Aman Kumar

(5 min. read)

Introduction

While Russia decided not to participate in the oral proceedings at the ICJ in the case instituted against it by Ukraine, it has now responded to Ukraine’s claims. This response is via a United Nations Security Council document. The document is in the ‘Other documents’ section, not in the written proceedings section on the ICJ’s website. This categorization is significant since it means that Russia has not formally responded to Ukraine’s claims at the ICJ. Nonetheless, the document is the only avenue where Russia’s position has been stated clearly regarding the ongoing case brought against it by Ukraine. As such, it’s imperative to dissect the document to understand what are Russia’s counter-claims in the case.

Analysis

Reason for not participating in the Oral Proceedings

The Document notes the reason for Russia’s non-participation at the Oral Proceedings. The reason, it seems, was lack of time to respond. On 26 February 2022 (Saturday), Ukraine submitted its Application for proceedings. On 28 February 2022 (Monday), the Russian embassy in Netherlands received a copy of the application. On that very date, the Registrar of ICJ consulted Russian Ambassador about possible dates for oral proceedings. According to the document, “The Ambassador…indicated that it would be difficult, if not impossible, to take all necessary decisions regarding the participation in the proceedings and conduct proper analyses of the Request in five working days.” The document does not clarify whether the Registrar had given the time limit of five days. However, in some of the cases of urgent nature, the respondents have been given five working days’ time period for responding. For example, in the Jadhav case, where the Provisional Measures requested included non-execution of Mr. Kulbhushan Jadhav,  India has requested for Provisional Measures on 08 May 2017 and Oral Proceedings happened on 15 May 2017, exactly after 5 working days. In this light and considering the loss of lives on a daily basis due to the ongoing armed conflict, it seems reasonable that the court didn’t wait for more than 5 working days for the Oral Proceedings.

On Court’s lack of jurisdiction

The most significant claim made in the document is Russia’s denial regarding Genocide. As I had mentioned in my earlier post, Ukraine has argued before the ICJ that Russia’s attack on Ukraine is aimed at ‘preventing and punishing’ for acts of Genocide. Ukraine had argued that Russia has claimed commission of Genocide by Ukraine and on that pretext, had attacked it. However, now Russia is claiming that it never used the Genocide Convention as a justification for attacking Ukraine. Instead, its attack was/is based on Article 51 of the United Nations Charter and Customary International Law (para 15). Though it acknowledges use of the term ‘Genocide’, it argues that such use was not in the context of the Genocide Convention. The document notes that:

“A reference to genocide is not equal to the invocation of the Convention or the existence of a dispute under it, since the notion of genocide exists in customary international law independently of the Convention. It also exists in national legal systems of States including in the Russian Federation and Ukraine. There are no references to the Convention in the statement of the President of the Russian Federation to which the Government of Ukraine refers.” (para 20)

Elsewhere, it has been asserted that: “This highly formalistic argument has little weight. There is no material difference between the concept of genocide under the Convention and under customary law, and its definition under the domestic laws of the two states is irrelevant.” I respectfully disagree, since Russia’s claims are about Jurisdiction of the Court and not about Genocide under the GC or CIL per se. Ukraine has approached the Court under GC and not CIL, and the Court needs to be located its jurisdiction within the GC and not elsewhere.

Having said that, the way Russia has formulated its arguments are indeed laudable and more importantly, legally sound. One needs to keep in mind that Russia’s essential argument is neither about Genocide nor about Use of Force, but it is essentially about court’s lack of jurisdiction. At this preliminary stage of proceedings, the court first has to decide whether it has jurisdiction or not; only then it can even issue Provisional Measures. Russia’s arguments are therefore aimed at challenging court’s jurisdiction. In my view, Russia’s arguments do hold legal value, even more than Ukraine’s arguments. This is primarily because of Russia’s rejection of Genocide claims. In that light, the court will have to look closely at the statements referred to by the Ukrainian side to buttress their arguments about Russia’s claims of Genocide.

Conclusion

Russia has made a good argument for Court’s lack of jurisdiction. It has made the dispute about Use of Force and Customary International Law, thereby making the Genocide Convention redundant. It has said that:

“Nowhere in the Convention may one find any reference to the use of force between States or recognition of States, which are regulated by the United Nations Charter and customary international law. To read them into the Convention by implication would be to substantially amend and distort the object and purpose of the  Convention.” (para 12)

More importantly, as per the Russian side, there is no dispute regarding the Genocide Convention. As I had mentioned in an earlier post, Ukraine has approached the court under Article IX of the Genocide Convention which states that:

“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” (Emphasis mine)

Now as per Russia’s claim, there is no dispute on ‘interpretation, application or fulfilment’ of the Genocide Convention. As such, it will be difficult for the court to find jurisdiction in the case. Others, however, are more optimistic (see here and here).

(This piece was first posted on The Leaflet.)