Ukraine had lodged a lawsuit against Russia at the ICJ alleging that Russia violated the Genocide Convention when it invoked the purported “genocide in Donbas” as the pretext for launching its full-scale war against Ukraine on 24 February 2022. Ukraine later expanded its argument by submitting that Russia’s use of force and the recognition of the DPR/LPR violated the duty to prevent and punish genocide under Articles 1 and 4 of the Convention.
The ICJ found it did not have jurisdiction under the Genocide Convention to examine the issues pertaining to the use of force and the recognition of states, which are extrinsic to the Convention and governed by other rules of international law.
Factual background
In the spring of 2014, an armed conflict started in the Donbas region of eastern Ukraine, between Ukrainian armed forces and forces linked to two entities that refer to themselves as the “Donetsk People’s Republic” (DPR) and the “Luhansk People’s Republic” (LPR).
On 21 February 2022, the Russian Federation recognized the DPR/LPR as independent States. The President of the Russian Federation stated that this decision was taken in light of continuing attacks against the Donbas communities.
On 22 February 2022, the Russian Federation concluded what it refers to as two “Treaties on Friendship, Cooperation and Mutual Assistance”, one with the DPR and the other with the LPR. On the same date, the DPR and LPR requested military assistance from the Russian Federation pursuant to these “treaties”.
On 26 February 2022, the Ministry of Foreign Affairs of Ukraine issued a statement denouncing “Russia’s false and offensive allegations of genocide as a pretext for its unlawful military aggression against Ukraine”. On the same day, a few hours after the issuance of this statement, Ukraine filed its Application before the Court, together with a Request for the indication of provisional measures.
Ukraine invoked Article IX of Convention on the Prevention and Punishment of the Crime of Genocide as basis of jurisdiction:
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”.
33 states submitting Article 63 declarations (32 found admissible by the ICJ), which condemned the abusive bad faith interpretation of the duty to prevent and punish genocide as a pretext for Russia’s unilateral use of force.
In its memorial Ukraine requested the Court to:
(a) Adjudge and declare that, contrary to what the Russian Federation claims, no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine.
(b) Adjudge and declare that the Russian Federation cannot lawfully take any action under the Genocide Convention in or against Ukraine aimed at preventing or punishing an alleged genocide, on the basis of its false claims of genocide in the Luhansk and Donetsk oblasts of Ukraine.
(c) Adjudge and declare that the Russian Federation’s recognition of the independence of the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic” on 22 February 2022 is based on a false claim of genocide and therefore has no basis in the Genocide Convention.
(d) Adjudge and declare that the “special military operation” declared and carried out by the Russian Federation on and after 24 February 2022 is based on a false claim of genocide and therefore has no basis in the Genocide Convention.
(e) Require that the Russian Federation provide assurances and guarantees of nonrepetition that it will not take any unlawful measures in and against Ukraine, including the use of force, on the basis of its false claim of genocide.
(f) Order full reparation for all damage caused by the Russian Federation as a consequence of any actions taken on the basis of Russia’s false claim of genocide.
Preliminary objections presented by Russia
- (1) the Court lacks jurisdiction as there was no dispute between the Parties under the Genocide Convention at the time of the filing of the Application (first preliminary objection);
- (2) the Court lacks jurisdiction ratione materiae (second preliminary objection);
- (3) Ukraine made new claims in the Memorial and these should be found inadmissible (third preliminary objection);
- (4) Ukraine’s claims are inadmissible as the Court’s potential judgment would lack practical effect (fourth preliminary objection);
- (5) Ukraine’s request for a declaration that it did not breach its obligations under the Convention is inadmissible (fifth preliminary objection);
- (6) Ukraine’s Application is inadmissible as it constitutes an abuse of process (sixth preliminary objection) para.36
Case geography
Position of the Court
The Court declined to exercise jurisdiction on the Russian Federation’s use of force against Ukraine since 24 February 2022 as an alleged violation of Articles I and IV of the Genocide Convention, as well as in the matter of the Russian Federation’s recognition of independence of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on 21 February 2022 also as an alleged violation of Articles I and IV of the Geneva Convention.
Instead, the Court determined that it would exercise jurisdiction over one aspect of Ukraine’s argument of Ukraine’s Memorial, which sought to have the Court ‘adjudge and declare that there is no credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donestk and Luhansk oblasts of Ukraine’).
It is this aspect alone, in the Court’s view, which satisfies the existence of a dispute between Ukraine and the Russian Federation under Article IX of the Genocide Convention (e.g. “Disputes between the Contracting Parties relating to the interpretation, application, or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III”).
A. Existence of the Dispute (First Preliminary Objection)
“Ukraine contends, in essence, that the Russian Federation has made false allegations that [Ukraine] committed genocide in the Luhansk and Donetsk oblasts (administrative territorial units), and that the [Russian Federation] cannot lawfully, on the basis of such allegations, take any action against Ukraine under the Genocide Convention, in particular the recognition of the independence of the “Donetsk People’s Republic” and the “Luhansk People’s Republic” and the launch of the “special military operation”.” para. 38.
“This was the two-element argument of Ukraine, which the Court decided at the outset has “distinct” essential characteristics that had to be examined separately.”
First aspect of the dispute as allegedly Ukraine’s request to have the Court adjudicate that Ukraine “has not committed genocide” (Judgment on Preliminary Objections, para. 54).
“By such a request, Ukraine does not seek to invoke the international responsibility of the Russian Federation for an internationally wrongful act attributable to that State; it seeks a judicial finding that it has itself not committed the wrongful acts that the Russian Federation has, falsely in Ukraine’s view, imputed to it in public statements”.
Second aspect of the dispute is Ukraine’s request to have the Court adjudicate that “the Russian Federation has acted unlawfully with respect to the Genocide Convention” (Judgment on Preliminary Objections, para. 55).
The Court notes that this second aspect of the dispute is fundamentally different in nature from the first. Through these submissions, Ukraine seeks to invoke the international responsibility of the Russian Federation by imputing internationally wrongful conduct to it. The claims for reparation submitted by Ukraine in paragraph 30, subparagraphs (e) and (f), of the Application and paragraph 179 of the Memorial are part of that second aspect.
The Court declared that it had jurisdiction over the alleged “first aspect of the dispute”, but did not have jurisdiction over the alleged “second aspect of the dispute”.
Legal consequences
In summary, the Court considers that the Russian Federation’s second preliminary objection, according to which submissions (c) and (d) in paragraph 178 of Ukraine’s Memorial do not fall within the Court’s jurisdiction ratione materiae, must be upheld.
However, the Court considers that it must reject:
The first preliminary objection, based on the lack of jurisdiction of the Court to entertain the totality of Ukraine’s submissions because of the alleged non-existence of a dispute;
The third preliminary objection, based on the inadmissibility of the submissions presented in the Memorial on the ground that these submissions are allegedly new and transform the subject of the dispute;
The fourth preliminary objection, based on the inadmissibility of Ukraine’s submissions because of the alleged lack of practical effect of a judgment on the merits;
The fifth preliminary objection, based on the inadmissibility of a request for a declaration that the Applicant did not breach its obligations under the Convention;
The sixth preliminary objection, based on the inadmissibility of the Application on the ground that it allegedly constitutes an abuse of process.
It follows from the foregoing that submissions (c) and (d) in paragraph 178 of Ukraine’s Memorial do not fall within the jurisdiction of the Court and that the Court may not deal with them on the merits, while submission (b) in paragraph 178 of Ukraine’s Memorial does fall within the jurisdiction of the Court and that the claim contained therein is admissible. At the next stage of the proceedings, the Court will therefore examine this claim on the merits.