International organizations and bodies like the United Nations, European Union, etc. have been tested time and again since their inception. Ukraine and Russia’s ongoing war and failed deliberations hint at a potential Third World War despite the strong presence of such organizations. Conflicts like these pose a larger question on the effectiveness of international law and policies as a domain because of its quasi-sovereign nature. While most of the countries have imposed sanctions on Russia for violating various United Nations treaties and resorting to violent tactics, the war remains ongoing. This article aims to understand the core considerations in relation to jurisdiction of the International Court of Justice (ICJ) and the International Criminal Court (ICC) over the matter and exploring the possible impediments and effectiveness of the new forum.
In the present case, Ukraine approached the ICJ alleging that the Russian Federation falsely claimed that there have been occurrences of genocide in the Luhansk and Donetsk oblasts of Ukraine. The attack by the Russian Federation thus was to justify and liberate these pro-Russian oblasts by way of “special military operation.” The Russian Federation has denied the jurisdiction of the ICJ. The unfolding of events between Ukraine and the Russian Federation before the International Court of Justice are similar to that of Nicaragua v. USA. It is a case that stands as one of the most politically influential cases in the history of international law owing to the standing of two states in the international arena.
Ukraine evoked the jurisdiction of the International Court of Justice on a twofold basis; firstly, the fact that both the States are members of the United Nations and Article 36(1) of the Charter specifically states that the Court’s jurisdiction is enforceable in matters relating to all treaties and conventions. Secondly, the reliance is placed on the Chapter IX of the Genocide Convention that gives the ICJ a jurisdiction to decide matters as both States have acceded and ratified the same.
Russia denied the jurisdiction and also boycotted the hearing by stating that the Court cannot ascertain jurisdiction without the State’s consent to it by placing reliance on the East Timor case. Russia further stated that the Ukraine’s reliance on the Genocide Convention for dispute resolution cannot be a basis for proceeding as held in the case of Croatia v. Serbia. Additionally, it also claimed that use of force and regulation of the same is out of the scope of the Convention and thus, it cannot be a basis for seeking preliminary reliefs as there is no prima facie jurisdiction arising out of it.
In the order passed on March 16, 2022, the ICJ held that the present case fell under the Genocide Convention and stated that “The existence of a dispute is a matter for objective determination by the Court; it is a matter of substance, and not a question of form or procedure.” While the Court took cognizance of genocide claims made by the Russian Federation, it held that an investigation into these claims would be carried out at a later stage, on merits. Therefore, interim reliefs were granted under power under Article 41 of the Charter read with Article 75(2) of the Rules of the Court. The Court condemned the use of force by Russian Federation costing the lives of civilians and ordered that there must be a cessation of its “special military operation” effective immediately.
Similar to the Russian Federation, the US denied the jurisdiction of the ICJ and stated that Nicaragua’s claims lacked merit in Nicaragua v. USA. The scholars criticized the Court for its judgment in the present case owing to its highly political nature and the Court itself had refrained from interfering in a similar political dispute in the case of Trial of Pakistani Prisoners of War. Owing to the political nature of the present case, the ICJ will be met with the same criticisms. But, the interim order comes at a crucial time and holds the potential to stop a conflict from leading to a world war creating more havoc and disaster.
The background of the composing judges can be an issue too. Two of them were from Russia and China, while others were from the US, Slovakia, France, Morocco, Somalia, Uganda, India, Jamaica, Lebanon, Germany, and Australia respectively. Most of the judges are from NATO or their allied countries or countries which receive a lot of financial aid from the US. India is the only country which has maintained a neutral position in the UN; however, it has strong business connections with the US. So, their neutrality will always be questioned.
On the other hand, the Prosecutor of the International Criminal Court (ICC), Mr. Karim, issued a statement that he will be launching an investigation for war crimes against Russia. The Prosecutor shall be proceeding on the basis of a preliminary report which shows the occurrences of war crimes in various regions of Ukraine. Ukraine has accepted ICC’s jurisdiction twice, which can aid in gaining a strong basis to proceed. Recently, 39 state parties to the Rome Statute have petitioned the ICC to commence an investigation against Russia, which can allow the Prosecutor to proceed with an investigation by way of referrals.
The ICJ has emerged as an equalizer in the changing dimensions of international relations, while the lack of enforcement of its judgements remains a core concern especially when States are about to go into a war or conflict. The authors feel that the nature of international law becomes “optional” in political cases like these, especially when innocent lives are at stake.
Regarding the proposal of the Prosecutor of the ICC, critics also say that bringing in ICC may also lead to more conflict than peace because of the ambivalent nature of its investigations and results. As Professor Melanie also indicated in a recent post that the ICC cannot be a comprehensive solution to hold Russia accountable on all counts of international human rights violations, its limitations will only lead to piecemeal solutions despite the number of years it takes to actually investigate a case. Considering these criticisms it will be a better idea if the perpetrators who will be accused of committing international crimes can be tried in different forums, rather than forming another UN hybrid tribunal. For example, Heller has already suggested that an extraordinary chamber in Ukraine, a national court, may be a better option for trying the perpetrators. Establishing a national tribunal or court in Russia with a similar jurisdiction could be a better option as well to expedite the process and overcome the problem of jurisdiction.
Tapas Kanti Baul is a Barrister-at-Law of the Bar Council of England and Wales and an Advocate of the Supreme Court of Bangladesh. He has been working as a Prosecutor of the International Crimes Tribunal, Bangladesh (ICTBD) since November 2012. He teaches International Criminal Law and Clinical Legal Education in Jahangir Nagar University, Bangladesh and Penal Code and Business Law in Bangladesh Open University. He has a number of articles on international criminal law and minority rights.
Miss. Tamanna Chandan Chachlani is a final year law student (3 Year LLB) at Symbiosis Law School, Pune, India. She has published various articles on law and policy with special focus on gender and education. She holds a degree in Psychology with Honors from Symbiosis College of Arts and Commerce, Pune, India.
Suggested citation: Tapas Kanti Baul and Tamanna Chandan Chachlani, Ukraine v. Russia: A Jurisdictional Tryst, JURIST – Academic Commentary, April 22, 2022, https://www.jurist.org/commentary/2022/04/tapas-kanti-baul-tamanna-chandan-chachlani-ukraine-russia-jurisdictional-tryst/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at firstname.lastname@example.org