ICJ Delivers Preliminary Objections Judgment in the Ukraine v. Russia Genocide Case, Ukraine Loses on the Most Important Aspects

Today the International Court of Justice delivered its judgment on the preliminary objections raised by Russia on jurisdiction and admissibility in the genocide case that Ukraine had brought against it after the full-scale invasion in February 2022. Bottom line – Ukraine lost pretty badly. Readers will recall that this case is different from all of the other genocide cases brought before the Court so far, including the most recent one, South Africa v. Israel. While in all other genocide cases the claim is that the respondent committed genocide, in Ukraine v. Russia the claim is that Russia falsely asserted that Ukraine committed genocide against Russians or Russian-speakers in Ukraine, and on that basis then proceeded to invade Ukraine.

So this is a genocide case in reverse. What is creative about it is that Ukraine had cast the whole of Russia’s ‘special military operation’ as in some sense being inconsistent with the Genocide Convention, without itself being genocidal. In making this argument, Ukraine tried to avoid the Court’s jurisdictional constraints, which made it impossible to sue Russia for aggression, or for violating the UN Charter more generally, or for committing war crimes and crimes against humanity.

In its provisional measures order, the Court, by 13 votes to 2, thought that Ukraine’s creative argument was plausible, and ordered Russia to stop the invasion (which it of course refused to do). But even within that majority, one judge – Judge Bennouna – indicated that the argument will fail at the later stages of the case. So the issue for the Court in the preliminary objection judgment delivered today was precisely to rule on the validity of Ukraine’s argument purely as a question of the Convention’s interpretation – a non-obvious issue not only because this kind of genocide case wasn’t litigated before, but also because there is no article in that treaty that clearly applies to false allegations of genocide or to uses of force based upon them.

In its judgment, the Court distinguishes between two different aspects of Ukraine’s case. The first is whether Ukraine can make a ‘reverse compliance’ claim by seeking a declaration that it did not commit genocide in Eastern Ukraine. The second is whether Russia violated the Convention by making the false allegation of genocide against Ukraine, and then by using force against it.

This bifurcation was crucial for understanding the outcome. Essentially, the Court dismissed all of Russia’s more procedural objections, and did so near-unanimously. But on the subject-matter jurisdiction issue Ukraine lost, and as I said it lost badly. By 12 votes to 4 (Judges Donahue, Sebutinde, Robinson and Charlesworth dissenting), the Court UPHELD Russia’s preliminary objection that false allegations of genocide, and uses of force based on them, fall outside the scope of the Genocide Convention.

This is a huge loss for Ukraine. The Court essentially killed Ukraine’s creative argument, even though it found it plausible at the provisional measures stage, and even though it was supported by 32 intervening states. It is particularly interesting that that even the judge ad hoc appointed by Ukraine, Yves Daudet, voted against Ukraine on this point. However, by 13 votes to 3 the Court accepted Ukraine’s reverse compliance claim, i.e. that it did not commit genocide in Eastern Ukraine.

In terms of the claims as set out in Ukraine’s Memorial, para. 178, the Court WILL decide the claim under (b), but not under (c) and (d):

b. Adjudge and declare that there is no credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donetsk and Luhansk oblasts of Ukraine.

c. Adjudge and declare that the Russian Federation’s use of force in and against Ukraine beginning on 24 February 2022 violates Articles I and IV of the Genocide Convention.

d. 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 21 February 2022 violates Articles I and IV of the Genocide Convention.

This means that now, on the merits, the Court will have to decide solely whether Ukraine is responsible for violating the Genocide Convention. But no issue of Russia’s responsibility will arise, except very implicitly. Similarly, the only remedy that would be potentially available here would be a declaration that Ukraine did not commit genocide – and it’s inevitable that this will ultimately be the outcome of the case. This, in turn, entails that Ukraine will NOT be able to rely on this case in order to, for example, obtain from third states the confiscation and transfer of Russian state assets that they had frozen, because no reparation of that kind will be due. Maybe the Court will ask Russia to provide moral satisfaction, but no more than that.

Together with the quite technical judgment on Wednesday between Ukraine and Russia and dealing with the financing of terrorism and violations of CERD, where again Ukraine lost on most counts, this will be a major disappointment in its ‘lawfare’ efforts against Russia

The Court did, at the very end of its judgment, reiterate the difference between its jurisdiction to decide disputes, which is based on state consent, and the substantive duty of all states to comply with their obligations under international law, even though these might not be subject to adjudication (para. 150):

The Court recalls, as it has on several occasions in the past, that there is a fundamental distinction between the question of the acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law. States are always required to fulfil their obligations under the Charter of the United Nations and other rules of international law. Whether or not they have consented to the jurisdiction of the Court, States remain responsible for acts attributable to them that are contrary to international law.

In subtext, even though we don’t have the jurisdiction to say that Russia violated many rules of international law, this judgment shouldn’t be taken as us saying that Russia committed no such violations. But this will only be a small consolation for Ukraine.

This is a complex judgment and of course we will have more analysis in the days to come. I will also update this post if necessary.