Available in Russian
Author: Sofia Pimenova
DOI: 10.21128/2226-2059-2024-2-77-94
Keywords: International Court of Justice; inter-state disputes; Genocide Convention; use of force; law of state responsibility; Ukraine; provisional measures
The author attempts to comprehensively explore the doctrinal and practical issues that have arisen concerning the decision of the International Court of Justice on jurisdictional objections in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) on February 2, 2024. This decision has caused a heated discussion both among researchers in the field of international law and international justice and among the judges themselves. At first glance, it may seem that the judgment was rendered in favor of Ukraine, since most of the objections of the Russian Federation were rejected by the Court. However, the Court drew unexpected conclusions as to the most important and fundamental issues for Russia, stating that it lacked jurisdiction to consider them further. These issues related to Russia’s recognition of the independence of the Donetsk and Luhansk People’s Republics from Ukraine, as well as the most controversial legal issue that Ukraine relied on inthe lawsuit, namely, the use of force by the Russian Federation in this conflict. One of the main ideas of the author is that Ukraine’s lawsuit againstRussia was the culmination of a ten-year long legal dispute. Russia managed to win this first battle, although a second Ukrainian lawsuit had been partially resolved in favor of Russia two days prior to this decision in the Genocide Convention case. Disputes based on the Genocide Convention have raised many issues relating to mass legal interventions by States pursuing political goals and to the non-appearance of one of the parties before the court and the consequences of this. The author also raises the issue of Ukraine’s amended complaint, which changed the substance of its claims. Special attention is given to the issue of the Russian Federation’s plausible responsibility for non-fulfillment of the Court’s Order for provisional measures. Finally, the author considers various options for the Court’s possible conclusions on the merits of the case in its final judgment.
About the author: Sofia Pimenova – Candidate of Sciences (Ph.D.) in Law, International Law Department, Faculty of Law, Lomonosov Moscow State University, Moscow, Russia.
Citation: Pimenova S. (2024) Spor Ukrainy protiv Rossii v ramkakh Konventsii o genotside kak odin iz klyuchevykh etapov yuridicheskoy voyny [The dispute between Ukraine and the Russian Federation under the Genocide Convention as the high point of lawfare]. Mezhdunarodnoe pravosudie, vol. 14, no. 2, pp. 77–94. (In Russian).
References
Bonafé B. (2022) The Collective Dimension of Bilateral Litigation: The Ukraine v Russia Case before the ICJ. Questions of International Law: Zoom-out, vol.96, pp.27–47.
Dimetto M. (2022) “To Fall, or Not to Fall, That Is the (Preliminary) Question”: Disputes, Compromissory Clauses and Swinging Jurisdictional Tests at the ICJ. The Law & Practice of International Courts and Tribunals, vol.21, no.1, pp.5–34.
Dunlap С., Jr. (2008) Lawfare Today: A Perspective. Yale Journal of International Affairs, vol.3, no.1, pp.146–154.
Fontanelli F. (2021) Once Burned, Twice Shy. The Use of Compromissory Clauses before the International Court of Justice and Their Declining Popularity in New Treaties. Rivista di diritto internazionale, vol.104, no.1, pp.7–39.
Goldenziel J. (2021) Law as a Battlefield: The U.S., China, and The Global Escalation of Lawfare. Cornell Law Review, vol.106, no.5, pp.1085–1171.
Goldenziel J. (2023) An Alternative to Zombieing: Lawfare Between Russia and Ukraine and the Future of International Law. Cornell Law Review Online, vol.108, pp.1–15.
Kulick A. (2022) Provisional Measures after Ukraine v Russia. Journal of International Dispute Settlement, vol.13, no.2, pp.323–340.
McGarry B. (2023) A Rush to Judgment? The Wobbly Bridge from Judicial Standing to Intervention in ICJ Proceedings. Questions of International Law: Zoom-in, vol.100, pp.5–18.
Miles C.A. (2017) Provisional Measures before International Courts and Tribunals, Cambridge: Cambridge University Press.
Paparinskis M. (2011) Inherent Powers of ICSID Tribunals: Broad and Rightly So. Investment Treaty Arbitration and International Law, vol.5, pp.1–31.
Punzhin S. (2015) Protsessual'noe pravo Mezhdunarodnogo Suda OON: vremennye mery (chast' 1) [Procedural law of the International Court of Justice: provisional measures (part 1)]. Mezhdunarodnoe pravosudie, vol.5, no.4, pp.51–70. (In Russian).
Rosenne S. (2005) Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea, Oxford: Oxford University Press.
Tzeng P. (2020) A Strategy of Non-Participation before International Courts and Tribunals. The Law & Practice of International Courts and Tribunals, vol.19, no.1, pp.5–27.
Wigard K., Pomson O., McIntyre J. (2023) Keeping Score: An Empirical Analysis of the Interventions in Ukraine v Russia. Journal of International Dispute Settlement, vol.14, no.3, pp.305–327.