By Steven van Hoogstraten
The International Court of Justice (ICJ) issued an Order on 16 March 2022, indicating that “the Russian Federation should immediately suspend the military operations that it commenced on 24 February in the territory of Ukraine”. This Order was made up under the Genocide Convention of 1948 [1], invoked by Ukraine to support its case. Ukraine stated that there simply was no genocide by Ukraine against the Russian speaking population in the Donbas region which could be used as a pretext for military action by Russia against Ukraine. The Genocide Convention has a compulsory system for disputes between states, involving the establishment of jurisdiction of the ICJ for settling such disputes. .
We are a full month later, and no practical steps have followed this judgment by the ICJ. More precisely, the Russian Federation continues and intensifies the military operation notably in the East of Ukraine (the Donbas region). Heavy losses of life are being reported amongst the civilian population, which seems to be targeted by the Russian forces in order to create disorder and terror. Terrible examples of military misbehaviour are shown on our TV’s, leading to claims of war crimes and even of genocide by the Russian forces. Commentators of international justice are suggesting ways and means how to prosecute such crimes, and how to hold Putin to account, without however identifying a track that would work without the cooperation of Russia itself.
For the moment, it is still highly unclear (at best) what the effect of the Order of the ICJ will be. Rather likely, it will go down as an unintended failure of the international legal system to be effective in restoring peaceful relations between states. Bringing this case to the table of the Security Council, according to the procedure set out in the Charter of the UN, does not offer much hope as the Russian Federation holds a power of veto over any decision-making in that Council.
Against this gloomy background, it is interesting to look back to the time that the Russian President, Vladimir Putin, brought a visit to the Peace Palace. This was in November 2005[2]. He was received with full honours by the ICJ, and delivered a speech to the 15 judges of the Court, at the time under the presidency of judge Shi from China. I remember it very well, as I was in charge at that time in the Peace Palace. There also was a distinct Russian interest to learn more about the history of this institution in which the Russian czar Nicolas II played a pioneering role.
President Putin stated first that he was trained in the Russian school of law, and that he took great pride in addressing the principal judicial organ of the UN[3]. He dwelt some time on the important Russian contributions to the first Peace Conference in the Hague in 1899, and noted that not only had this conference given rise to the creation of the Permanent Court of Arbitration – the first permanent universal mechanism for the settlement of inter-state disputes – but equally significant, it had led to the concept of international justice itself.
The Russian President told the judges of the ICJ “that Russia had confirmed (in 2005) its commitment to the primacy of international law”. Russia, he said “is in favour of strengthening the Courts’ role”. President Putin stressed that the “judgements and advisory opinions of the ICJ play an extremely important role in strengthening and developing international legal principles and norms; because they provide a clear understanding of States’ rights and obligations”.
The Court , he added, influences in a positive way the process of universalization of international law and serves to bolster the stability and legitimacy of the United Nations.
If one reads this, the conclusion can be no other than that the words and good intentions of President Putin were there, back in 2005. Words of respect for the ICJ, and words of involvement in the shaping of international law. Would someone in the close vicinity of the Russian President have the courage to remind him of this positive attitude towards international law, and explain that the military invasion of another country simply tramps under foot the rights of that other country under the United Nations Charter ?
And that an Order by the International Court of Justiceshould be given a follow up, even if the Order did not go your preferred way ?
The Order of the ICJ in the case brought by Ukraine should not go down in history as just a piece of paper, or as an email attachment which is easy to delete. The world must not allow the international legal order to be brushed to the side , as is being done now.
[1] Convention on the Prevention and Punishment of the Crime of Genocide
[2] The visit took place on 2 November 2005
[3] All references to the speech by V. Putin are taken from his orginal Russian text, translated by the ICJ staff in English and French.
