Ukraine and the International Court of Justice

By: Luke Vredenburg

Edited By: Renan Dennig and Anna Westfall

Following the Russian invasion of Ukraine on February 24th, 2022, questions arose about the role international organizations would play in facilitating a peaceful resolution to the conflict. While NATO nations have refused to involve themselves directly in battle with Russia, tensions at the United Nations have reached a boiling point. Just days after the war began, 100 diplomats from Western countries walked out of a speech by Russia’s foreign minister Sergey V. Lavrov at the United Nations Human Rights Council, but this produced little tangible change. [1]  The inaction by these institutions has led the Ukrainian government to take matters into their own hands. Kyiv brought suit against Russia in the International Court of Justice in accordance with a 1948 treaty on the prevention of genocide that both nations signed. [2] The International Court of Justice, the principal judicial branch of the UN often referred to as the World Court, has made influential rulings in past conflicts. However, Russia’s refusal to attend the trial brings the power of the court and international law into question. In order for the World Court to produce tangible results and uphold the reputation of international law, the UN and its member nations must be willing to enforce the court’s decision despite the flaws in the system that can render its rulings ineffective.

The International Court of Justice was established in 1945 by the San Francisco Conference, the same meeting that established the United Nations. Headquartered in The Hague, Netherlands, it is composed of 15 judges who are elected to nine-year terms by a majority vote in the UN General Assembly and Security Council. [3] Since its inception, the World Court has been considered by many to be the primary mechanism for upholding international law, as it settles disputes between states regarding land frontiers, territorial sovereignty, violations of humanitarian law, and economic rights. [4] These decisions are considered to be binding, with the rulings being final and without the option to appeal. If a state refuses to comply with a decision, then the court turns to the United Nations Security Council for enforcement, leading to the vast majority of decisions being upheld. [5] As former ICJ president Peter Tomka stated, this has allowed the World Court to “‘[uphold] and [promote] the rule of law at the international level, in relations between states’” over the course of its existence. [6]

For these reasons, the Ukrainian government has turned to the International Court of Justice as a means of ending Russia’s invasion of the country. The Russian government has justified their military action by alleging the Ukranian government is committing genocide in the provinces of Luhanks and Donetsk in the eastern half of country. In 1948, both nations signed the Geneva Convention, a UN treaty that prohibits genocide and names the International Court of Justice as the forum for resolving disputes over the issue. [7] Russia hoped that in claiming genocide by the Ukrainian government, they could avoid disputes on the international level, but legal experts acknowledge there is no evidence to support the Kremlin’s claims. [8] Instead, Ukraine has brought a suit to trial arguing that Russia has no lawful basis for the invasion and asked the World Court not only to rule against Russia over their false claims of genocide, but to order provisional relief for Ukraine and demand Russia cease its military operations altogether on the basis of Russia committing war crimes by endangering civilians. [9] Russia is thus highly unlikely to win the case, as the major issue for the Ukranian government is not to illustrate the false claims of genocide or even the possible violations of international humanitarian law by Russia, but simply to illustrate guilt high enough up the Russian chain of command that they can obtain a conviction for Russian commanding officers. Ukrainian refugees in Poland have already begun collecting documents and interviews with potential testimony of war crimes. While cases in the ICJ typically take years to resolve, this case was placed under the “fast-track procedure” in order to make a quick ruling, with the trial commencing on March 7th, 2022. [10] 

However, Russia’s impertinence to the World Court makes it unclear whether the court’s decision could have any impact on the conflict. [11] Russia did not attend the trial, a decision that has been criticized by Ukrainian attorney Harold Hongju Koh, a Yale University professor of international law and former legal adviser during the Obama administration. Koh has argued that Russia’s refusal to send any representatives must not go unpunished by the court, as failing to do so would “threaten the post World War II international legal order.” [12] Additionally, one of Russia’s main attorneys, Allain Pellet of France who had been representing Russia on the international level for years, including Ukraine’s suit over the annexation of Crimea in the ICJ, has resigned. He claims that “‘it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it.’” [13] 

Pellet’s statement describes the major issue of the current structure of international law, as although the court’s decisions always carry great symbolic weight, major nations can sidestep their rulings. Russia is highly likely to lose this suit and face legal repercussions, but there is historical precedent for UN Security Council nations utilizing their veto power to void these decisions, a controversial move originated by the United States. In 1986, the ICJ ruled in Nicaragua v. United States that the US violated international law by supporting right-wing rebel groups in their efforts to overthrow the Nicaraguan government and demanded the US pay war reparations. Nevertheless, the US refused to comply with the ruling, and when Nicaragua turned to the Security Council for enforcement of the decision, the US, a permanent member of the Council, vetoed any enforcement of the court’s order. [14] Russia is likely to follow this path as well, as they too are a permanent member of the UN Security Council. Any ruling made in favor of Ukraine can be ignored by the Russian government and then vetoed once the Ukrainian government attempts to enforce the ruling. As a result, the war crimes being committed by Russia can remain unpunished.

In 2014, then ICJ Justice and current ICJ President Joan E. Donaghue wrote about her experiences serving on the bench of the World Court and described her interactions with those who questioned the court's authority. Many individuals’ primary concern regarded the effectiveness of the court in shaping the behavior of states, and even she admits that “at present, we practitioners and scholars of international law are not well-equipped to answer these questions” as “much of what we have to say sounds simply like truisms.” [15] The debate over whether or not countries conform to ICJ rulings and if these rulings play a role in the future of national decision making is highly contested. While Donaghue does not offer a resolution to this debate, she insists that international institutions and international lawyers play a large role in setting global priorities and establishing standards of conduct. [16] Yet, this places international law in a difficult position. For nations like Ukraine that are in need of help from international institutions, the ICJ could be a platform to encourage action from other nations and place heavy restrictions on those that deviate from the standards of conduct established by the UN and agreed upon by its members. However, the current composition of international law affords great power to nations such as Russia and the United States, who already have the means to manipulate nations of lesser economic or military strength. 

Flaws like these weaken the impact international organizations can have on global affairs, making rulings more symbolic than tangible if they lose their enforceability. Reforms such as removing veto powers for permanent members of the Security Council would greatly improve the disparity between nations and make ICJ rulings applied fairly. This idea is not without precedent, as member nations called for an amendment of the UN Charter in 2018 to enact this exact change in the hopes it would allow for underrepresented nations, especially in Africa, to increase their role in the UN. [17] Even small changes, such as refusing permanent members the right to veto ICJ resolutions about their affairs, would allow for the court to have a much greater impact on the “international rule of law” the court claims to protect. Currently, the laws do not apply equally to every nation, which as seen with Ukraine, can have great consequences on a nation's security and health.

NOTES:

1. Nick Cumming-bruce, “Diplomats Walk out of Lavrov's Speech at the U.N. in Geneva,” The New York Times, March 1, 2022. https://www.nytimes.com/2022/03/01/world/europe/lavrov-speech-un.html. 

2. Stephanie van den Berg, “Ukraine to Confront Russia at Int'l Court of Justice on Monday,” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/. 

3. Karen Mingst, "International Court of Justice." Encyclopedia Britannica, July 25, 2019. https://www.britannica.com/topic/International-Court-of-Justice.

4. Philippe Couvrer, “Upholding the Rule of Law at the International Level: The Role of the International Court of Justice,” United Nations, Accessed March 9, 2022. https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-role-international-court-justice. 

5. Ibid

6. Ibid

7. Patrick Wintour, “International Court of Justice to Fast-Track Ruling on Russian Invasion,” The Guardian, March 7, 2022. https://www.theguardian.com/world/2022/mar/07/international-court-of-justice-to-fast-track-ruling-on-russian-invasion-of-ukraine. 

8. Rick Noack, Karen DeYoung, and Michael Birnbaum, “Ukraine Takes Russia to Court, but Moscow's Representatives Are a No-Show,” The Washington Post, March 8, 2022, https://www.washingtonpost.com/world/2022/03/07/ukraine-russia-hague-icj-hague/. 

9. Ibid

10. Stephanie van den Berg, “Ukraine to Confront Russia at Int'l Court of Justice on Monday,” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/.

11. Rick Noack, Karen DeYoung, and Michael Birnbaum, “Ukraine Takes Russia to Court, but Moscow's Representatives Are a No-Show,” The Washington Post, March 8, 2022, https://www.washingtonpost.com/world/2022/03/07/ukraine-russia-hague-
    icj-hague/. 

12. Marlise Simons, “Ukraine Takes Its Case against Russia to the U.N.'s Highest Court,” The New York Times, March 7, 2022. https://www.nytimes.com/2022/03/07/world/europe/icj-united-nations-ukraine-russia.html. 

13. Stephanie van den Berg, “Ukraine to Confront Russia at Int'l Court of Justice on Monday,” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/.

14. “International Court of Justice: World's Highest Court,” Academy 4SC, March 18, 2021, https://academy4sc.org/video/international-court-of-justice-worlds-highest-court/. 

15. Joan E. Donoghue, “The Effectiveness of the International Court of Justice,” Proceedings of the Annual Meeting (American Society of International Law) 108 (2014): 114–18, https://doi.org/10.5305/procannmeetasil.108.0114.

16. Ibid

17. “Member States Call for Removing Veto Power, Expanding Security Council to Include New Permanent Seats, as General Assembly Debates Reform Plans for 15-Member Organ | Meetings Coverage and Press Releases” United Nations, November 20, 2018, https://www.un.org/press/en/2018/ga12091.doc.htm. 

BIBLIOGRAPHY:

Couvrer, Philippe. “Upholding the Rule of Law at the International Level: The Role of the International Court of Justice.” United Nations, Accessed March 9, 2022. https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-role-international-court-justice. 

Cumming-bruce, Nick. “Diplomats Walk out of Lavrov's Speech at the U.N. in Geneva.” The New York Times, March 1, 2022. https://www.nytimes.com/2022/03/01/world/europe/lavrov-speech-un.html. 

“International Court of Justice: World's Highest Court.” Academy 4SC, March 18, 2021. https://academy4sc.org/video/international-court-of-justice-worlds-highest-court/. 

Donoghue, Joan E. “The Effectiveness of the International Court of Justice.” Proceedings of the Annual Meeting (American Society of International Law) 108 (2014): 114–18. https://doi.org/10.5305/procannmeetasil.108.0114.

“Member States Call for Removing Veto Power, Expanding Security Council to Include New Permanent Seats, as General Assembly Debates Reform Plans for 15-Member Organ | Meetings Coverage and Press Releases.” United Nations, November 20, 2018. https://www.un.org/press/en/2018/ga12091.doc.htm. 

Mingst, Karen. "International Court of Justice." Encyclopedia Britannica, July 25, 2019. https://www.britannica.com/topic/International-Court-of-Justice.

Noack, Rick, Karen DeYoung, and Michael Birnbaum. “Ukraine Takes Russia to Court, but Moscow's Representatives Are a No-Show.” The Washington Post, March 8, 2022. https://www.washingtonpost.com/world/2022/03/07/ukraine-russia-hague-icj-hague/. 

Simons, Marlise. “Ukraine Takes Its Case against Russia to the U.N.'s Highest Court.” The New York Times, March 7, 2022. https://www.nytimes.com/2022/03/07/world/europe/icj-united-nations-ukraine-russia.html. 

van den Berg, Stephanie. “Ukraine to Confront Russia at Int'l Court of Justice on Monday.” Reuters, March 4, 2022. https://www.reuters.com/world/ukraine-confront-russia-intl-court-justice-monday-2022-03-04/. 

Wintour, Patrick. “International Court of Justice to Fast-Track Ruling on Russian Invasion.” The Guardian, March 7, 2022. https://www.theguardian.com/world/2022/mar/07/international-court-of-justice-to-fast-track-ruling-on-russian-invasion-of-ukraine.