Introduction
On 24 February 2022 Russian troops invaded the territory of Ukraine. Dozens of States have condemned Russia’s behaviour as blatant violations of international law at the General Assembly in a special emergency session. The Russian Federation argues that their invasion is legally justified and only serves to free people living in the Luhansk and Donetsk oblasts of Ukraine from genocide by Ukraine; Ukraine contends that this claim is false and accuses the Russian Federation of carrying out the actus reus of genocide by intentionally killing and inflicting serious injury on Ukrainian nationals.
The International Court of Justice (ICJ) was engaged and gave its order concerning provisional measures from Ukraine against Russia on 16 March 2022; the International Criminal Court (ICC) announced investigations. What legal measures can be taken against the Russian Federation? What procedural strategies does the Russian Federation use in this case? What can be expected after the order of the ICJ? Do judgements of international courts have any efficacy in the light of the paralysis of the Security Council and can the current legal system remedy a breach of international law?
In two parts, this blog examines possible measures against the Russian Federation as a State before the ICJ (Part 1) and measures against Vladimir Putin as a person (Part 2) before the ICC, particularly taking into account acts and statements by the States and their government representatives in the light of their procedural strategies. Shortcomings of the respective legal measures will be identified and improvements suggested.
1. History of Proceeding before the ICJ
The ICJ is the principal judicial organ of the United Nations (Art. 92, 1st sentence of the 1945 United Nations Charter, UN Charter).[1] In contentious cases, the ICJ decides in accordance with international law over disputes of a legal nature that are submitted to it by States. On 26 February 2022, Ukraine filed an application to the ICJ instituting proceedings against the Russian Federation. Together with the application, it requested the indication of provisional measures seeking that the Russian Federation immediately suspends the military operations that commenced on 24 February 2022. Although the indication of provisional measures is binding for the parties, it is not a final judgement in the case; a final decision by the ICJ is still pending. While contesting the jurisdiction of the ICJ in a written document, no representatives of the Russian Federation appeared in the hearings of the ICJ on 7 and 8 March 2022.
2. Parties and Jurisdiction
The ICJ is only open to State parties and certain international organisations. Although Ukraine and the Russian Federation are both ipso facto parties to the Statute under Art. 35 of the 1945 Statute of the International Court of Justice (ICJ Statute) in conjunction with Art. 93 (1) UN Charter, the jurisdiction over disputes can be difficult to determine, as, according to Art. 36 ICJ Statute, the parties must consent to proceedings by means of special agreement, treaties or written application.
2.1. Russia's Strategy to Contest the ICJ's Jurisdiction
In terms of litigation strategy, contesting the jurisdiction of a court is the easiest and fastest way to end proceedings, as the court may not rule on the merits if it does not have jurisdiction. The Russian Federation, therefore, predictably, contested the jurisdiction of the ICJ in the case brought against it by Ukraine. Because of the lack of consent to the proceedings by the Russian Federation, the jurisdiction of the ICJ must be established through a treaty or convention.
2.2. Jurisdiction based on the Genocide Convention
A relevant treaty to establish the jurisdiction of the ICJ in this case is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). According to Art. IX Genocide Convention, disputes between the contracting Parties relating to the interpretation, application or fulfilment of the Genocide Convention, including those relating to the responsibility of a State for genocide, shall be submitted to the ICJ at the request of any of the parties to the dispute.
2.2.1. Positions of the Parties
Accordingly, in its application of 26 February 2022, Ukraine requested to institute proceedings against the Russian Federation concerning allegations of genocide under the Genocide Convention.[2] Together with its application, Ukraine submitted a request for the indication of provisional measures, contending that
'the Russian Federation has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’, and then declared and implemented a ‘special military operation’ against Ukraine with the express purpose of preventing and punishing purported acts of genocide that have no basis in fact.‘[3]
It furthermore accuses the Russian Federation of carrying out the actus reus of genocide by intentionally killing and inflicting serious injury on Ukrainian nationals, accompanied by what Ukraine considers rhetoric suggestive of genocidal intent.[4]
The Russian Federation, as expected, contests that the real subject-matter of the dispute relates to the interpretation, application or fulfilment of the Genocide Convention, and rather concerns the use of force between States and the recognition of States. This shall be regulated in the UN Charter and Customary International Law, such as the right of self-defence under Art. 51 UN Charter.[5] According to the Russian Federation, the jurisdiction of the ICJ can, therefore, not be established under Art. IX Genocide Convention.[6]
The ICJ in its provisional measures accepted its jurisdiction in the case. It declined Russia’s argument that the case only concerns general international law, such as the right of self-defence under Art. 51 UN Charter. Rather, the Court found that numerous statements by Russian officials, including President Putin’s speech of 21 February 2022, on the eve of the invasion, did expressly refer to stopping genocide as the purpose of the use of force. Since 2014, official organs of the Russian Federation repeatedly allege acts of genocide by Ukraine against the Russian-speaking population living in the above-mentioned regions 'in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide‘ and even instituted criminal proceedings against high-ranking Ukrainian officials regarding the alleged crime.[7]
2.2.2. Evaluation
The Russian Federation based its justification for the invasion of Ukraine on alleged genocide committed by the latter against the people living in the Luhansk and Donetsk oblasts of Ukraine and, at the same time, contests the jurisdiction of the ICJ because the Genocide Convention shall not be applicable. This argumentation is not conclusive, as even if the issue at hand addresses the right of self-defence, the necessarily presupposed breach of international law that triggered the right of self-defence is based on the Genocide Convention. In its application to the ICJ, Ukraine requests the court to indicate provisional measures, contending that the claims by the Russian Federation of alleged genocide in the Luhansk and Donetsk oblasts of Ukraine are false.[8] Ukraine thus seeks to remove the ground for Russia's justification of war, which is based on the interpretation of the Genocide Convention. The application by Ukraine, hence, is based on the interpretation of the Genocide Convention, opening the jurisdiction of the ICJ in the case. Even when following the argumentation of the Russian Federation, the core of the dispute is based on the interpretation and application of the Genocide Convention. According to Art. IX of the Genocide Convention, the ICJ has jurisdiction over such disputes. Thus, many arguments speak in favour of the jurisdiction of the ICJ under Art. IX Genocide Convention.
3. Non-Participation of Russia in the Hearing (Provisional Measures)
The ICJ scheduled public hearings on Monday, 7 March for Ukraine and Tuesday, 8 March 2022 for Russia.[10] Although Russia contested the jurisdiction of the ICJ in the case, it announced by a letter dated 5 March 2022, that it did not intend to participate in the oral proceedings.
Art. 53 (1) ICJ Statute codifies that whenever one of the parties does not appear before the Court or fails to defend its case, the other party may call upon the court to decide in favour of its claim. The court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Art. 36 and 37 ICJ Statute, but also that the claim is well-founded in fact and law.
3.1. Strategic Advantages of Non-Participation
It prima facie seems that non-participation may be disadvantageous for the non-participating State, because it cannot, for example, present its views on procedural matters or rebut the evidence of the applicant. However, in practice, the non-participating State often does not refrain from participating in the case entirely rather than choosing selectively in which parts to participate and which to abstain, which can have strategic reasons.[11] The Russian Federation, for instance, did contest the jurisdiction of the ICJ, which would be the most effective way to end proceedings without a ruling against Russia in the merits. It only did not participate in the oral hearings scheduled by the ICJ.
The Russian Federation already used a strategy of non-participation in international lawsuits before. In the Crimea Investment Case 2015, for instance, Ukrainian Investors brought proceedings against the Russian Federation alleging that Russia violated the Russia-Ukraine bilateral investment treaty by expropriating Russian investments in Crimea. Because the investment treaty only applies to investments on Russian territory, it would have been favourable for Russia to argue that Crimea was not part of Russia, and deprive the court of its jurisdiction over the case.[12] This, however, for obvious reasons would not have been aligned with Russia’s attempt to annex Crimea. The Russian Federation, therefore, chose not to participate in the hearing. Other reasons for non-participation can be part of a political strategy, by manifesting that the non-participating State does not find any grounds in the accused violations. Moreover, the non-participating State can still manifest its positions directly or indirectly by letters, messages or statements, even when not appearing before the court. Such extra ordinem-practices can even be advantageous for the non-participating State, as these communications are practically exempt from certain terms, conditions and deadlines that are otherwise imposed on the parties by the rules of the court otherwise.[13]
3.2. Disadvantages
Nonetheless, there are certain procedural disadvantages that the non-participating State cannot redeem, including inter alia, the appointment of an ad hoc judge. Furthermore, the non-participation could upset the judges of the tribunal or court due to ‘the successive postponements and resulting delays‘[14], or be interpreted as a weak legal position of the non-participating State, suggesting that it ‘does not have any serious means of opposing‘ the case.[15]
3.3. Evaluation
Summarizing, the no-show of the Russian Federation in the hearing scheduled on 8 March 2022, does not automatically lead to a judgement in favour of Ukraine’s application per se; procedurally it does not have any obvious advantages or disadvantages for Russia and can rather be interpreted as a political act, manifesting Russia‘s certainty of its rightful behaviour, not needing to rebut the arguments brought forward by Ukraine in the oral hearing. The ICJ, consequently, in its order on the provisional measures of 16 March 2022 pointed out its regrets of Russia’s non-appearance and its negative impact on the sound administration of justice, however, decided to take into account the document communicated by the Russian Federation regardless.[16]
4. Order of Provisional Measures of 16 March 2022
In its order of16 March 2022, ICJ indicated that
The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;
The Russian Federation 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;
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
Orders 1. and 2. were accepted by thirteen to two votes. It is noteworthy that the two negative votes are by the Russian vice president Kirill Gevorgian and the Chinese Judge Xue Hanqin; order number 3. was accepted unanimously.
5. Enforceability
While decisions by the ICJ, including this order on provisional measures, are binding, the major weakness of international law is its difficult enforcement, bestowing on it its so frequently used title as ‘toothless tiger’.[17]
5.1. Security Council
This is because there is no general mandated authority in international law to enforce judgements, except where the member States created such authority, in which case its mandate is limited to the region and member States of the organisation. The only international authority with sanctioning power is the UN-Security Council, which can adopt binding decisions for the maintenance of international peace and security pursuant to Art. 25, 24 (1) UN Charter. In order to give effect to its decisions, the Security Council may adopt measures under Art. 39 ff. UNCLOS, such as sanctions and actions. [18] Sanctions by the Security Council may include complete or partial interruption of economic relations (such as embargos), and of rail, sea, air, postal, telegraphic, radio, and other means of communication, the severance of diplomatic relations, and the use of armed force.[19] However, as well known, the status as permanent member of the Security Council provides the Russian Federation with the right to veto decisions by the Security Council, which frequently blocks sanctions against Russia.
The recent act of aggression by the Russian Federation, has, yet again, sparked the discussion of its removal as a permanent member of the Security Council and regulation of the right of veto. The concept of the permanent members of the Security Council and the right of veto dates back to the end of the Second World War, representing the then five most powerful States (China, the United States, France, the United Kingdom and USSR) and is a left-over of the League of Nations. As the Security Council regularly is paralysed even in the light of mass atrocity, even States that possess the right of veto proposed to regulate its use, such as France in 2013.[20] A reform of the UN Charter, however, that allows the removal of the right of veto partly or entirely, or to remove certain States from being permanent members, requires the consent of all of the five permanent members, including Russia according to Art. 108 UN Charter. Thus, it is not surprising that the Russian Federations uses its right of veto to disable the Security Council from amending the right to veto in this respect.
5.2. Other Means of Enforcement
Despite a mandated authority to enforce judgements, States can exercise a certain degree of self-help through lawful reprisals, such as economic countermeasures. This form of demonstrating the acceptance of the unlawfulness of Russia’s behaviour is being experienced broadly in the State community at the moment. Furthermore, the suspensions or exclusion from international organisations has already been used against the Russian Federation in the past, in order to enforce international judgements. Yet again, several western States, including the United Kingdom and the United States of America, Canada, Australia and New Zealand, have requested the International Criminal Police Organization (INTERPOL) to suspend Russia. The decision is expected next week. Prior to this, Russia had already been expelled from the G-8 Group following the annexation of Crimea. On 25 February, the Council of Europe suspended Russia after 26 years of membership.[21]
6. Conclusion
The major impediment to judgments of the ICJ is the lack of an authority, which is comprehensively mandated to enforce them. The Security Council is blocked from taking action by the right to veto by Russia; other international organisations are limited in their mandate. However, as toothless as international law may seem in this light, it is noticeable that the world is not backing down from Putin in this conflict. On the contrary, the vast majority of the international community and public are joining forces, showing solidarity with Ukraine and reaffirming the validity of the international legal order. Dozens of States have condemned Russia’s behaviour as blatant violations of international law. If the majority of States hold this course resolutely, accepting economic sacrifices in the face of Russia’s unlawful behaviour, Ukraine will be helped and the international legal order will not be weakened.
Even if Russia proceeds and succeeds to annex the Luhansk and Donetsk oblasts of Ukraine, no State may accept a new State that grew out of aggression. Furthermore, while the right of people to self-determination is a fundamental right under international law, even if the people of the Luhansk and Donetsk oblasts would like to separate and fall within the territory of Russia, there is no right to unilaterally secede from a State and form a separate State.[22]The annexation remains unlawful.
Determining the effectiveness of international judgements is difficult as it cannot be known, how many more crimes would have been committed, how many more acts of violence and atrocity would have been enacted had there not been a legal system. Although one cannot expect an immediate effect of a judgement to this end, it is noteworthy that also Vladimir Putin resorts to international law in his actions and seeks to legalise its invasion through justification. This shows that international law is not completely ignored and ineffective when it comes to holding the great powers in check. The number of references to the breach of international law in the statements of so many State representatives and International Organisations shows that international law is a reference point in the evaluation of Russia’s actions and does set the standard to guide the respective responses.[23] In the determination of which behaviour is lawful and which is not, the findings of international courts still have the greatest weight. One conclusion, however, is obvious: the right to veto of the Security Council is outdated and renders the effectiveness of international legal measures ad absurdum. If international law is to remain its validity, the right to veto by the permanent members of the Security Council must be abolished.
For legal measures against Vladimir Putin as a person, read the following block post on 'What Legal Measures are Available against Vladimir Putin in International Law? (Part 2)'
[1] https://www.icj-cij.org/public/files/case-related/182/182-20220307-OTH-01-00-EN.pdf [2] https://www.icj-cij.org/public/files/case-related/182/182-20220307-OTH-01-00-EN.pdf [3] ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Public Sitting 7 March 2022, Verbatim Records (CR2022/5), p. 10 f.; ICJ Press Release No. 2022/4 of 27 February 2022, Ukraine institutes proceedings against the Russian Federation and requests the Court to indicate provisional measures. [4] ICJ Press Release No. 2022/4 of 27 February 2022, Ukraine institutes proceedings against the Russian Federation and requests the Court to indicate provisional measures. [5]https://www.icj-cij.org/public/files/case-related/182/182-20220307-OTH-01-00-EN.pdf, p. 2, para. 7, 10 f. [6] https://www.icj-cij.org/public/files/case-related/182/182-20220307-OTH-01-00-EN.pdf [7]ICJ, Order of 16 March 2022, P. 9, para. 37 f. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine V. Russian Federation), p. 9, para. 37 f. [8] ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Public Sitting 7 March 2022, Verbatim Records (CR2022/5), p. 10 f.; ICJ Press Release No. 2022/4 of 27 February 2022, Ukraine institutes proceedings against the Russian Federation and requests the Court to indicate provisional measures. [9] ICJ Press Release No. 2022/4 of 27 February 2022, Ukraine institutes proceedings against the Russian Federation and requests the Court to indicate provisional measures. [10] ICJ Press Release No. 2022/6 of 1 March 2022, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). [11] Tzeng, Peter, A Strategy of Non-Participation before International Courts and Tribunals, The Law & Practice of International Courts and Tribunals, Vol. 19, No. 1 (2020), 5-27. [12] Aeroport Belbek v. Russian Federation (PCA Case No. 2015-07); PrivatBank v. Russian Federation (PCA Case No. 2015-21); Lugzor v. Russian Federation (PCA Case No. 2015-29); Ukrnafta v. Russian Federation (PCA Case No. 2015-34); Stabil v. Russian Federation (PCA Case No. 2015-35); Everest Estate v. Russia (PCA Case No. 2015-36); Oschadbank v. Russia (PCA Case No. unknown); and Naftogaz v. Russia (PCA Case No. 2017-16); Agreement between the Government of the Russian Federation and the Cabinet of Ministers of the Ukraine on the Encouragement and Mutual Protection of Investments (signed 27 November 1998, entered into force 27 January 2000), Arts. 1(1), 5(1); Tzeng, Peter, A Strategy of Non-Participation before International Courts and Tribunals, The Law & Practice of International Courts and Tribunals, Vol. 19, No. 1 (2020), 5-27 (21). [13] Alexandrov, Stanimir A., Non-Appearance before the International Court of Justice, Columbia Journal of Transnational Law Vol. 33, Issue 1 (1995), 41-72 (55 f.). [14] Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Interim Measures of Protection, Order (5 December 1939), PCIJ Series A/B, No. 79, para. 199. [15] Corfu Channel (United Kingdom v. Albania), Compensation, Judgment (15 December 1949), pp. 247–248. [16]ICJ, Summary 2022/2 of the order of 16 March 2022, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), https://www.icj-cij.org/public/files/case-related/182/182-20220316-SUM-01-00-EN.pdf (18.03.2022), p. 1. [17] Carpenter, Kristen D.A., The International Covenant on Civil and Political Rights: A Toothless Tiger, North Carolina Journal of Internaitonal Law Vol. 26, No. 1 (2000), 1-55; Babcock, Sandra L., International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change?, in: DeGuzman, Margaret M./Amann, Diane Marie, Arcs of Global Justice: Essays in Honour of William A. Shabas (Oxford, 2018), Babcock, Sandra, International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change (January 24, 2018), Cornell Legal Studies Research Paper No. 18-05, pp. 89-108. [18] Reilly, Melb. U. L.Rev. 20 (1995-1996), 763, 777. [19] Kirgis, Frederic L., Enforcing International Law, American Society of International Law – insights Vol. 1, Issue 1 (22 January 1996), https://www.asil.org/insights/volume/1/issue/1/enforcing-international-law (11.03.2022). [20] https://www.diplomatie.gouv.fr/en/french-foreign-policy/united-nations/france-and-the-united-nations/france-and-the-united-nations-security-council/why-france-wishes-to-regulate-use-of-the-veto-in-the-united-nations-security/ [21] https://www.rferl.org/a/council-europe-expels-russia/31756178.html#:~:text=The%20decision%2C%20made%20a%20day,its%20unprovoked%20invasion%20of%20Ukraine. (18.03.2022).
[21] https://www.rferl.org/a/council-europe-expels-russia/31756178.html#:~:text=The%20decision%2C%20made%20a%20day,its%20unprovoked%20invasion%20of%20Ukraine. (18.03.2022).
[22] https://today.law.harvard.edu/the-ukraine-conflict-and-international-law/
[23] Dworkin, Anthony, International law and the invasion of Ukraine, 25 February 2022, https://ecfr.eu/article/international-law-and-the-invasion-of-ukraine/ (15.03.2022); Anderson, Scott R./Badore, Zachary/Bradatan, Anastasia/Herkert, Alexander/Rohini Kurup, Klehm/Lopez, Jaime/Pompilio, Katherine/Robertson, Anna-Marie/Warschefsky, Thomas G., The World Reacts to Russia’s Invasion of Ukraine, https://www.lawfareblog.com/world-reacts-russias-invasion-ukraine (15.03.2022).
