Two Years Since Russia's Invasion of Ukraine: On ICJ's Disconcerting Decisions

As the guardian of international law and the apex legal body to settle international disputes, a lot has hinged on the verdicts of the ICJ in the context of international conflicts.

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Time and tide have marched on to complete two years since the Russian onslaught of Ukraine that has caused 10,000 civilian casualties including 560 children and left at least 18,500 civilians injured. The world witnessed the brutal pummeling of missiles that prompted 4 million people to flee Ukraine, leaving an additional 6.5 million internally displaced.

On the canvas of international politics, Russia’s actions have been censured in multiple forms by the international community, be it its ousting from the Human Rights Council or the immediate ceasefire order by the International Court of Justice (ICJ) back in March 2022. The scale of hostilities since February 2022 may have ebbed but both nations continue to wage war on different frontiers, both on the ground as well as within the international legal system, the most significant being the ICJ (International Court of Justice).

The ICJ’s jurisdiction only extends to countries that submit to it through ratification of the UN Charter or other relevant treaties, or through special agreements or declarations. In the case of Ukraine and Russia, both are state parties and the ICJ’s words would impart binding obligations upon both.

So, in the wake of the war, when Ukraine sued Russia for war crimes and sought interim reliefs, the World Court’s prompt and unambiguous diktat of a ceasefire came as a much-needed intervention. It is, therefore, hardly surprising that the world eagerly awaited its final verdict for the last two years. But on 2 February, when the World Court finally pronounced its judgment, there were collective sighs around the globe.

Effectively, Ukraine had made two claims in its applications before the ICJ. One is that the allegation made by Russia, that the February 2022 military attack was in response to Ukraine’s act of genocide in the Donetsk and Luhansk regions, was false. Secondly, the World Court adjudged whether Russia itself was culpable of acts of genocide and had failed in fulfilling its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 (Genocide Convention). Russia contended this submission by raising six preliminary objections:

• That the Court lacked jurisdiction to rule on this case since there was no dispute at the time of applying

• That the Court lacked jurisdiction over the subject matter of the case

• That Ukraine had brought in new claims in subsequent submissions before the Court

• That the Court’s judgment will have no practical effect

• That Ukraine’s first claim is not for the Court to decide

• And, finally, that the case brought forth by Ukraine represented an abuse of process wherein instead of approaching a Tribunal or any other mode of settlement first, Ukraine approached the World Court directly

The ICJ verdict depended on weighing Ukraine’s claims against Russia’s and not essentially condemning or attributing the guilt of war crime on either party. If this was the first node of disappointment, then there were more to come.

The ICJ Minced Its Words

The Court in great detail deliberated over its locus standi on each of these contested grounds and observed that there is conclusive evidence of a dispute between the two parties, hence the first objection stands rejected. On the question of new facts, the Court observed that they might be different in form but did not organically alter the nature of the dispute and so even the third objection did not hold.

On the fourth objection, the Court reiterated that while the ICJ was not entrusted with the task to invoke political action, Ukraine’s first claim, exonerating them of allegations of genocide, was squarely in the nature of a declaratory judgment of the World Court and thus unambiguously admissible. This also flowed into the question of Russia’s fourth objection, to which the Court said such declaratory judgments were essential to establish whether Ukraine failed to condemn and punish acts of genocide under its treaty obligation of Article I of the Genocide Convention. Finally, the Court did not decipher any evidence regarding any abuse of process so rejected Russia’s sixth claim.

It is in Russia’s second objection and arguably the most crucial aspect of the case at hand, that the ICJ minced its words. The question of the subject matter entailed probing into Russia’s culpability of genocide. The Court observed that Ukraine's claims that Russia failed in its obligations under the Genocide Convention under Articles I and IV, have not been fully qualified since Ukraine does not assert that Russia has refrained from preventing genocide or punishing those guilty of genocidal acts.

Instead, Ukraine’s contention hinges on the claim that by falsely imputing genocidal acts on Ukraine, Russia used the Genocide Convention in bad faith. This according to the Court did not constitute a violation of the Genocide Convention.

Moreover, on the question of Russia’s culpability in genocide, the Court did not attribute either the recognition of the Donetsk and Luhansk region as independent states or launching the military attack on Ukraine in breach of the Genocide Convention but instead, violations of other international laws and rules which were not deemed to be within the purview of the Court’s jurisdiction. So, upholding Russia’s second objection, it concurred that it in fact did not have the jurisdiction to rule over the subject matter of this dispute.

So, What is the Bottom Line?

By eliminating the scope to adjudicate on whether or not either party are guilty of genocide, the World Court steered clear of holding either side accountable for the loss of those 10,000 lives. The purpose of this judgment may have been just to set the stage for the decree on the merits of the facts but with the question of genocide ruled out, whatever then will come out at a later stage is likely to be merely cosmetic in nature.

Russia’s objections fostered a sense of hypertechnicality which may be consequential to the legal proceedings but the World Court’s dealing of these has overshadowed the questions of persistent threats to human rights that the war unlatched two years back.

Deja vu?

In January this year, the ICJ also pronounced its verdict on a 2017 case brought by Ukraine against Russia, accusing Russia of violating its obligations under the International Convention for the Suppression of the Financing of Terrorism, 1999 and the International Convention on the Elimination of All Forms of Racial Discrimination, 1969. Now, while the Court found Russia guilty of violating these treaties for its discriminatory behaviour towards Ukrainian languages in Crimea and for failing to arrest those funding alleged terrorist activities, it dismissed specific claims by Ukraine like Russia’s involvement in the Malaysian Airline mishap or the ethnic cleansing of the Tartars. Here again, ambiguity over manifest violations of human rights violations loomed large.

The World Court wields unparalleled power in deciding on global conflicts; this is all that distinguishes the contemporary international community from the times of the world wars. But the question then is whether such lukewarm, non-partisan judgments do us any good when international conflicts are becoming threateningly widespread.

(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)