Editors’ note: In this archival piece, first published on March 25, 2022, Good Authority contributor Kelebogile Zvobgo explains what the International Court of Justice was established to do, and looks at the ICJ’s ruling in the Ukraine-Russia conflict.
On March 16, 2022, judges at the International Court of Justice (ICJ) ruled that Russia must halt military operations in Ukraine. This is the first judgment in a contentious legal dispute between Ukraine and Russia, with each country accusing the other of committing genocide.
What is the ICJ? What are Kyiv and Moscow alleging? What has the court decided so far, and why does it matter?
What is the ICJ?
The ICJ was established in 1945 after World War II. It is the main judicial body of the United Nations and has a mandate to settle legal disputes between countries. It is composed of 15 elected judges who serve nine-year terms.
The court is intended to be less political than other U.N. bodies such as the General Assembly. The judges do not represent any country, and they make decisions on the basis of international law as set out in U.N. treaties, not according to politics.
The ICJ is different from two other international courts investigating Russia’s actions in Ukraine: the International Criminal Court and the European Court of Human Rights. The ICC has jurisdiction over individuals accused of violating international criminal law, such as committing war crimes, but the ECHR has jurisdiction over countries within the Council of Europe that are accused of violating human rights as set out in the 1950 European Convention on Human Rights. Those include civil and political rights such as freedom of speech. Russia recently threatened to leave the council but was expelled before it could do so. The ICJ’s mandate is broader: It has jurisdiction over governments accused of violations under several bodies of international law.
Ukraine disputes Russia’s genocide claims
Russia has accused Ukraine of committing genocide against ethnic Russians and Russian speakers in Ukraine. This was the Kremlin’s pretext for the war.
In its complaint filed on Feb. 26, Ukraine argued that the Kremlin is lying and that false claims of genocide violate the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, a U.N. treaty that Russia (then the Soviet Union) and Ukraine separately ratified in 1954. Given Russia’s disingenuous reason for the war, Ukraine asked the court to order Russia to suspend military actions, including hostile activity by proxy forces.
The ICJ has issued its first ruling
The ICJ will need time to resolve the dispute. Its March 16 judgment was the first step. The court did not rule on the merits of Ukraine’s case but instead ordered interim measures that Ukrainian President Volodymyr Zelensky described as “a complete victory” for Ukraine.
In the ruling, judges confirmed the court’s jurisdiction over the dispute and said they would rule on its core substance at a later date. However, the presiding judge, Joan E. Donoghue, did note that the court has not seen evidence to substantiate Russia’s claim that Ukraine has committed genocide.
At this stage, ICJ judges simply had to decide whether Ukraine’s complaint is plausible. They ordered, pending a full review and final judgment, Russia to (1) suspend military operations in Ukraine and (2) make sure Russian-backed paramilitary or “irregular units” cease their activities. The judges also ordered Russia and Ukraine to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
The Kremlin claims the court’s decision is not valid without consent from both sides. Clearly, Russia does not intend to comply.
Ukraine claims Russia is committing genocide
Ukraine’s accusations against Russia are not the focus of this particular case, but Kyiv in its first filing with the ICJ also accused Russia of “planning acts of genocide … intentionally killing and inflicting serious injury on members of the Ukrainian nationality.”
Proving that allegation will be difficult.
According to the convention on genocide, that crime consists of “acts committed with intent to destroy, in whole or in part, a national, ethnical [sic], racial or religious group.” These acts include but are not limited to killings. Two major challenges in genocide cases are defining the allegedly targeted group and proving the allegedly targeting group’s intent.
Ukraine is a multiethnic, multiracial and multireligious country that includes ethnic Russians and speakers of Russian. Since all Ukrainians are facing violence by Russia, Ukraine would have to establish that Russia is targeting Ukrainians as a national group and seeks to destroy the group (in whole or in part) because of its national identity.
For intent, judges could use as evidence claims by Russian President Vladimir Putin and his allies that Ukraine is “not even a state” and that Ukrainian national identity is not genuine or homegrown but, rather, is the result of Western interference. In other words, for Russian leaders, there is no Ukraine — nor should there be.
Still, it will be difficult to establish intent and meet the legal definition of genocide. And even if genocide by Russia were proved, the ICJ has no ability independently to enforce its judgments. ICJ judgments are enforced by the U.N. Security Council, where Russia — alongside China, France, Britain and the United States — is a permanent member with veto power.
Russia recently blocked the council from passing a resolution demanding its withdrawal from Ukraine. Should it lose the ICJ case, Russia would be likely to use its veto to shield itself from punitive measures.
It’s no surprise that Russia has failed to comply with the ICJ ruling. Noncooperation and noncompliance are part of a broader pattern of Russian disregard for the court and, more generally, international institutions.
The Kremlin failed to send representatives to the oral proceedings and provided the court no evidence to substantiate its own allegations that Ukraine was committing genocide. Instead, it sent the court a letter disputing the court’s jurisdiction.
The ICJ case, together with a growing list of actions by prominent international institutions, illustrates a clear dichotomy between Russia and Ukraine: Russia is not engaging productively with international law and institutions. Ukraine, by contrast, is using every possible avenue under international law to seek peace, end hostilities and gain justice. Through its actions and inactions, Russia is isolating itself from the international community while Ukraine is strengthening its international ties.
Kelebogile Zvobgo (@kelly_zvobgo) is an assistant professor of government at William & Mary, a faculty affiliate at the Global Research Institute, and the founder and director of the International Justice Lab.
Note: Updated Oct. 3, 2023.