Russia and China's representative Judges in International Court of Justice dissented from provisional measures directing against Russia to stop 'Military Operations'
The Vice-President, Kirill Gevorgian, and Judge Xue Hanqin representative of Russia and China respectively have dissented from the interim measures ordered by the International Court Justice against the Russian Federation to 'Immediately Suspend Military Operations' in the territory of Ukraine.
However, all the 15 Judges unanimously directed both the parties to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
The International Court of Justice on Wednesday pronounced its order on provisional measures on the allegation of Genocide under the convention on the Prevention and Punishment of the Crime of Genocide.
The Court has directed the Russian Federation to suspend the military operations commenced on February 24, 2022 in the territory of Ukraine and to ensure that no military takes any steps in furtherance of those military operations.
The bench comprised of President Joan Donoghue (United States of America), Vice-President Kirill Gevorgian (Russia); Judges Peter Tomka (Slovakia), Ronny ABRAHAM (France), Mohamed BENNOUNA (Morocco), Abdulqawi Ahmed YUSUF (Somalia), XUE Hanqin (China), Julian SEBUTINDE (Uganda), Dalveer BHANDARI (India), Patrick Lipton ROBINSON (Jamaica), Nawaf SALAM (Lebanon), IWASAWA Yuji (Japan), Georg NOLTE (Germany), Hilary CHARLESWORTH (Australia); Judge ad hoc Yves DAUDET (Nicaragua).
The order has been passed by the ICJ in the case relating to the current Ukraine-Russia situation wherein Ukrain had submitted that it urges the ICJ to provide conviction to the belief that "international law is not an empty promise”.
Over the decision of Russia to refrain from participating in the proceeding being conducted before the ICJ, President Donoghue said, "the Court wishes to express its regret at the decision taken by the Russian Federation not to participate in the oral proceedings for indication on the provisional measure."
"The non-appearance of a party has a negative impact on the sound administration of justice, as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court must proceed in the discharge of its Judicial function at any phase of the case," the order added.
The order noted that "The Russian Federation asserts that, in reality, its “special military operation” on the territory of Ukraine is based on Article 51 of the United Nations Charter and customary international law and that the Convention cannot provide a legal basis for a military operation, which is beyond the scope of the Convention."
Russia while refusing to appear had further stated that Ukraine’s “Application and Request manifestly fall beyond the scope of the Convention and thus the jurisdiction of the Court”; whereas, the Court must remove the case from its List.
However, the bench noted that prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case. In addition to this, it cannot accede to the Russian Federation’s request that the case be removed from the General List for manifest lack of jurisdiction.
Over the main issue of the Case, the bench observed that in discharging it's duty to prevent Genocide every State may only act within the limits permitted by the International Law.
It further observed that "At the present stage of the proceedings the Court is not into possession of evidences substantiating the alligation of the Russian Federation that Genocide has been committed on the Ukrainian territory."
"it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide," the bench added.
While considering the provisional measures sought by Ukrain the Court observed that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine.
The ICJ further took note of the resolution passed by the General Assembly of the United Nations, "which, inter alia, “[e]xpress[es] grave concern at reports of attacks on civilian facilities such as residences, schools and hospitals, and of civilian casualties, including women, older persons, persons with disabilities, and children”, “[r]ecogniz[es] that the military operations of the Russian Federation inside the sovereign territory of Ukraine are on a scale that the international community has not seen in Europe in decades and that urgent action is needed to save this generation from the scourge of war”, “[c]ondemn[s] the decision of the Russian Federation to increase the readiness of its nuclear forces” and “[e]xpress[es] grave concern at the deteriorating humanitarian situation in and around Ukraine, with an increasing number of internally displaced persons and refugees in need of humanitarian assistance”."
The Court has indicated the following measures:
- By 13 votes to 2 that the Russian federation shall immediately suspend military operations
- By 13 votes to 2 that any military or irregular armed units, as well as any organisation, take no steps of the military operations
- Unanimously that both parties shall refrain from an action which may aggravate or extend the dispute before the Court, or make it more difficult to resolve
Background
In response to the Russian attack on its soil, Ukraine had filed an application before the International Court of Justice to start proceedings against Russia over the allegations of Genocide under the convention on the Prevention and Punishment of the Crime of Genocide.
The Agent for Ukraine had addressed the Court saying, "It is a great honor and solemn responsibility to be here...We are here today in this building called the Peace Palace, but at home, my country faces a war of aggression."
"I'm standing in a room called the Great Hall of Justice but at home, my countrymen, see only the injustice of Russia's bombs, missiles, falling on our cities and neighborhoods," the agent added.
Agent for Ukraine had informed the Court that babies were being born there in underground tunnels, and hospitals were being shelved.
Elaborating on the difficulties being faced by the Ukraine and its citizens the Agent had stated that, "We can no longer provide state services to our citizens who reside in occupied territory, including the administrative services, education, medical services, for instance, Covid-19 vaccinations."
Referring to Russia's side of seats in the ICJ, the agent had said, "The fact that Russia seats are empty speaks loudly. They are not here, in this Court of law. They are in the battlefield waging aggressive war against my country. This is how Russia solves disputes, but Ukraine has another position."
It may be noted that Russia had refused to appear before the International Court of Justice stating that they do not intend to participate in the present proceedings. Whereas, the Court has regrated the non-appearance of the Russian Federation in the oral proceedings.
The Ukrainian agent had alleged that Russia's use of the Genocide Convention to mask its unlawful invasion could only be described as proceeding in bad faith and violation of the Convention. In addition to this, they had further submitted that Article I confirmed that genocide is a crime and that the provision included both an obligation not to commit genocide as well as a duty to act and prevent genocide.
They further alleged that the full history of Russia's mistreatment of Ukraine is not before the Court and that Russia has presented a narrative of falsities.
"We have come to this Court because of a grotesque lie and we seek protection from the devastating consequences of that lie. That lie is claims of genocide in Ukraine," the Agent from Ukraine had added.
He had further questioned the point of having these bodies, if they do not act at this moment of transparent aggression.
"The provisional measures that Ukraine has requested are achievable and grounded, anything less would fail to vindicate the value of the institution," the agent added.
Ukraine had requested for the following directions from the ICJ:
- The Russian Federation shall immediately suspend the military operations.
- The Russian Federation shall ensure that any military subject to its control takes no steps in furtherance of their military operations.
- The Russian federation shall refrain from any act.
- The Russian Federation shall submit a report within 1 week.
In addition to this, the Agent had further submitted that the preliminary relief they have requested would not be the final relief.
The ICJ has concluded the public hearing on the request for the indication of provisional measures submitted by Ukraine, the Court said that they will now begin its deliberations.
Cause Title: Ukraine vs Russian Federation before International Court of Justice