Introduction

On February 27, 2022, Volodymyr Zeleskyy, President of Ukraine, tweeted that Ukraine had filed a complaint against Russia before the International Court of Justice (or “Court”). Later that day, the official Application was released. This is the second Application filed by Ukraine against Russia before the International Court of Justice since the outbreak in 2014 of the conflict over the self-proclaimed-independent republics of Donetsk and Luhansk and over the Crimea peninsula. In January 2017, Ukraine filed the first Application. It concerns the events that took place in Russian-annexed Crimea. The Convention on the Elimination of All Forms of Racial Discrimination and the Convention for the Suppression of the Financing of Terrarianism were the basis for the first Application. This strong Ukrainian activism in front of international courts – including the ICJ, the European Court of Human Rights, and the International Criminal Court – is a strategy to gain new arguments for Russia. This attempt will also positively strengthen international law, especially in light of its proven capacity to facilitate other States’ efforts through referrals or requests to participate in the proceedings.

The second Ukrainian Application, filed on February 26 but not made public until the next day, concerns the “special military operations” that Russian President Putin launched against Ukraine in early February. This second Application focuses on the legal justification Russia allegedly used to justify its use of armed force. It raises interesting questions about whether and under which conditions a military intervention is permissible under international law.

Genocide is the trigger factor for the use of force against UN Charter Framework.

Marko Milanovic analyzes President Putin’s speech that was broadcast on the morning of the Russian military operation against Ukraine in a recent post. Para. 266, the Court cannot “ascribe to States legal opinions which they don’t themselves formulate.” Analyzing President Putin’s words is essential to understand the legal reasoning behind the current armed conflict. President Putin seems to ground the legitimacy of his resort to armed force on i) preemptive self-defense made necessary by NATO’s expansion to the East – which is most likely incompatible with Article 51 of the UN Charter; ii) an argument of collective self-defense of the (supposedly independent) Donetsk and Luhansk republics which is on its face contrary to the territorial scope of Russia’s military intervention, and iii) an humanitarian intervention/responsibility to protect argument, i.e., Russia is attempting to prevent a “genocide of Russians” in Eastern Ukraine.

With Ukraine’s second Application for the ICJ, the third argument is most relevant. The compromise clause in Article IX of the 1948 Convention on the Prevention and Punishment Genocide (“Genocide Convention”) is used to support this Application. Both the Russian Federation and Ukraine are parties to this treaty. as of 1989, there is no reservation to Article IX. Ukraine claims that there is a dispute between Russia and Ukraine under Article IX. This refers to the “interpretation of, application or fulfillment” of the Convention. In fact, Ukraine asserts (paragraphs 2 and 3, of the Application):

The Russian Federation falsely claimed that genocide occurred in the Luhansk, Donetsk oblasts in Ukraine. It then recognized the “Donetsk People’s Republic and the “Luhansk People’s Republic,” and declared and implemented a special military operation against Ukraine to prevent and punish any alleged acts of genocide. This false allegation has led to Russia’s military invasion of Ukraine, involving widespread and grave violations of human rights by the Ukrainian people.

Ukraine strongly denies any genocide and has filed this Application to prove that Russia does not have the legal basis to act in Ukraine and against Ukraine to prevent and punish any genocide.

In this context, Ukraine requests the ICJ’s determination that i. Ukraine has not committed genocide against Russians in East Ukraine and ii. Russia’s military operation on Ukrainian territory is a prohibited use of force and an internationally wrongful act. Additionally, Ukraine added to its request here a request for interim measures.

Arguments made by Ukraine to the ICJ are largely based on the theory of Responsibility to Protect (“R2P”), an international law theory first formulated in paragraphs 138 and 139 in the 2005 World Summit Intent Document. The R2P is fundamentally based on three pillars. Pillar One: Each State is responsible for protecting its citizens from four mass atrocity crime: genocide and war crimes; Pillar Two : The international community has the responsibility of supporting and assisting individual states in fulfilling this responsibility. Pillar Three. Suppose a State fails to protect its population. In that case, the international community must be ready to take the appropriate collective action in a timely, decisive, and in compliance with the UN Charter. There are several pressing questions surrounding R2P. Is it justifiable to resort to military force in order to stop or prevent atrocity crime? Is R2P a valid exception to the prohibition on the use of force? Is it mandatory that the UN Security Council approve military intervention? Or is it possible to do so outside of the UN Charter’s framework?

Interesting as the Application of Ukraine to the ICJ on February 26 provides clues about the positions of the two States in relation to these issues. These are only clues, as we can see the legal framework of Russia’s position mainly through the eyes of its counterpart in this dispute. The Ukrainian position could be opportunistic and dictated by the desire to present Russia (against the ICJ) to gain favor in these turbulent times. Is this argument’s opportunistic nature enough to ignore the value of State practice, opinio jurs and other forms of State practice? Although it is unlikely, this does not mean that Ukraine’s position will change as circumstances change.

The following summarizes the position of Ukraine: International law recognizes a military intervention that is intended to stop or prevent genocide (or at least atrocity crimes) in Ukraine. The legitimacy of resorting to armed force in Ukraine is based on Article I of the Genocide Convention. The use of armed force is therefore an option, although it is only a last resort, to prevent or punish genocide. The Russian invasion was justified because Ukraine claims not to have committed or are about to commit genocide against Russians in the area of Luhansk and Donetsk. The illegality of the Russian military operation is further supported by Ukraine’s assertion that Article VIII of the Genocide Convention requires UN bodies to be involved in preventing and suppressing genocide. Therefore, Ukraine’s claim that Russia was illegally operating can also be read as implicit recognition of R2P limits. The UN Charter and UN procedures only allow for the adoption of measures to prevent or punish genocide.

The public statements made by prominent members of Russia’s government can help us to understand the Russian position. According to President Putin, “[the purpose of the military operation] was to protect people who have suffered from bullying and genocide under the Kiev regime for eighteen years.” (See the Ukraine’s Application for a detailed list). Ukraine uses the same logic to justify Russia’s use of force on its territory. But, Russia’s interpretations of R2P differ from that of Ukraine. In fact, Russia sent its army against Ukraine without obtaining authorization from the UN Security Council. As required by Article VIII of the Genocide Convention, Russia did not inform UN agencies. The underlying theory suggests that an intervention humanitarian to prevent or suppress genocide could be made outside of the UN framework, regardless of whether it is well-founded. In a contradictory speech, President Putin also condemned Western allies for their military interventions in Serbia, Iraq, and Libya without UN Security Council authorization.

Alternative routes

It remains to be seen if the judges at the ICJ will accept Ukraine’s arguments. The Court’s first request, concerning the alleged genocide in Luhansk/Donetsk, may face legal hurdles as it is a request to determine if the applicant-State has not breached an international obligation. The only case in which a negative determination of such kind was made to the ICJ was Right of the Nationals of the United States of America, Morocco (France v. United States of America, 1950). France, as protectorate of Morocco, initiated proceedings against the USA in this case. The USA was cited for certain laws France had passed on Moroccan territory. The USA contested this as violating its rights under the treaties with Morocco. France was a party to the proceedings, arguing that it hadn’t violated international obligations. The ICJ, however, did not address this particular aspect of the judgment and only addressed each submission. It is ultimately a matter of applying a legally binding ruling to a specific factual situation. The Court could also apply, regardless of the formal roles of the parties to the proceedings, the general rule that “it’s for the party alleging the fact to prove its existence” ( Croatia para. 172). Russia, despite being the respondent, should bear the burden of proof in this case because it alleges that Ukraine committed genocide to justify its resort to armed forces.

If Russia successfully imposes a government change in Ukraine, the Ukraine application could also be affected. This will likely lead to a change in the representation of Ukraine before the ICJ. In this context, Ukraine might benefit from simultaneously pursuing approval of a UN General Assembly resolution ( an ongoing emergency session) requesting an advisory opinion from the ICJ. The request can only be withdrawn with the consent of the majority in the General Assembly. This does not appear to be possible at the moment.

In particular, the General Assembly could approve a request for an advisory view. This is especially true in relation to the second request from Ukraine to the ICJ. The Court could decide that Ukraine is not competent to judge the legality and use of force by Russia. When faced with a request to equate aggression with genocide, the ICJ previously determined it lacked jurisdiction ratione materiale (even at the provisional measure stage). See a series of cases between Serbian and Montenegro v. other NATO States. The Article IX Genocide Convention’s com promissory clause covers “[d]isputes relating the interpretation, application, or fulfillment the present Convention,” so a decision on Russia’s legality could be considered outside the Court’s jurisdiction. This issue does not involve the interpretation, Application, or fulfilment of the Genocide Convention. However, if we take a humanitarian intervention to stop or suppress genocide into account, then implicitly it is included under Article I’s obligation to do so. Ukraine follows this reasoning (para. According to Ukraine, this reasoning is as follows: “One Contracting Party cannot subject another Contracting Party (including armed attack) to unlawful action, even if it is based upon a wholly unsubstantiated claim that prevents and punishes genocide.”

Current Situation

The substantive decision of the ICJ regarding the Application by Ukraine on the Genocide Convention has yet to be made. The President of the ICJ Judge Donoghue has so far issued an Order requesting participation by the Russian authorities to the urgent proceedings concerning the provisional actions sought by Ukraine. The Court set for 7 and 8, March, the first round in public hearings in this matter. The UN General Assembly passed the Uniting for Peace Resolution on March 2. Only five States voted against it. This resolution called for an end to the Russian offensive in Ukraine. The numbers necessary for the General Assembly to take further actions seem to be possible.

Conclusion

International law has seen lively discussions over the possibility of expanding the exceptions to Article 2(4) ‘s prohibition on the use of force under the UN Charter. These tensions were not caused by aggressive warlords, but rather by a large number of international lawyers who had the noble intention to make the famous Nuremberg “Never Again” a reality. The theories are meant to reinforce the duty to prevent atrocity crimes and punish them by mentioning, at minimum, the threat to military action. These efforts are necessary given the UN Security Council’s paralysis, which is becoming increasingly blocked by the exercise veto power. The introduction of new exceptions under Article 2(4) could lead to manipulation to cover up aggressions, as was the case with Russia’s recent operation against Ukraine. This is especially true when proposed new exceptions to Article 2(4) are vague like the ones for humanitarian intervention or R2P. Because the current state of affairs is incompatible with the suppression and prevention of the most horrific crimes, it will change. A new balance should be drawn, taking into account the conflicting tensions. This balance also includes the possibility of UN institution reforms, which is possible but not likely.