Ukraine vs Russia at the ICJ:  It is not Ukraine commiting genocide, but Russia committing war crimes in Ukraine

In its case Ukraine vs Russia, Ukraine requested the International court of Justice (ICJ) to intervene in the ongoing war with Russia, seeking to “immediately suspend Russian military operations”. Kyiv submitted the case concerning ‘Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)’. The Russian Federation did not participate in the hearing. In a letter sent on 5 March, the Russian Federation informed the Court that it “had decided not to participate in the oral proceedings due to open on 7 March 2022”.

ICJ examines Ukraine’s case regarding Russia’s false pretext of “genocide” to invade Ukraine

Opening Statement by Ukrainian representative Anton Korynevych

The Ukrainian delegation was led by Anton Korynevych, Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea, as Agent. Here is his Statement. Madam President, distinguished Members of the Court, it is a great honour to appear before you as the Agent of Ukraine. It is also a solemn responsibility. We are here today in this building called the Peace Palace but, at home, my country faces a war of aggression. I am standing here in a room called the Great Hall of Justice but, at home, my countrymen see only the injustice of Russia’s bombs and missiles falling on our cities and neighbourhoods. As I stand before the Court, Ukrainians are under deadly attacks. Millions of people are in imminent danger. The United Nations’ top human rights official warns that there are significant civilian casualties. Russia’s assault on Ukraine has prompted over one and a half million people to flee the country. Many more are internally displaced. More than 15,000 people, most of them women and children, have taken shelter in Kyiv’s subway tunnels4. Babies are born underground, there, in tunnels, and hospitals are being shelled. All of this is the dire reality the people of Ukraine face now. [...] This is, of course, not the first time that Ukraine has experienced first-hand Russia’s disrespect for international law. Now the world understands the depth of its disrespect and the height of its cruelty. The fact that Russia’s seats are empty speaks loudly. They are not here in this court of law. They are on a battlefield, waging aggressive war against my country. This is how Russia solves disputes. But Ukraine has another position and respects international law and this court of law. But even still, Russia knows that international law matters. Why else would Russia try to justify its aggression? This war, Russia says, is to stop a genocide. I quote Russia’s president from the morning he ordered the invasion of Ukraine. He said: “We had to stop that atrocity, that genocide. The ‘purpose’ of the war - he said - was to ‘protect’ people from ‘genocide’.” This is a horrible lie. Putin lies, and Ukrainians, our citizens, die. It is not Ukraine who commits genocide, it is Russia and its political leadership and military personnel who commit crimes against humanity and war crimes on the territory of Ukraine.

Over the past two weeks, I have heard many people mention World War II. Russia sullies the memory of the Holocaust by claiming to “de-Nazify” Ukraine. To “de-Nazify” Ukraine, from its democratic government. I have heard others note that Europe has not seen such aggression and conflict since World War II. It is indeed appropriate to recall World War II, but for different reasons. We should recall that in World War II, Ukrainians and Russians fought together, and died together, to stop evil. We should recall that on the ashes of Europe, after the Second World War, the world built the modern pillars of international law. Two of these pillars stand as the most important. The world witnessed aggression - and it answered with the Charter of the United Nations. The world witnessed the Holocaust - and it answered with a Convention to Prevent and Punish the Crime of Genocide. The world said “never again” to the twin evils of Nazism: aggression and genocide. Unfortunately, today Russia has perverted those words. It does not treat the duty to prevent and punish genocide as a sacred obligation. It treats it as a weapon. With its false claim of genocide, Russia uses one pillar of modern international legal order to destroy the other. By falsely claiming genocide to justify its crime of aggression and acts of aggression, Russia has defiled the Genocide Convention. Madam President, distinguished Members of the Court, Ukraine’s case is straightforward. Russia accuses Ukraine of committing genocide. Ukraine denies that claim in the strongest possible terms, and we will prove it. Russia claims that in order to stop a non-existent genocide, it can invade a sovereign State - Ukraine. Ukraine rejects this baseless claim. My message to Russia is this: let us settle our dispute like civilized nations. Lay down your arms and put forward your evidence. Ukraine respects this Court and follows its orders. Russia must as well. But if Russia will not return to international law on its own, the Court has the power to act. With respect, the Court has the responsibility to act. Russia consented to your jurisdiction under the Genocide Convention. Now it is abusing and violating that Convention in order to kill Ukrainians and destroy Ukraine. Russia must be stopped, and the Court has a role to play in stopping it. That is why the people of Ukraine, the Government of Ukraine, the President of Ukraine, Volodymyr Zelenskyy, ask you, respectfully but urgently, to grant our request for provisional measures. On behalf of Ukraine, I thank the Court for the urgency you showed in convening this hearing. I thank you, Madam President, for your urgent communication to the Russian Federation under Article 74 (4) of the Court’s Rules. I thank the Court in advance for your careful attention this morning. And I thank the Court for being mindful of the extreme urgency which exists now as you deliberate. If ever there was a moment in which to exercise your power to order provisional measures, this is that moment.

Final Statement by Ukrainian representative Olena Zolotaryeva

In the end, Olena Zolotaryeva, Director, International Law Department, Ministry of Foreign Affairs of Ukraine, as Co-Agent; presented Ukraine’s final submissions. Madam President, distinguished Members of the Court, I am honoured to conclude Ukraine’s oral pleadings and make Ukraine’s final submissions regarding its urgent request for the indication of provisional measures. Ukraine has now faced 11 days of Russia’s brutal invasion of Ukraine. Many people said we could not withstand Russian aggression for so long. They underestimated the people of Ukraine. They underestimated our spirit, our unity, our devotion. Ukrainian heroes are bravely defending Ukraine - and we will keep defending Ukraine until the aggressor leaves. Ukraine is being supported by the civilized world. We are grateful to each and every act and effort to support Ukraine. But we need more help. We need more help from our allies. We need more help from every institution in the world. That includes this Court. Your power to act is clear. To defend actions that are indefensible, the Russian Federation fabricated allegations of genocide out of nothing. It used this horrible lie as a pretext for its unlawful assault on Ukraine. In doing so, Russia cynically abused the Genocide Convention. Russia twisted the crime of genocide to justify the crime of aggression. In the name of preventing and punishing the crime of genocide, Russia is committing war crimes and crimes against humanity. Ukraine has come here before you, the World Court, to seek urgent protection for everyone who lives in Ukraine. As Professor Thouvenin explained, there is no doubt of a legal dispute under the Genocide Convention. As Mr. Zionts showed, the reports of United Nations missions and other neutral observers confirm that Russia’s allegation of genocide is absurd. Marley Cheek demonstrated Ukraine’s right not to be illegally invaded based on a bad faith abuse of the Genocide Convention by Russia. Mr. Gimblett highlighted the extreme urgency of the situation. And Professor Koh explained why the Court can, and must, order the measures Ukraine requests. I could rest Ukraine’s case here. But at this difficult moment, I am compelled to remind the Court of the real, human stakes of Ukraine’s request. As I am speaking, the Russian Federation continues its relentless assault on our cities, on our towns, on our villages, on our people. This assault has taken many forms. My hometown of Kharkiv suffers for days from indiscriminate shelling but heroically resists. Churches are ruined; hospitals are ruined; universities are ruined; civil infrastructure is ruined there. None of these can be considered as legitimate military targets. The world is witnessing and documenting how Russia kills civilians in its indiscriminate attacks. We do not know yet the true number of Ukrainians that Russia has murdered in the past 11 days. We can only guess how many more will be murdered in the next 11 days, if this senseless aggression does not stop.

In these extraordinary circumstances, Ukraine requests that the Court order the following provisional measures:

• The Russian Federation shall immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk Oblasts of Ukraine.
• The Russian Federation shall immediately 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, direction or influence, take no steps in furtherance of the military operations which have as their stated purpose and objective preventing or punishing Ukraine for committing genocide.
• The Russian Federation shall refrain from any action and shall provide assurances that no action is taken that may aggravate or extend the dispute that is the subject of this Application, or render this dispute more difficult to resolve.
• The Russian Federation shall provide a report to the Court on measures taken to implement the Court’s Order on Provisional Measures one week after such order and then on a regular basis to be fixed by the Court.

Madam President, Members of the Court, before I conclude Ukraine’s case on its request for provisional measures, I would like to refer to the words of the Secretary-General of the United Nations, António Guterres, immediately following the resolution of the General Assembly condemning Russia’s actions: “People in Ukraine desperately need peace. And people around the world demand it.” On behalf of the Government of Ukraine, and on behalf of the people of Ukraine, I thank you for your attention in this matter of national life or death. I respectfully urge the Court to issue your Order with utmost urgency. We are in your hands. Thank you.

Ukraine vs Russia: a test for the world community

Why is the legal channel so important? Ukraine is determined to use all instruments provided by international law and demonstrate that Kyiv adheres to and respects the conventions built by the international community after the Second World War. Moreover, it is of utmost importance to show and provide evidence that the Russian Federation regularly violates human rights, environmental law, nuclear security and the general principles of international law (non-use of force, peaceful settlement of disputes, non-intervention, co-operation, self-determination, sovereign equality and good faith). Putin launched the military onslaught of Ukraine on 24 February. In just two weeks, the ICJ case raises bigger and more existential questions than the case Ukraine vs Russia. It has, in the words of Professor Harold Hongju Koh, become "a test for the world community". Who will prevail? Russia or the post-WW2 international legal order? The destruction and senseless killing of civilians in the streets of Kyiv, Kharkiv, Mariupol, Kherson, Volnovakha and so many other Ukrainian cities is exactly what the international legal system and the post-WW2 order were designed to prevent.

More on the case:

• ICJ examines Ukraine’s case regarding Russia’s false pretext of “genocide” to invade Ukraine