Publication

First victory of Ukraine in the International Court of Justice

16/03/2022

Markiyan Bem

Senior Associate, Attorney-at-Law

Data Privacy,
ECHR case-law,
White Collar Crime

Today, the second court session of the International Court of Justice (hereinafter – the ‘Court’) in the case initiated on the application filed on 26 February 2022 by Ukraine against the russian federation (hereinafter – the ‘rf’) ended. During this session, the issue of indication of the provisional measures requested by Ukraine was concluded.

It should be recalled that one of the declared reasons for rf's invasion in Ukraine was that Ukraine allegedly committed genocide against the ORDLO population. In this regard, Ukraine has applied to the Court to declare, inter alia, that no acts of genocide were committed in Luhansk and Donetsk regions, and that rf cannot use any measures against Ukraine on the basis of false allegations of genocide (see the analysis of the application in more detail in our previous article).

Ukraine has also requested the Court to indicate provisional measures, inter alia, to oblige rf to suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine and ensure 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 (see the analysis of the application in more detail in our previous article).

To apply provisional measures, the Court should first declare whether: 1) there is a real dispute concerning the interpretation and application of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (hereinafter – the ‘Convention’), 2) Ukraine's request is sufficient prima facie (at first glance) justified. In this regard, the Court must decide whether the rights complained by Ukraine prima facie exist, 3) Ukraine has proved the necessity of taking such measures immediately.

Regarding the first condition, the Court pointed out that there is indeed a dispute between the parties as to whether certain actions in Luhansk and Donetsk regions should be regarded as genocide, and therefore whether rf could under Article I of the Convention use force to prevent and punish such acts. The Court stated that the above mentioned, in principle, is sufficient to establish that there was a dispute between the parties as to the interpretation and application of the Convention. The Court, therefore, declared that it has jurisdiction to hear the case.

As regards whether prima facie there are rights alleged to be violated, the Court noted that Article I of the Convention stipulates that all States Parties undertake to prevent and punish the crime of genocide. This provision does not define what actions can be taken for this purpose. However, the Court noted that this provision should be applied in good faith and in the light of other provisions of the Convention, in particular Articles VIII and IX, which deals with the possibility of the State to apply to the system of UN bodies and the Court if it considers that there has been a violation of the Convention.

The Court also emphasized that ‘each State may act only within the limits permitted by international law’ in conformity with ‘the spirit and aims of the United Nations'. In this regard, the Court recalled the purpose of the United Nations, in particular the maintenance of international peace and security.

As a result, the Court, despite the fact that it has not yet been able to express an opinion on the merits of the case, nevertheless made a very important reservation for Ukraine. The Court noted that at this stage, ‘the Court is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide’.

In these circumstances, the Court ruled that Ukraine has the right not to be subjected to military operations of rf in order to allegedly prevent and punish genocide on its territory.

In conclusion, the Court found that the provisional measures requested by Ukraine are directly linked to those rights which Ukraine alleges have been violated and that failure to take such measures could cause irreparable damage to those rights.

In this connection, the Court recalled that the ‘special military operation’ of the rf had already resulted in significant civilian casualties, caused significant material damage and forced a very large number of people to flee their homes.

As a result, the Court granted Ukraine's key claims and ordered:

1.    the rf shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;
2.    the rf shall ensure 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 referred to in point 1 above;
3.    both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

Thus, it is possible to announce the first victory of Ukraine in the Court.

The conclusions reached by the Court give hope for the further and final victory of Ukraine in this case.

Regardless of the further development of this case, we received a decision from the most authoritative international judicial institution, which obliges rf to suspend military operation in Ukraine. Regardless of whether rf implements this decision, although we are sure that it will not, Ukraine has received additional evidence of the illegality of rf's actions, and thus an argument in negotiations with both allies and opponents on the international arena.

Authors: Markiyan Bem, Senior Associate , Alina Oleksiuk, assistant attorney 

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