Ukraine vs. Russia: Genocide proceedings at UN's top court

On Monday, the International Court of Justice (ICJ) in The Hague, Netherlands, will hear arguments from Ukraine and Russia over a possible violation of the 1948 Genocide Convention.

Ukraine filed a complaint against Russia with the ICJ on February 26, 2022, two days after Russia began its invasion of Ukraine. According to the United Nations High Commissioner for Human Rights (UNHCR), more than 9,600 people have died since the war started.

Comprised of 15 judges, the ICJ is the UN's judicial branch and the only international court that settles disputes between countries.

What is the case about?

The case goes back to the early days of the war in Ukraine when Russia used genocide allegations in regions in eastern Ukraine to justify what Russia called a "special military operation."Kyiv is accusing Moscow of falsely claiming acts of genocide, thus violating the convention.

Under Article 1 of the Genocide Convention, an international treaty unanimously adopted at the third UN General Assembly in 1948, all contracting parties must prevent and punish genocide. Both Russia and Ukraine are parties to that convention.

Sergey Vasiliev, associate professor of law at the University of Amsterdam, told DW that Ukraine "basically stated that Russia used this pretext — the false claim that genocide is ongoing — in order to commence the military operation against Ukraine, thereby perverting article one of the Genocide Convention."

Moscow did not participate in an earlier hearing in March 2022, which resulted in an order to Russia to halt the invasion immediately. In a written filing, Russia claimed that the court has no jurisdiction over the case as Ukraine's request would not be in the convention's scope. 

In October last year, Russia introduced official proceedings questioning the jurisdiction of the ICJ in the case.

How will the hearings unfold?

In hearings starting on Monday, the parties will present arguments on the responsibility of the UN court.

The Russian Federation is scheduled to start on Monday, followed by Ukraine on Tuesday. On Wednesday, 32 intervening states ­­— among them mainly EU member states, but also Canada, Australia, and the UK — will give their opinions on the case.

The hearings are scheduled to end on September 27.

What could be the outcome?

Afterward, the ICJ will establish whether it has jurisdiction or not. Vasiliev thinks the decision could go either way.

The legal expert explained that during its initial injunction in March 2022, in which hearings Russia did not participate, the court had already established its jurisdiction "prima facie," or legally sufficient at first impression. However, the jurisdiction was only partial, and the ICJ's complete jurisdiction needs to be established.

The court's decision is expected to be delivered relatively quickly in the coming months. Only after the court has decided on its competence could it resume the proceedings on the case's merits.

According to the court's rules, these proceedings were suspended, with Russia lodging its objections last year.

What does the ruling mean for Ukraine? 

Vasiliev thinks a later judgment on the case's merits in favor of Ukraine's position would have implications. 

It would constitute "a clear finding from the principal judicial organ of the United Nations that Russia should be held responsible as a state and that it may also be ordered to pay reparations," he said.

He noted that if the case proceeded to the merits phase, it could take "several years" to get the final judgment.

Is this separate from the crime of aggression case?

 Establishing a tribunal for the crime of aggression has been discussed for some time.

Unlike the case in front of the ICJ, which is about state responsibility, prosecuting the crime of aggression is "about personal responsibility of the political and military leadership of the Russian Federation," Vasiliev said.

The International Criminal Court (ICC), also located in The Hague, has the jurisdiction to prosecute crimes of aggression along with genocide, war crimes and crimes against humanity. However, neither Ukraine nor Russia is a member of the ICC statute, so the tribunal does not have jurisdiction over the crime of aggression in this case, Vasiliev told DW.

Still, the ICC has launched an investigation into war crimes in Ukraine, which the ICC can prosecute. It has also issued an arrest warrant against Russian President Vladimir Putin over the alleged abduction of Ukrainian children in Russia.

In July, an International Centre for the Prosecution of the Crime of Aggression (ICPA) opened in The Hague. It is supposed to help prepare possible future proceedings on the crime of aggression.

Edited by Ben Knight