Case law of the International Court of Justice establishes three features in the process of identifying and characterizing a dispute. First, the Court examines how the parties themselves have identified and characterized the dispute, but in doing so it has particular regard to the applicant's characterization of the dispute3. However, and second, it is ultimately the responsibility of the Court to determine on an objective basis the dispute between the parties4. Third, it does that by "isolat[ing] the real issue in the case and ... identify[ing] the object of the claim"5. A party's characterization of the dispute is therefore only a starting-point, and a dispute, properly characterized, may have more than one element, and indeed, a case may have more than one dispute.
Ukraine sees the dispute as having two elements. In its first element, Ukraine argues that a dispute exists as to whether, on the basis of Russia's allegations, Ukraine has breached its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide" (hereinafter the "Genocide Convention" or the "1948 Convention"). In its second element, Ukraine sees the dispute as the question whether Russia has the right under the Genocide Convention to engage in the military action initiated against Ukraine on 24 February 2022. Russia, on the other hand, argues that the dispute has nothing to do with the Genocide Convention; rather, it maintains that the dispute relates to the use of force under customary international law. More specifically, Russia maintains that in carrying out a "special military operation" in Ukraine it is exercising its right of self-defence under Article 51 of the Charter of the United Nations.
"during the period from 12 April 2014 to the present, in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide ... the top political and military leadership of Ukraine, the Armed Forces of Ukraine, the National Guard of Ukraine and the 'Right Sector' gave orders to completely destroy specifically Russian-speaking population living on the territory of the Donetsk and Luhansk republics".
It may be observed that this finding has implications for the specific requirement in the Genocide Convention of an intent "to destroy, in whole ... a national, ethnic, racial or religious group" and obviously indicates that Russia's attention was focused on whether the purported acts of Ukraine fell under the Genocide Convention. In January 2015, the Committee found that acts carried out by the Ukrainian military constituted crimes under the 1948 Convention. In September 2017, the Committee announced criminal proceedings against 20 senior officials in Ukraine's Ministry of Defence in respect of orders that they issued to soldiers in violation of the Genocide Convention.
"Ukraine strongly denies Russia's allegations of genocide and denies any attempt to use such manipulative allegations as an excuse for unlawful aggression. The crime of genocide is defined in the Genocide Convention, and under that Convention Russia's claims are baseless and absurd. Russia's claims of genocide as justification for its lawless conduct are an insult to the Genocide Convention, and to the work of the international community in preventing and punishing the world's most serious crime."
Ukraine argues that there is another aspect of the dispute that it has brought before the Court. Ukraine submits that there is a legal dispute between the Parties as to whether Russia may take military action in and against Ukraine to punish and prevent alleged acts of genocide within the meaning of Article I of the Convention. Russia maintains that the "special military operation" it is carrying out in Ukraine has nothing to do with the Genocide Convention; rather, it constitutes the exercise by a State of its right of self-defence under Article 51 of the Charter of the United Nations.
Although President Putin stated that the military operation was initiated "in accordance with Article 51 ... of the Charter of the United Nations", he expressly noted that "[i]ts purpose is to protect people who have been subjected to ... genocide by the Kiev regime for eight years". This makes clear that, notwithstanding the possible defensive aims of the special military operation, the operation has a clear protective aim; more specifically, it aims to protect against alleged acts of genocide committed by Ukraine which, as has already been shown, Russia considered to be contrary to Ukraine's obligations under Genocide Convention. In response to Russia's claim, the Ukrainian Ministry of Foreign Affairs issued a statement that Ukraine "strongly denies Russia's allegations of genocide and denies any attempt to use such manipulative allegations as an excuse for Russia's unlawful aggression". There is undoubtedly a question of the lawfulness of Russia's use of force within the framework of the United Nations Charter which arises in the context of a broader dispute between the Parties, but this does not preclude the Court from assuming jurisdiction with respect to the aspect of the dispute which properly falls within its jurisdiction under the Genocide Convention.
The difficulties attendant on situating cases involving the use of force by a State on the territory of another State within the framework of the Genocide Convention have previously arisen in the Court's jurisprudence. In the Legality of Use of Force cases, as in the present case, Yugoslavia sought to found the jurisdiction of the Court on Article IX of the 1948 Genocide Convention. In the cases brought against Spain and the United States, the Court concluded, with respect to its jurisdiction under Article IX of the Genocide Convention, that
"Article IX of the Genocide Convention cannot found the jurisdiction of the Court to entertain a dispute between Yugoslavia and [the respondent] alleged to fall within its provisions ... that Article manifestly does not constitute a basis of jurisdiction in the present case, even prima facie"9.
The Court further observed that
"the Court manifestly lacks jurisdiction to entertain Yugoslavia's Application ... it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein;
there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties"10.
For the purposes of the present case, it is critical to understand that the Court's finding that it manifestly lacked jurisdiction under Article IX of the Genocide Convention was not at all related to the action that formed the basis of the claims, that is, the use of force by the respondent States. Having found that its Statute and Rules could not afford a basis for jurisdiction, the Court examined Article IX of the Genocide Convention as a basis for resolving the dispute between the States. It found, however, that both Spain and the United States had made reservations to Article IX, which had the effect of excluding the jurisdiction of the Court in the cases before it11. These cases are, therefore, distinguishable from the present case because the Court does not manifestly lack jurisdiction over Ukraine's claims. Both Ukraine and Russia are parties to the Genocide Convention and neither State has entered a reservation to Article IX of the Convention. Thus, the Court is not facing a situation of manifest lack of jurisdiction; rather, in determining its prima facie jurisdiction, the question before the Court is whether Ukraine's claims are capable of falling within the provisions of the Genocide Convention.
In the cases brought against the other eight States, there being no basis for a manifest lack of jurisdiction under Article IX of the Genocide Convention, the Court went on to consider whether it had prima facie jurisdiction under that provision to grant the measures requested by Yugoslavia against each of those States.
In justifying its "special military operation" in Ukraine, Russia expressly stated that the purpose of the operation is "to stop ... [the] genocide of the millions of people" in the Donetsk and Luhansk oblasts, and "to protect people who have been subjected to abuse and genocide by the Kiev regime". It is this express purpose which brings the dispute within the terms of the Genocide Convention, and specifically Article I, which imposes on States parties an obligation "to prevent and to punish" genocide. There is, therefore, a live issue in the present case as to whether Russia can use of force to prevent and to punish alleged genocide. As such, in describing the subject-matter of the dispute, Ukraine submits that the parties hold opposing views on "whether Article I of the Convention provides a basis for Russia to use military force against Ukraine to 'prevent and to punish'... alleged genocide". The fact that the acts of which Ukraine complains constitute a use of force by the Russian Federation does not mean that those acts are incapable of amounting to breaches of the Genocide Convention.
Ukraine submits that the duty to prevent genocide provided for in Article I of the Genocide Convention is limited in scope. More specifically, it submits that Article VIII of the Convention "anchors the duty to prevent and punish genocide in the principles of international law reflected in the Charter of the United Nations". In its merits Judgment in the Bosnia Genocide case, the Court found that Article I of the Genocide Convention imposes an obligation on States parties to "employ all means reasonably available to them, so as to prevent genocide so far as possible"18. It is reasonable to conclude that it was in the exercise of this duty that the Russian Federation acted in initiating a military campaign in Ukraine. The Court further noted that, in carrying out the duty to prevent, a State party "may only act within the limits permitted by international law"19. Therefore, Article I of the Genocide Convention imposes an obligation on Russia not only to act to prevent genocide, but to act within the limits permitted by international law to prevent genocide.
The preamble to the Genocide Convention states that "genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world". In that regard, it is noted that Article 1 of the United Nations Charter describes the purposes of the United Nations as including "bring[ing] about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace". Reliance on the preamble to the Genocide Convention is in order because, in terms of Article 31 of the Vienna Convention on the Law of Treaties, the preamble is a part of the context in which a treaty must be interpreted. The Genocide Convention also provides, by its Article VIII, that it is open to States parties to call upon the competent organs of the United Nations to take appropriate action to prevent and suppress genocide. Equally significant is Article IX which provides that disputes relating to the interpretation, application or fulfilment of the Convention are to be brought before the Court. These are therefore means for the resolution of disputes that the Convention provides. These means would of course have been open to Russia as alternatives to the military action that it commenced in Ukraine on 24 February 2022.
In view of the relatively low evidentiary threshold applicable at this stage of the proceedings, it can be concluded that the breach of the Genocide Convention alleged by Ukraine, that is, that Russia has acted contrary to Article I of the Convention in initiating a military campaign with the aim of preventing genocide, appears to be capable of falling within the provisions of that instrument. As such, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX of the Convention.
It is critical to note that the fact that the military operation by Russia appears to be capable of falling within the Convention as being in breach of Article I, has no implication for Russia's claimed right of self-defence. The right of self-defence recognized in Article 51 is inherent in every State and cannot be overridden by any pronouncement the Court may make as to the consistency of Russia's military operation with the Genocide Convention.
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