On 16 March 2022, the International Court of Justice, which has its seat in The Hague, satisfied Ukraine's request, demanding form Russia's to stop war of aggression against Ukraine.

This order is binding under international law. Further waging of war by the Kremlin, from this moment, is not just a breach of international law but a violation of the decision of one of the most authoritative judicial bodies in the world.

This article explains, among other things, Russia's obligations under the order and benefits resulting from this decision for Ukraine. This piece also covers ideas expressed by judges in separate opinions and the relevance for this case of NATO's bombardment of Belgrade in 1999, one of the Kremlin's favorite reference points.

Consequences of the Court's order

Before turning to what the Court ordered, let's first deal with the question that probably bothers many readers the most.

Well, there is a decision, but what's next? How to ensure that it will be implemented or, at least, impact Russia's actions?

We should be realistic in this respect: Russia will not comply with the order voluntarily. The Kremlin has already noted that they will ignore the ICJ's order. And the events of the last day confirm this. However, such a reaction from Russia was expected, and it did not halt the proceedings.

International justice is a long game.

The ICJ has repeatedly stated that its orders on provisional measures are binding on the parties. It means that Russia's current non-compliance with the order of one of the most authoritative judicial bodies is yet another separate violation of international law.

The non-compliance potentially creates an additional basis for Ukraine to request the compensation of damages resulting solely from this violation. The ICJ hinted at the possibility of such a separate claim in the LaGrand case. No state has ever tested such claims – but Ukraine got used to setting precedents in international disputes.

We have described other implications earlier: this naked non-compliance further strengthens the international stance of Ukraine and may contribute to even more robust sanctions and isolation of Russia, as well as the worldwide support of Ukraine. When Ukraine, other states, and even the UN General Assembly condemn the Kremlin for its unlawful conduct, it's one thing. It's another story when one of the most authoritative judicial bodies enters the game.

The world has not used all available means to stop Russia so far.

A prominent Ukrainian scholar and adviser to the Minister of Foreign Affairs of Ukraine, Mykola Hnatovsky put this idea as follows: "There are political, military and economic dimensions. Politicians and the military will decide on the scope of possible coercive measures against the aggressor and a specific type of such measures. The legal grounds for this are strengthened, in particular, by today's order of the International Court of Justice. "

Finally, events of the coming days and weeks may force Russia to leave Ukraine on its own, which will be, in fact, the compliance with the Court's order.

Order to stop the war

The court order is not the final decision on the merits of the case.

It only indicates provisional measures binding on the parties for the time being of the proceedings, which may take many years. Although the measures are temporary, Russia has an international obligation to comply with them as long as the case is pending.

We have described Ukraine's claim in the article "Genocide Allegations in The Hague." Here, we'll focus on the ICJ's order.

In its order, the ICJ indicated the following provisional measures toward Russia:

(1) Russia shall immediately suspend so-called "military operations" in Ukraine.

(2) Russia shall ensure that any military or irregular units under its direction, control, and support do not take any steps to implement these "military operations".

As to the second item, the Court hinted that such units are artificial "LPR" and "DPR". Namely, the ICJ referred to a statement by Russia's permanent representative to the United Nations on the military assistance to the so-called "republics".

That said, the Court unequivocally insists that the Kremlin cannot wage war either directly or via its puppets.

Besides the measures directed against Russia, the ICJ also ordered both Russia and Ukraine not to take any action that could aggravate or expand the dispute between the parties. Ukraine asked to indicate such a measure only toward Russia, but the ICJ usually imposes it on both parties to the dispute as a matter of practice.

Two judges, Judge Patrick Robinson (from Jamaica) and Judge ad hoc Yves Daudet (appointed by Ukraine), noted in their declarations that, in this case, the non-aggravation measure should have been issued only against Russia, which started the war against Ukraine. Judge Daudet added that Ukraine cannot possibly aggravate the dispute since it is defending itself and desires to end Russia's assault. Judge Daudet also expressed hope that the Ukrainian people would not perceive this third measure as an insult to their courage because the order does not mean that.

The ICJ refused to indicate only the last measure requested by Ukraine.

Namely, Ukraine asked the ICJ to oblige Russia to report on the implementation of provisional measures within the timeframe set by the Court. This commitment was not imposed on Russia. However, Judge Robinson opined that such a measure would be very desirable.

In any case, the Court satisfied the core request of Ukraine – to order Russia to stop the war.

13-2 vote

The ICJ found that all four grounds for indicating provisional measures are satisfied.

– The ICJ confirmed its prima facie jurisdiction, preliminary recognizing that there is a dispute between Russia and Ukraine under the Genocide Convention (Russia objected to this).

– The Court confirmed the "plausibility" of Ukraine's right not to be subject to armed attacks based on hollow allegations of "genocide" put forward by Russia. Notably, the Court further noted that it finds no evidence whatsoever that "genocide" alleged by Russia took place.

– There is a link between the suspension of the "military operations" and the protection of Ukraine's rights.

– The urgency and risks of irreparable harm in the absence of requested measures are apparent.

 Interestingly, although Russia did not participate in the hearings, it did communicate with the Court.

After the hearings, Russia filed its brief submission to the Court, insisting that the ICJ has no jurisdiction over this dispute since it allegedly does not relate to the Genocide Convention.

The Russian Federation justified its armed attacks on Ukraine by "collective self-defense" under Article 51 of the UN Charter. In this regard, Russia referred to Putin's speech of 24 February delivered just before the invasion. However, in the same address, Putin clearly stated the sole purpose of the operation – "the protection of people who, over eight years, have been subject to abuse, genocide by the Kyiv regime."

As a result, the Court agreed that, albeit the dispute between Ukraine and Russia may relate to several international treaties, the Genocide Convention is still one of them. Thus, there are no hurdles for the Court's prima facie jurisdiction.

The majority of judges supported this position: – 13 out of 15.

Two judges voted against – Vice-President Kirill Gevorgian from Russia and Judge Xue Hanqin from China. Both reasoned their position similarly to Russia's argumentation that there is a dispute regarding the use of force, not about the presence of "genocide" within the meaning of the Genocide Convention.

Judge Xue Hanqin separately opined that, considering the complicated circumstances of the Ukraine-Russia conflict, the obligation to stop war directed only toward Russia, in her opinion, would not contribute to the peaceful settlement of the crisis in Ukraine.

Notably, the judge from Russia referred to the case regarding NATO's bombardment of Belgrade in 1999. It is worth considering this case separately.

Ukraine is not Yugoslavia

One of Putin's favorite examples for criticizing the West is the bombardment of Belgrade by NATO member countries. His narrative is that the West could bomb Serbian cities in response to the Srebrenica Genocide while it turns a blind eye to the "genocide" in Donbas.

In 1999, NATO forces bombarded the territory of Serbia to stop the humanitarian catastrophe during the civil war in Yugoslavia. This military attack was a reaction to heinous crimes, including the ethnic cleansing in Kosovo and the genocide of Bosnian Muslims in previous years.

While previously, these comparisons were used in political exchanges, now, the judge from Russia mentioned this case in a legal setting.

In the past, Yugoslavia also lodged a claim against ten NATO countries that bombed it. Then, the Court refused to indicate provisional measures, finding that the bombardment itself could not constitute genocide.

That said, circumstances surrounding the Ukrainian and Yugoslav claims vary significantly.

Unlike Ukraine, Belgrade did not say anything in its request about the credibility of NATO's allegations of genocide on its territory, let alone the abuse of that concept by NATO members. The claim was limited to allegations of unlawful use of force and "genocide" by NATO states.

For these reasons, the ICJ rejected Yugoslavia's request. The Court found that Yugoslavia did not prove the existence of a dispute and a plausible violation of its rights under the Genocide Convention.

Judge Robinson (Jamaica) and Judge Nolte (Germany) mentioned that Ukraine is claiming something fundamentally different – to recognize that a "special military operation" based on absurd accusations of genocide turns the Convention's provisions upside down and distorts the very concept of genocide. The Court has never considered similar claims.

In sum, the Court's order does not mention the Yugoslavia case at all, and thus, it is safe to conclude that the Court has not seen a relevant resemblance between these cases.

After all, it is not correct to equate the bombardment of Kharkiv and Mariupol by Russia, on the one hand, and attacks on Belgrade by NATO member states, on the other, including for purposes of this case.

See the article "Genocide Allegations in The Hague: Explaining Ukraine Claim Against Russia Before the ICJ" for more details about the proceedings.

On prospects of personal responsibility of the Kremlin leadership, see the article "The Tribunal is not only for Putin: ways to hold the Russian elite accountable for the aggression in Ukraine".

Authors:

Mykhailo Soldatenko, Senior Associate, Asters law firm 

Dmytro Soldatenko, Student of the National University "Kyiv Mohyla Academy"