The ongoing Ukraine-Russia conflict has initiated proceedings before various international institutions, the effective operation of which can show a clear progression on the field of international relations. This overview makes possible to us to start the analysis of this question: can we see this progression? We will observe these in the future and make a conclusion after the proper time has passed.
International Court of Justice
Immediately after the start of the Russian military operations, Ukraine has turned to the Hague-based International Court of Justice (ICJ) against Russia, arguing it “manipulating the notion of genocide to justify aggression”. The case is based on the Genocide Convention, its Article IX providing jurisdiction for the Court.
To meet the request of Ukraine to order provisional measures against Russia, it is required that the Court shall have jurisdiction at least “prima facie”, meaning that the court at least “at first sight”, based on a quick examination, has to take a position about the case being suitable for examination on the merits. Provisional measures, being possible in this case, mean legally binding orders from the court to specific behaviour or action to the states involved in the situation.
This is neccessary, because under the current international legal order, being built on sovereignty of states, some form of the involved states’ consent to the proceedings before the ICJ is needed. In this case, the abovementioned Genocide convention seems to provide this, as it contains a so-called jurisdiction clause, based on which any state party can turn to the ICJ in the case of violation of that treaty. This method is quite commonly used, and usually this is how the ICJ can get access to cases with serious tensions, when the states involved do not even talk to each other. This was the base for example of more proceedings between the US and Iran, and this gave the possibility to Palestine against the US, to initiate a proceeding because of it moving its embassy into Jerusalem.
The jurisdictional clause contained in Artile IX (“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”), means taht the Court does not need an explicit consent from the defendant state, Russia. However, its examination has to be narrowed to questions related to the Genocide Convention, and first, agression is not inseperable from this, second, so far genocide has only been present on the level of political propaganda, not reality. Still, some parts of the application indicates a very interesting argumentation line from Ukraine: it argues that the false accusations of genocide, used to provide legal grounds for recognising the breakaway regions as states and for its military invasion constitutes a violation of the convention. The court may not accept this argument in the end, but it is capable of finding jurisdiction “prima facie”, proving the legal ground for provisional measures.
Still, this will not provide jurisdiction for the ICJ to examine the question of agression. In earlier proceedings, more states have tried to smuggle this question into cases on different jurisdictional base (see e.g. the case initiated by Georgia against Russia after their 2008 conflict, or the cases initiated by Armenia and Azerbaijan against each other last year, all of those being based on the jurisdiction clause included in article 22 of the UN Convention on the Elimination of All Forms of Racial Discrimination), but the court has always been reluctant to apply such an extensive interpretation, and even if it has ordered provisional measures, those have always been closely related to the given international treaty providing the jurisdiction.
At the same time, it may be worthy to add, that these cases are often not initiated by the states because they want legal results, rather to project the image of “fighting on all fronts”. Even if the governments know not to expect any results – this may be simple PR. Of course it does not neccessarily mean, that the state is not right on the merits…
The Court has held the first public hearings already on the request for the indication of provisional measures presented by Ukraine. Video recording of the hearing can be watched online at the UN Web TV. The Russian Federation was not represented by any delegation or agent. This is not rare, it has happened a few times, that the defendant state does not appear in the courtroom. Of course this sends a very bad message, but it does not have any effect on the proceeding of the Court. Currently, it will definitely be seen by everyone as Russia not even trying to defend its vocal position about the “genocide”, which will not help its credibility at all.
International Criminal Court
Questions about violations and possible war crimes comitted during the conflict have quickly become more and more vocal, which raise the relevance of the “other The Hague” court – the International Criminal Court (ICC), created in 1998, in operation since 2002.
As neither Ukraine nor Russia is party to the founding international treaty of the ICC, the so-called Rome Statute (though both of them have signed it after its adoption in 2000), the Court’s operation needs a specific linking element, providing jurisdiction. According to the Statute, this may be the UN Security Council referring the situation to the Court, which logically requires the consent or at least the absence from the Russian Federation – but there is no doubt about the state rather using its veto. The same way it was done a few years ago, when there was the idea to create a special tribunal to examine possible responsibility for the tragedy of the MH17 flight. However, it is not needed in the current situation, as Ukraine had already accepted the jurisdiction of the ICC during 2014-2015 by unilateral declarations according to the relevant provisions of the Statute.
Based on these, the Office of the Prosecutor have already been conducting preliminary examinations, leading to Russia withdrawing from the ICC in 2016, meaning the withdrawal of the signarure from the treaty, instead of concluding the ratification procedure. This means that the Court has jurisdiction over any war crimes committed on the territory of Ukraine, regardless of the nationality of the perpetrator. Based on this, the Prosecutor has already stated, that he plans to initiate investigations, possibly leading to actual charges. Needless to say, I do not expect any cooperation from the Putin-led Russian government, but at least the legal base of the ICC’s operation is clear without any resolutions from the UN Security Council.
European Court of Human Rights
The Strasbourg-based European Court of Human Rights (ECHR) has decided at the beginning of the hostilities to employ interim measures against Russia, by the request of Ukraine. The court, being the primary human rights-related judicial organ of the Council of Europe and as such not only a leading European human rights institution, but also one on the global level, has jurisdiction over both states even during this conflict, as both of them are party to the European Convention on Human Rights. The human rights typically under special threat during conflict periods are the right to life, right to fair trial, right to property, prohibition of torture, degrading or inhuman treatment – the goal of the convention is to minimize damages to these, of course, as it is possible during times of armed conflict.
The jurisdiction of the court is not affected by the fact that recently the Council of Europe has suspended membership representation rights of Russia. First, because this does not anull any obligations deriving from membership and second, because human rights obligations of member states are not based on their membership, but on being party to the Convention. Additionaly, the recent communication from ex-president Medvedev, arguing that this suspension could give an opportunity to Russia to restore the death penalty, did not seem to be very serious. But the recent communication from Russia about leaving the Council of Europe in general, shows a frightening prospect. Still, every proceeding initiated before that shall continue, but cooperation from Russia will be completely cut by this step, while it has had its problems anyway.
The court in its order has called upon Russia to refrain from any attacks on persons protected by international law, and to inform the court about every step it has made and going to make to prevent these from happening. If somebody is disappointed now, because of expecting something from the court to prohibit Russia from the whole military operation in general, then it is important to remind everyone, that the European Court of Human Rights is the guardian of the European Convention on Human Rights, with a jurisdiction to examine and identify violations of that very treaty. Questions related to agression, taking a position on the legitimacy of states’ decisions about use of force do not belong to its jurisdiction.
The current application from Ukraine has initiated a new inter-State complaint, next to which there is still the option of individual complaints (subject to the relevant provisions, e.g. the obligation of exhausting domestic remedies). It may be interesting to point out now, that during the past twelve years there have been more inter-State proceedings in front of the court, than during the nearly sixty years before that period, and all of these have somehow been related to states becoming members of the Council of Europe after the political changes of 1989-1990.