Europe

ICJ to hear urgent application by Ukraine as concern over war intensifies

While UN’s court’s rulings are binding on members, it is not unusual for them to be ignored by large states

People waiting to board an evacuation train at Kyiv central train station. More than 1.2m people have fled Ukraine into neighbouring countries since Russia launched its invasion on February 24th. Photograph: Dimitar Dilkoff/AFP via Getty Images

Peter Cluskey's face
Peter Cluskey in The Hague
Sun Mar 6 2022 - 16:12

Given the extremity of the humanitarian crisis in Ukraine, there is every likelihood that when it intervenes this week the UN's top court will order "provisional measures" aimed at halting Russia's destruction of the country. There is also every likelihood that it will make lamentably little difference.

The International Court of Justice (ICJ) adjudicates in disputes between states. But the reality is that it has no means of enforcing its rulings. So that even if Ukraine does achieve a judgment in its favour, the only way of enforcing it is to appeal to the UN Security Council – where Russia has a veto.

The ICJ in The Hague – just a few kilometres from the International Criminal Court (ICC), which is also investigating the Russian invasion – has set aside Monday and Tuesday to hear an urgent application by Ukraine as concern about the targeting of civilians intensifies.

Ukraine will make its case on the first day of the hearing, contending that Russia has falsely claimed that acts of genocide have been carried out by Kyiv against Russian-speaking people in Donetsk and Luhansk in the east of the country, and that this has been used by Moscow to justify its assault.

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Ukraine denies that any such genocide has occurred – and in turn accuses the Russians of “planning acts of genocide in Ukraine’ and of “intentionally killing and inflicting serious injury” on Ukrainians, contrary to Article II of the Genocide Convention.

To establish the legitimacy of its application Ukraine must ground its claim in a UN treaty. This is another reason why it has taken its case under the 1948 Genocide Convention , which has been signed by both Russia and Ukraine.

This is not the first ICJ suit Ukraine has taken against Russia. There are currently three other sets of ongoing proceedings arising out Russia’s annexation of Crimea in March 2014.

In 2017 Ukraine also initiated proceedings against Russia alleging breaches of two international treaties: a breach of the International Convention on the Elimination of all Forms of Racial Discrimination in relation to Crimea, and of the International Convention for the Suppression of Financing of Terrorism, in Donbas.

Law expert

Significantly, Russia's legal team will be weakened by the absence of eminent Parisian international law expert Alain Pellet, who withdraw last week from several of those pre-existing ICJ cases.

"Enough is enough," he wrote in an open letter published in France. "It has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it."

While the ICJ's rulings are binding on UN members, it is not unusual for them to be ignored by large states, including, previously, the US, China, Japan and Russia.

At the hearing on Monday and Tuesday the ICJ judges will not hear arguments about the court’s jurisdiction or about the relative merits of Ukraine’s claims or Russia’s response.

They’ll be addressed only about whether the matter is so urgent that they should order immediate measures before hearing the case in full. There is no date for a decision.

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