This piece was originally published on 9 March. It is being republished in light of the International Court of Justice (ICJ) granting Ukraine's request for provisional measures and asking Russia to "immediately suspend military operations that it commenced on 24 February 2022 on the territory of Ukraine."
"The fact that Russian seats are empty speaks loudly. They are not here in this Court of law. They are on a battlefield waging aggressive war against my country. This is how Russia solves disputes. But Ukraine has another position and respects international law and this Court of law."
These were the words of Ukranian envoy Anton Korynevych, as Russia refused to show up for the proceedings at the International Court of Justice (ICJ), in a case brought against them by Ukraine.
As harrowing visuals of destruction continue to emerge from war-hit Ukraine, and the death toll continues to mount in the country since the Russian invasion, Ukraine has requested the ICJ to indicate ‘provisional measures' ordering Russia to “immediately suspend the military operations”.
Meanwhile, Russia has in separate statements, attempted to justify the war by accusing Ukraine of committing genocide in the Donbas region.
"It is simply not possible to stand all this anymore. It is necessary to immediately stop this nightmare – the genocide against the millions of people living there, who rely only on Russia, only on us," Putin said.
But what are provisional measures? What exactly does Ukraine want? And will Russia be bound to follow what ICJ orders?
WHAT ARE PROVISIONAL MEASURES?
The ICJ, based in the Hague in the Netherlands, is the highest court for resolving disputes between states. Under ordinary circumstances, disputes, however, take years to resolve.
Thus, some countries move the court with a request for 'provisional measures' — a fast track procedure — in order to prevent situations from worsening, and to prevent the the country accused of wrongdoing from doing anything that would make the case redundant.
‘Provisional measures’ are essentially interim orders by the ICJ, passed while the main case is still being heard.
A prominent recent example of their importance came during the Kulbushan Jadhav case between India and Pakistan at the court.
India had in 2017, asked the ICJ to indicate provisional measures to ensure that Pakistan did not carry out the death sentence awarded to Kulbhushan Jadhav until the ICJ had heard the main case, where India had argued that Pakistan had violated international law by failing to provide Jadhav with consular access.
The court granted India’s request, and directed Pakistan to ensure that Jadhav was not executed till the court decided whether or not Pakistan had violated international legal norms of consular access. It also eventually decided the main case in India's favour, and ordered them to ensure a review of Jadhav's case with assistance from Indian consular authorities.
The ICJ had also in January 2020 granted the Gambia’s request for ‘indication of provisional measures’ in its case against Myanmar for alleged violations of the Genocide Convention in relation to its treatment of the Rohingya community.
WHAT PROVISIONAL MEASURES HAS UKRAINE SOUGHT EXACTLY?
In its request for provisional measures, Ukraine has emphatically denied Russia’s justification — that acts of genocide have been committed by them — and maintained that “Russia has no lawful basis to take any action in and against Ukraine to prevent and punish genocide." Thereby, Ukraine has sought suspension of all military operations in Ukraine.
They have also asked for:
Any military or irregular armed units, either directed or supported by Russia, or any organisation or person under its control, to be ordered to take no steps in furtherance of Russia’s military operations in Ukraine
Directions to the Russian Federation to refrain from any action, and to also provide assurances that no action is taken that may aggravate or extend the ongoing dispute or render the dispute more difficult to resolve
Directions to Russia to provide a report to the Court on measures taken to implement the Court's order on provisional measures one week after such Order and to continue to do so on a regular basis
In their main application — the one that is expected to take longer to be adjudicated — Ukraine has also asked the ICJ for several other directions. These include requests to the court to adjudge and declare that no acts of genocide, as claimed by Russia, have been committed by Ukraine; and that Russia cannot lawfully take any action under the Genocide Convention in or against Ukraine based on these claims.
BUT IS RUSSIA BOUND TO FOLLOW THE ICJ’S ORDER?
"The Court regrets the non-appearance of the Russian Federation in these oral proceedings,” Judge Joan E Donoghue, President of the ICJ, had said after Russia refused to show-up for the court proceedings.
Given that Russia has refused to participate in the proceedings, it is unlikely that Russia would take steps to implement the ICJ’s order on provisional measures, if the court rules in favour of Ukraine.
This is possible, even though, according to Article 94 of the United Nations Charter, a member state who has signed the charter undertakes to comply with the decision of the Court in any case to which it is a party, and both Russia and Ukraine have signed the charter.
While ICJ judgments are final and without appeal, there is no tangible way in which the court can enforce its decisions. The only way in which a party can make a state adhere to an ICJ ruling is by approaching United Nations Security Council (UNSC)
However, Russia is a permanent member of the UNSC, and a loophole in international security framework allows any of the five permanent members to effectively veto an ICJ judgement.
This was infamously observed in Republic of Nicaragua vs The United States of America, when the United States deliberately failed to comply with an ICJ judgment in favour of Nicaragua and when Nicaragua applied to the Security Council to convene an emergency meeting on the issue of non-compliance, the US used its veto power against the draft resolution.
It may be pertinent to note that the United States too, like Russia, had refused to participate in the proceedings.
This, however, does not mean that an ICJ order will be without consequence for Russia. The reason why Ukraine is pushing so hard for the order lies in the impact of such an order on world opinion.
If the ICJ passes a ruling favourable to Ukraine — such as one that bans Russia from further carrying out its military activities in Ukraine on the pretext of prevention or punishment for alleged genocide — it will have a negative impact on Moscow’s justification for war.
If, or when, Russia refuses to comply with the directions, it will also hurt Russia’s diplomatic image.
The ICJ's order could also be used to further justify the imposition of sanctions and other economic/trade measures against Russia by individual nations or regional groups like the European Union.
Separately and simultaneously, the International Criminal Court (ICC), which is different from the ICJ, has also launched an investigation into alleged war crimes and crimes against humanity committed in Ukraine over the last eight years since the Russian annexation of Crimea and its fueling of conflict in eastern Ukraine.
The ICC Prosecutor will also be looking into violations of international humanitarian law including the commission of war crimes since the start of Russia's invasion on 24 February.
As of Wednesday, 9 March more than 470 civilians have been killed and more than 860 injured in Ukraine since Moscow began its invasion.
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