Toward International Recognition

by Nastya Moyseyenko, Jurist

Russia's unprovoked aggression against Ukraine has sparked a strong international reaction, with most states referring to the actions of the Russian army as war crimes. A number of parliaments and heads of state have recognized that yet another international crime—genocide—is being committed by the occupation's troops.

Poland's parliament, the Sejm, was the first to pass a resolution in March, strongly condemning "acts of genocide…committed on the territory of sovereign Ukraine by the Russian Federation armed forces, together with its allies, at the behest of military commanders being under the direct authority of President Vladimir Putin."

Since then, especially after the infamous Bucha massacre, a few other parliaments have joined Poland in condemning Russia's actions as genocide; among them are those of Lithuania, Estonia, Latvia, Canada, Czechia and Ireland. Carrying less weight on the legal aspect of defining Russia's atrocities as the deliberate extermination of a national group, the heinous crimes of Putin and his army were a;sp called genocide by the leaders of Colombia, Kosovo, Spain, the United Kingdom and the United States.

While this serves as a positive sign of further isolation of Russia, the question remains as to what the consequences of such condemnation will be and what role it will play in international justice.

The mere recognition of certain actions as constituting genocide does not suffice to hold a state responsible. But a state might take further action and invoke Article IX of the Genocide Convention, which states:

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…shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Any state is considered to be "party to the dispute" in the case of genocide in the event of failure to prevent or, if already perpetrated, to punish this grave violation of human rights. This is recognized as an erga omnes obligation, meaning every state has to institute actions to bring a wrongdoer to responsibility, regardless of whether it is directly affected by the crime. This principle has been reaffirmed by the International Court of Justice (ICJ, the World Court) in its cases such as Democratic Republic of the Congo v. Rwanda and Bosnia and Herzegovina v. Serbia and Montenegro.

Russia, in turn, can be prosecuted for breaches of the Genocide Convention, as the state became legally bound by its provisions in 1954.

If such a case is opened, the ICJ may impose provisional measures as an interim protection during the course of the proceedings under Article 73 of the Rules of Court. In a pending case, The Gambia v. Myanmar, the Court has imposed such measures on Myanmar, which is accused by another party of committing genocide against the Muslim Rohingya people:

Myanmar must also, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.

Though such provisional measures are officially binding, international law has no effective equivalent to the national law mechanism for enforcing compliance with these orders. Myanmar, despite such measures by the ICJ, still carries out abuses of the Rohingya people.

On Feb, 26, Ukraine requested that the ICJ impose provisional measures on Russia, though the request was not related to Russia committing genocide against the Ukrainians but instead the false claims about Ukraine conducting international crimes against its own people in the Donetsk and Luhansk regions. In March, the ICJ issued an order:

The Court considers that, with regard to the situation described above, the Russian Federation must, pending the final decision in the case, suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine. In addition, recalling the statement of the Permanent Representative of the Russian Federation to the United Nations that the "Donetsk People's Republic" and the "Lugansk People's Republic" had turned to the Russian Federation with a request to grant military support, the Court considers that the Russian Federation must also 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 these military operations.

The egregious crimes of the Russian army in the months following the ICJ's imposition of provisional measures have demonstrated that the aggressor feels completely unrestrained by such an order.

If a certain state submits an application against Russia and the ICJ issues a judgement in favor of the former, the latter may still ignore the decision, despite its binding nature. In this case, the winning party could have recourse to the Security Council under Article 94 of the UN Charter. However, the way that Article 94 (2) is framed, the Security Council is left with wide discretion in deciding whether to interfere with a losing party's defiance of the judgement. An even more pragmatic reason to doubt the effectiveness of such recourse is the "right to veto," by which a negative vote of one of the five permanent members of the Security Council overturns the adoption of a resolution to oversee compliance with the ICJ’s decision. With Russia being among these five permanent members, it is certai that no measures will be taken to secure its adherence to the ICJ's judgement. A precedent was established when the United States blocked the Council's effort to enforce a decision of the World Court against it concerning Nicaragua in 1986.

Another remedy that states sympathetic to Ukraine would be able provide is referring to the International Criminal Court (ICC). This, in fact, has already been done by 43 state parties to the Rome Statute. But despite the states requesting the Prosecutor of the ICC to investigate all crimes falling under the jurisdiction of the court, including genocide, and despite the growing evidence of such a crime being committed, the Prosecutor has been somewhat reluctant to go beyond war crimes investigation.

With this in mind, the gesture of some foreign parliaments in recognizing Russia's actions as genocide is undeniably going to bring them closer to Ukraine as allies providing moral support, and some condolence to the victims of the aggressor's inhumanity. However, much more action has to be taken to bring justice from international courts. That, unfortunately, is yet unachievable, as such action would require core changes in the operation of the UN's principal organ, the Security Council.

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Nastya Moyseyenko is a third-year law student at Taras Shevchenko National University in Kyiv.

This story first appeared June 29 in Jurist.

Photo of Mariupol via Twitter

From our Daily Report:

ICC prosecutor visits war-torn Kharkiv
CounterVortex, June 20, 2022

ICJ: Burma must prevent Rohingya genocide
CounterVortex, Jan. 25, 2020

The Genocide Convention at 60: a record of failure —and double standards
CounterVortex, Jan. 13, 2011

See also:

LEGACY OF THE DEPORTATION
Crimean Tatars Again Being Erased from History in Their Homeland
by Olena Makarenko, Euromaidan Press
CounterVortex, May 2022

ENVIRONMENTAL WAR CRIMES IN UKRAINE
by Elliot Winter, Jurist
CounterVortex, May 2022

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Reprinted by CounterVortex, July 1, 2022