As Ukraine and Russia (in absentia) battle it out at the International Court of Justice, the question of genocide is under scrutiny

As both Ukraine and Russia accuse each other of committing genocide, the Provisional Measures decision of the International Court of Justice is likely to be of some significance for the ongoing armed conflict between them.

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SINCE the beginning of the ongoing Russia-Ukraine conflict, the international law academia is continuously discussing various aspects of the war, including the question whether it is a war or not. There have been discussions about the conflict from the perspective of the use of force, the law of the sea, and Russia's membership at the United Nations [UN]. Many have even raised the existential question about the very field of international law with authors arguing about the need to reform the field, about international law's structural failure and how Russia's actions are mocking international law. On the other hand, there have been writings by those optimistic about international law who have argued about international criminal prosecutions (see here and here).

In the meanwhile, on February 26, Ukraine approached the International Court of Justice [ICJ] regarding the ongoing dispute. As per Ukraine's application, the dispute is 'relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide' [Genocide Convention]. On March 7, the ICJ had a public hearing on the Request. While Ukraine presented its arguments, Russia decided 'not to participate in the oral proceedings'.

Here, I will discuss the arguments presented by Ukraine against Russia and the probable future of the case.

Also read: International Law violations by Russia in its invasion of Ukraine

Jurisdiction and Ukrainian claims

Ukraine has claimed that the ICJ has jurisdiction to decide the case as per Article IX of the Genocide Convention. Article IX states that, "Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." Since both Ukraine and Russia are parties to the Genocide Convention, ICJ does have the jurisdiction to decide the case.

The Ukrainian application cites instances where Russian officials have blamed Ukraine for genocide. Russia's military actions, according to Russia, are to prevent this ongoing genocide. Ukraine has denied any such incidents of genocide on its territory. The dispute, therefore, is regarding the interpretation of Article I of the Genocide Convention. The said article states: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." [Emphasis added]

The question Ukraine has asked the ICJ to decide is whether Russia's use of military force against Ukraine on the pretext of 'prevent and … punish' is valid. Ukraine, in turn, has claimed that it is Russia which is committing genocide of Ukrainian people. This, I believe, is stretching the argument too far, as I explain below.

Ukraine has also claimed that Russia is in violation of Article 26 of the Vienna Convention on the Law of Treaties [VCLT]. This Article states that: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." Ukraine claims that by attacking it on the false claims of genocide, Russia is not performing its obligations under the Genocide Convention in good faith. Ukraine has also stated that Russia has committed war crimes.

Also read: Sanctions on Russia: how will they play out?

Analysis

On Jurisdiction

The first thing to be determined in any case before the ICJ is the existence of a 'dispute'. Here, Ukraine has argued that there is a 'dispute' between it and Russia. This 'dispute' is regarding the interpretation of "Article I, which addresses obligations of States to prevent and punish genocide, and Article IV, which addresses punishment of those who commit genocide". As I have discussed elsewhere, the most complete definition of 'dispute' was given in the East Timor case by the ICJ in 1995, in which it said that "a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties" (para 22).

In the current case, there is a disagreement between the parties on a point of fact; while Russia claims that Ukraine has committed genocide, Ukraine disagrees. Hence, there is certainly a 'dispute' between Ukraine and Russia for the ICJ to resolve. For an alternative view, see here.

On claim of genocide

As per Article II of the Genocide Convention, "genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group".

Ukraine has cited official statements given by President Putin where he has said "…you cannot look without compassion at what is happening there. It became impossible to tolerate it. We had to stop that atrocity, that genocide of the millions of people who live there…" In a few other statements by Russian officials, the word 'genocide' appears. But on a close analysis of the events on the ground, it is difficult to conclude that there is indeed genocide of the Donbass community being committed by Ukrainian officials. Ukraine has cited positive reports by the Office of the United Nations High Commissioner for Human Rights in its support.

Genocide is considered as the most serious international crime, and the threshold of mental element required to commit this crime is high. The intention of the perpetrator must be "to destroy, in whole or in part" members of a particular group. Further, not every group is protected, but only groups identified by their nationality, ethnicity, race or religion. In the current situation, it is very difficult to bracket the people of the Donbass community, whose genocide is claimed by Russia, into any of the four groups. Russia can, in turn, argue that people of this community have a separate nationality from being Ukrainian. This might seem logical since Russia first recognized the Donetsk People's Republic and the Luhansk People's Republic as independent States before launching the attack on Ukraine. But then the moot question will be whether the people of these newly recognized States belonged to the Ukrainian nationality when the alleged act of genocide was perpetrated? If this question is answered in the affirmative, then it will become extremely difficult for Russia to prove genocide.

In its application, Ukraine has claimed that it is in fact Russia which is committing genocide by attacking Ukraine. As mentioned earlier, the Genocide Convention states that genocide targets people belonging to "a national, ethnical, racial or religious group". While this is true that Russian attack on Ukraine is by its very nature targeting people belonging to the Ukrainian 'national group', that per se doesn't make it an act of genocide. For an act to constitute genocide, it needs a douls specialis (special intention) to destroy members of the above-mentioned four groups, in whole or in part. That intention, so far, is not discernable.

Also read: EU's policy towards refugees from Ukraine exposes its double standards

On good faith argument

If the court decides to accept Ukraine's argument about there not being valid allegations of genocide, and if it is found that Russia could not substantiate why and how it concluded that Ukraine is committing genocide, then the argument of good faith will come in. As mentioned earlier, the good faith provision of VCLT states that parties to any treaty are required to fulfill their obligations in good faith. If Russia is attacking Ukraine without concrete proof of genocide, then it can lead to violation of good faith. Commenting further on this point is difficult in the absence of any submissions made by Russia.

On war crimes

Ukraine's argument about Russia committing war crime is the one which currently has a lot of takers. International law academia is abuzz with arguments for prosecuting Russian officials for committing war crimes. The prosecutor of the International Criminal Court [ICC] has also decided to open an investigation in the case.

It is interesting to note that at both the ICJ and the ICC, Ukraine had already instituted proceedings against Russia and its officials, even before the current conflict began. Both these proceedings are regarding annexation of the Ukrainian territory of Crimea by Russia. At the ICJ, the proceeding is regarding financing terrorist activities and racial discrimination by Russia. At the ICC, the proceedings are regarding the crimes committed by Russian officials during and after the Crimean annexation. The recent decision of the ICC's prosecutor to open an investigation is regarding the ongoing conflict.

While Russia's non-participation does make it difficult to comprehensively assess the legal arguments advanced by Ukraine, prima facie, it does seem that the court might accept the prayers made by Ukraine. The court will shortly decide on the preliminary measures, and I believe it will hold that there is no basis for Russia to attack Ukraine on the pretext of genocide. But as has been argued elsewhere, the court might also rule otherwise, even holding that it does not have jurisdiction on the ground that the dispute is not about the interpretation and application of the Genocide Convention.

(Aman Kumar is an Assistant Professor of International Law at the IFIM Law School, Bengaluru, and writes for the Indian Blog of International Law. The views expressed are personal.)