Kirill Koroteev on the Ukraine v Russia hearings before the International Court of Justice

7 March 2022

by Kirill Koroteev, head of international practice at Agora International Human Rights Group

Source Pavel Chikov, Telegram

The International Court of Justice in The Hague is now holding oral hearings regarding the application of urgent measures in the case of Ukraine v. Russia on the interpretation of the UN Convention on the Prevention and Punishment of the Crime of Genocide.

The live broadcast is here.

The Russian ambassador to the Netherlands (the court is in The Hague) informed the Court that Russian representatives refused to participate in the hearings.

Ukraine appointed the ad hoc Judge Yves Daudet, an honorary professor at the University of Paris I Panthéon-Sorbonne.

For Russia there is Judge Kirill Gevorgyan, who is vice-president of the Court.

After opening remarks by the President of the Court, the Registrar quoted from the declaration about interim measures.

Ukraine requests that any action that would prejudice the consideration of the case be stopped.

Representing Ukraine is Anton Kornievich.

Professor Jean Marc Thouvenin will also speak on behalf of Ukraine.

Source of continuation: Telegram

There has been a break in the hearing. So far, Ukraine’s representatives have said the following (quotes from Ukraine’s representatives):

1. The competence of the Court. Russia ratified the Convention on Genocide, its Article 9 provides for consideration of disputes in the International Court of Justice. If in the past Russia had actively challenged the competence of the Court in other cases, now Russia has just not turned up. Ukraine asks that the conclusion be drawn that Russia is not challenging the competence of the Court.

2. There is a dispute between the parties, the subject matter of the dispute is twofold. First, Russia claims that there was genocide in eastern Ukraine and Ukraine denies this. Second, because Ukraine denies there was genocide Russia cannot rely on the Convention, which allows states to prosecute those guilty of genocide and Russia certainly cannot invoke genocide as a basis for a military operation.

3. Ukraine then moved on to discuss the lack of grounds for Russia’s claims of genocide. Recounting the history of the conflict since 2014, one of the lawyers noted that the number of civilian deaths dropped from 2,000 in 2014 to 15 in 2021.

4. The last thing Ukraine said before the coffee break was that not all civilian deaths can constitute genocide according to the decisions of the International Court of Justice. There must be evidence of specific intent to destroy a protected ethnic group, but there is no such evidence. Moreover, the Russian-speaking population of Mariupol does not support Russia’s actions.

Ukraine will once again speak about the importance and necessity of the measures it is asking for.

Continuation source: Telegram

The hearings at the UN International Court of Justice are over. Since Russia is not participating in them, the Court left to confer on the issue of urgent measures.

After the break, Ukraine argued before the Court the following:

1 Ukraine has the right to demand that Russia implement the Genocide Convention in good faith, and the implementation of the Convention not in good faith is a violation of international law. This has been confirmed by the Vienna Convention on the Law of Treaties and by the jurisprudence of the Permanent Court of International Justice, which was the predecessor of the International Court of Justice, back in the 1930s.

2 Urgent measures would prevent further civilian casualties, physical and psychological harm to civilians, and also damage to the environment. “A full list of the environmental damage would take an entire library,” the Ukrainian representative said. He singled out the increased radiation background in Chernobyl and the reckless attacks on the Zaporozhye nuclear power plant.

3 In previous cases the International Court of Justice has indicated both the need for good faith observance of international norms and the obligation to withdraw troops from one position to another and not to engage in armed clashes, therefore it may indicate these measures in this case as well.

Ukraine asks the Court to take the following urgent measures:

♦️to suspend the military operation launched on 24 February;

♦️ to ensure that the armed formations under Russian control do not take any military action;

♦️ not to exacerbate the situation;

♦️ to report to the Court within a week on measures taken.

In the coming days, the Russian Foreign Ministry may issue a press release condemning the anti-Russian statements and outlining its position. This is not an uncommon practice by non-participating states.

The Court has retired to confer on the issue of urgent action.

Translated by Simon Cosgrove

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