the Statute of the Court and on Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Ukraine has centered its application to the court around the 1948 Convention to try to ensure that the ICJ has jurisdiction, as the ICJ does not have automatic jurisdiction in cases involving two UN Member Nations. Especially since Russia has not consented to the ICJ’s jurisdiction, it does not have an Article 36(2) declaration accepting the ICJ’s compulsory jurisdiction.
Ukraine has also submitted a request, pursuant to Article 74 of the Rules of Court, for provisional measures.[3] This is a tactical move, given that the ICJ normally hears applications for provisional measures in a matter of weeks. The Court has power to indicate provisional measures “if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case”, The Gambia v. Myanmar, Order of 23 January 2020.[4] Ukraine is seeking provisional measures to protect its right not to be subject to a false claim of genocide and not be subjected to another state’s military operations on its territory on that basis.
Furthermore, Ukraine is supporting its request for urgent provisional measures with case law. The ICJ previously found in Georgia v. Russian Federation, Order of 15 October 2008, that it is appropriate to indicate provisional measures in circumstances that are “unstable and could rapidly change”. With the urgency of the current situation being self-evident, Ukraine has requested provisional measures to protect its people from irreparable harm. Thus, the ICJ has listed hearings in relation to the provisional measures for next week.
In addition, the prosecutor of the International Criminal Court (ICC), Karim Khan, has announced that he will launch an investigation into possible war crimes or crimes against humanity in Ukraine. Unlike the ICJ, the ICC investigates and prosecutes individuals for alleged crimes. Although Russia is not a member of the ICC the court has jurisdiction to investigate Russian officials for crimes committed in Ukraine.
Open Democracy is reporting that Ukrainian organisations are requesting support and technological assistance to document evidence. However, a lot of evidence stems from smartphones. This allows for the collection and preservation of evidence of any atrocities committed at short notice. This real-time evidence gathering would not have been possible in other conflicts, for example the conflict in Bosnia-Herzegovina or even the conflict in the middle-east during the early 2000s.
‘Lawfare’
For those unfamiliar with the term, ‘Lawfare’ is using law as a tool linking legal proceedings to conflict and diplomatic objectives. As defined by Mark Voyger, Senior Fellow with the Transatlantic Defense and Security Program, Lawfare is a commonly used device by Russia and represents the domain that intertwines with, and supports, information warfare. Thus, providing the (quasi)-legal justification for Russia’s propaganda claims and aggressive actions.[5]
Ukraine’s application to the ICJ appears to be fighting fire with fire. It is an example of obtaining diplomatic objectives by using legal proceedings. These lawsuits, on their own, are unlikely to halt the Russian invasion, as the ICJ does not have an enforcement mechanism to stop military conflict. However, the proceedings will assist Ukraine in achieving its strategic goals. The filing of these applications goes a step further in de-legitimising Russia’s cause. It can be used as a basis to justify further international efforts to bring punitive measures against Russia, such as sanctions.
Conclusion
We are unlikely to see either sets of proceedings reach a conclusion in the short term. However, their existence alone is powerful and emphasises the world is watching. This may deter Russia from using further overly aggressive methods and go some way to averting humanitarian disaster. The hearings granted by the ICJ will identify the truth over whether Putin’s claims of genocide in Eastern Ukraine have any factual basis. If the provisional measures requested by Ukraine are granted, this would also put Russia in breach of an international court order every day the conflict continues.
If evidenced comprehensively this strategic litigation may undermine Russia’s legitimacy for the invasion into Ukraine and provides the international community with a further reason for cohesion and to bring punitive measures against Russia.
We are used to defending against the use of misinformation in the context of our asylum claims- frequently on the part of aggressive state actors and their associates. This is an unprecedented level of defensive measures to correct disinformation and seemingly symptomatic of Ukraine’s fierce resistance.
If you have any questions regarding the current policy please do not hesitate to contact Matt Ingham or Richard Milford of the Citizenship and Immigration Team.
[1] https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf
[2] https://www.lawfareblog.com/international-law-and-russian-invasion-ukraine
[3] https://www.icj-cij.org/public/files/case-related/182/182-20220227-WRI-01-00-EN.pdf
[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 9, para. 16
[5] Mark Voyger, Russian Lawfare – Russia’s Weaponisation Of International And Domestic Law: Implications For The Region And Policy Recommendations, 5 December 2018
