Abstract
At the time of writing, the war in Ukraine was the subject of ICJ proceedings in the Allegations of Genocide case. As the case title suggests, however, the key issue before the ICJ is not Russia’s use of force, but the question of genocide. Restrictions on its jurisdiction have led to the ICJ facing a serious dilemma between, on the one hand, having to meet unprecedented high levels of expectation and political pressure to stop Russia’s military action and, on the other, inherent legal constraints in maintaining its judicial character. This article elucidates how the ICJ has overcome procedural hurdles, including the requirements for provisional measures and intervention, to reach conclusions in favour of Ukraine. It also highlights the procedural challenges arising from the acrobatic reasoning adopted by the ICJ in the present case.
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Notes
- 1.
Application Instituting Proceedings filed in the Registry of the Court on 26 February 2022 (hereinafter ‘Application’).
- 2.
Convention on the Prevention and Punishment of the Crime of Genocide 1948, 78 U.N.T.S. 277.
- 3.
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening).
- 4.
Request for the Indication of Provisional Measures Submitted by Ukraine (hereinafter ‘Request’).
- 5.
Application 10 [16].
- 6.
A/RES/ES-11/1, para. 2.
- 7.
‘EU response to Russia’s invasion of Ukraine’, available at https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/. The EU also uses the term ‘brutal war of aggression’ here.
- 8.
OAS, Declaration ‘The Situation in Ukraine’: the Declarating States (i.e., OAS members) strongly condemn the “unlawful, unjustified, and unprovoked invasion of Ukraine by the Russian Federation and call for the immediate withdrawal of the military presence and the cessation of any further military actions in that country.” ‘OAS Member States Condemn Russian Attack on Ukraine’ (25 February 2022), available at https://usoas.usmission.gov/oas-member-states-condemn-russian-attack-on-ukraine/.
- 9.
Ukraine stated that it “considers it important that the official name of the present case include a reference to ‘allegations’.” Application 2.
- 10.
E.g., ‘Statement of the Ministry of Foreign Affairs of Ukraine on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its Unlawful Military Aggression’ (26 February 2022), available at https://mfa.gov.ua/en/news/zayava-mzs-ukrayini-shchodo-nepravdivih-ta-obrazlivih-zvinuvachen-rosiyi-v-genocidi-yak-privodu-dlya-yiyi-protipravnoyi-vijskovoyi-agresiyi.
- 11.
If ‘allegation’ is understood as an unsubstantiated opinion, it presupposes the lack of evidence. As the ICJ stated that it found no “evidence substantiating the allegation of the Russian Federation” (Order 2022 [59]), the term ‘allegation’ should be thought neutral.
- 12.
‘Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case (7 March 2022)’ (hereinafter ‘Document’) comprises: i) Russia’s objection to the Court’s jurisdiction; ii) a letter by Russia submitted to the UN Secretary-General; and iii) an Address by the President of Russia (24 February 2022) (hereinafter the ‘2022 Putin Address’). As is evident from the title, the first part of the Document is substantially an objection to the jurisdiction of the Court.
- 13.
According to Judge Robinson, the Investigative Committee of Russia found in 2014 that: the “top political and military leadership of Ukraine, the Armed Forces of Ukraine, the National Guard of Ukraine and the ‘Right Sector’ gave orders to completely destroy specifically Russian-speaking population living on the territory of the Donetsk and Luhansk republics.” (emphasis added) Sep Op Robinson 2022 [8].
- 14.
On many occasions, including the Document of 7 March 2022, Russia had the opportunity to submit ‘evidence’ of genocide to the ICJ, relating inter alia to the criminal proceedings conducted in Russia (Order 2022 [37]).
- 15.
Ukraine argued that “the parties’ dispute over first, the existence of acts of genocide, and second, Russia’s claim to legal authority to take military action in and against Ukraine to punish and prevent such alleged genocide, is a dispute that concerns the interpretation, application or fulfilment of the Genocide Convention.” (emphasis added) (Request 4 [11]).
- 16.
It seems that the term ‘a divergence of views’ (Order 2022 [45]), rather than ‘dispute’, was used by the ICJ to avoid suggesting the definitive existence of a ‘dispute’ at this phase of the procedure.
- 17.
Judge Robinson pointed out that “a dispute, properly characterized, may have more than one element, and indeed, a case may have more than one dispute”. Sep Op Robinson 2022 [5].
- 18.
Judge Bennouna observed that: “[t]he Court must also be able to found this alleged plausible right on one of the provisions of the Genocide Convention which the Russian Federation is said to have breached. The Court clearly failed in this task; it did not identify the rights of Ukraine under the Convention […].” (emphasis added) Decl Bennouna 2022 [6].
- 19.
The ICJ stated that the Contracting Parties must implement “this obligation [to prevent and to punish the crime of genocide under Article I] in good faith”. See also, Sep Op Robinson 2022 [25]-[27].
- 20.
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order, [2009] ICJ Rep 152 [60]. In the present case, Judge Robinson has adopted the legal plausibility test (i.e., ‘possible interpretation’ test). Sep Op Robinson 2022 [2].
- 21.
The ICJ has stated that “Ukraine has not put before the Court evidence which affords a sufficient basis to find it plausible that these elements [of intention or knowledge] are present” (emphasis added). Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order, [2012] ICJ Rep 131–132 [75].
- 22.
E.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order, [2020] ICJ Rep 23 [56].
- 23.
Judge Xue observed that the 2022 Order (paras. 56–59) ‘prejudges the merits of the case’. Decl Xue 2022 [6].
- 24.
Judge Xue correctly pointed out that “Ukraine’s claim ultimately boils down to the very question whether recourse to use of force is permitted under international law in case of genocide.” Decl Xue 2022 [4]. Later, Judge Xue also observed that the purpose of intervention of many States was to obtain the finding of the Court that the “Convention does not authorize or require – or indeed that the Convention prohibits – uses of force to prevent and punish genocidal acts” (emphasis added). Diss Op Xue 2023 [24].
- 25.
Belgium justified its use of force on the basis of ‘humanitarian intervention’, by observing that NATO’s intervention “is an armed humanitarian intervention, compatible with Article 2, paragraph 4, of the Charter.” Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, CR 99/15 (10 May 1999), p. 12. However, Judge Nolte observed that the ‘stated’ purpose of NATO’s bombardment had not been the prevention of genocide. Decl Nolte 2022 [3], [6].
- 26.
William Schabas, “Preventing Genocide and the Ukraine/Russia case”, EJIL Talk! (March 10, 2022), https://www.ejiltalk.org/preventing-genocide-and-the-ukraine-russia-case/.
- 27.
Article 75 (2) of the Rules of Court: “Court may indicate measures that are in whole or in part other than those requested […]”.
- 28.
The ICJ was aware that the dispute in the present case “falls within the ambit of more than one treaty”, including the UN Charter (Order 2022 [46]).
- 29.
The ICJ mentioned the ‘widespread damage’ in Ukraine as a ‘well-known’ fact and stated that it was “accurately aware of the extent of the human tragedy” (Order 2022 [17]).
- 30.
In recent cases, the ICJ has referred to ‘irreparable consequences’ as being an element of the risk requirement. 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, [2018] ICJ Rep 645 [77]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order, [2020] ICJ Rep 24 [64].
- 31.
Judge Robinson suggests that the expansion of the scope of the measure is based on the ICJ’s consideration of the ‘patent irreparable harm’ caused by the military action of Russia. Sep Op Robinson 2022 [31].
- 32.
Andreas Kulick, “Provisional Measures after Ukraine v Russia (2022)”, Journal of International Dispute Settlement, vol. 13 (2022), pp. 328, 334. Judge Xue pointed out the lack of a link in this case. Decl Xue 2022 [1]-[2].
- 33.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order, [1993] ICJ Rep 8 [3].
- 34.
[1993] ICJ Rep 19 [35].
- 35.
Judge Robinson observed that the measure “should have been directed solely to the Russian Federation.” Sep Op Robinson 2022 [33].
- 36.
Judge Xue posed the question as to how, in the context of an armed conflict, the first two measures can be “meaningfully and effectively implemented by only one Party to the conflict.” Decl Xue 2022 [6].
- 37.
Judge Robinson observed that “it would have been advantageous for the Court to examine periodic reports by Russia on its implementation of the provisional measures and to make appropriate orders.” Sep Op Robinson 2022 [33].
- 38.
Article 11 (i) of the Resolution concerning the Internal Judicial Practice of the Court (adopted by the Court on 21 December 2020): “Where the Court indicates provisional measures, it shall elect three judges to form an ad hoc committee which will assist the Court in monitoring the implementation of provisional measures” (emphasis added).
- 39.
Article 82(2) of Rules of the Court: ‘The declaration shall […] contain: (a) particulars of the basis on which the declarant State considers itself a party to the convention; (b) identification of the particular provisions of the convention the construction of which it considers to be in question; (c) a statement of the construction of those provisions for which it contends; (d) a list of the documents in support, which documents shall be attached’.
- 40.
The US reservation to Article IX: “That with reference to Article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case” (Order 2023 [94]).
- 41.
Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order (6 February 2013), Decl Judge Owada, [2013] ICJ Rep 12 [5]. In the present case, Russia refers to this as a “collective strategy of supporting the Applicant against the Respondent” (Order 2023 [54]).
- 42.
Joint statement on Ukraine’s application against Russia at the International Court of Justice (20 May 2022) by 41 States and the EU. In this statement, the parties expressed their “joint intention to explore all options to support Ukraine in its efforts before the ICJ and to consider a possible intervention in these proceedings”, https://www.esteri.it/en/sala_stampa/archivionotizie/comunicati/2022/05/joint-statement-on-ukraines-application-against-russia-at-the-international-court-of-justice/.
- 43.
Joint statement on supporting Ukraine in its proceeding at the International Court of Justice (13 July 2022) by 43 States and the EU. It is stated that “[i]t is in the interest of all States Parties to the Genocide Convention, and more broadly of the international community as a whole, that the Convention not be misused or abused. That is why the signatories of the present declaration which are Parties to the Genocide Convention intend to intervene in these proceedings”, https://ec.europa.eu/commission/presscorner/detail/en/statement_22_4509.
- 44.
On 17 August 2022, the EU furnished the Court with relevant information in this case, in accordance with Article 34 (2) of the Statute and Article 69 (2) of the Rules. ICJ Press Release No. 2022/29 (18 August 2022).
- 45.
Vice-President Gevorgian stated that, being en masse and publicly available, the declarations generate a “significant amount of political pressure on judges to decide this case in a particular way [i.e., in favour of Ukraine].” Decl Gevorgian 2023 [9]. Judge Xue echoed this point by stating that the intervening States’ strategy “would certainly lend strong political support to the Applicant and at the same time exert political pressure on the Court to entertain the case.” Decl Xue 2023 [28].
- 46.
Article 63(2) of the Statute: “[e]very state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.”
- 47.
Article 62(1): “Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.”
- 48.
Giorgio Gaja, “The Protection of General Interests in the International Community”, Recueil des Cours, vol. 364 (2011), p. 119.
- 49.
Béatrice Bonafé, “The collective dimension of bilateral litigation: The Ukraine v. Russia case before the ICJ”, Question of International Law: Zoom-out, vol. 96 (2022), p. 33. It is also argued that intervention under Article 62 “remains predominantly bilateral”. Paula Wojcikiewicz Almeida, “International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ”, The Law and Practice of International Courts and Tribunals, vol. 18 (2019), p. 169.
- 50.
Christine Chinkin, Third Parties in International Law (Clarendon Press, 1993), p. 160; Matina Papadaki, “Substantive and Procedural Rules in International Adjudication: Exploring their Interaction in Intervention before the International Court of Justice”, in Hélène Ruiz Fabri (ed.), International Law and Litigation: A Look into Procedure (Nomos, 2019), p. 61.
- 51.
Brian McGarry, “A rush to judgment? The wobbly bridge from judicial standing to intervention in ICJ proceedings”, QIL, Zoom-in, vol. 100 (2023), p. 18; Brian McGarry, “Obligations Erga Omnes (Partes) and the Participation of Third States in Inter-State Litigation”, The Law and Practice of International Courts and Tribunals, vol. 22 (2023), p. 298.
- 52.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order, [2020] ICJ Rep 20 [52].
- 53.
McGarry, supra note 58 (obligations erga omnes), pp. 298–299.
- 54.
The ICJ relied on the Whaling case. Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order [2013] ICJ Rep 9 [18].
- 55.
This understanding makes it difficult to agree with Judge Xue’s observation that the intervening States should be ‘neutral and objective’ to the litigating parties. Decl Xue 2023 [15].
- 56.
Dai Tamada, “Unfavourable but Unavoidable Procedures: Procedural Aspects of the Whaling Case”, in Malgosia Fitzmaurice and Dai Tamada (eds.), Whaling in the Antarctic: Significance and Implications of the ICJ Judgment (Brill, Nijhoff, 2016), pp. 163–192.
- 57.
It was argued that “[t]here is indeed a fear that any expansion of procedural rules would open the floodgates and expose the ICJ to an uncontrolled number of subjects, which could compromise its function of settling bilateral disputes by undermining party equality and the efficient management of proceedings”. Paula Wojcikiewicz Almeida, “Enhancing ICJ Procedures in Order to Promote Fundamental Values: Overcoming the Prevailing Tension between Bilateralism and Community Interests”, in Massimo Iovane et al. (eds.), The Protection of General Interests in Contemporary International Law (2021), p. 262.
- 58.
It is said that the sound administration of justice may be taken into account by the ICJ to exercise “functions of judicial administration for the purposes of hastening the proceedings.” Hironobu Sakai, “La Bonne Administration de la Justice in the Incidental Proceedings of the International Court of Justice”, Japanese Yearbook of International Law, vol. 55 (2012), p. 121.
- 59.
It has been argued that the fair administration of justice includes the principle of equality of the parties (Decl Gevorgian 2023 [4]). Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO, Advisory Opinion (23 October 1956) [1956] ICJ Rep 86: “[t]he principle of equality of the parties follows from the requirements of good administration of justice.”
- 60.
The sound administration of justice is considered for “protecting the respective rights of the parties to the case from the abuse of the right to intervene by a third party.” Sakai, supra note 65, p. 120.
- 61.
The sound administration of justice aims to protect not only parties’ interests, but also the interest of ‘justice’ itself. This means that “hearing from [a lot of] parties other than the principal ones may be in the interest of the best possible outcome.” Caterina Milo, “What is good for the administration of justice? Considerations in light of the practice on third-party participation”, QIL, Zoom-in, vol. 100 (2023), p. 33.
- 62.
Article 82 (1) of the Rules only provides that the declaration must be submitted “as soon as possible” and “not later than the date fixed for the opening of the oral proceedings.” Judge Bhandari observed that, if the requirement (i.e., ‘as soon as possible’) was not applied strictly, the ongoing submission of declarations “could place great strain on the Court’s time and resources, not to mention the procedure in a case” (Decl Bhandari 2023 [5]).
- 63.
Article 84 (2) of Rules: “[i]f […] an objection is filed to an application for permission to intervene, or to the admissibility of a declaration of intervention, the Court shall hear the State seeking to intervene and the parties before deciding” (emphasis added). However, the Court is not required to ‘hear’ the declaring State through oral proceedings.
- 64.
In the Nicaragua case, the ICJ did not hold oral proceedings on the declaration of intervention of El Salvador. On this point, several Judges argued that “it would have been more in accordance with judicial propriety if the Court had granted a hearing to the State seeking to intervene, and had not decided only on the basis of the written communications.” Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings and Lacharrière [1984] ICJ Rep 219 [4].
- 65.
Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order, [2013] ICJ Rep 9 [18].
- 66.
Germany [30]; Lichtenstein [18]; and Portugal [31].
- 67.
Estonia [10]; Spain [8]; Ireland [8]; Latvia [9]; Malta [8]; Poland [8]; Slovakia [10]; Slovenia [8]; and Sweden [10].
- 68.
Norway [16]; Lithuania [16], [20]; New Zealand [11]; and Poland [36].
- 69.
Lithuania [16] and New Zealand [11].
- 70.
Article 38(5) of the Rules of Court: “[w]hen the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.”
- 71.
Practice Direction XI: “In the oral pleadings on requests for the indication of provisional measures parties should limit themselves to what is relevant to the criteria for the indication of provisional measures as stipulated in the Statute, Rules and jurisprudence of the Court. They should not enter into the merits of the case beyond what is strictly necessary for that purpose” (emphasis added).
- 72.
As Article 63 admits the ‘right’ of intervention, ‘abuse of process’ may be regarded as ‘abuse of right’ in the context of the intervention procedure. In this case, in its attempt to establish ‘abuse of process’, Russia referred to two elements – purpose and harm – which are similar to those of ‘abuse of rights’ (Order 2023 [54]).
- 73.
Certain Iranian Assets (Islamic Republic of Iran v. United States), Judgment (30 March 2023) [2023] ICJ Rep [93].
- 74.
This position is supported by scholars. MN Shaw (ed.), Rosenne’s Law and Practice of the International Court 1920-2015 (5th ed., Brill/Nijhoff, 2016), p. 1533; Arina Miron and Christine Chinkin, “Article 63”, in Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (3rd ed., OUP, 2019), p. 1763 (fn. 46).
- 75.
Under Article 63 (2) of the Statute (‘construction given by the judgment’), intervention is not permissible in the provisional measures phase.
- 76.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention of the Republic of El Salvador, Order, [1984] ICJ Rep 216 [2].
- 77.
Bonafé observes that the “declaration of El Salvador was pretty ambiguous: it made only a vague reference to the existence of multilateral conventions and it did not indicate which provisions had to be interpreted nor which interpretation was supported by El Salvador.” Bonafé, supra note 56, p. 37.
- 78.
Article 82 (2) of the Rules of Court requires: (b) identification of the particular provisions of the convention the construction of which it considers to be in question; and (c) a statement of the construction of those provisions for which it contends.
- 79.
The ICJ concluded that, because of the reservation, Article IX “manifestly does not constitute a basis of jurisdiction in the present case, even prima facie” and ordered that the “case be removed from the List.” Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order (2 June 1999) [1999] ICJ Rep 772 [33], 774 [40] (2).
- 80.
Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order (2 June 1999), [1999] ICJ Rep 924 [25], 926 [34] (2).
- 81.
The ICJ stated that “Yugoslavia did not object to Spain’s reservation to Article IX” and that “the said reservation had the effect of excluding that Article from the provisions of the Convention in force between the Parties.” [1999] ICJ Rep 772 [32].
- 82.
Spain withdrew its reservation on 24 September 2009. https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter=4&clang=_en#EndDec.
- 83.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, [2006] ICJ Rep 32 [67].
- 84.
Prior to Order 2023, Bonafé had stated that the “third State must be bound by the provisions the Court has to interpret.” Bonafé, supra note 56, p. 33.
- 85.
The US reservation (2): “That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”
- 86.
Bonafé, supra note 56, p. 27.
- 87.
It is said that the new strategy of intervention “shows the interest of the international community and civil society for increasingly using such procedural tool as a way to enhance the protection of collective values.” Gian Maria Farnelli and Alessandra Sardu, “Third-party participation in international adjudication: Recent trends and ongoing issues”, Zoom in, Question of International Law, vol. 100 (2023), p. 2.
- 88.
ICJ Press Release No. 2023/68 (16 November 2023).
- 89.
Almeida observed that “[a]mici curiae would also be important in order to avoid possible delays to the judicial proceedings in case of multiple interveners, that is, whenever multiple states decide to intervene in a case in which the construction of a multilateral convention is at issue.” Almeida, supra note 64, p. 257.
- 90.
The 2022 Putin Address stated that “[w]e had to stop that atrocity, that genocide of the millions of people who live there [in Donbas]” and that the “purpose of this [special military] operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime.”
- 91.
The 2022 Putin Address referred to ‘fundamental threats’ by the ‘eastward expansion of NATO’ and stated that “[i]t is not only a very real threat to our interests but to the very existence of our state and to its sovereignty.”
- 92.
The 2022 Putin Address stated that “[i]t is their aspirations, the feelings and pain of these people [in Donbas] that were the main motivating force behind our decision to recognise the independence of the Donbass people’s republics.”
- 93.
Signing of documents recognising Donetsk and Lugansk People’s Republics, available at http://en.kremlin.ru/events/president/news/67829.
- 94.
The Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Donetsk People’s Republic and the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Lugansk People’s Republic. Ibid.
- 95.
President signed Federal Law On Ratifying the Treaty of Friendship, Cooperation and Mutual Assistance Between the Russian Federation and the Lugansk People’s Republic, available at http://en.kremlin.ru/events/president/news/67834.
- 96.
The 2022 Putin Address stated that “in accordance with Article 51 (Chapter VII) of the UN Charter […] and in execution of the treaties of friendship and mutual assistance with [DPR and LPR], I made a decision to carry out a special military operation.”
- 97.
Judge Robinson clearly pointed out that “[t]he right of self-defence recognized in Article 51 is inherent in every State and cannot be overridden by any pronouncement the Court may make as to the consistency of Russia’s military operation with the Genocide Convention.” Sep Op Robinson 2022 [32].
- 98.
Kulick considers that this “dispute thus painfully demonstrates the frustrating limits of international law and international adjudication.” Kulick, supra note 33, p. 340.
- 99.
Ukraine characterises its litigation activities against Russia as ‘lawfare’, referring to cases before the ICJ, the UNCLOS tribunals, and investor-State arbitration. ‘Law Confrontation with Russian Federation: Lawfare’, https://lawfare.gov.ua/.
- 100.
Douglas Guilfoyle, “Litigation as Statecraft: Small States and the Law of the Sea”, British Yearbook of International Law (advance article) (2023), p. 3, available at https://doi.org/10.1093/bybil/brad009.
- 101.
Judge Robinson correctly observed that “the real issue in the case is not the use of force, as argued by Russia… [but the]… allegation by Russia that Ukraine was carrying out acts that constituted genocide under the Genocide Convention and Ukraine’s denial of that allegation.” Sep Op Robinson 2022 [13].
- 102.
The ICJ had referred to its “responsibilities in the maintenance of international peace and security.” Legality of Use of Force (Serbia and Montenegro v. Belgium), Provisional Measures, Order, [1999] ICJ Rep 132 [18].
- 103.
Judge ad hoc Daudet observed that “many people placed their hopes in the voice of international law that the World Court would carry. I believe that this Order will meet their legitimate expectations.” Decl Daudet 2022 [9].
- 104.
In a symbolic manner, Ukraine argued that “the whole world is looking to you [the ICJ] for guidance and leadership. Once you have fulfilled your role, these other [international] bodies can fulfil theirs” (CR 2022/5, 62 [19] Mr. Koh) and that “the world awaits your actions” (CR 2022/5, 68 [42] Mr. Koh).
- 105.
Judge Gevorgian observed that the publication of many intervention declarations on the ICJ website brought a “significant amount of political pressure on judges.” Decl Gevorgian 2023 [9]. Similarly, Judge Xue referred to the “political pressure on the Court to entertain the case.” Diss Op Xue 2023 [28].
- 106.
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening), Preliminary Objections, Judgment of 2 February 2024.
- 107.
It is worth referring to another case between Ukraine and Russia. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Judgment (31 January 2024). In this Judgment, the ICJ concluded that Russia ‘has violated its obligation [of the provisional measures Order] to refrain from any action which might aggravate or extend the dispute’ ([2024] ICJ Rep [404] (6)). As to the remaining biding force of the provisional measures Order 2022, see Dai Tamada, “Still Valid: Provisional Measures in Ukraine v. Russia (Allegations of Genocide)”, EJIL: Talk! (15 March 2024).
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Tamada, D. (2024). War in Ukraine and the International Court of Justice: Provisional Measures and the Third-Party Right to Intervene in Proceedings. In: Asada, M., Tamada, D. (eds) The War in Ukraine and International Law. Springer, Singapore. https://doi.org/10.1007/978-981-97-2504-5_4
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