The decision of the UN court is a victory for the government of Kiev. Moscow’s accusations of genocide of the Donbass population rejected
The United Nations International Court of Justice yesterday ordered Russia to immediately suspend the “military operations” begun in Ukraine, with 13 votes in favor and 2 against (by the Russian and Chinese judges). The order was adopted urgently, pending a final decision on the merits of the judgment that Ukraine introduced against Russia in The Hague on February 26th. What is the scope of today’s decision, and what exactly does the case brought by Ukraine before the Court consist of?
Dispute between states
Ukraine’s appeal against Russia focuses on the interpretation and application of the Convention on the Prevention and Suppression of the Crime of Genocide, 1948. It is not the first time that the Convention has been the subject of a dispute between States before the Court: for example, the Convention was invoked by the Bosnia versus Serbia and Montenegro in the 1990s, in the context of the Balkan war; most recently, from Gambia against Myanmar regarding the situation of the Rohingya minority. If compared with these cases, and with the ordinary dynamics between the actor State and the defendant State in an international dispute, the case introduced by Ukraine is unusual.
The Donbass question
Ukraine does not accuse Russia of carrying out acts of genocide against the Ukrainian population during the ongoing war. On the contrary, asks the court to confirm that Ukraine itself did not commit acts of genocide against the Russian-speaking population of Donbass; moreover, and in any case, that the Russian armed response would still be illegitimate, since the repression of a possible genocide could only take place with the means provided for by the Convention, which does not contemplate the unilateral use of force. As is well known, however, the Kremlin justifies the invasion precisely on the basis of the need to stop an alleged genocide perpetrated by Ukraine in the self-proclaimed republics of Donetsk and Lugansk. The basic idea behind Ukraine’s request is essentially the following: Russia has used the Convention on Genocide for improper ends and in bad faith; the unilateral use of force would be prohibited even where genocide was really taking place and therefore it is all the more prohibited when the accusation of genocide is a pretext. This is a non-linear case, given the circumstances. Because Ukraine has no longer simply asked to directly ascertain the illegality of the Russian armed aggressioninvoking international law and the UN Charter, or declaring that Russia is committing genocide against the Ukrainian population in the context of hostilities?
The Genocide Convention
On the first point, the explanation is that the jurisdiction of the Court is based on the consent of the parties. Therefore, a State can sue another in court to ascertain the commission of an international offense only if the latter accepts the jurisdiction of the Court on the matter of the dispute. Russia has not submitted to the jurisdiction of the Court on any matter, but it did so on the issues dealt with by the Genocide Convention, when it decided to become a party to it in 1954. For this reason, in order to appeal to the Court, Ukraine had to make an unusual appeal, forced by the indispensable attachment to the subject of the genocide. On the second point, the answer is that, at least for the moment, a direct charge of genocide against Russia would have had little chance of success before the court.
War crimes and crimes against humanity
Indeed, the crime of genocide has a technical definition, the central element of which is the subjective will to annihilate a group (ethnic, religious, but also national) as such, due to its specific characteristics. War crimes and crimes against humanity do not constitute genocide unless proof of this specific intent is given. The defense of Ukraine may have deemed it strategically more appropriate, at least for the moment, to focus efforts on more limited but more realistic objectives to be achieved. Turning now to yesterday’s decision, it is evident that Ukraine’s strategy, despite the limitations mentioned above, aimed at some concrete objectives, all achieved.
Firstthe introduction of the trial allowed Ukraine to request and obtain a direct order for the cessation of hostilities from the highest international judicial body, less than three weeks after the Russian attack. Second, the Court has indicated that the arguments of Ukraine are at least plausible (without prejudice to the investigations that the Court will have to make later) as much as compared to the fact that in Dombass there is no genocide of the Russian-speaking population; as regards the fact that the use of unilateral force is in any case prohibited. These basic steps unmask the poverty of Russian declarations on the necessity and legality of armed intervention. Finally, it cannot be ruled out that now that the case is settled, Ukraine will consider broadening the scope of the request, and introducing further allegations of direct violation by Russia of the central provisions of the Convention against genocide, should elements emerge. in this sense. It is difficult to imagine that the measures ordered yesterday will be respected; but the decision is important above all for one aspect: because it is not taken by a body whose decisions are supported by political evaluations, but by a court, which is third and impartial by nature. In the propaganda that inevitably accompanies every war, an objective word like the one pronounced yesterday is all the more important.
(Paolo Busco is an international lawyer at Twenty Essex in London; Filippo Fontanelli is a professor of international law at the University of Edinburgh and LUISS in Rome).