The ICJ case doesn’t allege genocide by Russia
Ukraine vs Russia is about Russia's claims vs Ukraine and the invasion
International law is difficult, sometimes it gets extremely difficult. Even lawyers in other fields have difficulty understanding this field - especially when they’re pompous and arrogant know-nothings. I’m no real expert (except I know law, international law and read cases unlike anon self-proclaimed diplomats- it’s fine to be anonymous but don’t try and ad autoritatem me based on your anon twitter profile) but I can navigate most texts and cases to a fair degree, obviously much better than some who do terrible Spaces threads on international law. [last sentence edited for snark, yes I am angry, April 2023].
A case in point is the case brought by Ukraine against Russia before the International Court of Justice.
Now the title might be misleading, “Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)” but this is why we read the content and not just the titles.
This is NOT a case of Ukraine alleging Russian genocide and asking the ICJ to intervene against Russia.
Ukraine ALLEGES that Russia is alleging genocide and using that as a basis to invade Ukraine.
On the basis of this false allegation, Russia is now engaged in a military invasion of Ukraine involving grave and widespread violations of the human rights of the Ukrainian people.
3. Ukraine emphatically denies that any such genocide has occurred and brings this Application to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.
This case is brought on the basis of the International Court of Justice (ICJ) having jurisdiction to decide on the interpretation and application of the Convention on the Prevention and Punishment of the Crime of Genocide.
Article IX 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.
Ukraine filed its application and accompanying Request For The Indication Of Provisional Measures Submitted By Ukraine long before Bucha and other evidence of Russian genocide was found - within 3 days of the invasion. Note: we at Fallout in our podcasts, posts (on a different platform initially) and Twitter were calling the war genocidal before Ukraine started to do so officially - and before Bucha was discovered.
The Request For The Indication Of Provisional Measures Submitted By Ukraine says:
2. In the early morning hours of 24 February 2022, the Russian Federation declared what President Vladimir Putin called a “special military operation” against Ukraine. The stated purpose of the special military operation, according to President Putin, is “to stop” a “genocide of the millions of people who live” in the Luhansk and Donetsk oblasts of Ukraine (a region also referred to as the Donbas).1
This is based on the infamous Putin speech.
Ukraine asks:
a. The Russian Federation shall immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine. b. The Russian Federation shall immediately ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations which have as their stated purpose and objective preventing or punishing Ukraine for committing genocide. c. The Russian Federation shall refrain from any action and shall provide assurances that no action is taken that may aggravate or extend the dispute that is the subject of this Application, or render this dispute more difficult to resolve.
This was granted:
(1) By thirteen votes to two, The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine; IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet; AGAINST: Vice-President Gevorgian; Judge Xue; (2) By thirteen votes to two, The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above; IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet; AGAINST: Vice-President Gevorgian; Judge Xue;
The Russian reply to the application is that Russia is not alleging genocide as a basis for invasion (it did) but self-defense and the court doesn’t have jurisdiction:
15. The special military operation conducted by Russia in the territory of Ukraine is based on the United Nations Charter, its Article 51 and customary international law. The legal basis for the military operation was communicated on 24 February 2022 to the Secretary-General of the United Nations and the United Nations Security Council by the Permanent Representative of the Russian Federation to the United Nations in the form of a notification under Article 51 of the United Nations Charter. The relevant letter addressed to the UN Secretary-General with the request to circulate it as a document of the UN Security Council forwarded "the address of the President of the Russian Federation H.E. Mr. Vladimir Putin to the citizens of Russia informing them of the measures taken in accordance with Article 51 of the UN Charter in exercise of the right of self-defense" ( emphasis added) (attached).
Lying Russians lie because they are lying liars.
Any interventions by other states at this point are not supporting Ukraine. This is wrong, countries might not ‘support’ Ukraine’s legal position regardless of the real Russian massacres in Izyum - which have nothing to do with the points of law and facts in this case (remember Ukraine is saying that Russia is wrong to allege Ukrainian genocide):
I appreciate the sentiment and emotion but be prepared to be disappointed by the content of interventions. They may say that Ukraine is very wrong about the law (some intervening parties will) or even the facts (unlikely). This is not an attack on Dr Onuch but clarification.
The interventions might even be ‘bad’ for Ukraine in the sense that they draw out the case. The ICJ now has to spend time and resources (judge time) to handle every single intervention and then will have to deal with every filing made by parties. Interventions massively increase case load - a point made earlier. I personally don’t see the point of interventions by every country if they have a common position. They are at worst a significant distraction and performative.
The interventions at this point say that the intervening states have an interest in the case. They do not support or criticize either party. For instance:
The United States, as a non-party to this case, intends to present its views to the Court on the issues of construction of the Convention relevant to the determination of the case, including the construction of the compromissory clause in Article IX, in accordance with Article 63 of the Statute. The Un ited States recognizes that, by availing itself of the right to intervene under Article 63 of the Statute, the construction of the Convention given by the judgment in this case will be equally binding upon the United States
There might be some very very different opinions from countries like the UK, USA and France on the right to intervene or even jurisdiction of the ICC. In particular some countries might say down the line that there is no right to intervene in the case of genocide - which would NOT be good for Ukraine or genocide prevention.
Filing an intervention is NOT an act of support for Ukraine per se at this stage or later and might turn out to undermine its arguments. An intervening party isn’t necessarily a friend to anybody in a case. I am hammering this point because while a filing might be sympathetic to Ukraine in its invasion - it might argue a very different legal position. This very often happens in international law. Presumptive allies and friends have different legal positions, especially in the case of arguments over sovereignty vs intervention - which will be important here.
In particular Russian genocide, which is occurring, will not be the subject of this case - it’s about whether Russia could attack Ukraine on the basis of its allegations of Ukrainian genocide. What if the ICJ states that there is no right to intervention in the case of genocide? Ukraine wins its case but… we can’t intervene in the future?
TLDR: This is not a case about Russian genocide but about Russia’s invasion of Ukraine alleging Ukrainian genocide. Interventions by other states do not necessarily support one side or the other of a case.
Further reading by real experts plus a Wiki:
https://en.wikipedia.org/wiki/Ukraine_v._Russian_Federation_(2022)
And a final note - READ THE CASES BEFORE COMMENTING, DON’T PROJECT. This war is emotional - which is why I co-wrote a book but stick to the facts and the law.
Russia is engaging in genocide war but that doesn’t mean every case is about its genocide.
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PS Good thread on what the interventions state and mean:
PPS The ICJ does NOT punish individuals for genocide, that is the role of International Criminal Court.
