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Experts warn UN court’s approach in Ukraine versus Russia genocide cases ‘may lead to more instability’

by Vladyslav Kudryk April 1, 2024 6:51 PM 13 min read
A man pushes his bike through debris and destroyed Russian military vehicles on a street on April 06, 2022 in Bucha, Ukraine. (Chris McGrath/Getty Images)
by Vladyslav Kudryk April 1, 2024 6:51 PM 13 min read
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The UN’s International Court of Justice, or ICJ, is currently hearing cases related to genocide in Ukraine as the country looks to seek justice for Russia’s ongoing crimes against it.

Experts interviewed by the Kyiv Independent are worried that the Hague-based court, which is the principal judicial organ of the United Nations, might not be up to the job.

They point to the fact that the court ruled on Feb. 2 that it had jurisdiction to hear only a small part of Ukraine’s claims against Russia. ICJ judges rejected Kyiv's request to determine whether Moscow violated the Genocide Convention by using false claims about genocide as a justification for launching its all-out war against Ukraine in 2022.

However, they said they would rule on whether Ukraine committed genocide against Russian speakers in the Donbas, a region of eastern Ukraine that has been partly occupied by Russia since 2014.

Russia has used spurious claims that Kyiv has been committing genocide against its own people in Donbas to justify its continued aggression against Ukraine.

The Peace Palace building of the International Court of Justice in the Hague. (Nicolas Economou/NurPhoto via Getty Images)

The rulings have sparked debate over the court’s effectiveness in upholding international law, and the extent to which its decisions can meet current challenges.

Zakhar Tropin, an expert in international criminal and humanitarian law, told the Kyiv Independent that the ICJ’s decisions on the Ukraine case demonstrate that the court is “very formalistic” in its approach to interpreting international law.

“The court will not take risks or make any revolutionary decisions or interpretations,” Tropin said.

Kateryna Rashevska, an expert at the Kyiv-based Regional Center for Human Rights, went further, telling the Kyiv Independent that the ICJ has “discredited itself.”

The Convention on the Prevention and Punishment of the Crime of Genocide is one of the main treaties overseen by the ICJ. Adopted in 1948 in the wake of the horror of the Holocaust, the convention was meant to demonstrate the international community’s commitment to “never again” allow genocide.

It was the first legal instrument to codify genocide as a crime, defined as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."

The ICJ is currently considering three claims under the genocide convention: Ukraine’s case against Russia, South Africa's against Israel, and Gambia’s versus Myanmar over possible genocide against the Rohingya Muslims.

Meanwhile, in another case not related to the genocide convention, the ICJ dismissed most of Ukraine's charges against Russia for financing terrorism in the Donbas and discrimination against Crimean Tatars and Ukrainians in Crimea since 2014.

The International Court of Justice (ICJ) begins to read the decision on the objections raised by Russia regarding the 'jurisdiction' and 'admissibility' conditions of the 'genocide' case brought by Ukraine against Russia in The Hague, Netherlands on February 02, 2024. (Nikos Oikonomou/Anadolu via Getty Images)

That leaves Kyiv no further options to seek redress for these claims – the ICJ is the only international court that decides on general disputes between nations globally. Unlike the Hague-based International Criminal Court, it does not try crimes committed by individuals.

Established in 1945, the ICJ replaced a similar court that was largely bypassed due to heightened international tensions in the 1930s.

The ICJ panel is composed of 15 permanent judges who are elected by the UN Security Council and the UN General Assembly and serve nine-year terms. Each judge must be from a different country, but they do not represent their countries in the court.

Provisional measures ordered by the ICJ are mandatory for the parties, but the court has no means to enforce them.

Claim of genocide rejected

Launching the invasion of Ukraine on Feb. 24, 2022, Russian President Vladimir Putin said in a televised address that Russia would "de-Nazify" Ukraine and "defend" victims of "genocide" in Donetsk and Luhansk oblasts – a “genocide” he claimed had been going on there since 2014 when Kyiv launched its “Anti-terrorist Operation” against Russia-controlled forces.

Two days after the start of the full-scale Russian invasion, Ukraine initiated a case to dispute Putin’s claim that it had committed genocide against its own people, suggesting that Russia had violated its own obligations under the Genocide Convention.

Ukraine’s claim was supported by a record 32 states in the form of interventions, which is when countries do not become parties to a dispute but seek a legitimate interpretation and application of the convention from the court.

For Ukraine, the genocide case was a chance to prove that Russia’s full-scale invasion in 2022 was illegal, which hasn’t been possible in the UN Security Council due to Russia wielding its veto. If Ukraine could prove its case, it could then file a claim for reparations based on the court ruling.

But that attempt failed when the court said it had no jurisdiction over the matter. Some experts had reckoned it had been a legal long shot anyway:

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“The Ukrainian (genocide) claim was, in fact, very bold and innovative,” Dmytro Koval, a legal director at Truth Hounds, an NGO investigating and documenting Russian war crimes, told the Kyiv Independent.

If the court had upheld the notion that Russia’s invasion based on genocide claims violated the convention, it would have created a back door for other countries to file other cases on military aggression, Koval said.

He also said Kyiv was aware that it had been a risky move, with unclear chances of success.

The next part of the case, which could last another few years, holds more promise: In it, the court will rule on Russia’s claim that Ukraine itself committed genocide in the Donbas. Hearings should resume on the case's merits in a few months.

Fresh graves are seen at a cemetery in the city of Mariupol on June 2, 2022, amid Russia's full-scale invasion iof Ukraine. (Stringer/AFP via Getty Images)

According to Tropin, Russia will not be able to prove this fictitious genocide, and if the court ruled that there had been none, Russia would be deprived of even this vague legal excuse for launching its invasion.

"Therefore, the fact of (Russia’s) aggression (against Ukraine) will be obvious and basically proven," Tropin said.

Moreover, a decision that Ukraine did not commit genocide may help bring Russia as a state and its top officials to justice for the illegal aggression on other international platforms, including in the UN system, Rashevska said.

Ukraine is even in a “very advantageous position now,” because Russia has to prove that Ukraine committed genocide – which is “impossible,” she added.

High threshold of proof

Ukraine was hesitant to file a case directly accusing Russia of committing genocide – despite the many signs pointing to it, such as mass graves uncovered in Kyiv and Kharkiv oblasts, and the mass deportation to Russia of Ukrainian children.

Tropin said it had been the "right decision" due to the very strict criteria for proving genocidal intent. He doubted that the international community “is ready to lower the standards of proof” due to the potential of misuse by a claimant.

In fact, no state has ever been found responsible for genocide under the convention. When Bosnia and Herzegovina brought a case against Serbia, the court said in its 2007 judgment on the Srebrenica massacre, which itself was recognized as genocide, that Serbia was guilty only of failing to prevent genocide.

This decision on Bosnia’s claim has shown "how deficient international law is in holding states responsible for crimes against humanity and war crimes,” U.S. lawyer and diplomat David Scheffer wrote at the time.

"While it’s obvious that Russia is committing this (genocide), it’s very difficult to prove it (legally),” Tropin added, referring to Ukraine’s case against it.

"Everyone knows about the cases of (mass killings of civilians in) Bucha and Izium (in Kyiv and Kharkiv oblasts), and others, but evidence still has be collected for at least one small claim where we will be absolutely sure that there is proof of genocidal intent," Tropin said.

He noted that although Russia’s abductions of Ukrainian children in the occupied territories could qualify as genocide, the International Criminal Court or ICC had ruled in March 2023 to open a war crimes case – not a case on possible genocide.

Ukraine’s co-agent in the genocide case against Russia, Oksana Zolotariova, explained in a September 2023 interview that to succeed, a potential claim accusing Russia of genocide would need Ukrainian and international law enforcement agencies to “collect and present adequate evidence of genocide in their criminal proceedings, and issue arrest warrants.”

“We need the conclusions of either the ICC or the UN Fact Finding Commission,” Zolotariova said. “If they find signs of genocide, then we will be able to talk about filing a new lawsuit in the Hague.”

However, Rashevska said that the ICJ had already hinted that Ukraine “should not even try” to prove that Russia was committing genocide, as the ICJ has "a very high threshold of proof.”

In its final judgment on Jan. 31 in another Ukrainian case against Russia – related to terrorism financing and racial discrimination conventions – the court said that “charges of exceptional gravity” such as the crime of genocide, require proof at “a high level of certainty.”

Nevertheless, Tropin said he hoped the ICJ would develop a "more balanced" approach to both finding states responsible for genocide and preventing the misuse of international law. He said potential cooperation between the ICJ and ICC could help.

Too formalistic

While the judgment on Jan. 31 found that Russia had violated its obligations under the Terrorism Financing Convention and the International Convention on the Elimination of All Forms of Racial Discrimination, the court rejected most of Ukraine’s claims in the case and did not demand that Russia pay reparations.

In the case, filed in 2017, Ukraine had tried to prove that Russia was financing its proxies in Donetsk and Luhansk oblasts, and persecuting Crimean Tatars, as well as Ukrainians, in Ukraine’s Russian-occupied Crimea.

But it failed on both counts.

In the terrorism part, the court only found Russia responsible for not investigating the possible financing of the proxies from Russian bank accounts. By 10 votes to five, the court rejected all other submissions made by Ukraine with respect to the convention, including on the downing of the MH17 flight in 2014, which killed 298 people.

It also rejected the claim that Russia had violated the convention by providing weapons and equipment to illegal armed groups. It argued that only funding with money violates the convention, even though the treaty mentions “assets of every kind, whether tangible or intangible, movable or immovable.” Still, Ukraine lacked evidence to prove there had been money transfers.

Regarding Crimea, the court only found Russia responsible for closing Ukrainian-language schools. It rejected all other claims by 10 votes to five, including the one that Russia had violated its obligations by banning the Mejlis, a representative body of the Crimean Tatars.

According to Dmytro Koval, the court "did not understand" some of Ukraine’s arguments. Some others possibly weren’t supported with enough evidence, or with reports and assessments by other international organizations.

The ICJ in particular decided that the "Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin."

It also noted that the "Mejlis is neither the only nor the primary institution representing the Crimean Tatar community" because it is the executive body of the Qurultay, a national congress.

"The conclusion that there is a Qurultay and that it has not been banned is very superficial and without an understanding of how Crimean Tatar self-government and democracy work," Koval said. He pointed out that Qurultay is not an official organization, and thus cannot be banned.

He said another such issue was the restrictions on culturally significant gatherings by ethnic Ukrainians and Crimean Tatars. The court noted that Russia’s approach towards public gatherings is "generally restrictive." It said that it did not see enough evidence that the restrictions were ethnic-based.

Ukrainian activists rally in front of the Crimean parliament in Simferopol on Feb. 26, 2014. (Vasiliy Batanov /AFP via Getty Images)

"(But) the court is making very wrong comparisons," Koval argued. Instead of drawing a correlation between particular restrictions and the overall negative human rights situation in Russia, he said it should have analyzed, for instance, whether a festival in Crimea for Russian poet Alexander Pushkin would have been allowed, compared to events in honor of Taras Shevchenko, the famous Ukrainian poet of the 19th century.

Neither did the court see discrimination in the closure of Crimean Tatar media outlets.

"It took an overly formalistic approach to the issue, saying that the formal existence of other outlets labeled as Crimean Tatar may indicate that there is no discrimination, or that racial discrimination is not the primary reason for the closure," Koval said.

All the same, some of the judges appended their opinions to the ruling, expressing disagreement with the court’s interpretations. They noted that the evidentiary threshold applied by the court "is unnecessarily stringent" and that some of its interpretations are "self-defeating" or "counter-intuitive," and complicate the application of the convention.

Court rulings to ‘increase instability’

While the court may have been overzealous in applying the letter of the law, this might weaken the case for the rules-based order itself by demonstrating how international law can be circumvented, Tropin warned.

"States will be even more manipulative, which will increase instability,” he said.

In turn, Rashevska called for the ICJ to take a “more human-centered and more understandable” approach.

She mentioned the European Court of Human Rights, which also relies on a convention that entered into force in the mid-20th century.

An aerial view of crosses, floral tributes and photographs of the victims of the battles for Irpin and Bucha that mark the graves in Irpin cemetery on May 16, 2022 in Irpin, Ukraine. (Christopher Furlong/Getty Images)

“But it is possible to interpret it in such an evolutionary, lively, human-centered way that the norms of the convention do not become obsolete, even when analyzing artificial intelligence, Internet access, gender minority rights, and so on,” she said.

“But what do we see in the ICJ? The institution is simply stagnant. It has such a conservative approach that it simply negates the norms of the treaties that it interprets."

Rashevska warned this unwillingness to interpret international law rules and norms in a way that is consistent with events and in accordance with the human-centered approaches declared after the Second World War “is leading to a deterioration of the situation and a deepening of conflicts.”

“And this is quite dangerous because now parties will be more inclined to resolve their disputes by means other than judicial ones. That is, for example, by force.”

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