Since the outbreak of a full-scale war by the russian federation (hereinafter – the ‘rf’) on the territory of Ukraine, the government has deployed a wide range of legal remedies, including, in particular, the judicial scope of work. Almost simultaneously, a lot of European and international judicial mechanisms have been activated. On 28 February, the Rule 39 of the Rules of Court was submitted to the European Court of Human Rights to indicate urgent interim measures by the government of the rf, and on 1 March was granted urgent interim measures in application number 11055/22, case Ukraine v. russia (X). On 28 February, the International Criminal Court Prosecutor Karim A.A. Khan QC announced the decision to proceed with opening an investigation of war crimes committed on the territory of Ukraine, and on 7 March, such investigation was initiated in the Pre-Trial Chamber of the International Criminal Court.
In accordance with Article 38 of the Rules of the International Court of Justice of 14 April 1978 (hereinafter – the ‘Court’), on 26 February Ukraine applied to the Court instituting proceedings against the rf regarding the violation of the rf the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter – the ‘Convention’). The rf, as well Ukraine, is the party to the Convention, so when signing the Convention, automatically undertook to resolve all disputes concerning the interpretation of the Convention in the Court.
In its application (paragraph 30), Ukraine respectfully requests the Court to adjudge and declare that:
1. contrary to what the rf claims, no acts of genocide, as defined by Article III of the Convention, have been committed in the Luhansk and Donetsk regions of Ukraine;
2. the rf cannot lawfully take any action under the 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 regions of Ukraine;
3. the rf’s recognition of the independence of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on 22 February 2022 is based on a false claim of genocide and therefore has no basis in the Convention;
4. the ‘special military operation’ declared and carried out by the rf on and after 24 February 2022 is based on a false claim of genocide and therefore has no basis in the Convention;
Ukraine also requires:
5. the rf should 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;
6. order full reparation for all damage caused by the rf as a consequence of any actions taken on the basis of rf’s false claim of genocide.
Along with the application, Ukraine submitted a request for indication of provisional measures against the rf in accordance with Article 73 of the Rules of Court. In its request (paragraph 20), Ukraine respectfully requests the Court to indicate the following provisional measures:
1. the rf 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 region of Ukraine;
2. the rf 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;
3. the rf 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 the application, or render this dispute more difficult to resolve;
4. the rf shall provide a report to the Court on measures taken to implement the Court’s Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court.
Generally, in order for the Court to indicate provisional measures, it is necessary that:
1. the Court has found its jurisdiction according the matters which are the subject of the application;
2. the applicant proved the validity of his rights (evidences of the war crimes were presented during the hearing by the Ukrainian officials);
3. the applicant proved the need for immediate decision on provisional measures, namely the existence of a real and imminent risk of harm to the rights of the party (the war that has already caused irreparable damage) in case of its failure.
Oral hearings on the application of provisional measures took place in Hague on 7 March for Ukraine and 8 March for the rf. The President of Ukraine by his Decision appointed four persons to represent Ukraine in the Court. Also recognized professors Jean-Marc Thouvenin, Harold Hongju Koh, and lawyers David Zayonts, Marney Cheek and Jonathan Gimblett were presented at the hearing on 7 March. The rf’s government by its letter refused to participate in the hearing on 8 March.
During the hearings on 7 March, Jean-Marc Thouvenin outlined the rf's position on false acts of genocide in the Luhansk and Donetsk regions of Ukraine by the Armed Forces of Ukraine against the rf’s-speaking population since April 2014, which allegedly led to the so-called ‘special military operation’ in Ukraine.
According to Article 74 of the Rules of the Court, a request for the indication of provisional measures shall have priority over all other cases, so the decision on provisional measures is therefore expecting in the coming days.
It should be noted that the indication of provisional measures is unlikely to stop the war, but will be another convincing argument in favor of the illegality of the rf's actions in Ukraine, and will help Ukraine win not only on the military front line, but also on the legal.
Authors: Markiyan Bem, Seniour Associate, Alina Oleksiuk, assistant attorney