On 26 February 2022, two days after the start of Russia’s full-scale invasion, Ukraine filed a lawsuit with the International Court of Justice.
Why this is not a lawsuit against Russian genocide on the territory of Ukraine and what retributive justice is, we explain in Ukrainian Moment.
What does Ukraine’s lawsuit say?
The case concerned a statement by the Russian Federation that attempted to justify military actions on the territory of Ukraine by the need to protect the Russian-speaking population from the ‘genocide’ allegedly taking place in eastern Ukraine.
‘The purpose of the special operation is to protect people who have been subjected to abuse and genocide by the Kyiv regime for eight years,’ Russian President Vladimir Putin said on 24 February 2022, justifying, among other things, the outbreak of war against Ukraine.
These words formed the basis of this court dispute, and their interpretation comprised the bulk of the parties’ arguments.
In addition, Ukraine asked the court to declare Russia’s actions against Ukraine, including the recognition of the so-called ‘DPR’ and ‘LPR’, in violation of the articles of the Convention on the Prevention of Genocide.
The course of events
On 7 March 2022, the UN court opened the case and heard Ukraine’s arguments. A second hearing was scheduled for 8 March to allow Russia to present its evidence and arguments, but Moscow protested against the hearing.
On 16 March 2022, the Court nevertheless issued an interim decision on interim measures.
The measures included:
- Russia must ‘immediately cease the military operations it began on 24 February on the territory of Ukraine;
- Russia must ensure that any military or paramilitary groups it supports or controls, as well as any organizations or individuals under its control, do not engage in further military action;
- both sides must refrain from ‘any action that may deepen or broaden the dispute before the court or make it more difficult to resolve’ (unanimously).
Representatives of Russia and China, Kirill Gevorgyan and Hanqin Xue, respectively, voted against the first two points. The last item on the list was voted for unanimously.
In July 2022, Ukraine filed a Memorandum with the International Court of Justice.
‘We prove that the Russian Federation has violated the Genocide Convention by justifying its military aggression by groundless accusations of ‘genocide’ against Ukraine,’ said then-Foreign Minister Dmytro Kuleba.
Today, Ukraine submitted a major filing at the ICJ. We prove that Russia violated the Genocide Convention by justifying its aggression with a false pretext of a ‘genocide’ that never was. Critical step to hold Russia accountable and make Russia pay for the harm it has inflicted.
— Dmytro Kuleba (@DmytroKuleba) July 1, 2022
Ukrainian lawyer Yuriy Bilousov also stressed that this case does not concern whether Russia is committing genocide on the territory of Ukraine.
‘Russia manipulates this term genocide and artificially uses the term genocide. Russia used it in order, firstly, to recognize the so-called DPR and LPR (illegal armed groups — ed.), then, on the basis of the fact that genocide is allegedly taking place in Ukraine in Donetsk and Luhansk regions, to protect the Russian-speaking population, to protect those people whom Russia considers to be suffering from genocide, Russia launched a full-scale invasion of Ukraine. So our state took this Convention on Genocide, took the statute of the International Court of Justice, and applied to the court, asking for a decision that would state that there was no genocide in Ukraine, in Donetsk and Luhansk regions, by the Ukrainian state,’ the lawyer explains, as quoted by Radio Liberty.
Preliminary hearings at the International Court of Justice lasted from 18 to 27 September. As Ukrinform correspondents reported, representatives of Russia spoke on 18 and 25 September, and representatives of Ukraine spoke on 19 and 27 September.
Thirty-two countries also intervened in the case. On 20 September 2023, they spoke in support of Kyiv.
In the end, in February 2024, the International Court of Justice decided that it had jurisdiction to hear the case, which then moved to the merits stage.
The court ruled that it had jurisdiction to consider Ukraine’s request (paragraph 178 of the Memorandum — ed.) ‘to rule 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 regions of Ukraine.’
At the same time, the court ruled that it had no jurisdiction to consider:
- Russia’s use of force in and against Ukraine as a violation of the Genocide Convention;
- Russia’s recognition of the so-called ‘DPR’ and ‘LPR’ as a violation of the Genocide Convention.
Although the International Court of Justice did not agree to consider all the claims raised by Ukraine in its lawsuit on 26 February, the decision was welcomed.
‘The decision of the International Court of Justice, announced on 2 February, was an important step towards holding Russia accountable for its numerous violations of international law,’ the Ukrainian Foreign Ministry said.
Zakhar Tropin, associate professor of international law at the Institute of International Relations of the Taras Shevchenko National University of Kyiv, said the court’s interim decision to consider the case on the merits will go down in history.
According to him, international judicial and arbitration institutions have not recognized the possibility of ‘reverse claims’ (jurisdiction in reverse) until now.
‘This is a separate category of cases when one state accuses another of unlawfully claiming violations of international law allegedly committed by the first state,’ Tropin explained to Zmina.
Matthew Gillette, an international law expert with experience in the ICC and the former Yugoslavia tribunal, called the court’s decision ‘ambiguous’ in a commentary to Suspilne.
However, in hos opinion, the court sent a clear signal that ‘there was no genocide committed by Ukraine in Donbas, and this is the main part of the narrative that Russia uses as justification for the so-called military special operation.’
Global reaction and support from international partners
UN Secretary-General António Guterres stated that the events taking place in certain areas of Donetsk and Luhansk regions do not fall under the definition of genocide.
‘Genocide is a crime that has a clear definition, and this definition should be used in accordance with international law. I think this is not the case,’ Guterres said back in March 2022.
Thirty-two countries, including Austria, Belgium, Canada, Germany, the United Kingdom, and others, have intervened in the ICJ.
What is happening now?
A ruling in favour of Ukraine will create a legal context that can be relied upon in future lawsuits against Russia.
At the same time, it should not be forgotten that the merits proceedings are still ongoing. Russia was supposed to submit its counter-memorial by November 2024. Previously, representatives of the Russian Federation have requested several extensions to the deadline for submitting counter-memorials.
Ukraine, in turn, asked the court to prohibit the postponement of the submission of arguments by Russian representatives. This is because Russia, having started a full-scale war against Ukraine, should already have ready-made evidence that could ‘justify’ military actions on the territory of Ukraine through the so-called ‘genocide’ against the Russian-speaking population.
We are following the situation. Keep in touch with us.