The ICJ’s Provisional Measures Order: Unprecedented

by | Mar 17, 2022

Ukraine Provision Measures Order

​On March 16, 2022, the International Court of Justice (ICJ) rendered its provisional measures order in the application brought by Ukraine against Russia under the Genocide Convention, arguing, inter alia, that Russia’s invasion was an unlawful abuse of its obligation under the Convention to prevent genocide. In its order, by 13 votes to 2, the Court ordered that Russia “shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” While the ICJ has previously rendered provisional measures orders in high profile situations—the Tehran Hostage Crisis, U.S. military activities against Nicaragua, armed clashes between Burkina Faso and Mali, Uganda’s invasion of Congo and Russia’s invasion of Georgia—it would be no exaggeration to say that the present order is the most breathtaking one it has ordered to date.

The purpose of the present post is twofold: It will first summarize the ICJ’s order and then offer some commentary. However, before doing so, it is useful to provide some background on the ICJ’s power to render provisional measures orders.

Background on Provisional Measures Orders

Article 41(1) of the ICJ Statute provides that “[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” While for many years it was debated whether such measures are binding, the Court settled this question affirmatively in its 2001 LaGrand judgment, in the context of the U.S. state of Arizona’s execution of a German national despite a provisional measures order rendered to the contrary.

Since provisional measures orders are rendered before the case has been fully adjudicated, serving to protect potential rights of a party in the interim, the Court’s jurisdiction and the validity of the claimed rights cannot be definitively established. However, the prospect of the Court ordering a State to act—accentuated by the LaGrand finding that such measures are binding thereon—necessitates that provisional measures have some nexus with the prospects of the case (Judge Lauterpacht in Interhandel; Judge Abraham in Pulp Mills). For such reasons, the ICJ has developed a number of conditions which must be met for provisional measures to be rendered (see Miles, p. 174).

The Court’s Order

Initial Observations

Before addressing the cumulative conditions for the indication of provisional measures, and in addition to its standard summary of the procedural history, the Court—reminiscent of its 1999 orders in cases brought by Yugoslavia against NATO States—expressed its concern regarding the human tragedy in Ukraine and stated that it “is profoundly concerned about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law” (para. 18). The Court also expressed regret regarding Russia’s non-appearance in the proceedings, while observing that it nevertheless made a written communication to the Court laying out its position.

After these observations, the Court assessed whether the conditions for the indication of provisional measures were met. These will be surveyed in turn.

Prima Facie Jurisdiction

First, the ICJ “may indicate provisional measures only if the provisions relied on by the applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case” (para. 24). It is not sufficient that both States consented to the ICJ’s jurisdiction in the form of the compromissory clause of the Genocide Convention (para. 27).

Additionally, the Court must “ascertain … whether it appears that the acts complained of by the Applicant are capable of falling within the scope of that convention ratione materiae” (para. 29; see also Azerbaijan v Armenia, para. 20). Thus, the question was whether the dispute between the parties prima facie relates to Article I of the Genocide Convention, which stipulates: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

Russia had contended that its accusations of genocide occurring in certain regions of Ukraine did not reference the Convention, claiming that the concept of genocide also has different meanings under customary international law and various domestic laws. Moreover, it argued that its military operation was based on an invocation of the right of self-defense, rather than on the Genocide Convention.

However, after surveying various statements of the parties, dating back to 2014, the ICJ considered that they

indicate a divergence of views as to whether certain acts allegedly committed by Ukraine in the Luhansk and Donetsk regions amount to genocide in violation of its obligations under the Genocide Convention, as well as whether the use of force by the Russian Federation for the stated purpose of preventing and punishing alleged genocide is a measure that can be taken in fulfilment of the obligation to prevent and punish genocide contained in Article I of the Convention (para. 45).

Plausibility of Rights and Link between Rights and Measures of Protection

Second, for provisional measures to be rendered, the Court must be “satisfied that the rights asserted by the party requesting such measures are at least plausible” (para. 50). The Court introduced this condition in 2009 (Belgium v Senegal, para. 57), seemingly as a counterweight to the its finding in LaGrand that provisional measures are binding.

The essential question was whether Russia plausibly has a duty, in the present case and under the Convention, “not to act in the name of preventing and punishing genocide” (emphasis in original; see also Miles, 32/46). In addressing this question, the Court first recalled that, while States parties have an obligation under Article I of the Genocide Convention to prevent and punish genocide, they “must implement this obligation in good faith, taking into account other parts of the Convention” (para. 56). These latter include “call[ing] upon the competent organs of the United Nations” to take necessary action (Article XIII), as well as proceedings before the ICJ itself (Article IX). While emphasising that other measures may be available to States to implement their obligation to prevent and punish genocide, it added, quoting from Bosnia v Serbia, that “every State may only act within the limits permitted by international law” (para. 57).

Intriguingly, instead of referring to Article 2(4) of the UN Charter, which enshrines the prohibition of the use of force, the Court stated that measures for the prevention and punishment of genocide under the Convention “must be in conformity with the spirit and aims of the United Nations” (para. 58). While also observing the lack of evidence substantiating Russia’s allegation of genocide in Ukraine, it stated that “it is doubtful that the Convention … 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” (para. 59).

On this basis, the Court concluded 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” (para. 60).

In addition to the plausibility of the rights themselves, a link must exist between the measures requested and the plausible rights (e.g., Armenia v Azerbaijan, para. 67). This condition caused the ICJ little trouble, given the measures Ukraine requested were for halting the invasion on the basis of an alleged genocide (para. 63).

Risk of Irreparable Harm and Urgency

Third, the Court “has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences” (para. 65; see also Iran v United States, para. 77). Additionally, the risk of irreparable harm must be urgent, “in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision” (para. 66; see also Finland v Denmark, para. 23).

Here, too, the Court had little difficulty, noting that “any military operation, in particular one on the scale carried out by the Russian Federation on the territory of Ukraine, inevitably causes loss of life, mental and bodily harm, and damage to property and to the environment” (para. 74). The Court further highlighted the deteriorating humanitarian situation in Ukraine, inter alia, referring to the concern expressed by the UN General Assembly in Resolution A/RES/ES-11/1 (paras. 75-76).

Measures Ordered

Having found the necessary conditions fulfilled, the Court indicated its provisional measures, recalling it may resort to measures different from those requested by the applicant (para. 79; see also Armenia v Azerbaijan, para. 90). In this regard, the Court ordered Russia to “immediately suspend the military operations,” as well as to “ensure that any military or irregular armed units which may be directed or supported by it … take no steps in furtherance of the military operations.” Finally, as is often its practice, it ordered both parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve” (cf. Judge ad hoc Daudet’s critique of directing the order to both parties).

Comment

The Court’s decision to indicate provisional measures was certainly not expected by the present author. Moreover, as Mike Becker has pointed out, the Court’s unqualified indication of provisional measures for the suspension of Russia’s military operations, rather for the suspension of operations on the basis of preventing genocide, even goes beyond what Ukraine requested. It would also seem fair to say that a blanket order, demanding the suspension of a full-scale invasion, is unparalleled in the World Court’s 100-year history.

Legally, perhaps most remarkable was the Court’s analysis of the plausibility requirement. The Court considered that Article I of the Genocide Convention, which only expresses an obligation to prevent and punish genocide, plausibly creates an (additional?) obligation not to rely on that provision for committing— at least certain— acts contrary to international law. It is one thing, as in Bosnia v Serbia, to interpret the provision as only obligating positive measures conforming to external obligations under international law; it is another to interpret it as prohibiting measures not conforming to obligations under international law.

Actually, it seems the Court’s order contradicts its approach at the provisional measures stage in Equatorial Guinea v France in late 2016. In requesting that the Court order France to suspend criminal proceedings against its Vice President (and the President’s son), Equatorial Guinea had sought to interpret into the UN Convention against Transnational Organized Crime an obligation not to conduct criminal proceedings under that Convention in violation of immunities under international law. Actually, that Convention even included a stipulation that “States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States” (Article 4(1)). However, albeit under the related rubric of prima facie jurisdiction (cf. Lando, 658), the Court considered that the said provision “does not … incorporate rules of customary international law concerning those immunities.”

Nevertheless, it would be foolish to consider that the Court’s approach to corruption proceedings against a “playboy son” of a dictator would be the same as that to a ruthless and shocking invasion of a neighbouring State (cf. Judge Bennouna). While it remains to be seen whether the Court will ever replicate the legal reasoning in the present order, it is at least hoped that circumstances of the kind giving rise to the present order will not replicate themselves.

***

Ori Pomson is a PhD candidate at the Faculty of Law of the University of Cambridge.

 

 

Photo credit: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

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