On Feb. 2, judges at the International Court of Justice (ICJ) announced they would not make a judgment about Russia’s genocide allegation against Ukraine. “Bottom line – Ukraine lost pretty badly,” says international law scholar Marko Milanovic.
The case dates back to Feb. 26, 2022, mere days after Russia’s full-scale invasion of Ukraine. That’s when Russia manipulated the responsibility to protect (R2P) principle to justify aggression against its neighbor.
Under R2P, the international community has an obligation, through the United Nations, to “help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity,” including through use of force. Also, under the Convention on the Prevention and Punishment of Genocide, a U.N. convention that both Ukraine and Russia are parties to, states have an obligation to prevent and punish genocide.
Moscow accused Ukraine of committing genocide against ethnic Russians and Russian speakers in eastern Ukraine. Essentially, Moscow claimed the February 2022 invasion of Ukraine was for humanitarian reasons.
Ukraine asked the ICJ to state that Russia misused the Genocide Convention
Kyiv disputed Russia’s accusation, saying that Moscow was lying and that Ukraine was not committing genocide. Kyiv went a step further, arguing that false genocide claims violate the Genocide Convention. Enter the ICJ, which resolves international legal disputes between states, including disputes about the interpretation, application, and fulfillment of the Genocide Convention.
In its first ruling on provisional measures on March 16, 2022, the ICJ ordered Russia to suspend military operations and make sure its proxies also ceased their activities while the court evaluated the merits of Ukraine’s complaint. The court also ordered both Russia and Ukraine to not escalate their dispute.
Can international law be misused to justify war? Kyiv argued that misusing the Genocide Convention – starting a war based on a false genocide claim, in this case – is actually a violation of the convention. The ICJ indicated Ukraine’s argument was plausible. Joan E. Donoghue, the presiding judge, added that the court had not seen any evidence supporting Russia’s allegation of genocide.
Ukrainian President Volodymyr Zelensky declared the ICJ’s initial ruling in 2022 “a complete victory.” A frequent user of X (formerly known as Twitter), Zelensky has yet to comment on the court’s latest decision.
Russia filed objections to the case
Russia went on to file a number of objections to the case, and one stuck. The Russian filing said that nothing in the Genocide Convention prevents a state party from potentially misusing it. The treaty requires states to prevent and punish acts intended to physically destroy a racial, ethnic, religious, or national group, in whole or in part. Russia also argued the laws of war are not part of the Genocide Convention, so the court can’t say what is and what isn’t a proper use of force.
In a 12-4 decision on Feb. 2, ICJ judges agreed with Russia that false allegations of genocide and armed interventions based on such allegations are outside the Genocide Convention’s scope. As such, the court lacks jurisdiction over Kyiv’s central claim.
Did the court get things wrong?
No – but the ICJ judges adopted a narrow interpretation. While judges initially thought Ukraine’s novel argument was plausible, they were persuaded by Russia’s counter-argument about actions the Genocide Convention prohibits. Judges interpreted the law strictly – a legally wise, if perhaps not morally satisfying, decision for an international body that has sometimes been accused of overreach and bias.
The ICJ’s decision doesn’t mean Russia didn’t do anything wrong, to be sure. The case indicates that the Genocide Convention, a treaty formulated more than 75 years ago, has gaps.
Still, the court’s decision is a blow to Ukraine. Kyiv wanted an international legal body to say there was no legal basis for Russia’s aggression in February 2022 and for continued war against Ukraine. To make this an even more bitter pill to swallow, the Ukrainian judge voted with the majority.
That’s not the whole case, though. Kyiv in its 2022 complaint asked the ICJ to make a determination that Ukraine did not violate the Genocide Convention. This part of the complaint remains under review, but the court will likely find in Kyiv’s favor. Somewhat bizarrely, Ukraine’s case against Russia has become just a case about Ukraine.
The ICJ decision has broad implications. As Milanovic elaborates:
… Ukraine will NOT be able to rely on this case in order to, for example, obtain from third states the confiscation and transfer of Russian state assets that they had frozen, because no reparation of that kind will be due. Maybe the Court will ask Russia to provide moral satisfaction, but no more than that.
What to watch, two years into this war
It remains to be seen what the ICJ’s decision means for international solidarity with Ukraine, soon entering its third year of all-out war with Russia. Social science research shows, for example, that the public cares about U.N. approval or disapproval of states’ actions. While the ICJ, which is a major U.N. organ, didn’t approve or disapprove, the judgment likely won’t help public support for Ukraine in different countries around the world, including in the United States.
Though international organizations and international law more broadly can influence publics to support cooperation and compliance with international norms, publics and leaders can turn away if they perceive legal actions or findings to be biased or unfair. Publics and their leaders can also simply view international law and international organizations as ineffective.
One thing to watch moving forward: Ukrainian leaders have accused Russia of committing genocide against Ukrainians, but they haven’t filed a complaint with the ICJ. Genocide is always a difficult crime to prove but maybe a formal accusation will be the next step in Ukraine’s “lawfare,” or the use of “law as a weapon of war.”