For two weeks the world has watched scenes of devastation unfold following Russia’s unprovoked invasion of Ukraine. Now, an international court prepares to rule on a case that can impact Russia’s legal standing.
On March 7, Ukraine went before the International Court of Justice (ICJ), the United Nation’s (UN) highest judicial body in The Hague, Netherlands, seeking a ruling for Russia to halt its military actions.
Ukraine is arguing that Russia is relying on a false claim of genocide in the Donbass region to justify its invasion, according to professor Valerie Oosterveld of Western Law, an expert on international criminal law, including genocide, crimes against humanity, and war crimes.
“Ukraine is asking the court to issue something called, provisional measures, which are a way for a country to get relatively quick action from the International Court of Justice on a particular question of protecting the rights of the state that’s making the request,” says Oosterveld, associate director of Western University’s Centre for Transitional Justice and Post-Conflict Reconstruction.
She contends that it is an unprecedented situation in which the country (in this case, Ukraine) accused of genocide is the one bringing the case to the ICJ.
The Genocide Convention was the first human rights treaty adopted by the UN General Assembly and establishes the obligation of countries to take measures to prevent and punish the crime of genocide.
It is on that basis that Russia is justifying its military action against Ukraine; otherwise, the invasion would be a violation of international law.
“Ukraine’s basic argument is that Russia’s invasion of Ukrainian territory is a violation of the Genocide Convention,” says professor Ryan Liss of Western Law.
“Russia has falsely claimed that Ukraine is engaged in acts of genocide in the Luhansk and Donetsk regions. Ukraine has argued that, by abusing the Genocide Convention to justify the use of force, Russia has violated the treaty.”
Because of Russia’s unjustified claim of preventing genocide, Ukraine is looking for the court to provisionally order Russia to halt its military action immediately.
Ukraine is also asking for the provisional measure that Russia be required to report regularly to the ICJ on its progress on fulfilling the order to cease the invasion.
Russia did not show up for its own defense during the proceedings but, as Liss explains, that does not necessarily affect the outcome of the case.
“If the Court concludes that it has jurisdiction over Ukraine and Russia under the Genocide Convention, it can order provisional measures and eventually issue a judgment, even if Russia doesn’t send its lawyers to argue their side of the case,” says Liss.
However, even if the court were to issue those provisional measures, there remains the reality of enforcing them and whether or not Russia will comply.
“Russia has a duty under the United Nations Charter and under the statute of the ICJ to follow that ruling, because rulings by this court are binding. However, there is no UN police force to ensure that Russia implements the provisional measures, and that’s problematic,” says Oosterveld.
Ruling implications
A ruling from the ICJ could come at any time. The court has promised Ukraine that it will provide its decision relatively quickly, with pundits expecting a release sometime next week.
Oosterveld believes the court will rule in Ukraine’s favour and provide the provisional orders they are seeking; however, she also believes Russia is unlikely to obey the ruling of the ICJ.
“That doesn’t mean the provisional measures are useless,” says Oosterveld. “This is because Ukraine is using every single possible peaceful lever that exists in international law, to try and put pressure on Russia to stop the invasion.”
There are other parts of the UN that are critical for intervening in Russia’s invasion, and provisional measures from the ICJ can support those efforts.
An order can help efforts in the UN’s Human Rights Council, it can also help the prosecutor of the International Criminal Court (ICC) gain political and legal assistance in the investigation into what is happening in Ukraine.
Nearly 40 nations have made claims of war crimes committed by Russia during the invasion, and the prosecutor of the ICC has already indicated that an investigation into these claims is underway.
This is a critical development because the ICC does have the ability to charge Vladimir Putin with war crimes if it finds enough evidence.
Finally, a ruling from the ICJ in favour of Ukraine has implications for China.
“It would importantly send a message to China that it cannot do the same as Russia is doing in Ukraine with respect to Taiwan,” says Oosterveld.
Provisional measures set by the ICJ may do little initially to quell aggression from Russia, but the implications for the wider world are many and could also impact what happens when the war concludes.
According to Oosterveld, if Russia is found to have repeatedly ignored the provisions and the court rules with Ukraine once the full case is heard, that could impact reparations from Russia following the war.
Despite the inability to police the provisional measures Oosterveld maintains that the ruling can serve as a strong denunciation of an illegal invasion and would have very real implications for the Russian Federation and its ruler.
