UKRAINE v. RUSSIAN FEDERATION--Text of Interational Court of Justice Decision (16 March 2022) Including the Separate Declarations of Judges Gevorgian (Russia) and Hue (China)

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The International Court of Justice (ICJ) delivers its Order on the Request for the indication of provisional measures presented by Ukraine in the case Ukraine v. Russian Federation

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Summary: The International Court of Justice (ICJ), the principal judicial organ of the UN, delivers its Order on the Request for the indication of provisional measures presented by Ukraine in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)

Description: 

The International Court of Justice (ICJ), the principal judicial organ of the UN, delivers its Order on the Request for the indication of provisional measures presented by Ukraine in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) on 16 March 2022 at the Peace in The Hague, the seat of the Court. Session held under the presidency of Judge Joan E. Donoghue, President of the Court.

La Cour internationale de Justice (CIJ), organe judiciaire principal de l'Organisation des Nations Unies, rend, le 16 mars 2022, son ordonnance sur la demande en indication de mesures conservatoires présentée par l'Ukraine en l'affaire relative à des Allégations de génocide au titre de la  convention pour la prévention et la répression du crime de génocide (Ukraine c. Fédération de Russie) au Palais de la Paix, à La Haye, où la Cour a son siège. Séance tenue sous la présidence de Mme la juge Joan E. Donoghue, présidente de la Cour.

Links to the Opinion and the declarations and Separate opinions of some of the judges: 

Order of 16 March 2022

Declaration of Vice-President Gevorgian

Declaration of Judge Bennouna

Declaration of Judge Xue

Separate opinion of Judge Robinson

Declaration of Judge Nolte

Declaration of Judge ad hoc Daudet

Summary 2022/2  the Order of 16 March 2022

The text of the decision follows along with the Declarations of Judges Gevorgian (Russia) and Hue (China). These opinions require savoring but to do that the primary sources are a better starting point than summaries prepared by others.  The opinions are rich, sometimes clever, and in many ways seek to elaborate interesting application of law against resistance (but there is often resistance by the losing state) and in the face of a necessity which is acute culturally and politically but difficult to squeeze into  the structures of legalized internationalism centered on the International Court of Justice. As is sometimes apparent and especially in this case, one of the great difficulties of judicialization in the international level is the challenge for shoehorning  claims within the scope of substantive rights and the procedural and jurisdictional limits of courts.  This is an old problem and lawyers work hard to end run these limits and in the process transform law and the courts willing to engage in such transformations. This process has no ideology and is more strategic and inherent in the nature of law and the cultures of dispute resolution through institutionalized bodies such as the ICJ.  More important for Ukraine in this case is that sometimes a litigant wins merely by having a case heard irrespective of the decision.  And indeed, sometimes a bad decision in a court produces a substantially good consequences in the arena of politics (theory discussed in Backer, Chroniclers in the Field of Cultural Production: Courts, Law, and the Interpretive Process Boston College Third World Law Journal 20:291-343 (2000).  

Judging is a process of narrative transmogrification: courts hear the stories of litigants and transform them into something juridically digestible.  Our society uses these transformed stories in a way that conforms to what society wants to know. Story becomes counter story, which in turn becomes the basis for the rules which explains the way in which the story is retold. The judgment is in the manner of the retelling of the story and not in the articulation of the rule itself. Thus, jurisprudence is a backwards science.  It looks to rules when it ought to be concentrating on the basis of judgment subsumed within the laundered "facts" of a case. (Backer, Tweaking Facts, Speaking Judgment: Judicial Transmogrification of Case Narrative as Jurisprudence in the United States and Britain, Southern California Interdisciplinary Law Journal 6:611, 616 (1998).)

This insight may help untangle some of the discursive trajectories in the case and the declaraitons. 

 

ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
___________
ALLÉGATIONS DE GÉNOCIDE AU TITRE DE LA CONVENTION POUR
LA PRÉVENTION ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
(UKRAINE c. FÉDÉRATION DE RUSSIE)

16 MARS 2022
ORDONNANCE


T ABLE OF CONTENTS
Paragraphs


CHRONOLOGY OF THE PROCEDURE 1-16


I. INTRODUCTION 17-23

II. PRIMA FACIE JURISDICTION 24-49
1. General observations 24-27
2. Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide Convention 28-47
3. Conclusion as to prima facie jurisdiction 48-49

III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN SUCH RIGHTS AND THE MEASURES REQUESTED 50-64

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY 65-77

V. CONCLUSION AND MEASURES TO BE ADOPTED 78-85
OPERATIVE CLAUSE 86



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1. On 26 February 2022, at 9.30 p.m., Ukraine filed in the Registry of the Court an Application
instituting proceedings against the Russian Federation concerning “a dispute . . . relating to the
interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide” (hereinafter the “Genocide Convention” or the “Convention”).

2. At the end of its Application, Ukraine “respectfully requests the Court to:

(a) Adjudge and declare that, contrary to what the Russian Federation claims, no acts
of genocide, as defined by Article III of the Genocide Convention, have been
committed in the Luhansk and Donetsk oblasts of Ukraine.
(b) Adjudge and declare that the Russian Federation cannot lawfully take any action
under the Genocide Convention in or against Ukraine aimed at preventing or
punishing an alleged genocide, on the basis of its false claims of genocide in the
Luhansk and Donetsk oblasts of Ukraine.
(c) Adjudge and declare that the Russian Federation’s recognition of the independence
of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on
22 February 2022 is based on a false claim of genocide and therefore has no basis
in the Genocide Convention.
(d) Adjudge and declare that the ‘special military operation’ declared and carried out
by the Russian Federation on and after 24 February 2022 is based on a false claim
of genocide and therefore has no basis in the Genocide Convention.
(e) Require that the Russian Federation provide assurances and guarantees of
non-repetition that it will not take any unlawful measures in and against Ukraine,
including the use of force, on the basis of its false claim of genocide.
(f) Order full reparation for all damage caused by the Russian Federation as a
consequence of any actions taken on the basis of Russia’s false claim of genocide.”

3. In its Application, Ukraine seeks to found the Court’s jurisdiction on Article 36,
paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention.

4. Together with the Application, Ukraine submitted a Request for the indication of provisional
measures with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of
Court.

5. At the end of its Request, Ukraine asked the Court to indicate the following provisional
measures:
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“(a) 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.
(b) 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.
(c) 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.
(d) 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.”

6. Ukraine also requested the President of the Court “pursuant to Article 74 (4) of the Rules of Court . . . to call upon the Russian Federation to immediately halt all military actions in Ukraine pending the holding of a hearing, to enable any order the Court may make on the request for provisional measures to have
its appropriate effects”.

7. In the morning of 27 February 2022, the Registrar communicated by email to the Russian
Federation an advance copy of the Application and Request for the indication of provisional
measures. These documents were formally communicated to the Russian Federation on
28 February 2022, pursuant to Article 40, paragraph 2, of the Statute of the Court in respect of the
Application, and pursuant to Article 73, paragraph 2, of the Rules of Court in respect of the Request
for the indication of provisional measures. The Registrar also notified the Secretary-General of the
United Nations of the filing of the Application and the Request by Ukraine.

8. Pending the notification provided for by Article 40, paragraph 3, of the Statute, the Registrar
informed all States entitled to appear before the Court of the filing of the Application and the Request
for the indication of provisional measures by a letter dated 2 March 2022.

9. Since the Court included upon the Bench no judge of Ukrainian nationality, Ukraine
proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a judge ad hoc
to sit in the case; it chose Mr. Yves Daudet.

10. By a letter dated 1 March 2022, the President of the Court, exercising the powers conferred
upon her under Article 74, paragraph 4, of the Rules of Court, called the attention of the Russian
Federation to the need to act in such a way as would enable any order the Court may make on the
request for provisional measures to have its appropriate effects.
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11. By letters dated 1 March 2022, the Registrar informed the Parties that, pursuant to
Article 74, paragraph 3, of the Rules, the Court had fixed 7 and 8 March 2022 as the dates for the
oral proceedings on the Request for the indication of provisional measures. The Registrar indicated
that the hearings would be held in a hybrid format, pursuant to which each Party could choose to
have a certain number of representatives present in the Great Hall of Justice, with other members of
the delegation participating by video-link.

12. By a letter dated 5 March 2022, the Ambassador of the Russian Federation to the Kingdom
of the Netherlands indicated that his Government had decided not to participate in the oral
proceedings due to open on 7 March 2022.

13. At the public hearing held in a hybrid format on 7 March 2022, oral observations on the
Request for the indication of provisional measures were presented by:
On behalf of Ukraine: Mr. Anton Korynevych,
Mr. Jean-Marc Thouvenin,
Mr. David M. Zionts,
Ms Marney L. Cheek,
Mr. Jonathan Gimblett,
Mr. Harold Hongju Koh,
Ms Oksana Zolotaryova.

14. At the end of its oral observations, Ukraine asked the Court to indicate the following
provisional measures:

“(a) 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.
(b) 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.
(c) 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.
(d) 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.”

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15. Under cover of a letter dated 7 March 2022 received in the Registry shortly after the closure
of the hearing, the Ambassador of the Russian Federation to the Kingdom of the Netherlands
communicated to the Court a document setting out “the position of the Russian Federation regarding
the lack of jurisdiction of the Court in t[he] case”.

16. Since the Government of the Russian Federation did not appear at the oral proceedings, no
formal request was presented by that Government. However, in the document communicated to the
Court on 7 March 2022, the Russian Federation contends that the Court lacks jurisdiction to entertain
the case and “requests the Court to refrain from indicating provisional measures and to remove the
case from its list”.
*
* *
I. INTRODUCTION

17. The context in which the present case comes before the Court is well-known. On
24 February 2022, the President of the Russian Federation, Mr. Vladimir Putin, declared that he had
decided to conduct a “special military operation” against Ukraine. Since then, there has been intense
fighting on Ukrainian territory, which has claimed many lives, has caused extensive displacement
and has resulted in widespread damage. The Court is acutely aware of the extent of the human tragedy
that is taking place in Ukraine and is deeply concerned about the continuing loss of life and human
suffering.

18. The Court is profoundly concerned about the use of force by the Russian Federation in
Ukraine, which raises very serious issues of international law. The Court is mindful of the purposes
and principles of the United Nations Charter and of its own responsibilities in the maintenance of
international peace and security as well as in the peaceful settlement of disputes under the Charter
and the Statute of the Court. It deems it necessary to emphasize that all States must act in conformity
with their obligations under the United Nations Charter and other rules of international law, including
international humanitarian law.

19. The ongoing conflict between the Parties has been addressed in the framework of several
international institutions. The General Assembly of the United Nations adopted a resolution referring
to many aspects of the conflict on 2 March 2022 (doc. A/RES/ES-11/1). The present case before the
Court, however, is limited in scope, as Ukraine has instituted these proceedings only under the
Genocide Convention.
*
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20. The Court regrets the decision taken by the Russian Federation not to participate in the
oral proceedings on the request for the indication of provisional measures, as set out in the
above-mentioned letter of 5 March 2022 (see paragraph 12 above).

21. The non-appearance of a party has a negative impact on the sound administration of justice,
as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court
must proceed in the discharge of its judicial function at any phase of the case (Arbitral Award of
3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020,
p. 464, para. 25; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 23, para. 27).

22. Though formally absent from the proceedings, non-appearing parties sometimes submit to
the Court letters and documents in ways and by means not contemplated by its Rules (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 25, para. 31). It is valuable for the Court to know the views of both
parties in whatever form those views may have been expressed (ibid.). The Court will therefore take
account of the document communicated by the Russian Federation on 7 March 2022 to the extent
that it finds this appropriate in discharging its duties.

23. The Court recalls that the non-appearance of one of the States concerned cannot by itself
constitute an obstacle to the indication of provisional measures (United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of
15 December 1979, I.C.J. Reports 1979, p. 13, para. 13). It emphasizes that the non-participation of
a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of
its decision (cf. Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court,
Judgment, I.C.J. Reports 2020, p. 464, para. 26; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 23,
para. 27). Should the present case extend beyond the current phase, the Russian Federation, which
remains a Party to the case, will be able, if it so wishes, to appear before the Court to present its
arguments ( Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 142-143, para. 284).
 

II. PRIMA FACIE JURISDICTION

1. General observations

24. The Court 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 (see,
for example, Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J.
Reports 2020, p. 9, para. 16).

25. In the present case, Ukraine seeks to found the jurisdiction of the Court on Article 36,
paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention
(see paragraph 3 above). The Court must therefore first determine whether those provisions
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prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it  if the other
necessary conditions are fulfilled  to indicate provisional measures.

26. Article IX of the Genocide Convention reads as follows:
“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
article III, shall be submitted to the International Court of Justice at the request of any
of the parties to the dispute.”

27. Ukraine and the Russian Federation are both parties to the Genocide Convention. Ukraine
deposited its instrument of ratification on 15 November 1954 with a reservation to Article IX of the
Convention; on 20 April 1989, the depositary received notification that this reservation had been
withdrawn. The Russian Federation is a party to the Genocide Convention as the State continuing
the legal personality of the Union of Soviet Socialist Republics, which deposited its instrument of
ratification on 3 May 1954 with a reservation to Article IX of the Convention; on 8 March 1989, the
depositary received notification that this reservation had been withdrawn.

2. Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide Convention

28. Article IX of the Genocide Convention makes the Court’s jurisdiction conditional on the
existence of a dispute relating to the interpretation, application or fulfilment of the Convention.
According to the established case law of the Court, a dispute is “a disagreement on a point of law or
fact, a conflict of legal views or of interests” between parties (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). In order for a dispute to exist, “[i]t must be
shown that the claim of one party is positively opposed by the other” (South West Africa (Ethiopia v.
South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 328). The two sides must “‘hold clearly opposite views concerning the question of the performance
or non-performance of certain’ international obligations” ( Alleged Violations of Sovereign Rights
and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50, citing Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). To
determine whether a dispute exists in the present case, the Court cannot limit itself to noting that one
of the Parties maintains that the Convention applies, while the other denies it (see Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United
Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 414,
para. 18).

29. Since Ukraine has invoked as the basis of the Court’s jurisdiction the compromissory
clause in an international convention, the Court must ascertain, at the present stage of the
proceedings, whether it appears that the acts complained of by the Applicant are capable of falling
within the scope of that convention ratione materiae (cf. Jadhav (India v. Pakistan), Provisional
Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 239, para. 30).
* *
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30. Ukraine contends that a dispute exists between it and the Russian Federation relating to
the interpretation, application or fulfilment of the Genocide Convention. It maintains that the Parties
disagree on whether genocide, as defined in Article II of the Convention, has occurred or is occurring
in the Luhansk and Donetsk oblasts of Ukraine and whether Ukraine has committed genocide. In this
regard, the Applicant submits that it profoundly disagrees with the unsubstantiated allegation of the
Russian Federation that genocide has taken place in Ukraine and that it has made this known to the
Russian Federation on multiple occasions since September 2014, including through a statement by
the Minister for Foreign Affairs of Ukraine before the General Assembly of the United Nations on
23 February 2022.

31. Ukraine further argues that the dispute between the Parties concerns the question whether,
as a consequence of the Russian Federation’s unilateral assertion that genocide is occurring, the
Russian Federation has a lawful basis to take military action in and against Ukraine to prevent and
punish genocide pursuant to Article I of the Genocide Convention. Ukraine considers that the
Russian Federation “has turned the Genocide Convention on its head”, making a false claim of
genocide as a basis for actions on its part that constitute grave violations of the human rights of
millions of people across Ukraine. It asserts that, rather than taking military action to prevent and
punish genocide, the Russian Federation should have seised the organs of the United Nations under
Article VIII of the Convention or seised the Court under Article IX thereof. Ukraine states that it
vehemently disagrees with the Russian Federation’s interpretation, application and fulfilment of the
Convention. Referring, inter alia, to a statement by the Ukrainian Ministry of Foreign Affairs of
26 February 2022, Ukraine asserts that the Russian Federation “could not have been unaware, that
its views were ‘positively opposed’” by Ukraine.
*

32. In the document communicated to the Court on 7 March 2022, the Russian Federation
states that the only basis for jurisdiction referred to by Ukraine is the dispute resolution clause
contained in Article IX of the Genocide Convention. However, according to the Respondent, it is
clear from the plain language of the Convention that it does not regulate the use of force between
States. The Respondent submits that, in order to “glue” the Convention to the use of force for the
purposes of invoking its dispute resolution clause, Ukraine has claimed that the Russian Federation
commenced its “special military operation” on the basis of allegations of genocide committed by
Ukraine. The Russian Federation asserts that, in reality, its “special military operation” on the
territory of Ukraine is based on Article 51 of the United Nations Charter and customary international
law and that the Convention cannot provide a legal basis for a military operation, which is beyond
the scope of the Convention.

33. The Respondent further states that the legal basis for the “special military operation” was
communicated on 24 February 2022 to the Secretary-General of the United Nations and the
United Nations Security Council by the Permanent Representative of the Russian Federation to the
United Nations in the form of a notification under Article 51 of the United Nations Charter
(circulated as document S/2022/154 of the Security Council). The Russian Federation contends that,
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while the address of President Putin “to the citizens of Russia” that was appended to the notification
may in certain contexts have referred to genocide, this reference is not the same as the invocation of
the Convention as a legal justification for its operation, nor does it indicate that the Russian
Federation recognizes the existence of a dispute under the Convention. The Russian Federation
emphasizes that there are no references to the Genocide Convention in the address made by its
President on 24 February 2022.

34. The Russian Federation therefore concludes that Ukraine’s “Application and Request
manifestly fall beyond the scope of the Convention and thus the jurisdiction of the Court”; it asks the
Court to remove the case from its List.
* *

35. The Court recalls that, for the purposes of deciding whether there was a dispute between
the Parties at the time of the filing of the Application, it takes into account in particular any statements
or documents exchanged between the Parties, as well as any exchanges made in multilateral settings.
In so doing, it pays special attention to the author of the statement or document, their intended or
actual addressee, and their content. The existence of a dispute is a matter for objective determination
by the Court; it is a matter of substance, and not a question of form or procedure (see Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 12, para. 26).

36. The Court notes that the Applicant disputes the Russian Federation’s allegation that
Ukraine has committed or is committing genocide in the Luhansk and Donetsk regions of Ukraine.
Ukraine also asserts that nothing in the Convention authorizes the Russian Federation to use force
against Ukraine as a means to fulfil its obligation under Article I thereof to prevent and punish
genocide.

37. In this regard the Court observes that, since 2014, various State organs and senior
representatives of the Russian Federation have referred, in official statements, to the commission of
acts of genocide by Ukraine in the Luhansk and Donetsk regions. The Court observes, in particular,
that the Investigative Committee of the Russian Federation  an official State organ  has,
since 2014, instituted criminal proceedings against high-ranking Ukrainian officials regarding the
alleged commission of acts of genocide against the Russian-speaking population living in the
above-mentioned regions “in violation of the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide”.

38. The Court recalls that, in an address made on 21 February 2022, the President of the
Russian Federation, Mr. Vladimir Putin, described the situation in Donbass as a “horror and
genocide, which almost 4 million people are facing”.

39. By a letter dated 24 February 2022 (see paragraph 33 above), the Permanent
Representative of the Russian Federation to the United Nations requested the Secretary-General to
circulate, as a document of the Security Council, the “text of the address of the President
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of the Russian Federation, Vladimir Putin, to the citizens of Russia, informing them of the measures
taken in accordance with Article 51 of the Charter of the United Nations in exercise of the right of
self-defence”. In his address, pronounced on 24 February 2022, the President of the Russian
Federation explained that he had decided, “in accordance with Article 51 (chapter VII) of the Charter
of the United Nations . . . to conduct a special military operation with the approval of the Federation
Council of Russia and pursuant to the treaties on friendship and mutual assistance with the Donetsk
People’s Republic and the Lugansk People’s Republic”. He specified that the “purpose” of the special
operation was “to protect people who have been subjected to abuse and genocide by the Kiev regime
for eight years”. He stated that the Russian Federation had to stop “a genocide” against millions of
people and that it would seek the prosecution of those who had committed numerous bloody crimes
against civilians, including citizens of the Russian Federation.

40. The Permanent Representative of the Russian Federation to the United Nations, referring
to the address by the President of the Russian Federation of 24 February 2022, explained at a meeting
of the Security Council on Ukraine that “the purpose of the special operation [was] to protect people
who ha[d] been subjected to abuse and genocide by the Kyiv regime for eight years”.

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considers that, in the present proceedings, the evidence in the case file demonstrates prima facie that
statements made by the Parties referred to the subject-matter of the Genocide Convention in a
sufficiently clear way to allow Ukraine to invoke the compromissory clause in this instrument as a
basis for the Court’s jurisdiction.

45. The statements made by the State organs and senior officials of the Parties 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. In the Court’s view, the acts
complained of by the Applicant appear to be capable of falling within the provisions of the Genocide
Convention.

46. The Court recalls the Russian Federation’s assertion that its “special military operation” is
based on Article 51 of the United Nations Charter and customary international law (see
paragraphs 32-33). The Court observes in this respect that certain acts or omissions may give rise to
a dispute that falls within the ambit of more than one treaty (cf. Alleged Violations of the 1955 Treaty
of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of
America), Preliminary Objections, Judgment of 3 February 2021, para. 56). The above-referenced
assertion of the Russian Federation does not therefore preclude a prima facie finding by the Court
that the dispute presented in the Application relates to the interpretation, application or fulfilment of
the Genocide Convention.

47. The Court finds therefore that the above-mentioned elements are sufficient at this stage to
establish prima facie the existence of a dispute between the Parties relating to the interpretation,
application or fulfilment of the Genocide Convention.

3. Conclusion as to prima facie jurisdiction

48. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant
to Article IX of the Genocide Convention to entertain the case.

49. Given the above conclusion, the Court considers that it cannot accede to the Russian
Federation’s request that the case be removed from the General List for manifest lack of jurisdiction.
 

III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
SUCH RIGHTS AND THE MEASURES REQUESTED

50. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights claimed by the parties in a case, pending its
decision on the merits thereof. It follows that the Court must be concerned to pr eserve by such
measures the rights which may subsequently be adjudged by it to belong to either party. Therefore,
the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting
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such measures are at least plausible (see, for example, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional
Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 18, para. 43).

51. At this stage of the proceedings, however, the Court is not called upon to determine
definitively whether the rights which Ukraine wishes to see protected exist; it need only decide
whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are
plausible. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (ibid., para. 44).
* *

52. In the present proceedings, Ukraine argues that it seeks provisional measures to protect its
rights “not to be subject to a false claim of genocide”, and “not to be subjected to another State’s
military operations on its territory based on a brazen abuse of Article I of the Genocide Convention”.
It states that the Russian Federation has acted inconsistently with its obligations and duties, as set out
in Articles I and IV of the Convention.

53. Ukraine contends that it has a right to demand good faith performance of obligations under
the Genocide Convention by the Russian Federation, in accordance with the object and purpose of
the Convention. It states that the Russian Federation has abused and misused the rights and duties
stipulated in the Convention and that the “special military operation” of the Respondent is an
aggression undertaken “under the guise” of the duty to prevent and punish genocide, enshrined in
Articles I and IV of the Convention, and that it frustrates the object and purpose of the Convention.

54. The Applicant further submits that it has a right under the Convention not to be harmed by
the Russian Federation’s misuse and abuse of the Convention. It considers in particular that it has a
right not to suffer grave harm as a result of a military action falsely cloaked as one undertaken to
prevent and punish genocide.

55. Ukraine asserts that the above-mentioned rights are grounded in a possible interpretation
of the Genocide Convention and are therefore plausible.
* *
- 13 -
56. The Court observes that, in accordance with Article I of the Convention, all States parties
thereto have undertaken “to prevent and to punish” the crime of genocide. Article I does not specify
the kinds of measures that a Contracting Party may take to fulfil this obligation. However, the
Contracting Parties must implement this obligation in good faith, taking into account other parts of
the Convention, in particular Articles VIII and IX, as well as its Preamble. Pursuant to Article VIII of the Convention, a Contracting Party that considers that genocide is taking place in the territory of another Contracting Party “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”. In addition, pursuant to Article IX, such a Contracting Party may submit to the Court a dispute relating to the interpretation, application or fulfilment of the Convention.

57. A Contracting Party may resort to other means of fulfilling its obligation to prevent and
punish genocide that it believes to have been committed by another Contracting Party, such as
bilateral engagement or exchanges within a regional organization. However, the Court emphasizes
that, in discharging its duty to prevent genocide, “every State may only act within the limits permitted
by international law”, as was stated in a previous case brought under the Convention (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 221, para. 430).

58. The acts undertaken by the Contracting Parties “to prevent and to punish” genocide must
be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the
United Nations Charter. In this regard, the Court recalls that, under Article 1 of the United Nations
Charter, the purposes of the United Nations are, inter alia,

“[t]o maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which might lead to a
breach of the peace”.

59. The Court can only take a decision on the Applicant’s claims if the case proceeds to the
merits. At the present stage of the proceedings, it suffices to observe that the Court is not in
possession of evidence substantiating the allegation of the Russian Federation that genocide has been
committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object
and purpose, 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.

60. Under these circumstances, the Court considers 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.
* *
- 14 -
61. The Court now turns to the condition of the link between the rights claimed by Ukraine
and the provisional measures requested.
* *

62. Ukraine claims that there is a clear link between the plausible rights that it seeks to preserve
and the first two provisional measures that it requests. In particular, the first two provisional measures
share a direct link to Ukraine’s right under Article I to good faith performance of the Convention by
any State party.
* *

63. The Court has already found that Ukraine is asserting a right that is plausible under the
Genocide Convention (see paragraphs 50-60 above). The Court considers that, by their very nature,
the first two provisional measures sought by Ukraine (see paragraph 14 above) are aimed at
preserving the right of Ukraine that the Court has found to be plausible. As to the third and fourth
provisional measures requested by Ukraine, the question of their link with that plausible right does
not arise, in so far as such measures would be directed at preventing any action which may aggravate
or extend the existing dispute or render it more difficult to resolve, and at providing information on
the compliance with any specific provisional measure indicated by the Court (cf. Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 24, para. 61).

64. The Court concludes, therefore, that a link exists between the right of Ukraine that the Court has found to be plausible and the requested provisional measures.
 

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY

65. The Court, pursuant to Article 41 of its Statute, 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 (see,
for example, ibid., p. 24, para. 64, referring to Alleged Violations of the 1955 Treaty of Amity,
Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America),
Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 645, para. 77).

66. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, 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. The condition of urgency is
met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the
Court makes a final decision on the case (ibid., para. 65). The Court must therefore consider whether
such a risk exists at this stage of the proceedings.

- 15 -
67. The Court is not called upon, for the purposes of its decision on the Request for the
indication of provisional measures, to establish the existence of breaches of obligations under the
Genocide Convention, but to determine whether the circumstances require the indication of
provisional measures for the protection of the right found to be plausible. It cannot at this stage make
definitive findings of fact, and the right of each Party to submit arguments in respect of the merits
remains unaffected by the Court’s decision on the Request for the indication of provisional measures.
* *

68. Ukraine submits that there is an urgent need to protect its people from the irreparable harm
caused by the Russian Federation’s military measures that have been launched on a pretext of
genocide. It emphasizes that the invasion by the Russian Federation has resulted in numerous
casualties among Ukrainian civilians and military personnel, the bombing of numerous cities across
Ukraine, and the displacement of over one and a half million Ukrainian civilians both within Ukraine
and across its international borders.

69. Ukraine asserts that, in assessing whether the condition of urgency is satisfied in cases
involving ongoing conflict, the Court typically considers whether the population at risk is particularly
vulnerable, the fragility of the overall situation, including the likelihood of aggravation of the dispute,
and the risk of reoccurrence of harm. Ukraine submits that the Court has frequently stated that loss
of life constitutes an irreparable harm.

70. In this regard, Ukraine contends that thousands of people have already been killed in the
conflict and that, with every day that passes, more lives will be lost and probably at an accelerating
rate. It argues that the refugee crisis is another example of irreparable harm, pointing to the
uncertainty that these displaced individuals will ever be able to return to their homes and the lasting
psychological trauma the conflict will cause them even if they are resettled. It emphasizes that the
population is extremely vulnerable, with many lacking food, electricity and water; that the overall
situation is extremely fragile; and that the risk of aggravation of the crisis is acute. Ukraine further
asserts that the Russian Federation’s military action poses grave environmental risks, not only to
Ukraine but also for the wider region, referring in particular to the dangers posed to Ukraine’s civil
nuclear industry and toxic smoke released by attacks on fuel depots.

71. Ukraine submits that the seriousness of the situation unambiguously satisfies the
conditions of irreparable harm and urgency necessary for the imposition of provisional measures.
*
- 16 -
72. The Russian Federation, for its part, submits that, contrary to what Ukraine asserts, the
urgency must pertain not to the situation in general but to the protection of rights provided for by the
Convention.
* *

73. Having previously determined that Ukraine can plausibly assert a right under the Genocide
Convention and that there is a link between this right and the provisional measures requested, the
Court now considers whether irreparable prejudice could be caused to this right and whether there is
urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused
to this right before the Court gives its final decision.

74. The Court considers that the right of Ukraine that it has found to be plausible (see
paragraph 60 above) is of such a nature that prejudice to it is capable of causing irreparable harm.
Indeed, 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.

75. The Court considers that the civilian population affected by the present conflict is
extremely vulnerable. The “special military operation” being conducted by the Russian Federation
has resulted in numerous civilian deaths and injuries. It has also caused significant material damage,
including the destruction of buildings and infrastructure. Attacks are ongoing and are creating
increasingly difficult living conditions for the civilian population. Many persons have no access to
the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large
number of people are attempting to flee from the most affected cities under extremely insecure
conditions.

76. In this regard, the Court takes note of resolution A/RES/ES-11/1 of 2 March 2022, of the
General Assembly of the United Nations, which, inter alia, “[e]xpress[es] grave concern at reports
of attacks on civilian facilities such as residences, schools and hospitals, and of civilian casualties,
including women, older persons, persons with disabilities, and children”, “[r]ecogniz[es] that the
military operations of the Russian Federation inside the sovereign territory of Ukraine are on a scale
that the international community has not seen in Europe in decades and that urgent action is needed
to save this generation from the scourge of war”, “[c]ondemn[s] the decision of the Russian
Federation to increase the readiness of its nuclear forces” and “[e]xpress[es] grave concern at the
deteriorating humanitarian situation in and around Ukraine, with an increasing number of internally
displaced persons and refugees in need of humanitarian assistance”.

77. In light of these circumstances, the Court concludes that disregard of the right deemed
plausible by the Court (see paragraph 60 above) could cause irreparable prejudice to this right and
that there is urgency, in the sense that there is a real and imminent risk that such prejudice will be
caused before the Court makes a final decision in the case.
- 17 -
 

V. CONCLUSION AND MEASURES TO BE ADOPTED

78. The Court concludes from all of the above considerations that the conditions required by
its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final
decision, for the Court to indicate certain measures in order to protect the right of Ukraine that the
Court has found to be plausible (see paragraph 60 above).

79. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are, in whole or in part, other than those requested.
Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court
has already exercised this power on several occasions in the past (see, for example, Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 28, para. 77).

80. In the present case, having considered the terms of the provisional measures requested by
Ukraine and the circumstances of the case, the Court finds that the measures to be indicated need not
be identical to those requested.

81. The Court considers that, with regard to the situation described above, the Russian
Federation must, pending the final decision in the case, suspend the military operations that it
commenced on 24 February 2022 in the territory of Ukraine. In addition, recalling the statement of
the Permanent Representative of the Russian Federation to the United Nations that the “Donetsk
People’s Republic” and the “Lugansk People’s Republic” had turned to the Russian Federation with
a request to grant military support, the Court considers that the Russian Federation must also 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 or direction, take no steps in
furtherance of these military operations.

82. The Court recalls that Ukraine also requested it to indicate measures aimed at ensuring the
non-aggravation of the dispute with the Russian Federation. When it indicates provisional measures
for the purpose of preserving specific rights, the Court may also indicate provisional measures with
a view to preventing the aggravation or extension of the dispute if it considers that the circumstances
so require (see, for example, Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of
7 December 2021, para. 94; Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of
7 December 2021, para. 72). In the present case, having considered all the circumstances, in addition
to the specific measures it has decided to order, the Court deems it necessary to indicate an additional
measure directed to both Parties and aimed at ensuring the non-aggravation of the dispute.
- 18 -

83. The Court further recalls that Ukraine requested it to indicate a provisional measure
directing the Russian Federation to “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”. In the circumstances of the present case, however, the Court declines to
indicate this measure.
*
* *

84. The Court reaffirms that its “orders on provisional measures under Article 41 [of the
Statute] have binding effect” ( LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to
whom the provisional measures are addressed.
*
* *

85. The Court further reaffirms that the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any
questions relating to the admissibility of the Application or to the merits themselves. It leaves
unaffected the right of the Governments of Ukraine and of the Russian Federation to submit
arguments in respect of those questions.
*
* *

86. For these reasons,
 

THE COURT ,
Indicates the following provisional measures:
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(1) By thirteen votes to two,
The Russian Federation shall immediately suspend the military operations that it commenced
on 24 February 2022 in the territory of Ukraine;
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde,
Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;
AGAINST : Vice-President Gevorgian; Judge Xue;

(2) By thirteen votes to two,
The Russian Federation shall 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 or direction, take no steps in furtherance of the military operations referred to in point (1)
above;
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde,
Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;
AGAINST : Vice-President Gevorgian; Judge Xue;

(3) Unanimously,
Both Parties shall refrain from any action which might aggravate or extend the dispute before
the Court or make it more difficult to resolve.

Done in English and in French, the English text being authoritative, at the Peace Palace,
The Hague, this sixteenth day of March, two thousand and twenty-two, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the Government of Ukraine
and the Government of the Russian Federation, respectively.

(Signed) Joan E. DONOGHUE ,
President.
(Signed) Philippe GAUTIER,
Registrar.

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Vice-President GEVORGIAN appends a declaration to the Order of the Court;
Judges BENNOUNA and XUE append declarations to the Order of the Court; Judge ROBINSON
appends a separate opinion to the Order of the Court; Judge NOLTE appends a declaration to the
Order of the Court; Judge ad hoc DAUDET appends a declaration to the Order of the Court.
(Initialled) J.E.D.
(Initialled) Ph.G.

__________

DECLARATION OF J UDGE XUE
1. While I fully endorse the call that the military operations in Ukraine should immediately be
brought to an end so as to restore peace in the country as well as in the region, I reserve my position
on the first two provisional measures indicated in this Order. Contrary to the established practice of
the Court, these measures are, in fact, not linked with the rights that Ukraine may plausibly claim
under the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the
“Genocide Convention”); the right identified by the Court as plausible cannot be established under
the Genocide Convention (see paragraph 60 of the Order). More importantly, given the complicated
circumstances that give rise to the conflict between Ukraine and the Russian Federation, the measures
that the Russian Federation is solely required to take will not contribute to the resolution of the crisis
in Ukraine. The Court, in my view, should be cautious in entertaining the request submitted by
Ukraine and avoid prejudgment on the merits of the case.
2. Although Ukraine bases its claim on the Genocide Convention, the purpose of its
Application is apparently to seek a determination from the Court that the Russian Federation’s
recognition of the Luhansk and Donetsk oblasts of Ukraine as independent republics and its military
operations in Ukraine are unlawful. Ukraine’s contention that the Russian Federation’s allegation of
genocide against Ukraine is just “an excuse for Russia’s unlawful aggression” raises doubt that this
is a genuine case about genocide. It appears that the acts complained of by Ukraine  namely
Russia’s recognition of the independence of the Luhansk and Donetsk regions of Ukraine and
Russia’s military operations in Ukraine  cannot be directly addressed by the interpretation and
application of the provisions of the Genocide Convention, as the issues they have raised are
concerned with the questions of recognition and use of force in international law. They do not appear
to be capable of falling within the scope of the Genocide Convention (Jadhav (India v. Pakistan),
Provisional Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 239, para. 30).
3. Referring to the statements of the President of the Russian Federation dated 21 February
and 24 February 2022, Ukraine argues that the only possible reason for the justifications put forward
by the Russian Federation for the launch of the military operations in Ukraine is that, in the Russian
Federation’s view, the Genocide Convention gives it “the right, perhaps even the duty or the
responsibility” to prevent and punish the alleged genocide perpetrated in Ukraine, by means of a
“special military operation”. Ukraine’s contention, however, is based on a mischaracterization of the
Russian Federation’s position on its military operations. The document communicated by the Russian
Federation to the Court shows that the legal grounds that the Russian Federation invokes for its
military operations are Article 51 of the United Nations Charter on self-defence and customary
international law. Nowhere has the Russian Federation claimed that the Genocide Convention
authorizes it to use force against Ukraine as a means of fulfilling its obligation under Article I thereof
to prevent and punish genocide. Whether the Russian Federation may exercise self-defence, as it
claims, under the circumstances is apparently not governed by the Genocide Convention.
4. Although the Russian Federation did refer to the alleged genocidal acts committed in the
Luhansk and Donetsk regions of Ukraine in its official statements, it appears that the issue of the
alleged genocide is not just one aspect of a broader political problem between the two States which
may be separately examined, or the very reason for the Russian Federation to launch military
operations against Ukraine, as claimed by Ukraine; it is an integral part of the dispute between the
Russian Federation and Ukraine over the security issue in the region. Ukraine’s claim ultimately
boils down to the very question whether recourse to use of force is permitted under international law
in case of genocide. Ukraine’s grievances against the Russian Federation, therefore, directly bear on
the legality of use of force by Russia under general international law, rather than the Genocide
- 2 -
Convention. Therefore, I am of the view that the rights and obligations which Ukraine claims are not
plausible under the Genocide Convention.
5. This is not the first time that the Court is confronted with a tragic situation caused by the
use of force. In the Legality of Use of Force cases, even without indicating provisional measures, the
Court reminded the States before it that

“they remain in any event responsible for acts attributed to them that violate
international law, including humanitarian law; whereas any disputes relating to the
legality of such acts are required to be resolved by peaceful means, the choice of which,
pursuant to Article 33 of the Charter, is left to the parties” (Legality of Use of Force
(Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 140, para. 48; see also Legality of Use of Force (Yugoslavia v. Canada),
Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 273, para. 44;
Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999 (I), p. 374, para. 36; Legality of Use of Force (Yugoslavia v.
Germany), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 433,
para. 35; Legality of Use of Force (Yugoslavia v. Italy), Provisional Measures, Order
of 2 June 1999, I.C.J. Reports 1999 (I), p. 492, para. 36; Legality of Use of Force
(Yugoslavia v. Netherlands), Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999 (I), p. 557, para. 48; Legality of Use of Force (Yugoslavia v. Portugal),
Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 671, para. 47;
Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999 (II), p. 773, para. 37; Legality of Use of Force (Yugoslavia v.
United Kingdom), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (II), p. 839, para. 40; Legality of Use of Force (Yugoslavia v. United States of
America), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 925,
para. 31).

This also applies to the present case.
6. The present situation in Ukraine demands all efforts that will contribute to a peaceful
resolution of the dispute between Ukraine and the Russian Federation. The present Order, to my
regret, prejudges the merits of the case (see paragraphs 56-59 of the Order). Moreover, in the context
of an armed conflict, one may wonder how those provisional measures can be meaningfully and
effectively implemented by only one Party to the conflict. When the situation on the ground requires
urgent and serious negotiations of the Parties to the conflict for a speedy settlement, the impact of
this Order remains to be seen.
(Signed) X UE Hanqin.

__________

DECLARATION OF VICE-P RESIDENT GEVORGIAN
Disagreement with the Court’s finding on prima facie jurisdiction  Consent as a fundamental principle underlying the Court’s jurisdiction  The acts invoked by Ukraine do not fall under the scope of the Genocide Convention  The actual dispute relates to the use of force which is not covered by the Genocide Convention  Importance for the Court to maintain its settled jurisprudence  Support for adoption of the non-aggravation clause.

1. I could not join the majority on the first and second provisional measure indicated by the
Court in this Order, purely on a substantial legal ground  I do not believe that the Court has
jurisdiction to entertain this case. Ultimately, the jurisdiction of every international court emanates
from the consent of States to subject a dispute between them to the binding settlement by a judicial
body. This is a well-established principle of general international law and also firmly embodied in
the Court’s Statute1. Accordingly, no State can, without its consent, be compelled to submit its
disputes to the Court2.
2. States can express this consent in several ways, for example by recognizing the Court’s
jurisdiction as compulsory under Article 36 (2) of its Statute, or by expressing a narrower form of
consent via a compromissory clause, which allows the Court to adjudicate disputes relating to a
specific treaty. Since neither the Russian Federation nor Ukraine have lodged a declaration under
Article 36 (2) of the Statute to accept the Court’s jurisdiction as compulsory, Ukraine based its claim
exclusively on Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide (hereinafter “Genocide Convention”). Article IX of said Convention states that:

“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
article III, shall be submitted to the International Court of Justice at the request of any
of the parties to the dispute.”

3. In a letter to the Court, the Russian Federation indicated its opposition to the Court’s
jurisdiction and noted that Article IX does not apply to the situation at hand3. In particular, the
Russian Federation considers that Ukraine seeks to bring before the Court issues relating to the use
of force, which are not governed by the Genocide Convention and, therefore, do not come within the
jurisdiction of the Court4.
4. As the Court has stated multiple times, in order to establish jurisdiction under Article IX of
the 1948 Genocide Convention, the subject-matter of the dispute must relate to the interpretation,

1 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26; Case of the Monetary Gold
Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland, and United States
of America), Preliminary Question, Judgment, I.C.J. Reports 1954, p. 32.
2 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p. 27; Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16.
3 Letter by H.E. Mr. Alexander V. Shulgin, Ambassador of the Russian Federation to the Kingdom of the
Netherlands, dated 8 March 2022.
4 Ibid., paras. 4 and 13.

- 2 -
application or fulfilment of the Convention5. While it must not decide in a definitive manner that it
has jurisdiction over the merits of the case at this stage of the proceedings, the Court must
nevertheless ascertain whether the provisions relied on by Ukraine appear, prima facie, to afford a
basis on which its jurisdiction could be founded6. Accordingly, the Court must analyse whether the
acts complained of by Ukraine are capable of falling within the provisions of the Genocide
Convention and, as a consequence, the dispute is one which the Court has jurisdiction
ratione materiae to entertain7.
5. It is evident that the dispute that Ukraine seeks to bring before the Court, in reality, relates
to the use of force by the Russian Federation on Ukrainian territory. However, neither is the use of
force regulated by the Genocide Convention nor does the use of force in itself constitute an act of
genocide. The Court has been very clear in this regard in the 1999 Legality on the Use of Force cases,
where it held that

“the threat or use of force against a State cannot in itself constitute an act of genocide
within the meaning of Article II of the Genocide Convention; and whereas, in the
opinion of the Court, it does not appear at the present stage of the proceedings that the
bombings which form the subject of the Yugoslav Application ‘indeed entail the
element of intent, towards a group as such, required by the provision quoted above’”8.

6. Accordingly, the Court found that it had no prima facie jurisdiction under the Convention
to adjudicate upon the bombardment of Serbia by NATO member States9. As the Court has noted in
Croatia v. Serbia, it will not depart from its settled jurisprudence (jurisprudence constante) unless it
finds “very particular reasons to do so”10. Yet, the situation in the precent case is similar as it concerns
the use of force without a legal link to genocide. Nothing in Ukraine’s Application for provisional
measures indicates that the military operations launched by the Russian Federation demonstrate the
element of intent necessary for acts of genocide. Therefore, the dispute Ukraine aims to have
adjudicated upon by the Court does not fall within the scope of the Convention. As a result, the Court
manifestly lacks jurisdiction ratione materiae to entertain this Application, and, consequently, to
indicate provisional measures.
7. To circumvent this problem, Ukraine claims that the Convention embodies a right “not to
be subjected to another State’s military operations on its territory based on a brazen abuse of Article I
of the Genocide Convention”11. This argument is unconvincing and undermines the fundamental
requirement that jurisdiction emanates from consent. Under the interpretation advanced by Ukraine,
any purportedly illegal act, including the unauthorized use of force, could be shoehorned into a
 

5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993,
p. 16, para. 26; Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, 1.C.J.
Reports 1999 (I), p. 137, para. 37.
6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 9, para. 16.
7 Ibid., p. 10, para. 20; Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June
1999, 1.C.J. Reports 1999, p. 138, para. 38.
8 Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, 1.C.J.
Reports 1999, p. 138, para. 40.
9 Ibid., para. 41.
10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 428, para. 53. See also Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28.
11 Ukraine’s Request for the indication of provisional measures, para. 12.

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random treaty as long as the subject-matter regulated by this treaty had some role in the political
considerations preceding the respective act.
8. With regard to Ukraine’s claim that the Russian Federation is falsely invoking Ukraine’s
responsibility for acts of genocide, an additional problem arises. I remain unconvinced that Ukraine
can invoke the compromissory clause under Article IX of the Convention only to have the Court
confirm its own compliance. Such “non-violation complaints” cannot be brought before the Court in
absence of a compromis or specific treaty-based authorization. Applications of this type have only
been entertained by the Court when they were brought under the much broader jurisdictional basis
of Article 36 (2) of the Statute12, or in combination with an actual violation complaint of the treaty
in question13.
9. Taking into account all the legal considerations explained above, I come to the conclusion
that the Court lacks prima facie jurisdiction to entertain this case. Accordingly, the Court should have
dismissed Ukraine’s request for provisional measures.
10. Despite my position on the absence of prima facie jurisdiction in this case, I have voted in
favour of the third provisional measure indicated in the Court’s Order, namely that both Parties shall
refrain from any action which might aggravate or extend the dispute or make it more difficult to
resolve. The power to indicate such measure is a power inherent to the Court, and not necessarily
linked to the Court’s prima facie jurisdiction over the parties’ substantive rights or obligations on the
merits of a case.
(Signed) Kirill GEVORGIAN.
___________

12 Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment,
I.C.J. Reports 1952, p. 176.
13 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9.