"Bottom line – Ukraine got what it wanted from the court in this case, which is the indication of provisional measures asking Russia to stop its military operation," wrote Dr Marko Milanovic, professor of Public International Law at the University of Nottingham School of Law, in the European Journal of International Law, shortly after the ICJ pronounced its order in the case brought on by war-torn Ukraine against Russia.
The ICJ had on Wednesday, 16 March, granted Ukraine's request for provisional measures, ordering Russia to "immediately suspend military operations that it commenced on 24 February 2022 on the territory of Ukraine."
What Else Did the ICJ Say?
The ICJ also ordered Russia to ensure that any irregular units or individuals or organisations under its effective control take no steps in furtherance of Russia's military operation.
ICJ Asks Russia to Suspend Military Ops in Ukraine: Legal Experts Decode Order
1. How the ICJ Went Over and Above Its Delegated Responsibilities
Further, noting that there was no evidence before it at this time that supported Russia's claims that Ukraine is committing genocide – which has been stated as the reason for Russia's special military operation by Russian President Vladimir Putin and Russia's special representatives to the United Nations and the European Union – the majority of the court observed that:
"Ukraine has a plausible right not to be subjected to a unilateral military operation by Russia for the stated purpose of preventing the commission of genocide."
Stating that the order is "a major difference compared to similar cases brought under the Genocide Convention… in which the applicant most certainly didn't get what it wanted," Dr Milanovic pointed out that it was "all made possible by the creative jurisdictional argument made by Ukraine, and by Russia’s genocide rhetoric."
Meanwhile, Radhika Kapoor, a program fellow at the Harvard Law School Program on International Law and Armed Conflict told The Quint:
"First, the decision is in some sense an ex parte decision, since Russia all but refused to participate. Second, the application in itself is very convoluted because unlike the genocide case against Myanmar, e.g., this one is sideways: Ukraine is saying we did not commit genocide so how can Russia say they're invading to prevent genocide?"
But the core controversy in this case, according to Kapoor, is that "it is absolutely unlikely that the Genocide Convention permits a right to invade to prevent genocide even if the other country were committing genocide."
"Third, this kind of 'backfoot case' ends up confusing the responsibilities of the two parties," Kapoor added.
Quoting the ICJ as saying that "the Court's task is to establish whether the acts complained of by Ukraine appear to be capable of falling within the provisions of the Genocide Convention," Kapoor also pointed out:
"t is highly questionable that even if genocide were committed and an International Law rule existed permitting invasion to prevent genocide, that the latter would even fall within the scope of the Genocide Convention."
After all, she observes, punishable acts within the Genocide Convention are:
Genocide
Conspiracy to commit genocide
Direct and public incitement to commit genocide
Attempt to commit genocide
Complicity in genocide
"So in some sense, the ICJ’s indication of provisional measures, despite this being out of the scope of the Genocide Convention, may be understood as the Court going over and above its strictly delegated responsibilities in this case. Interestingly, this may be why the granted measures do not explicitly refer to the Genocide Convention, despite the Genocide Conviction being the basis of jurisdiction."
Radhika KapoorExpand2. How Ukraine Got More Than It Asked for in Its Request
Dubbing the order "extraordinary," Mike Becker, adjunct assistant professor at the Trinity College Dublin's School of Law, on his part, noted:
"This goes beyond what Ukraine asked for in its request, which was limited to cessation of military ops purportedly aimed to prevent genocide."
Becker further said that even though Ukraine's requested measures were clearly linked to the rights at issue, the "extraordinary part" is that the ICJ went further by directing Russia to immediately suspend the military operations begun on 24 February, with no limiting language based on their purported objective.
Agreeing with Becker on his observation that the measures do not contain the limiting language that Ukraine had proposed, Chimène Keitner, Alfred & Hanna Fromm Professor of International Law at UC Hastings College of the Law, wrote in a Q&A for Just Security:"To the extent that Russia’s original aim appears to have been regime change in Kyiv, there is no need for the limiting language that Ukraine proposed. Moreover, clearly Ukraine wants Russia to stop all activity; the limiting language served only to link the measures more closely to the jurisdictional basis for Ukraine’s request."
"At the moment, however, this language seems to be aimed at preventing Russia from continuing the conflict by proxy, rather than at deliberately expanding the legal basis for attributing the acts of proxies to a state," Keitner further pointed out.
What if Russia Doesn't Comply?
Meanwhile, Tristan Snell, founder of Mainstree.law, took to Twitter to say that the order "will of course be brushed off by Putin."
"He will either ignore it or say the ICJ is a tool of the West and biased. It will not stop Russia," Tristan added, before pointing out:
"But it lays the legal foundation to prosecute Putin and other war criminals, and to seek reparations for Ukraine to rebuild once it wins."
Former Special Co-Counsel for US Department of Defence, Ryan Goodman, said that the ICJ judgment adds "great weight to model indictment for prosecuting the crime of aggression."
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Further, noting that there was no evidence before it at this time that supported Russia's claims that Ukraine is committing genocide – which has been stated as the reason for Russia's special military operation by Russian President Vladimir Putin and Russia's special representatives to the United Nations and the European Union – the majority of the court observed that:
"Ukraine has a plausible right not to be subjected to a unilateral military operation by Russia for the stated purpose of preventing the commission of genocide."
How the ICJ Went Over and Above Its Delegated Responsibilities
Stating that the order is "a major difference compared to similar cases brought under the Genocide Convention… in which the applicant most certainly didn't get what it wanted," Dr Milanovic pointed out that it was "all made possible by the creative jurisdictional argument made by Ukraine, and by Russia’s genocide rhetoric."
Meanwhile, Radhika Kapoor, a program fellow at the Harvard Law School Program on International Law and Armed Conflict told The Quint:
"First, the decision is in some sense an ex parte decision, since Russia all but refused to participate. Second, the application in itself is very convoluted because unlike the genocide case against Myanmar, e.g., this one is sideways: Ukraine is saying we did not commit genocide so how can Russia say they're invading to prevent genocide?"
But the core controversy in this case, according to Kapoor, is that "it is absolutely unlikely that the Genocide Convention permits a right to invade to prevent genocide even if the other country were committing genocide."
"Third, this kind of 'backfoot case' ends up confusing the responsibilities of the two parties," Kapoor added.
Quoting the ICJ as saying that "the Court's task is to establish whether the acts complained of by Ukraine appear to be capable of falling within the provisions of the Genocide Convention," Kapoor also pointed out:
"t is highly questionable that even if genocide were committed and an International Law rule existed permitting invasion to prevent genocide, that the latter would even fall within the scope of the Genocide Convention."
After all, she observes, punishable acts within the Genocide Convention are:
Genocide
Conspiracy to commit genocide
Direct and public incitement to commit genocide
Attempt to commit genocide
Complicity in genocide
"So in some sense, the ICJ’s indication of provisional measures, despite this being out of the scope of the Genocide Convention, may be understood as the Court going over and above its strictly delegated responsibilities in this case. Interestingly, this may be why the granted measures do not explicitly refer to the Genocide Convention, despite the Genocide Conviction being the basis of jurisdiction."Radhika Kapoor
How Ukraine Got More Than It Asked for in Its Request
Dubbing the order "extraordinary," Mike Becker, adjunct assistant professor at the Trinity College Dublin's School of Law, on his part, noted:
"This goes beyond what Ukraine asked for in its request, which was limited to cessation of military ops purportedly aimed to prevent genocide."
Becker further said that even though Ukraine's requested measures were clearly linked to the rights at issue, the "extraordinary part" is that the ICJ went further by directing Russia to immediately suspend the military operations begun on 24 February, with no limiting language based on their purported objective.
Agreeing with Becker on his observation that the measures do not contain the limiting language that Ukraine had proposed, Chimène Keitner, Alfred & Hanna Fromm Professor of International Law at UC Hastings College of the Law, wrote in a Q&A for Just Security:
"To the extent that Russia’s original aim appears to have been regime change in Kyiv, there is no need for the limiting language that Ukraine proposed. Moreover, clearly Ukraine wants Russia to stop all activity; the limiting language served only to link the measures more closely to the jurisdictional basis for Ukraine’s request."
"At the moment, however, this language seems to be aimed at preventing Russia from continuing the conflict by proxy, rather than at deliberately expanding the legal basis for attributing the acts of proxies to a state," Keitner further pointed out.
What if Russia Doesn't Comply?
Meanwhile, Tristan Snell, founder of Mainstree.law, took to Twitter to say that the order "will of course be brushed off by Putin."
"He will either ignore it or say the ICJ is a tool of the West and biased. It will not stop Russia," Tristan added, before pointing out:
"But it lays the legal foundation to prosecute Putin and other war criminals, and to seek reparations for Ukraine to rebuild once it wins."
Former Special Co-Counsel for US Department of Defence, Ryan Goodman, said that the ICJ judgment adds "great weight to model indictment for prosecuting the crime of aggression."
An indictment is a document listing formal charges against a defendant in a criminal case. This means that it carries the official accusations against a person in case of a purported crime. The model indictment referred to by Goodman "represents the type of document international war crimes prosecutors or national prosecutors could file before an international or national court."
The Nuremberg tribunal had observed aggression to be the supreme crime.
Noting that the two dissenting opinions – of ICJ Vice-President Kirill Gevorgian (from Russia) and Judge Xue Hanqin (from China) – "are also quite reasonable, and could have prevailed in a different case," Milanovic, in his piece for European Journal of International Law, went on, on his part, to say:
"Russia’s failure to comply with the order will have the same effect as its non-appearance – a showing of disrespect for international law and institutions, causing it reputational harm while presenting Ukraine as a state using legal methods of peaceful dispute settlement."
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