[Ukraine v Russia] Only recourse to non-compliance of ICJ verdict is external pressure: Priya Pillai speaks

What will the ICJ verdict imply? What consequences will Russia face if it does not comply with the ruling on provisional measures? Priya Pillai answers these questions and more.
Priya Pillai
Priya Pillai

The International Court of Justice (ICJ) at the Hague, Netherlands is set to deliver its verdict today on provisional measures sought by Ukraine in the wake of Russia's ongoing military action.

Before the ICJ, Ukraine sought a declaration that the claims of genocide within Ukrainian oblasts (areas) of Luhansk and Donetsk as alleged by Russia to justify its invasion of the country, are false.

The Court concluded the matter on March 7 after hearing submissions by counsel for Ukraine. Russia refused to take part in the proceedings.

So what will the ICJ verdict imply? What consequences will Russia face if it does not comply with the ruling on provisional measures?

International lawyer Priya Pillai answers these questions and more.

The United Nations General Assembly (UNGA) recently passed a resolution demanding that Russia withdraw its military forces from Ukraine. What is the significance of this resolution, signed by 141 member states?

The UNGA resolution is a signal of the approbation of the world, in regard to what is being done in Ukraine by Russia. Due to the lack of action in the UN Security Council (UNSC) – which is the body tasked with ‘maintenance of international peace and security’ – the resolution passed by the UNGA is unprecedented. This is because the “Uniting for Peace” Procedure has been used quite rarely, and is tailor-made particularly for these situations where there is a “lack of unanimity” in the UNSC resulting in a failure to exercise its responsibilities.

The resolution clearly states that Russia “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.” The resolution was sponsored by more than 90 countries, with 141 voting for the resolution. Only five countries voted against it (Belarus, the Democratic People’s Republic of Korea, Eritrea, Russia and Syria), while 35 abstained.

India, interestingly, chose to abstain from voting on the resolution. Your thoughts?

The abstention of India from the UNSC resolution as well as the UNGA resolution have not gone unnoticed. While there may be geo-political considerations for such a posture, this sends a bad signal regarding aggression, as well as issues of justice and accountability.

In particular, after nearly two weeks of the Russian offensive, there are increasing indications of the commission of war crimes such as targeting of civilians and shelling hospitals, including a children’s hospital.

The jurisdiction of the International Court of Justice is invoked given the fact that Russia is a signatory to the Convention on the Prevention and Punishment of the Crime of Genocide. However, what will ensure its participation in the proceedings?

There is no way to ensure participation in proceedings. As became clear on the first day of the hearings called by the ICJ in regard to provisional measures on March 7, Russia was a no-show. While there was no immediate reason provided, the Russian Ministry of Foreign Affairs on March 9 tweeted that this was an “unsubstantiated lawsuit” and that “in light of the apparent absurdity of the lawsuit, we decided not to attend it”. This is by no means a legal argument and does not engage with any of the legal arguments raised by Ukraine in its application and request for provisional measures from the Court.

In its application before the ICJ, Ukraine has contended that Russia's claims of violations of the Genocide Convention in Luhansk and Donetsk are false. If the Court agrees with this, what are the consequences that follow?

This is a preliminary stage and it will be a long time before the Court makes a final determination on the merits of the case. At this preliminary stage, however, the Court has been asked to issue an order indicting provisional measures. Ukraine has requested that this order include suspension of the military operations commenced on February 24, and that any military or irregular armed units controlled by Russia cease any steps in relation to these military operations. If the Court agrees that a prima facie case has been made out by Ukraine – that it has jurisdiction, that there are rights that must be preserved, and that there is a risk of irreparable prejudice and urgency – then the ICJ must indicate provisional measures for Ukraine. Per Article 41 of the Statute, the Court has the power to indicate what these measures should be, and has latitude in determination of these measures.

Even though Article I of the Genocide Convention gives parties the power to "prevent and to punish" acts of genocide, do you think Russia's actions are justified?

No, Russia’s actions are absolutely not justified. ‘Prevention’ and ‘punishment’ under the Genocide Convention does not mean waging a war of aggression, and seeking to justify it under the rubric of the Convention. It makes a mockery of the aims and intention of the Genocide Convention.

The toothlessness of international law in terms of enforcement has come into the picture again. In the event that the ICJ eventually rules against Russia, is there anything apart from economic sanctions that can make Russia comply with the Court's order?

The ICJ does not have enforcement ability and cannot issue/advocate for economic sanctions. The recourse for lack of compliance with the ICJ lies in the UN Security Council, which, however, in this case, will be a dead-end. The only recourse is external pressure from other countries as well as the private sector, including by sanctions and other means.

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