- Ukraine has approached the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN), to hold that no acts of genocide defined under the Genocide Convention 1948, as claimed by Russia have been committed by Ukraine. Additionally, Ukraine also requested the court to indicate certain provisional measures against Russia.
Where does the ICJ’s jurisdiction lie?
- Article 36(1) of the Statute of the ICJ provides that the ICJ shall have jurisdiction in all matters relating to the UN Charter, or other treaties or conventions in force.
- The Genocide Convention 1948 under Article IX provides that disputes between states relating to the interpretation, application or fulfilment of the Genocide Convention, as well as those relating to the responsibility of a state for genocide shall be submitted to the ICJ at the request of any of the parties to the dispute.
- Russia and Ukraine are both parties to the Genocide Convention.
What do the ICJ’s powers to indicate provisional measures entail?
- The Statute of the International Court of Justice empowers the ICJ to indicate provisional measures in any case before it in order to preserve the rights of the parties involved.
- Until 2001, there was uncertainty as to whether the provisional measures indicated by the ICJ were binding. However, in the LaGrand (2001) case between Germany and the U.S. relating to the denial of consular access to a German national in the U.S., the ICJ made it clear that provisional measures are binding in character and create international legal obligations.
- Further, provisional measures may be indicated by the ICJ either on the request of a state party or proprio motu i.e., on its own motion.
- The ICJ has also held in the Tehran Hostages Case (1980) that the non-appearance of one of the parties concerned cannot itself be an obstacle to indication of provisional measures. In the present case, the Russian Federation chose not to appear in the oral proceedings before the court. Notwithstanding, the ICJ proceeded to decide the case.
What lies ahead?
- The provisional measures indicated by the ICJ are binding, and non-compliance certainly entails the breach of an international legal obligation. However, the ICJ does not have the means or mechanism to secure the enforcement of the judgment itself.
- Indeed, the UN Charter under Article 94(2) provides that if any state fails to perform obligations pursuant to an ICJ decision, the UN Security Council (UNSC) may take measures necessary to give effect to the judgment. However, the possibility in the present case is bleak given that Russia has veto power in the UNSC.
- Additionally, if there is an impasse in the Security Council, the UN General Assembly (UNGA) is empowered under Article 14 of the UN Charter to recommend measures for the peaceful adjustment of any situation which it deems likely to impair the general welfare or friendly relations among nations.