(This article was originally published on 7 March 2022. It is being republished from The Quint's archives in light of US President Joe Biden calling for Russian President Vladimir Putin to be tried for war crimes, as evidence of atrocities against Ukrainian civilians emerge.)
Russia has "defiled the Genocide Convention" by trying to justify its "war of aggression" with false claims of genocide in the Donbas region, Ukraine told the International Court of Justice (ICJ) on Monday, 7 March.
Ukraine 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 Russian Federation, on 5 March, had informed the ICJ that it would not participate in the proceedings, and so the court would not hear any defence of Russia's actions at this time.
After Ukraine concluded its arguments on Monday, ICJ President Joan Donoghue said the court would deliver its decision as soon as possible.
The ICJ will, at a subsequent time, take up the main case filed by Ukraine asking for a proper determination that Russia's claims of genocide in eastern Ukraine are false and that its invasion of Ukraine is, therefore, a violation of international law.
'Russia's False Claims & War of Aggression Are Abuse of Genocide Convention'
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.
Ukraine contended that there was no reasonable evidence or serious risk of genocide in the Donbas region since 2014 as claimed by Russia, pointing out that the United Nations Human Rights Mission to the region had found that it was the Russian-backed separatists in the region who were committing humanitarian abuses.
The most recent reports of the UN High Commissioner for Human Rights had also found no evidence of genocide in the region.
Ukraine's agents, therefore, argued that Russia's 'special military operation' was nothing but an invasion of Ukraine and a war of aggression against it.
"A war of aggression justified on the basis of a non-existent claim of genocide is not good faith performance of the obligations under the Genocide Convention. It is an abuse of the Convention. Russia has taken a fundamental peremptory norm of international law, codified in one of the most important treaties that emerged from the second world war, and turned it into a charade."
It was suggested by Ukraine that such misuse was a violation of the Genocide Convention, which is meant to deal with one of the most serious issues in international law and relations.
Ukraine also warned that such bad faith usage of the Convention sets a dangerous precedent, as it would allow for it to become a "cynical tool" to justify invasions of other countries and violations of their territorial sovereignty.
'Invasion Having Severe Human and Environmental Impacts, Causing Irreparable Prejudice'
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.
The Russian forces' repeated violations of an agreement to allow a humanitarian corridor from the city of Mariupol were also cited as an example of this.
Ukraine also argued that further war crimes were inevitable because of the use of indiscriminate weapons by Russia in its attacks, including GRAD missile launchers and TOS-1 thermobaric rockets.
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.
Another potential environmental and humanitarian disaster was looming in the Donbas region, it was suggested, with Ukrainian intelligence hearing that Russia was distributing gas masks to its soldiers and separatist forces in advance of a false flag attack on industrial units.
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".
"In less than two weeks, this case has become much bigger than Ukraine vs Russia. It has become about who will prevail: Russia or the post-war international order. The situation in Ukrainian cities which are under bombardment is precisely what our modern international system is supposed to prevent... What is the point of having [the UN and the ICJ] if they do not act decisively in these moments?"Professor Harold Koh's arguments for Ukraine on 7 March
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
The ICJ was requested to grant the request as this would help facilitate further action by the UN and other international bodies, as well as other countries.
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