Thu Sep 28

Ukraine and Russia traded barbs in the UN's top court over the legality of the invasion. What could happen next in the case?

Written by Juliette McIntyre, Lecturer in Law, University of South Australia

In the days immediately following Russia’s invasion of Ukraine in February 2022, the Ukrainian government filed a case ^[1] against Moscow in the UN’s highest court, the International Court of Justice.

Ukraine accuses Russia of violating the Genocide Convention ^[2] by falsely claiming its invasion was required because Ukraine’s government and military were committing genocide against Russian speakers in eastern Ukraine. Ukraine argues Russia has abused the convention by using these claims to justify its invasion.

Over the past fortnight, both sides finally had their day in court. The ICJ heard ^[3] from Ukraine, Russia and 32 other countries in hearings that will determine if the case moves forward. Even though the court has little power to enforce its judgments, the results of this case will still have huge symbolic importance.

Why does Russia object to the case proceeding?

Ukraine is arguing that the court should have jurisdiction because Article IX of the Genocide Convention ^[5] – to which both Russia and Ukraine are parties – permits it to hear cases relating to the “interpretation, application or fulfilment” of the convention.

Russia is arguing the ICJ does not have jurisdiction to proceed with the case. It says the court can only hear a case when states have consented to its jurisdiction ahead of time, and where the dispute relates to the subject matter covered by the Genocide Convention.

Russia contends its war in Ukraine has nothing to do with genocide, but rather is justified under the UN Charter ^[6] and customary international law that governs the use of force between states.

As such, there is no dispute between it and Ukraine regarding the “interpretation, application or fulfilment” of the Genocide Convention. Russia says Ukraine is instead attempting to “shoehorn” a claim about the legality of the 2022 invasion into an argument about the interpretation of the Genocide Convention.

Presiding judge Joan Donoghue, second right, opens the ICJ session on September 18. Peter Dejong/AP

What happened at the hearings?

The oral statements were replete with barbs directed at each side. Russia’s representative, Gennady Kuzmin, referred to Ukraine’s “Western handlers” and alleged Ukrainian Nazi associations no less than 37 times.

Ukraine’s representative, Anton Korynevych, boldly declared that “every missile that Russia fires at our cities, it fires in defiance of this court”.

A casual listener may not have realised the parties were talking about the same case, so far apart were their presentations on the facts and the law.

Ukraine presented significant evidence that Russia did refer to genocide before the invasion – rather a lot. As a result, it argued the case falls within the confines of the Genocide Convention.

Ukraine also argued that if a state believes another state is committing genocide, it cannot act unlawfully (in this case, using military force) to prevent that genocide. This would be in breach of Article 1 of the convention.

Ukraine’s representative, Anton Korynevych, addresses the judges at the court, as the Russian delegation listens to the right. Peter Dejong/AP

Russia denies outright that it ever based its invasion on the Genocide Convention.

Russia also argues that by adopting Ukraine’s interpretation of the Genocide Convention, the court will then be empowered to rule on the overall legality of the invasion – a question that is not governed by the convention.

Dozens of other countries also appeared before the court, largely European states, but also Australia, New Zealand and Canada. This was an unprecedented event; never before in the court’s history have so many countries intervened in a case.

As such, the court had to organise the proceedings carefully. With all of these countries coming, rather explicitly, in support of Ukraine, the court was faced with a situation that could have called into question its impartiality: one side would have a much longer time to argue its case than the other.

The court therefore limited the 32 countries to time slots of 10-15 minutes to present their submissions, which were restricted to offering their views on whether the court has jurisdiction. And it gave Russia twice as much time to reply.

This was an important step to ensure the equality of the parties before the court. The ICJ has taken great pains to ensure its proceedings in this case are impartial and legitimate.

What happens next?

The court will now retire to decide whether it has jurisdiction. The case is not open and shut. The fact that 32 countries considered it necessary to intervene at this stage attests to that.

If the court accepts one of Russia’s arguments, the case may end here. But if it rejects all of Russia’s objections, the case will proceed to a hearing on the merits. This is when the court would decide whether or not Russia has contravened the Genocide Convention and made false allegations of genocide against Ukraine.

Ukraine has also requested the court order Russia to pay compensation for the damage caused by the war.

If this is what international justice looks like, is it useful?

Given recent history suggests it’s unlikely Russia will comply with any judgment the court issues, one may be tempted to conclude the proceedings are, for want of a better word, pointless.

But any order from the court – including one ordering compensation – would remain binding on Russia and could feasibly be implemented by a new Russian government at some point in the future.

However, this is the limit of the court’s power. It cannot enforce its judgment using an international police force, for no such thing exists. It cannot – in contrast to the International Criminal Court – issue a warrant for Putin’s arrest. (The ICC did this ^[7] in March in a separate case.)

Despite the court’s limitations, the importance of these hearings lies predominantly in symbolism ^[9] and politics ^[10].

Russia used the court’s platform to rail against NATO and Ukraine’s “32 partisans” despite the fact this had nothing to do with the case; it scores points at home and with Russia’s allies.

For Ukraine, there is now an opportunity to secure a “win” in a protracted war. The battle for hearts and minds is just as important as the one on the ground – and it is one in which Ukraine presently has the ascendancy.