On March 16, 2022 the International Court of Justice (ICJ) ordered Russia to immediately suspend military operations in Ukraine. This order raises two very important questions for international law and policy: First, what authority does the ICJ have in ordering a country to cease military operations? Second, what are the consequences if Russia does not comply with the order?
ICJ Jurisdiction and Ukraine’s argument for jurisdiction in this case:
The ICJ was established in 1945 to be the principal judicial organ of the United Nations, whose duties include settling disputes between state parties. The ICJ’s jurisdiction is based on the Statute of the International Court of Justice, which states must sign on to and ratify to be bound by the parameters of jurisdiction it establishes for the court. The statute provides the ICJ with jurisdiction over disputes in seven circumstances:
(1) when states in a dispute specifically agree to judicial dispute settlement;
(2) matter provided for in treaties and conventions;
(3) compulsory jurisdiction, or if both states have previously agreed the court may automatically have jurisdiction over its disputes;
(4) Forum prorogatum, which means a state that has yet to accept the court’s jurisdiction may accept it after a proceeding has been initiated against it;
(5) the court may decide questions regarding its own jurisdiction;
(6) interpretations of previous ICJ judgements; and
(7) revisions of previous ICJ judgements when new facts have been discovered. If a state cannot connect their claim against another state to one of these bases for jurisdiction, then the court may not hear the case.
Ukraine used a creative legal strategy in order to initiate proceedings against Russia, arguing that the court had jurisdiction based on the Genocide Convention, which both Russia and Ukraine had ratified. Under this approach the ICJ would have jurisdiction based on the second category of jurisdiction listed above. Article IX of the Genocide Convention provides that when a state suspects another state of committing genocide or violating the treaty in some way, then it should submit those allegations to the ICJ. Ukraine claimed that Russia violated Article IX of the Genocide Convention by invading under false pretenses of genocide in the Luhansk and Donetsk regions of Ukraine. Russia asserted that not only are these allegations of genocide false, but even if they had merit, then Russia should have submitted the matter to the ICJ rather than invade Ukraine.Without finding definitively whether it has jurisdiction over this case, the court did order provisional measures.
This is a creative hook for jurisdiction, because one might assume Ukraine’s complaint against Russia would be more directly connected to violating the international norms of aggression and illegal use of force. Russia’s allegations of genocide seem to be more of a periphery issue. However, Ukraine’s use of the Genocide Convention gives their central complaint a jurisdictional ground to stand on. Ukraine’s argument for jurisdiction in this case builds on a similar argument made by Georgia in 2014. Georgia brought a complaint against Russia to the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (CERD). In both cases against Russia, the complaining state found an instrument concerned with a periphery issue to ground the larger issue of an unjustified invasion.
What happens when Russia does not comply with the ICJ’s order?
The ICJ voted that “provisional measures” should be implemented. The ICJ order for provisional measures require Russia to (1) “immediately suspend the military operations,” (2) immediately ensure that military units under its control, direction, or influence, take no steps in furtherance of the military operations, (3) refrain from actions that could aggravate or extend the dispute, and (4) shall provide a report on how it is implementing these measures within one week of the order. Provisional measures like these are considered emergency safety guards the court can impose while hearing a case, when one party shows there is a risk of “urgency and imminent risk of irreparable prejudice.”
So far Russia has not adhered to these measures, and in fact did not even attend the initial hearing at the ICJ in March when the issue of provisional measures was to be decided. Russia did file a written response, in which it asserted that the court did not have jurisdiction in the case and claiming self-defense as another basis for its invasion.
If Russia continues to act in opposition to the ICJ’s orders it could mean heightened sanctions and further isolation from the global community for Russia, but also an undermining of the ICJ’s authority. However, ignoring international law and its institutions will do more harm to Russia than the ICJ. Most of the world has rallied behind Ukraine and may see Russia’s noncompliance with the ICJ order as further justification for imposing sanctions or similar sequestering policies against the aggressor state. Some states that have yet to impose sanctions on Russia or provide aid to Ukraine may see this new disdain for international law as a final straw and finally join the sanctioning bandwagon. Many nations in African and Asia have not yet imposed sanctions, but pressure is building for them to take a stance against Russia. Some regional powers in Asia joined in sanctioning Russia, including Japan and South Korea in hopes of encouragin similar responses among their neighbors. Additionally, India has not yet imposed sanctions, but their U.N. representative recently said his country was “deeply disturbed” by violence in Ukraine. Russia’s resources are waning and its position in the war is worsening. Heightened retaliation by the international community could be very costly for the Russian economy and military efforts, as more Russian citizens begin to protest and openly question the legitimacy of this war.
As for the ICJ, having a major world power ignore an order could undermine its legitimacy, but it has experienced snubs from global powers before and yet, it has not suffered major long-term reputational harm. For example, in the case of Nicaragua v. United States in 1984, the United States ignored an order from the ICJ to stop funding paramilitaries in Nicaragua. Despite the United States initially refusing to obey the ICJ’s order, Nicaragua effectively used other platforms, including the U.N. General Assembly, to generate support and pressure the United States to comply. This coordinated effort led to the U.S. Congress ceasing funds to the paramilitary units, lifting trade embargos, and providing aid to Nicaragua. Despite initial non-compliance and no enforcement authority, the court eventually got what it ordered.
In conclusion, the ICJ has the opportunity to apply international law against a permanent member of the U.N. Security Council because of a creative jurisdictional hook crafted by Ukraine. Even though the Court does not have an independent enforcement mechanism, an order from the ICJ declaring Russia’s invasion an illegal use of force could be meaningful, especially if it is accompanied by a resolution by the U.N. General Assembly. Such an order could raise the costs of the war for Russia and poses little risk of undermining the legitimacy of the ICJ.
About the author: Meredith Gusky is a 3L student at the George Washington University Law School and graduate student at the Elliott School for International Affairs. Meredith has been a Senior Moderator for ILPB since Spring 2020. She is interested in international human rights law, international criminal law, and how the United States can best promote and protect international human rights norms.Tweet