On 27 February 2022, Ukraine filed an application instituting proceedings against The Russian Federation (“Russia”) before the International Court of Justice (“ICJ” or “Court”) in respect of “the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” (“Genocide Convention”). On the same day, Ukraine filed an application to the ICJ requesting provisional measures. Ukraine seeks to ground the Court’s jurisdiction on Article 36(1) of the ICJ Statute and Article IX of the Genocide Convention.
According to Ukraine’s application, Russia “has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic,’ and then declared and implemented a ‘special military operation’ against Ukraine with the express purpose of preventing and punishing purported acts of genocide that have no basis in fact”. Ukraine argues that, “[o]n 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”.
Accordingly, Ukraine’s request for relief asks the ICJ to adjudge and declare the following: (i) that “no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine”; (ii) that Russia “cannot lawfully take any action under the Genocide Convention in or against Ukraine aimed at preventing or punishing an alleged genocide, on the basis of its false claims of genocide in the Luhansk and Donetsk oblasts of Ukraine”; and (iii) that Russia’s “recognition of the independence of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on 22 February 2022” and Russia’s ““special military operation’ on and after 24 February 2022” have “no basis” in the Genocide Convention. Ukraine further requests that the Court (iv) require Russia to “provide assurances and guarantees of non-repetition that it will not take any unlawful measures in and against Ukraine, including the use of force”, on the basis of “its false claim of genocide”; and (v) “order full reparation for all damage caused” by Russia “as a consequence of any actions taken on the basis of Russia’s false claim of genocide”.
In its application for provisional measures, Ukraine requests the following: (i) that Russia “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”; (ii) that Russia “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”; (iii) that Russia “refrain from any action and shall provide assurances that no action is taken that may aggravate or extend the dispute”; and (iv) that Russia “provide a report to the Court on measures taken to implement” a provisional measures ruling “one week after such Order and then on a regular basis to be fixed by the Court”.
Ukraine requests that, “[i]n light of the extraordinary urgency of the situation”, the ICJ hold a provisional measures hearing “or otherwise take immediate action on Ukraine’s Request early in the week of 28 February 2022 or as soon as possible thereafter”. Pending that hearing, Ukraine requests that the President of the ICJ “call upon the Russian Federation to immediately halt all military actions in Ukraine” so as “to enable any order the Court may make on the request for provisional measures to have its appropriate effects”.
This case follows three other (pending) proceedings brought by Ukraine in relation to events in the Crimea region in 2014. Two cases are arbitrations under Annex VII of United Nations Convention on the Law of the Sea (“UNCLOS”), while the third is before the ICJ.
First, in September 2016, Ukraine commenced proceedings in “Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait”. In that case, Ukraine argues that, in 2014, Russia “invaded and occupied the Crimean Peninsula, and then purported to annex it”, after which Russia carried out “unauthorized activities” in violation of Ukraine’s rights under UNCLOS. Russia denies the allegations and objected to the tribunal’s jurisdiction. In February 2020, the tribunal upheld one of Russia’s preliminary objections (relating to territorial sovereignty), deferred another to the merits, and rejected all remaining objections.
Second, in April 2019, Ukraine initiated proceedings in “Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation)”. This case arose out of Russia’s seizure and detention in the Black Sea of two Ukrainian warships, a naval auxiliary vessel, and the crew and servicemen onboard. On the same day, Ukraine requested provisional measures before the International Tribunal of the Law of the Sea (“ITLOS”), pursuant to Article 290(5) of UNCLOS. In May 2019, the ITLOS granted Ukraine’s request. The ITLOS ordered that Russia (i) “immediately release the Ukrainian naval vessels” and “return them to the custody of Ukraine”; (ii) “immediately release the 24 detained Ukrainian servicemen and allow them to return to Ukraine”; and (iii) “refrain from taking any action which might aggravate or extend the dispute”.
Third, in January 2017, Ukraine initiated proceedings against Russia before the ICJ in “Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)”. In that case, Ukraine argues that Russia breached obligations under the International Convention for the Suppression of the Financing of Terrorism by failing to take appropriate measures to prevent the financing of terrorism in Ukraine by public and private actors in Russian territory and by refusing to investigate, prosecute, or extradite offenders in Russian territory. Also, Ukraine argues that Russia breached obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) by, inter alia, “systematically discriminating against and mistreating the Crimean Tatars and ethnic Ukrainians in Crimea”; “suppressing the political and cultural expression of Crimean Tatar identity”; and “suppressing the Crimean Tatar language and Ukrainian-language education”. In April 2017, the ICJ granted a Ukrainian request for provisional measures in respect of the CERD only. The ICJ ordered that, with respect to events in Crimea, Russia (a) “refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions”; and (b) “[e]nsure the availability of education in the Ukrainian language” in the region. Russia had raised objections to the Court’s jurisdiction, which the ICJ denied in full, in November 2019.