Ukraine Symposium – Russian Preliminary Objections at the ICJ: The Case Must Go On?

As readers of Articles of War may recall, Ukraine instituted proceedings against Russia before the International Court of Justice (ICJ) on February 26, 2022, on the basis of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Ukraine requested the ICJ to adjudge and declare that Ukraine did not commit genocide in eastern Ukraine and that Russia, by invading Ukraine on the pretext of it committing genocide, violated the Genocide Convention. Additionally, Ukraine requested the ICJ to indicate a provisional measure, which on March 16, 2022, the Court granted by ordering Russia to “immediately suspend the military operations that it commenced” (see earlier piece on this order and the case more generally). It goes without saying that Russia has ignored this legally binding order.

In a very important development, Russia submitted preliminary objections to the ICJ on the jurisdiction of the Court on October 3, 2022 (see also Russia MFA statement and Stephanie van den Berg’s report for Reuters). This post explains the significance of this development in light of the context of the case and the consequences of this development for the case moving forward.

Background

In any given case, one of the first actions the Court takes, after consulting the parties, is setting time-limits in which the parties must submit their written pleadings. Usually, when the respondent at the outset of the case rejects the ICJ’s jurisdiction – as Russia made no secret about to the Court – pursuant to its power under article 79 of the Rules of Court, the ICJ directs the parties to submit a memorial and counter-memorial dedicated to the question of jurisdiction (see, e.g., Icelandic Fisheries, Marshall Islands v Pakistan, Jerusalem Embassy). Only if the Court finds it has jurisdiction can the case then proceed to the merits. This procedure also means that a decision on the merits of the case can only occur at a later phase of the case.[i] This is no small matter, since the ICJ procedure is a lengthy one. States are given months – if not years – to file their written pleadings at each stage of the case. The close of the written proceedings is followed by oral proceedings, sometimes occurring several months after submission of the final written pleading and, finally, followed by a judgment, which is usually rendered approximately half a year from the close of oral proceedings. It is thus apparent that bifurcating proceedings drags out the case since it means duplicating this process for the different stages of the case.

An interesting aspect of the present proceedings was that the Court ordered (what could be called) ordinary time-limits: setting a date for the applicant party – Ukraine – to submit a memorial laying out its case on the merits and for the respondent party – Russia – to submit a counter-memorial. In these circumstances, under article 79bis of the Rules of Court, the respondent has three months from the delivery of the memorial by the applicant to submit preliminary objections. Only in these circumstances will the proceedings be bifurcated; the proceedings on the merits are suspended and the applicant will generally have around four months to submit written observations on the preliminary objections (see ICJ Practice Direction V). While it is common for respondent States to file preliminary objections, there were several reasons to believe Russia would not.

Reasons for Doubt

To begin, Russia remained ambiguous whether it would formally participate in any way in the proceedings, as opposed to its informal communications and outside-of-court remarks. As readers may recall, Russia refused to appear before the Court in the provisional measures stage of the proceedings. In a communication to the Court on March 7, 2022, shortly before the provisional measures were indicated, Russia was somewhat guarded, simply criticizing the ICJ for scheduling oral proceedings on Ukraine’s request for provisional measures at a very short notice. However, two days later, the Russian Ministry of Foreign Affairs tweeted that, “[i]n light of the apparent absurdity of the lawsuit, we decided not to attend [the hearing].” Otherwise, in the standard management meeting with the President of the Court shortly after the provisional measures order, where the parties are consulted regarding time-limits for written submissions, Russia’s ambassador to the Netherlands indicated that “the question of the participation of the Russian Federation in the proceedings was still under consideration.” Elsewhere, in a UN Security Council meeting in June – attended, among others, by the President of the ICJ, Judge Joan Donoghue – Russia indicated its lack of faith in the ICJ proceedings. It declared that “under a powerful political pressure, the Court may take inconsistent decisions,” while accusing Western States in their support for Ukraine’s submissions of “an unprecedented attempt to influence the Court’s position in favor of Ukraine.”

There are also practical issues which militated against Russia participating in the proceedings. In previous ICJ and inter-State arbitral proceedings, Russia instructed some of the most experienced international lawyers in inter-State litigation to serve as counsel on its behalf, such as Alain Pellet and Samuel Wordsworth, KC. Yet, in a highly publicized letter shortly following Russia’s invasion, Pellet announced his resignation from representing Russia. Information provided on the website of the Permanent Court of Arbitration indicates that Russia’s foreign counsel, including Wordsworth, in its two pending inter-State arbitral proceedings resigned en masse on March 17, 2022. It has also been reported that several law firms, previously providing services to Russia or government-owned entities, have withdrawn from providing their services following the invasion.

Now, a State has complete freedom in determining who will plead on its behalf before the ICJ. Yet, the fact remains that a very small circle of lawyers almost exclusively from western Europe and the United States – an “invisible bar” or “mafia” – are usually instructed to plead before the Court. Thus, in these circumstances, Russia is unlikely to have access to the expertise and experience that are habitually called upon when a State appears before the ICJ. This deficit was apparent in Russia’s March 7 communication to the ICJ. While Russia did make substantive arguments why the Court should not indicate provisional measures, it failed to draw upon any of the ICJ’s most recent jurisprudence concerning plausibility of rights as a condition for provisional measures (see prior post for more detail on this condition), despite this jurisprudence being (very) favorable to Russia.

Finally, in what was very likely a tactical (and perfectly legitimate) move to further outpace Russia, Ukraine delivered its memorial on the merits of the case on July 1, 2022 despite having until September 23, 2022 to do so. Thus, while Russia could have potentially had almost until Christmas to file its preliminary objections, the clock on the three-month time limit to submit these objections began to tick almost three months earlier.

Significance Moving Forward

With this backdrop, the reported filing of preliminary objections by Russia on October 3, 2022, is very significant, even if the content of these objections will remain confidential until the start of oral proceedings (see article 53(2) of the Rules). First, it will likely drag out the case for some time. After all, the effect of these preliminary objections is the bifurcation of the proceedings. Moreover, if the ICJ upholds Russia’s preliminary objections, the objections could potentially torpedo any proceedings on the merits.

Second, the filing of preliminary objections may indicate the beginning of formal participation by Russia in the proceedings, marking a contrast to Russia’s disdain for these very proceedings. However, it remains to be seen whether Russia will formally participate further in the proceedings, such as appearing at oral sittings and, if the ICJ does not uphold Russia’s preliminary objections, by submitting a counter-memorial on the merits of the case. Indeed, it is possible that the submission of preliminary objections was precisely aimed at dragging out the proceedings.

Third, it is important to place Russia’s submission of preliminary objections in the context of another substantial development in the case: the unprecedented mass intervention of third parties in the case – 18 and (potentially) counting – pursuant to article 63 of the ICJ Statute. It is beyond the scope of this post to detail the significance and challenges raised by this development (rather see, in particular, Brian McGarry’s and Juliette Mcintyre’s respective analyses). However, the bifurcation of proceedings given Russia’s preliminary objections will compel the Court to answer the somewhat controversial question whether intervention is permitted at a jurisdictional stage of proceedings. It should also be noted that the mass intervention may also further extend the duration of the case, since if Russia objects to these declarations of intervention the Court will need to hold oral proceedings on these declarations before deciding whether the interventions are admissible (see article 84(2) of the Rules).

Conclusion

Russia’s filing of preliminary objections removes at least one uncertainty regarding the procedure of the case, by compelling bifurcated proceedings. Nevertheless, there are still unanswered questions, such as whether Russia intends to formally participate in other parts of the proceedings and whether third States seeking to intervene in the case will be permitted to participate in the jurisdictional phase of the proceedings. However, one thing seems fairly certain: if Ukraine will eventually prevail in whole or in part in this case, by this one – albeit otherwise very standard – act of submitting preliminary objections Russia has probably delayed any such victory by around two years.

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

Photo credit: Lybil Ber

[i] Though well beyond the scope of this post, it is worth highlighting that a recent development in the pending Guyana v Venezuela case demonstrates that a party can still prevent the case from directly proceeding to the merits by raising an objection to the admissibility of the case, despite the Court ruling it has jurisdiction under the procedure provided in article 79.