By: Anne Harper
When Russia launched its full-scale invasion of eastern Ukraine on February 24, 2022, Russia claimed that the use of force in Ukraine was justified since Ukraine was committing genocide.[1] Within a few days, Ukraine filed a petition with the International Court of Justice (ICJ).[2] Ukraine evoked the ICJ’s jurisdiction under Article IX of the Genocide Convention, which provides the ICJ with jurisdiction to resolve “[d]isputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III ….”[3] The case is currently still in the jurisdictional phase. Russia is claiming that, because Ukraine is seeking a decision from the ICJ on Russia’s use of force, rather than any determination related to genocide, the ICJ does not have jurisdiction over the dispute under Article IX of the Genocide Convention.[4]
Thirty-two other countries intervened in the case to weigh in on the jurisdictional issue.[5] The third-party countries intervened on the basis of Article 63, which allows intervention by other nations to weigh in on the construction of treaty provisions, rather than Article 62, which would require “an interest of a legal nature.”[6] Russia objected to the interventions, claiming that, among other things, the intention of the intervenors was to join Ukraine’s side in arguing the merits of the case rather than the jurisdiction issue, the equality of the parties would be imbalanced by requiring Russia to respond to all of the intervening opinions, and they were made in bad faith.[7] The ICJ dismissed these concerns, stating that an intervention under Article 63 would limit intervenors to weighing in on the construction of the Genocide Convention as it pertains to ICJ jurisdiction, and that an intervention under Article 63, rather than Article 62 of the Convention, does not require the ICJ to make any determination related to the intervenors’ intent.[8]
However, the ICJ found the United States’ intervention to be inadmissible since the United States filed a reservation to Article IX of the Genocide Convention, which states that “specific consent of the United States is required in each case.”[9] The ICJ held that because the United States did not consent to the jurisdiction of the ICJ by reservation on the provisions of Article IX, it cannot weigh in on the construction of Article IX of the Genocide Convention.[10]
The ICJ held public hearings on the jurisdictional issue from September 18 to September 27. Since the completion of the hearings, the makeup of the ICJ has shifted. In the United Nation’s recent elections for judges to sit on the ICJ bench, the candidate from the Russian Federation running for re-election, Vice President Kirill Gevorgian, failed to secure the necessary votes to keep his seat for the term beginning February 6, 2024, after five rounds of voting.[11] This will be the first time a Russian has not had a seat on the ICJ since its inception.[12]
Although judges do not serve on behalf of, or as official representatives of, their respective nations,[13] the failure of the Russian judge to secure absolute majorities in the United Nations (UN) Security Council and the UN General Assembly may be seen as another response of the international community to Russia’s actions in Ukraine. While member states of the UN who disagree with Russian use of force in Ukraine are unable to remove Russia from the UN Security Council, the election of alternative state representation on the ICJ is within the power of voting members without the ability for Russia to veto the majority decisions of the Security Council and General Assembly.
Out of the fifteen judges serving on the ICJ, Judge Gevorgian, the judge from Russia sitting on the ICJ through the course of the current proceedings, was one of two judges who dissented in the ICJ’s Provisional Order that Russia cease military operations on Ukrainian territory.[14] Judge Gevorgian mainly followed Russia’s line of reasoning in his separate opinion on the issue of Ukraine’s petition for provisional orders regarding the cessation of hostilities. His reasoning in his dissenting opinion is that the ICJ does not have jurisdiction to order Russia to do anything in the case since the ICJ does not have jurisdiction to make any determination about Russia’s use of force, and Ukraine is asking for that determination, rather than anything related to the Genocide Convention.[15]
Russia has so far ignored the ICJ’s provisional measures order requiring them to cease military operations in Ukrainian territory; however, Russia continues to participate in the case regardless, adding at least some legitimacy to the ICJ’s authority in the matter. If the ICJ holds that it does have jurisdiction over the matter, and with no Russian judge on the bench for arguments on the merits, it remains to be seen how Russia will participate in future proceedings and whether they will acknowledge the legitimacy of any rulings on the merits of Ukraine’s case.
Anne Harper is a Staff Editor at CICLR.
[1] Application Instituting Proceedings, Allegations of Genocide Under Convention on Prevention and Punishment of Crime of Genocide (Ukr. v. Russ.), ¶ 8 (Feb. 26, 2022), https://www.icj-cij.org/sites/default/files/case-related/182/182-20220227-APP-01-00-EN.pdf [hereinafter Allegations]; see also Rachel Treisman, Putin's Claim of Fighting Against Ukraine 'Neo-Nazis' Distorts History, Scholars Say, NPR (Mar. 1, 2022, 3:02 PM), https://www.npr.org/2022/03/01/1083677765/putin-denazify-ukraine-russia-history [https://perma.cc/FZ7V-6PLD].
[2] Allegations, supra note 1.
[3] Convention on the Prevention and Punishment of Genocide art. IX, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277.
[4] Document (with Annexes) from Russian Federation Setting Out its Position Regarding Alleged “Lack of Jurisdiction” of Court, Allegations of Genocide Under Convention on Prevention and Punishment of Crime of Genocide (Ukr. V. Russ.), ¶¶ 10, 12 (Mar. 7, 2022), https://www.icj-cij.org/sites/default/files/case-related/182/182-20220307-OTH-01-00-EN.pdf.
[5] Allegations of Genocide Under Convention on Prevention and Punishment of Crime of Genocide (Ukr. v. Russ.), Order, ¶ 102(1) (June 5, 2023), https://www.icj-cij.org/sites/default/files/case-related/182/182-20230605-ORD-01-00-EN.pdf.
[6] Id. at ¶ 27.
[7] Id. at ¶ 54.
[8] Id. at ¶¶ 49-50, 58.
[9] Id. at ¶ 94.
[10] Id. at ¶¶ 49-50, 58.
[11] Press Release, Security Council, Security Council Elects Five Judges to International Court of Justice After Five Rounds of Voting, U.N. Press Release SC/15485 (Nov. 9, 2023).
[12] International Court of Justice Will Have no Russian Judge for First Time in History, Ukrainska Pravda (Nov. 9, 2023, 10:23 PM), https://www.pravda.com.ua/eng/news/2023/11/9/7428085/ [https://perma.cc/BQZ9-9X6R].
[13] Members of the Court, I.C.J., https://www.icj-cij.org/members [https://perma.cc/D7CC-F87H].
[14] Allegations of Genocide Under Convention on Prevention and Punishment of Crime of Genocide (Ukr. v. Russ.), Order, 2022 I.C.J. 211 ¶ 86 (Mar. 16).
[15] Allegations of Genocide Under Convention on Prevention and Punishment of Crime of Genocide (Ukr. v. Russ.), Order, 2022 I.C.J. 211 ¶ 86 (Mar. 16.) (declaration of Vice-President Gevorgian).