Ukraine War, April 6, 2022 (II): International Court of Justice, Order of Provisional Measures in case of Ukraine v. Russia under the Genocide Convention (March 16, 2022)

Dispatches

1) “ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (UKRAINE v. RUSSIAN FEDERATION),” International Court of Justice, March 16, 2022.

Excerpts from the Interim Order

ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (UKRAINE v. RUSSIAN FEDERATION)

84. The Court reaffirms that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.


THE COURT,
Indicates the following provisional measures:

(1) By thirteen votes to two,

The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;
AGAINST: Vice-President Gevorgian; Judge Xue;

(2) By thirteen votes to two,

The Russian Federation shall 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 or direction, take no steps in furtherance of the military operations referred to in point (1) above;

IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;
AGAINST: Vice-President Gevorgian; Judge Xue;

(3) Unanimously,
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

Vice-PresidentGEVORGIAN appends a declaration to the Order of the Court; Judges BENNOUNA and XUE append declarations to the Order of the Court; Judge ROBINSON appends a separate opinion to the Order of the Court; Judge NOLTE appends a declaration to the Order of the Court; Judge ad hoc DAUDET appends a declaration to the Order of the Court.

Commentary

The International Court of Justice in its Order of Provisional Measures of March 16, 2022 ordered Russia to suspend its military operations in Ukraine begun on February 24, 2022, and to refrain from any actions that “might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

The Order was approved by votes of 13-2, with only the Russian and Chinese members of the Court voting against its main provisions. All members of the Court voted in favor of the provision ordering the parties to refrain from any actions that might aggravate or extend the dispute.

As indicated in paragraph 84 of the decision, the Order of Provisional Measures is legally binding on the parties.

Several judges appended separate opinions or declarations to the decision.

See,

Molly Quell and Thierry Cruvellier, “THE INTERNATIONAL COURT OF JUSTICE ORDERS RUSSIA TO STOP ITS INVASION OF UKRAINE,” Justiceinfo.net, March 17, 2022.

A note on the nature and duration of the proceedings

The Order of Provisional Measures is roughly analogous to an injunction in domestic law.

There will be one and possibly two further phases in the case:

1) briefs and arguments, and the Court’s decision, on the admissibility of the case (Preliminary Objections Phase); and

2) briefs and arguments, and the Court’s decision on the substantive issues in the case (the Merits Phase of the proceedings).

By order of March 23, 2022, the Court fixed the following periods for the filing of briefs in the case, as follows:

(The Court)

Fixes the following time-limits for the filing of the written pleadings:

23 September 2022 for the Memorial of Ukraine

23 March 2023 for the Counter-Memorial of the Russian Federation.

The case may take a couple of years to wind its way through the Court.

The final Judgment on the Merits, when issued, will have a huge impact, and will resound through the ages.

The Trenchant Observer

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