Ukraine v. Russia at the UN court: a unique process

On Monday, September 18, hearings on Ukraine's claim against Russia under the Genocide Convention will continue at the UN International Court of Justice in The Hague. The peculiarity of the process is that two warring parties who do not communicate with each other either on political or diplomatic platforms will meet in the main court of the UN and will reveal, as experts note, an atypical issue. Moreover, 32 other states have intervened in the dispute, which is unprecedented. What is correct?

 

What is Ukraine looking for in The Hague?

The dispute refers to the "interpretation, application and implementation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide," according to the Ukrainian side's lawsuit. Official Kyiv submitted a statement to the International Court of Justice of the United Nations on February 26, 2022 - two days after the start of a large-scale military invasion of the Russian Federation.

First, the Ukrainian side categorically declares that there was no genocide on its territory, which is why, according to its president Vladimir Putin, Russia invaded Ukraine.

"The Russian Federation falsely claims that acts of genocide took place in the regions of Luhansk and Donetsk in Ukraine, and based on that it recognized the so-called "Donetsk People's Republic" and "Luhansk People's Republic", and then announced and launched a "special military operation" against Ukraine ", the lawsuit states.

Second, Kyiv asks the court to "determine that Russia has no legal basis to take measures on the territory of Ukraine and against it in order to prevent and punish the alleged genocide."

Third, the Ukrainian side itself accuses the Russian Federation of "planning acts of genocide in Ukraine" and claims that Russia is "deliberately killing representatives of the Ukrainian nationality and inflicting serious injuries on them."

According to experts, for the first time the main issue is not the accusations of genocide, but the accusations of false accusations of genocide. That's the crux of the matter, but it hasn't been addressed yet. The central question at the current stage is precisely whether the court can consider this dispute on

its merits. Future hearings will discuss the jurisdiction of the court and the admissibility of Ukraine's claim. The Russian side has presented preliminary remarks and will present them on September 18.

 

What are preliminary objections

One of the parties - usually the defendant - can dispute the jurisdiction of the court in the case or declare that the court cannot consider the case for other reasons, explained the press service of the UN International Court of Justice. In that case, the party opposes the jurisdiction of the court or the admissibility of the claim, and the court suspends the proceedings. The other party is invited to respond to these objections. The Court will publish the written statements of the parties on the first day of the hearing, which will help to better understand their positions, experts say. However, Ukraine's position is already clear, but it is not yet known what arguments Russia will give.

Then the court will hear the parties and make a decision. If he determines that he is competent and that the claim is admissible in whole or in part, then the procedure on the merits will continue. Otherwise, the process will end. This phase of the hearing will continue until September 27, but a decision on jurisdiction will be made at a later date. It is extremely important whether the case will be considered on its merits, and because it will affect the protective measures, which, although purely legal, are valid. If the court agrees with the Russian Federation and admits that it does not have jurisdiction, the protective measures will be lifted.

Security measures: the court ordered Russia to stop the war

The International Court of Justice of the United Nations decided on March 16, 2022 that the Russian Federation immediately cease military actions that began on February 24, 2022 on the territory of Ukraine, as well as to ensure that military and irregular armed formations, organizations and persons under its control and supported and directed by the leadership take no steps in support of military operations.

"This is the main legal act that confirms the illegality of the war - stresses expert on international law, lawyer Serhij Golubok. - Because all other documents on this issue are of a purely political nature, including the resolution of the UN General Assembly."

It is the only judicial mechanism that, although not directly, assesses the key question of the legality of war until there is a special court for the crime of aggression, the expert explains. As Golubok further emphasizes, this issue is of central importance for the future special tribunal and compensation for damages, because if the war is illegal, then its initiator will have to compensate for the damages.

The order of the court on protective measures is binding, and since the Russian Federation is a member of the UN, it cannot fail to recognize it. However, Russia did not comply with the decision, which is extremely important for further legal assessment, the lawyer points out: "Not only was the war illegal, but the UN International Court of Justice also said so in March 2022."

Instead, Moscow brought up its previous objections. It is precisely these arguments that the court will now consider.

 

What will 32 other countries do at the court in The Hague

The meeting will be attended by 26 of the 27 countries of the European Union - all except Hungary, as well as Liechtenstein, Norway, Canada, Great Britain, New Zealand and Australia. The Czech Republic and Slovakia, Luxembourg and Sweden and Canada and the Netherlands perform in pairs. Countries will be represented either by ambassadors or international legal advisers of their ministries of foreign affairs, the press service of the court announced.

The fact is that states that are signatories to conventions, in this case - the Convention on the Crime of Genocide from 1948, have the right to intervene in the proceedings if they believe that they "have an interest of a legal nature that may be affected by the resolution of the case", explain the experts of the UN International Court of Justice. a. However, this is an unprecedented number of countries in history: 34 of the 193 UN members, that is, almost 20 percent, participate in the process. Even the courtroom seems too small for so many participants.

"This is a new situation, it did not happen before in the cases that the court considered in connection with the Convention on Genocide. These countries defend the Convention on Genocide itself and its inviolability. They want to say that the Russian Federation, using the word "genocide" for any reason , undermines the very convention they are defending," says Golubok.

The expert emphasizes that these countries indirectly and directly support the plaintiff and declare that the plaintiff is right, and the defendant had no right to talk about genocide and that this is not a reason to resolve the armed conflict.

"This is unusual and interesting, but it creates procedural problems, because procedural equality is violated, which the court wrote about," says Golubok.

He assumes that Russia will be outraged by this and will talk about putting pressure on the court, but it is still unclear how the court will organize the procedure to be competitive and equal.

The first of the countries that intervened, on September 20, Germany will perform, according to the French pronunciation - Allemagne. The duration of her performance, as in other countries, will be strictly limited by regulations.

The hearing in the case "Accusations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide: Ukraine vs. the Russian Federation" will be held from September 18 to 27, 2023 in the Peace Palace - the seat of the court in The Hague. This is the second case being considered by the International Court of Justice of the United Nations following the claim of Ukraine against Russia. In June, a hearing on the merits of the first case was held in The Hague. They were devoted to the lawsuit of Ukraine against Russia, filed in connection with Russia's alleged violation of two international conventions - on the fight against the financing of terrorism and on the elimination of all forms of racial discrimination..