However, I am not convinced that the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the "Genocide Convention" or the "1948 Convention") was conceived, and subsequently adopted, in 1948, to enable a State, such as Ukraine, to seise the Court of a dispute concerning allegations of genocide made against it by another State, such as the Russian Federation, even if those allegations were to serve as a pretext for an unlawful use of force. We know, since the adoption of the Charter of the United Nations, that the only exceptions to the prohibition of the use of force in international relations are individual or collective self-defence, under Article 51 of the Charter (which has also been invoked by the Russian Federation), and authorization by the Security Council, in accordance with Chapter VII of that text.
The Convention obliges the States parties to adopt the legislation required for its proper application and to enable those accused of genocide to be brought to justice, or before the competent international criminal court. These States may, if they deem it necessary, seise the competent organs of the United Nations (Article VIII) and submit to the International Court of Justice any dispute relating to the responsibility of another State for genocide (Article IX). The Convention does not cover, in any of its provisions, either allegations of genocide or the use of force allegedly based on such allegations.
It is not sufficient for the Court to state that "Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine" (Order, paragraph 60). The Court must also be able to found this alleged plausible right on one of the provisions of the Genocide Convention which the Russian Federation is said to have breached. The Court clearly failed in this task; it did not identify the rights of Ukraine under the Convention which must be preserved by provisional measures pending the judgment on the merits (Statute of the Court, Article 41).
"must ascertain whether the breaches of the Convention alleged by Yugoslavia are capable of falling within the provisions of [the Genocide Convention] and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX" (Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 372, para. 25). The Court concluded that this was not so.
From a legal standpoint, that case is similar to the present proceedings, in so far as, in both instances, the applicant invoked the Genocide Convention in the context of an unlawful use of force by the respondent. Although the Court rejected the Request for the indication of provisional measures submitted to it by Yugoslavia, it underlined that
"[w]hereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law; whereas any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties" (Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 374, para. 36).
The Court thus recalled that respect for international legality is binding on all States and in all circumstances, whether or not they have consented to a particular method for the peaceful settlement of the disputes between them. The fact remains that artificially linking a dispute concerning the unlawful use of force to the Genocide Convention does nothing to strengthen that instrument, in particular its Article IX on the peaceful settlement of disputes by the International Court of Justice, which is an essential provision in the prevention and punishment of the crime of genocide.
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