At the ICJ, it’s advantage Russia

The established judicial principle is that everyone must be heard. In the international scene unfolding before us, we did not hear Russia on the claims raised by Ukraine in the International Court of Justice (ICJ). The worldwide support for Ukraine saw five agents plead for Ukraine and for measures to be provided by the ICJ. An extract of the relief pronounced on March 16, 2022, by the ICJ reads:

“The Court regrets the decision taken by the Russian Federation not to participate in the oral proceedings on the request for the indication of provisional measures. It recalls in this regard that the non-appearance of a party has a negative impact on the sound administration of justice. The Court lastly observes that the non-appearance of one of the states concerned cannot by itself constitute an obstacle to the indication of provisional measures and emphasises that the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its decision.”

This begs the question of whether the ex-parte proceedings have any impact on the obligations of enforcement for Russia. Russia has said that it does not intend to follow the directions of the ICJ as the latter has no jurisdiction. Interestingly, both Russia and Ukraine are parties to the United Nations Convention and parties to the ‘genocide convention’ which was canvassed in ICJ.

Article 53(1) of the ICJ statute envisages this situation of ex-parte and provides for the court to rule in favour of the party who is contesting as against the party who has decided not to appear. This situation is not novel. In the famous Nicaragua Case, the USA decided to not participate. In the Nuclear tests case, France did not appear.

This furthers the question of whether, by not participating, are we not hearing Russia’s version of the attack in a judicial proceeding. Article 53(2) of the ICJ statute is conflicting yet remedial to article 53(1). 53(2) says that a judicial determination has to be made after a well-founded ground is established.

It is puzzling that Ukraine chose to seek remedy under the ‘Genocide convention’ rather than the well-accepted and established ‘Geneva convention’. Considering the ground of the genocide convention to be a higher pedestal to reach to invoke targeted genocide of a specific ethnic group or religion, the stand of Ukraine to seek refuge under the Genocide convention is intriguing as there must be evidence to prove that the attack was targeted toward a specific ethnic structure. Notably, 13 countries including the USA have made their own reservations on the ‘Genocide convention’.

The genocide as canvassed by Ukraine in the ICJ is being perpetrated since 2014. A closer look at the Ukraine and Russia would reveal that post-2013, the fissures between the countries were more prominent than before. The threshold for genocide must have a deep-rooted claim of ethnic value to have a persuasive finding for the court to satisfy itself of the ‘well-founded claim in fact and law’.

In other words, the version of genocide by Ukraine cannot be the high threshold envisaged in Article 53(2) of the ICJ statute so as to establish a well-founded ground. This version must be rebutted. Russia has deliberately avoided doing it because it has a lot of counters in ‘judicial shopping’ that it could rely on including claims in the World Trade Organisation (WTO) and ‘duress’ under the very same ICJ statute. By not appearing, Russia is equipping itself legally.

The case is far from settled despite the provisional measure by the ICJ asking Russia to cease and desist on 16th March 2022. However, the ICJ has caveated its own judgement by saying (including our representative Justice Bhandari).

“(3) Unanimously, Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” This shows the high latitude that ICJ is placing on the right to be heard when a claim of genocide is brought before it. Of course, in the Bosnian genocide case, the Court had to make a decision. Factually they are similar, but one must not forget that there was a representation by the aggressor, ie, Yugoslavia in the matter. In this case, the ambit for Russia to approach tribunals and courts for furthering its attacks by a deliberate attempt of standing ex-parte before the ICJ raises the enforceability aspect of this judgement by the ICJ. This simply cannot be dismissed as the cards are closer to Russia’s chest than ever before.

(The writer is an International Law Professor and alumnus of The Hague Academy)