The story so far: The ongoing conflict between Ukraine and Russia has entered its fourth week. It has led to one of the most severe humanitarian crises in Europe since World War II. Russia has sought to justify its “special military operation” as a response to the alleged act of genocide of the Russian speaking people in the territories of Donetsk and Luhansk. Ukraine on February 26 approached the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN), requesting the ICJ among other things, to hold that no acts of genocide defined under the Genocide Convention 1948 and as claimed by Russia have been committed by Ukraine in Donetsk and Luhansk. Additionally, Ukraine also requested the court to indicate certain provisional measures, such as directing the Russian Federation to “immediately suspend military operations” in Ukraine, and to ensure that Russia will not aggravate or extend the dispute. The ICJ on March 16, rendered its order directing the Russian federation inter alia to immediately suspend all military operations in Ukraine.
Where does the ICJ’s jurisdiction lie?
Article 36(1) of the Statute of the ICJ provides that the ICJ shall have jurisdiction in all matters relating to the UN Charter, or other treaties or conventions in force. The Genocide Convention 1948 under Article IX provides that disputes between states relating to the interpretation, application or fulfilment of the Genocide Convention, as well as 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. Russia and Ukraine are both parties to the Genocide Convention. The ICJ held that there exists a prima facie dispute between Ukraine and Russia over the question of whether the acts of genocide have been committed in Ukraine, and accordingly it has the jurisdiction.
What do the ICJ’s powers to indicate provisional measures entail?
The Statute of the International Court of Justice, under Article 41 empowers the ICJ to indicate provisional measures in any case before it in order to preserve the rights of the parties involved. When the ICJ indicates such provisional measures, the parties to the dispute and the UN Security Council have to be notified. Until 2001, there was uncertainty as to whether the provisional measures indicated by the ICJ were binding. However, in the LaGrand (2001) case between Germany and the U.S. relating to the denial of consular access to a German national in the U.S., the ICJ made it clear that provisional measures are binding in character and create international legal obligations. Further, provisional measures may be indicated by the ICJ either on the request of a state party or proprio motu i.e., on its own motion. The ICJ has also held in the Tehran Hostages Case (1980) that the non-appearance of one of the parties concerned cannot itself be an obstacle to indication of provisional measures. In the present case, the Russian Federation chose not appear in the oral proceedings before the court. Notwithstanding, the ICJ proceeded to decide the case.
Under what conditions can the ICJ’s powers be exercised?
The power to indicate provisional measures is subject to certain conditions.
In the Gambia v. Myanmar (2020) case dealing with genocide of Rohingyas in Myanmar, the ICJ held that it may exercise the power to indicate provisional measures only if it is satisfied that rights which are being asserted by the party which is requesting provisional measures is “at least plausible”. The ICJ in the present case held that Ukraine indeed has a plausible “right of not being subjected to military operations by the Russian Federation for the purpose of punishing and preventing alleged acts of genocide.” The ICJ expressed doubt regarding the use of unilateral military force against another state for preventing and punishing genocide, as a means under the Genocide Convention 1948. It highlighted that the Genocide Convention provides for other means such as resort to other UN organs under Article VIII, and for peaceful dispute settlement by ICJ under Article IX. It is important to note here that the ICJ at the stage of provisional measures does not engage in a definitive analysis of whether rights which are claimed by the applicant actually exist. That analysis is for the merits phase.
Second, there must exist a link between the provisional measure which has been requested and the plausible right that is to be preserved by such measure.
Third, there must be “real and imminent risk” of “irreparable prejudice” to the rights claimed before the ICJ. The court observed that the mounting loss of human lives, harm to environment, and the refugee crisis are all instances of irreparable harm and prejudice justifying the indication of provisional measures.
What lies ahead?
The provisional measures indicated by the ICJ are binding, and non-compliance certainly entails the breach of an international legal obligation. However, the ICJ does not have the means or mechanism to secure the enforcement of the judgment itself. Indeed, the UN Charter under Article 94(2) provides that if any state fails to perform obligations pursuant to an ICJ decision, the UN Security Council (UNSC) may take measures necessary to give effect to the judgment. However, the possibility in the present case is bleak given that Russia has veto power in the UNSC.
Additionally, if there is an impasse in the Security Council, the UN General Assembly (UNGA) is empowered under Article 14 of the UN Charter to recommend measures for the peaceful adjustment of any situation “which it deems likely to impair the general welfare or friendly relations among nations.” In Nicaragua v U.S. (1984) when the U.S. refused to comply with the ICJ decision, and the Security Council was deadlocked, the UNGA adopted several resolutions deploring the behaviour of the U.S.. Further, the Uniting for Peace Resolution adopted in 1950 by the UNGA in the context of the Korean War, authorises the UNGA to consider any matter which may threaten international peace and security, and to make appropriate recommendations to the members for collective measures, including the use of armed force. The power of the UNGA to ‘recommend measures for peaceful adjustment’ has been affirmed by the ICJ in several cases including the Certain Expenses Advisory Opinion (1962), and Wall Advisory Opinion (2004). Russia’s non-participation in the oral proceedings has already reflected its disrespect for international law and international institutions. If Russia does not comply with the provisional measures of the ICJ, the reputational harm to its regime will only be compounded. Moreover, non-compliance with provisional measures will legitimise and justify counter-measures against Russia. Interestingly enough, Russia has been kicked out of the Council of Europe with immediate effect on the same day as ICJ’s provisional measures were indicated.
Pushkar Anand is Assistant Professor at Faculty of Law, University of Delhi, and Varsha Singh is Doctoral Research Candidate at Jawaharlal Nehru University, New Delhi.
