Russia-Ukraine conflict: ICJ’s provisional measures on military operations
- Ongoing conflict between Ukraine and Russia has led to one of the most severe humanitarian crises in Europe since World War II.
- Russia has justified its “special military operation” as a response to the alleged act of genocide of Russian speaking people in the territories of Donetsk and Luhansk.
- Ukraine approached ICJ, the principal judicial organ of UN, requesting 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.
- The ICJ directed 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: 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: 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.
What do the ICJ’s powers to indicate provisional measures entail?
- The Statute of the ICJ, under Article 41 empowers it to indicate provisional measures in any case before it in order to preserve the rights of the parties involved.
- When ICJ indicates such provisional measures, the parties to the dispute and the UNSChave 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 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.
- ICJ has also held in 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, Russian Federation chose not to 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?
- 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 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.
- 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.
- There must be real and imminent risk of “irreparable prejudice” to the rights claimed before the ICJ.
- The court observed that 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?
- ICJ does not have the means or mechanism to secure the enforcement of the judgement itself.
- UN Charter under Article 94(2) provides that if any state fails to perform obligations pursuant to an ICJ decision, UNSC may take measures necessary to give effect to the judgement.
- However, the possibility in the present case is bleak given that Russia has veto power in the UNSC.
- If there is an impasse in UNSC, UNGA is empowered under Article 14 of the UN Charter to recommend measures for the peaceful adjustment of any situation
- 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.
- 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 , it's reputational harm will only be compounded.
- Moreover, non-compliance with provisional measures will legitimise and justify counter-measures against Russia.