Author- Gaston Ignacio Vionnet Perez
Since February 24th, 2022; the Russian Federation began the second wave of “Special military operations”, as stated by Putin; to continue its annexation process under the façade of the liberation of two “subjugated republics” within Ukraine. Russian law specialists founded this stance on aggression on the existence of a Genocide against Russian population within the provinces of Luhansk and Donetsk,[1] attempting to “De-nazify these territories” and protect the citizens from these zones. The next day, Ukraine submitted a request for provisional measures, establishing the tribunals Jurisdiction through Art. 36 of the ICJ Statute and Art. IX (and therefore III) of the Genocide Convention.[2]
The two point of contentions that the court had to address in the provisional measure’s decision were clear:
- First, to clearly determine the definition of genocide, and therefore, the existence of said crime within the territories in question according to Art. II of the Genocide Convention and,
- Second, to decide if Russia has any lawful basis to take military action in and against Ukraine to prevent and punish genocide pursuant to Article I of the Genocide Convention.
On the one hand, Ukraine’s stance was first, that the accusations of Genocide were unfounded, and it emphatically denies the existence of any Genocide crimes against the Russian population.; and second, to “Protect its rights” as a sovereign state and not be subject to an extensive interpretation, considered abusive, of Art. I of the Genocide Convention. Ukraine recognizes the negative obligation to not harm any citizen, as stated in several cases, such as the case between Bosnia and Herzegovina v. Servia and Montenegro over the Application of the Genocide convention (2007), which stated that:
“The Article does not expressis verbis require States to refrain from themselves committing genocide. However, in the view of the Court, taking into account the established purpose of the Convention, the effect of Article I is to prohibit States from themselves committing genocide.”[3](Emphasis added)
If we interpretate the Convention according to Arts. 31 and ss.; taking into account the ordinary meaning of the words and precisely the effet utile that this very Convention holds, we cannot then conclude that any action is allowed to stop the actions mentioned along the whole treaty. This is the only rational understanding of said article, since if not, the situation would develop into an unstoppable loop of unlawful actions, which would be contrary to Art. I of the convention and International Law altogether.
Moreover, an even clearer limit is established in Art. VIII, which also demonstrates that the actions must be taken through competent organ of the UN. Russia, in Ukraine’s view, failed to
address this topic, and while the Judgment of the aforementioned Tribunal stated that “every State may only act within the limits permitted by international law”,[4] Russia was not permitted to intervene within Ukraine territory.
On the other hand, Russia’s stance relied on the incompetence of the Tribunal. The argument relies on the consent of the state towards these proceedings, specifically the one regarding the “interpretation, application or fulfillment of the [Genocide] Convention”. Russia’s position establishes that, since there was no provision within the Genocide Convention prohibiting the use of force from any country and that it’s Special operations were permitted via Art. 51 of the UN Charter, that is to say, that Russia alleges that there was a Self-Defense argument. Putin addresses that, since the Russian people were in danger, he was obliged to spring into action.[5]
The tribunal then considered that it had jurisdiction mainly because of the statements that government officials, specifically Vladimir Putin, related to the liberation of the two territories in question,[6] as the “existence of a dispute is a matter for objective determination by the Court; it is a matter of substance, and not a question of form or procedure”.[7] Since at that point (Provisional Measures requested), the ICJ is only required to establish whether the acts complained of by Ukraine appear to be capable of falling within the provisions of the Genocide Convention, which in this case, it found there enough evidence to do so.[8]
Regarding the merits of the provisional measures, The tribunal sought to look at Art. 41 of the ICJ statute in order to apply what was requested by Ukraine. Again the tribunal also makes a determination on whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are plausible.[9] In this case, having stated that the Genocide convention is applicable under this circumstances, the acts of the states “to prevent and to punish” genocide[10] must be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the United Nations Charter, which clearly states that the purpose of the UN is “[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace[…]”. That was the reason why the Court considered that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine, since those actions were unlawful.
Given the irreparable prejudice that can “occur at any moment”[11] situation argued by Ukraine, and after more than 6.300 civilian deaths,[12] characterizing this Ukraine collective of “Extremely vulnerable”;[13] The Court concluded that the conditions required by its Statute for it to indicate provisional measures are met and that the provisional measures it dictates have binding effects[14] creating international obligations.
The court therefore mandated Russia to suspend the military operations and unanimously to stop escalating the conflict.[15] Up to November 21st, 2022; Russia has still not complied with the order to stand down and desist all unprovoked attacks dictated by the ICJ.
Decisions held by this tribunal, according to the Ut Supra mentioned jurisprudence and the UN Charter on its Art. 94 through 96, are mandatory and may incur in obligations. Regardless of what The Security council may indicate as a measure to be taken (And therefore intervene, as unlikely as that may be since any session held may just be vetoed by the Russian Federation being a permanent member), the political stance taken forward by the Russian Federation denotes a complete disregard on international law and its rules; further destabilizing its geopolitical stance in macropolitics and, as a permanent member of the UN. The solution will come on due time, but in that aspect, even the ICJ was clear enough stating the unlawfulness of Russian’s actions toward this very intervention.
Reference
[1] Attempting to be recognized by Russia as the ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’; which were recognized independent by Russia, North Korea, and Syria.
[2] Both articles providing the ICJ of the necessary competence needed for it to decide on the matter.
[3] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment Of 26 February 2007, I.C.J. Reports 2007, p. 113, para. 116.
[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430.
[5] President of the Russian Federation official website, “Address by the President of the Russian Federation”, 24 February 2022, available at: http://en.kremlin.ru/events/president/news/67843.
[6] He specified that the “purpose” of the special operation was “to protect people who have been subjected to abuse and genocide by the Kiev regime for eight years”
[7] 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. 12, para. 26).
[8] “[…] the acts complained of by the Applicant appear to be capable of falling within the provisions of the Genocide Convention.” Allegations Of Genocide Under the Convention On The Prevention And Punishment Of The Crime Of Genocide (Ukraine V. Russian Federation), March 16th 2022; Order of provisional Measures, I.C.J, p.13, paras. 45, 47.
[9] 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. 18, para. 43).
[10] Art. I, Genocide Convention
[11] Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 645, para. 77).
[12] Office Of the High Commissioner for Human Rights (OHCHR), October 24th 2022, https://www.ohchr.org/en/news/2022/10/ukraine-civilian-casualty-update-24-october-2022
[13] Allegations Of Genocide Under the Convention On The Prevention And Punishment Of The Crime Of Genocide (Ukraine V. Russian Federation), March 16th 2022; Order of provisional Measures, I.C.J, p.18, para. 75
[14] Germany v. United States of America – LaGrand, Judgment, I.C.J. Reports 2001, p. 506, para. 109.
[15] Allegations Of Genocide Under the Convention On The Prevention And Punishment Of The Crime Of Genocide (Ukraine V. Russian Federation), March 16th 2022; Order of provisional Measures, I.C.J, p.21
ALL INDIA LEGAL FORUM 