Granting Ukraine's request for provisional measures, the International Court of Justice (ICJ) on Wednesday, 16 March ordered Russia to "immediately suspend military operations that it commenced on 24 February 2022 on the territory of Ukraine."
Russia has also been ordered to ensure that any irregular units or individuals or organisations under its effective control take no steps in furtherance of Russia's military operation.
Both these provisional measures were passed by a majority of 13-2, with Indian judge Dalveer Bhandari voting in favour of the majority. ICJ Vice-President Kirill Gevorgian (from Russia) and Judge Xue Hanqin (from China) voted against.
All judges of the ICJ unanimously directed both Ukraine and Russia have to ensure they refrain from any action which can aggravate or extend the dispute before the court.
As provisional measures, this order is interim in nature, and is meant to apply till such time as the dispute between Ukraine and Russia at the ICJ – regarding whether Ukraine is committing genocide in the regions of Donetsk and Luhansk – is finally decided.
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."
Since this plausible right of Ukraine was recognised by the court, it could indicate provisional measures to prevent irreparable injury to this right, if there was a real and imminent risk of such injury before the court reaches a final decision.
"Any military operation, particularly one of the scale by the Russian Federation on the territory of Ukraine, will lead to loss of life and damage to property and environment," the ICJ majority observed. The court noted that the civilian population of Ukraine was vulnerable, with lack of access to food, water, medicines and other necessities as a result of the military situation.
It also noted that the UN General Assembly in a resolution dated 2 March had expressed its concern over the situation in Ukraine and the risks to the civilian population.
All this suggested that there was a real and imminent risk of irreparable injury to Ukraine, and so the court agreed to indicate provisional measures.
At the outset, the court expressed its regret that Russia had not appeared during the oral proceedings. It then confirmed that it did prima facie have jurisdiction over the subject matter of the dispute, ie interpretation, application or fulfilment of the Genocide Convention.
While Russia is bound in international law to comply with the order of the ICJ, the enforcement of such an order is not always possible.
Ukraine had requested the ICJ to indicate 'provisional measures' (i.e., pass an interim order) to prevent irreparable prejudice to it, including the immediate suspension of Russia's military operations in Ukraine, and for Russia to ensure that its forces or any persons under its effective control don't take any further actions in Ukraine which could aggravate the situation.
The ICJ heard arguments from Ukraine's agents and counsels on 7 March, who denied Russia's stated objective behind its 'special military operation', ie to prevent a 'genocide' in separatist regions of Ukraine.
Russia refused to take part in the proceedings, but did later submit a written statement contesting the jurisdiction of the court to hear the matter, according to ICJ President, Judge Joan E Donoghue.
The proceedings were livestreamed on the UN's Web TV service:
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 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 heard the main case, where India had accused Pakistan of violating 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 DID UKRAINE ARGUE ON 7 MARCH?
When Russia launched its 'special military operation' in Ukraine on 24 February, Russian President Vladimir Putin tried to justify it on the basis that Ukraine was 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.
He insisted that the goal of Russia's operation "is to protect people who have been subjected to abuse and genocide by the regime in Kyiv for eight years".
In its request for provisional measures on 26 February, Ukraine rejected these claims, saying that it "emphatically denies that acts of genocide have been committed and maintains that Russia has no lawful basis to take any action in and against Ukraine to prevent and punish genocide."
Ukraine's agents and counsels before the ICJ – including leading experts on international law, such as Professor Harold Koh – argued on 7 March that the Russian claims were based on a "horrible lie", and that there was no plausible claim of genocide in the Donbas region.
It was pointed out that while the Genocide Convention did impose a duty to prevent and punish genocide, this obligation had to be exercised in good faith.
To grant a request for provisional measures, the ICJ has to be satisfied that there is a foreseeable risk of irreparable prejudice to the party making the request.
Ukraine argued that Russia's operations had already caused catastrophic humanitarian and environmental impacts, which would only get worse if the court did not take action to prevent them.
"It is equally obvious that this invasion has caused, is causing, and will continue to cause huge human suffering, including through the widespread commission of war crimes, the displacement of millions of civilians, and the privations of many more millions bombarded by Russian forces."
Ukraine's agents cited several examples from the initial days of the invasion to back up their claims of war crimes being committed by Russia, including the willful killing of a civilian filming a Russian column's advance, an attack on a civilian bus, bombings of non-military targets such as the Kharkiv Regional Children's Hospital No. 1, and the shelling of an ambulance carrying injured Ukrainian soldiers.
It was pointed out that since the request for provisional measures was filed on 26 February, "much worse" had happened. Ukraine alleged that Russia had resorted to "medieval tactics" of indiscriminate bombardment because its advance had failed to make the gains they expected in the first week of the invasion.
Ukraine also argued that the invasion posed serious risks of environmental damage, including nuclear accidents. Its agents referred to the increased levels of radiation at the site of the Chernobyl disaster, where Russian forces had churned up the soil on arrival and taken over the facility.
The attack on the Zaporizhzhia nuclear plant was also cited, along with the concerns of the International Atomic Energy Agency's director. Ukraine noted that fortunately, the fire caused during the attack only affected a training facility and not one of the six reactors. But with the plant under Russian orders now, the danger was far from over, Ukraine added.
Ukraine also alleged that Russia was attacking fuel depots, like the one at Vasylkiv, to deprive the Ukrainian military of fuel, releasing massive amounts of carbon dioxide into the air that would affect levels of greenhouse emissions.
Professor Harold Koh, a former advisor to US President Barack Obama, argued that the ICJ needed to act immediately to ensure that Russia did not get away with a war of aggression cloaked behind a "false and fabricated claim of genocide".
He also warned that if the ICJ did not act decisively against such "outrageous abuse" of one of the most important international legal conventions, then this would not be the only case where countries would misuse the Genocide Convention to attack other nations – and if they are permanent members of the Security Council like Russia, avoid any consequences.
The final agent for Ukraine, Oksana Zolotaryova, made an impassioned request for the court to grant the request for provisional measures, pointing out the severe crisis in Ukrainian cities including her hometown, where civilians were dying in Russian attacks and were unable to escape the carnage.
“As I am speaking, the Russian Federation continues its relentless assaults on our cities, on our towns, on our villages, on our people... We don’t know yet the true number of Ukrainians that Russia has murdered in the past eleven days. We can only guess how many more will be murdered in the next eleven days if this senseless aggression does not stop.”Oksana Zolotaryova's closing submissions for Ukraine on 7 March
(With inputs from Mekhala Saran)
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