FALSE CLAIMS OF GENOCIDE HAVE REAL EFFECTS: ICJ INDICATES PROVISIONAL MEASURES IN UKRAINE'S PROCEEDINGS AGAINST RUSSIA

Abstract

DAYS after the Russian invasion began, Ukraine instituted proceedings before the International Court of Justice (ICJ) under the 1948 Genocide Convention (GC), arguing that Russia cannot lawfully rely on false claims of genocide to justify military action in Ukrainian territory. Russia did not appear at the oral proceedings but sent a document asserting the ICJ’s lack of jurisdiction. On 16 March 2022, the ICJ delivered its Order on Provisional Measures, akin to an injunction in national law. A 13:2 majority concluded that the court had prima facie jurisdiction to rule on the merits of the dispute, and ordered Russia to suspend its military operations, and to ensure that persons directed, supported, and/or controlled by Russia cease military operations (Judge Xue and Vice-President Gevorgian dissenting in part). By a unanimous vote, the court also required both states to refrain from actions that might aggravate, extend or otherwise make the dispute difficult to resolve. The court’s application of the law on provisional measures is relatively straightforward. What is remarkable is that, so far at least, Ukraine has been successful in converting false claims that it has breached international law into a basis for the court’s jurisdiction – a feat which raises important and difficult questions about the potential broader applicability of such jurisdictional manoeuvres, and the standards by which the court should assess whether states are acting in good faith in cases that are less clear cut than the present one. The court may indicate provisional measures only if the provisions relied upon by the applicant afford a prima facie basis on which jurisdiction to decide the dispute could be founded but it “need not satisfy itself in a definitive manner” (at [24]), leaving open the possibility that it may Cambridge Law Journal, 81(2), July 2022, pp. 217–248 © The Authors, 2022. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge