International court to hear Ukraine case seeking halt to Russian invasion

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Ukraine will ask an international court for an order halting Russia’s military invasion, saying Russia has falsely accused it of genocide to justify an illegal war, in a hearing Monday and Tuesday in the Hague.

A request for an injunction made to the International Court of Justice, the principal legal body of the United Nations, takes precedence over all other cases, enabling Ukraine to receive a prompt hearing.

Ukraine brought its case under the UN’s 1948 Genocide Convention, which contains a provision for settling disputes at the ICJ over how the convention is interpreted and applied. Ukraine alleges Russia is misusing the convention – the world’s response to the mass murder of Jews and others during the Second World War – by claiming it as a pretext for its own attacks, which Ukraine describes in its legal filings as genocidal themselves.

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“In short, Russia has turned the Genocide Convention on its head – making a false claim of genocide as a basis for actions on its part that constitute grave violations of the human rights of millions of people across Ukraine. Russia’s lie is all the more offensive, and ironic, because it appears that it is Russia planning acts of genocide in Ukraine,” says Ukraine’s filing, posted on the ICJ website.

A lawyer for Ukraine says the case is important, even if Russia refuses to comply with court orders, because it reinforces the legal basis for sanctions and other actions intended to isolate Russia.

“His short game is force; our long game is law,” Harold Hongju Koh, said in a discussion last week with students at Oxford University, comparing Russian President Vladimir Putin with an alliance of countries that have opposed the invasion. Prof. Koh is Yale Law School’s Sterling Professor of International Law, and a former adviser to the U.S. State Department.

His description of Ukraine’s strategy: “Knock out the legal basis, knock out the factual basis, and let the law operate. And then with the aid of the courage of the Ukrainian people and the unity of the allies, Putin will meet his Vietnam.”

Ukraine’s argument for an injunction depends on whether it can show that irreparable harm will be done, pending a full hearing at some future date, said University of Ottawa law professor John Packer, director of the school’s Human Rights Research and Education Centre.

“An invasion is pretty harmful and pretty irreparable, especially once you’ve started killing and destroying,” he said in an interview.

The ICJ term for temporary court orders is “provisional measures,” and under its rules for such measures, Russia is not asked to respond in writing to Ukraine’s allegations, but will have a chance to present its case in oral argument at the hearing, the ICJ’s information department said in an e-mail to The Globe and Mail.

The hearing will be webcast live in English and French, and is scheduled to run for a total of six hours over the two days. Because of the pandemic, it will feature a hybrid of in-person and video appearances by judges and other participants. The ICJ’s information department said that “in general,” a decision is announced “within a few weeks.” (Prof. Koh told Oxford students that he hopes for a decision in three weeks.)

Mr. Putin has said that his country’s “special military operation” in Ukraine is a justifiable attempt to stop a genocide under way against four million people in the Luhansk and Donetsk regions of eastern Ukraine.

The UN convention defines genocide as the intent to destroy, in whole or in part, a group by killing or seriously harming its members, or imposing conditions of life calculated to destroy. Ukraine says Mr. Putin’s rhetoric denying the existence of a Ukrainian people, coupled with the deaths during the invasion, is “suggestive of Russia’s intentional killings bearing genocidal intent.”

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ICJ rulings on provisional measures are binding and do not allow for appeal. Both Russia and Ukraine are among the convention’s 152 members, as is Canada. But international observers do not expect Russia to comply with any orders.

“We are long past the time where the Kremlin cares about what international courts, institutions or even norms require, unless Putin can harness them in pursuit of his agenda,” said Mark Kersten, a consultant at the Wayamo Foundation, a non-profit group that builds capacity in justice systems by training judges, prosecutors and journalists. He is also a senior researcher at the University of Toronto’s Munk School of Global Affairs.

Court orders are transmitted to the UN Security Council, which has the authority to supervise enforcement. But it is not automatic that the Security Council would attempt to enforce any orders.

Two years ago, the ICJ ordered provisional measures be undertaken by Myanmar, such as preventing acts of genocide and preserving evidence, in a case brought by Gambia in late 2019, requesting the protection of the Rohingya people. But the Security Council did not attempt to enforce the order, said Payam Akhavan, a professor of international law at the University of Toronto. (That legal case is continuing.)

“There is no magic in the provisional measures of the court, even if they are legally binding. It does not automatically result in enforcement action by the Security Council,” Prof. Akhavan said in an e-mail. “But the scrutiny could potentially pressure states to mitigate human-rights abuses.”

While Russia, as a permanent member of the Security Council, has a veto, it could lose its ability to exercise it on certain kinds of UN action related to Ukraine, if the ICJ simply recognizes a “dispute” between the parties, Prof. Koh explained at Oxford.

Turning to the legal process is still useful whether it has direct consequences or not, several observers said.

“Law is not only about forceful enforcement,” said Queen’s University law professor Darryl Robinson, a former member of the prosecutor’s office at the International Criminal Court. “That is a common but narrow perception of law. Law and legal mechanisms can also help establish facts before impartial judges, and marshal social and political sanction against wrongdoers.”

The 15-member court’s president, Joan Donoghue of the United States, has publicly urged Russia to act in such a way as not to affect any orders it may make – in other words, not to make matters worse. Russia has not responded publicly. At least one of Russia’s lawyers, Alain Pellet of the University of Paris, has resigned, issuing a public letter explaining he can’t represent “a country that so cynically despises” the application of law.

Global Affairs Canada said in a tweet that it stands with Ukraine at the ICJ. In an e-mail to The Globe, a spokesperson said the federal government is actively exploring options to support Ukraine’s case.

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