On 7 March, the International Court of Justice held hearings on Ukraine's request for provisional measures in the Ukraine v. Russia case commenced under the Genocide Convention. In short, Ukraine asks the International Court of Justice (ICJ) to order Russia to stop the war in Ukraine.

More details on this case, including how the Kremlin itself created a legal basis for these proceedings, are explained in the article "Genocide Allegations in The Hague". 

This article considers how Ukraine presented its position, key moments of the hearings, and Ukraine's chances to obtain the provisional measures. 

Russia's "poker face" 

Russian seats at the Peace Palace were empty as Russia refused to attend the ICJ's proceedings for the first time in its history. 

In the past, Russia always took part in the ICJ's hearings, set up its delegation, presented arguments, among other things, objecting to the court's jurisdiction. And it was successful sometimes. For example, Russia prevailed on jurisdiction against Georgia based on the Convention on the Elimination of All Forms of Racial Discrimination. In another case against Ukraine regarding alleged financing of terrorism in Donbas and racial discrimination in Crimea, Ukraine passed the jurisdictional hurdle. The case is pending at the moment.

Consequently, when the ICJ ruled against Russia, it continued participating in the hearings, showing respect and trust in the court's decisions. 

That was not strange, as the ICJ is a judicial body of paramount importance to the world, the activity of which was important for Russia itself. 

But something changed. 

This time, Russia showed disrespect to this authoritative institution without even explaining its non-participation. On top of that, this move showed Russia's unreadiness to legally protect its position on imaginary "genocide" in the Luhansk and Donetsk regions.

On a related note, Russia faced a "riot" in the ranks of its lawyers before the hearings.

Foreign and Russian legal practitioners who previously represented the aggressor, including in cases against Ukraine after the 2014 aggression, refused to represent Russia in The Hague. They considered it unacceptable to act on behalf of a state which completely despises international law. 

Either internal resources did not suffice, or the position seemed unpromising, or Russia does not care about its image in the world anymore – seats of Russian representatives at the Peace Palace remained empty. 

However, this works in Ukraine's favour, and it does not halt the proceedings. 

Russia destroys not only by tanks 

Anton Korynevych, the head of the Ukrainian delegation and Permanent Representative of the President of Ukraine in the AR of Crimea, started his speech by stressing the absence of the Russian team.  

Instead of peacefully resolving the dispute in the ICJ, the Kremlin prefers to have recourse to aggressive war, he said. At the same time, Ukraine respects the World Court, international law, and the process of peaceful settlement of disputes.

The representative of Ukraine argued that Russia is not just in contempt of the court proceedings – it is also destroying the foundations of the modern international legal order.

Its actions mock the two fundamental concepts that crystallized after the victory over Nazism in World War II.

"We should recall that on the ashes of Europe, after the Second World War, the world built the modern pillars of international law…Two of these pillars stand as the most important. The world witnessed aggression, and it answered with the Charter of the United Nations. The world witnessed the Holocaust, and it answered with a Convention to Prevent and Punish the Crime of Genocide." Korynevych explained.

Instead, Russia has turned the concept of genocide into a weapon to justify its aggression.

Ukraine asks the ICJ to stop Russia's distortion and mockery of this important concept. 

However, to obtain provisional measures from the ICJ, Ukraine has to prove the following:

(1) prima facie jurisdiction of the ICJ;

(2) at least plausible violation of Ukraine's rights;

(3) urgency of the situation and risk of irreparable prejudice; 

(4) the link between provisional measures and the prevention of violations of Ukraine's rights.

Ukrainian arguments were pretty convincing.

Russia's self-created pitfall 

Unlike Russia, which lost the support of even its long-lasting international advisers, Ukraine has no such problems. A team of top-notch legal practitioners acted for our country in The Hague.

In particular, the issue of prima facie jurisdiction was presented by a prominent expert in international law, Professor Jean-Marc Thouvenin.

Firstly, he again highlighted the absence of the Russian side, which provided no explanations for its ignorance of the court's hearings for the first time in the history of cases involving Russia in the ICJ. His statement that this may sign that Russia has no plausible arguments in support of its position is not a legal argument as such. However, it can contribute to the negative impression of judges caused by Russia's refusal to appear before the court.

As for the core of Ukraine's legal position on this issue, Professor Thouvenin noted that both Ukraine and Russia are State Parties to the Genocide Convention and thereby agreed to refer disputes on the "interpretation, application or fulfilment" of the Convention to the ICJ. 

The dispute between Ukraine and Russia in respect of the Convention does exist.

The thing is that Russia has been publicly accusing Ukrainian authorities of "genocide" of the Russian-speaking population of the Luhansk and Donetsk regions for eight years, while Ukraine denied those baseless allegations. Moreover, the senior leadership of the Russian Federation (both diplomats and other state officials) repeatedly used the Convention as a basis for accusing Ukraine. Professor Thouvenin showed numerous examples of such allegations to the judges.

It seems that the Kremlin did not carefully think through the legal consequences of such statements but probably just tried to give more weight to its lies, thinking that references to the Convention would make their accusations sound stronger. 

That said, precisely these baseless allegations enabled Ukraine to lodge a claim to the ICJ under the Convention, which allows the proceedings to continue without receiving further consent from Russia.

Namely, if the parties understand the Convention differently, it is the ICJ's very job to settle this difference. 

Here comes the second element of the dispute – whether Russia may conduct a so-called "military operation" against Ukraine in performance of the obligation to prosecute and punish genocide under the Convention.

Genocide that did not exist

In addition to proving the ICJ's competence, Ukraine also had to show that Russia's allegations about the imaginary "genocide" in Donbas are false.

It seems obvious, but Ukraine had to explain this to the court. David Zionts, a partner at Covington & Burling, presented this argument.

In this regard, Ukraine refers to reports of authoritative international institutions, in particular, the UN bodies that have been monitoring the situation in Ukraine since 2014. It is crucial – not only in Donbas. Ukraine's argument touched upon the illegal annexation of Crimea, which was based on lies from the very beginning.

It was a retaliation of the Russian leadership to the Revolution of Dignity.

The reports of international organizations have not mentioned any risks of genocide in Ukraine over the past eight years. The International Criminal Court, which is empowered to investigate the crime of genocide in Ukraine, also did not mention a word on it.

Instead, the so-called "republics" of Donetsk and Luhansk were artificially created by Russia and existed solely thanks to Russia's support. At the same time, according to the Office of the UN High Commissioner for Human Rights, to maintain control over the regions, those artificial formations doomed their population to the "reign of intimidation and terror."

Most importantly, since 2014 and until the present date, Russia has not protected the Russian-speaking population. Unfortunately, its actions are inflicting great suffering to Ukrainians on both sides of the frontline, regardless of their language.

The catastrophe that must be halted 

Ukraine had to prove the violation of its rights; this part of Ukraine's position was presented by Marney Cheek, the partner at Covington & Burling.

She explained that Russia's use of the fictitious "genocide" and its prevention and punishment in the form of the so-called military operation is a bad faith application of the Convention contrary to its object and purpose.

Such a mockery of the Convention violates Ukraine's rights, namely the right not to be subject to (1) false allegations of "genocide" and (2) the harm caused by Russia's armed attacks justified by the imaginary "genocide".

Notably, the ICJ has never considered the Convention from this angle. Therefore, the decision, in this case, will become a precedent.

Ukraine also had to prove that the immediate protection of its rights is warranted. 

The proving of urgency is necessary for obtaining provisional measures from the ICJ.

Another Covington & Burling partner, Jonathan Gimblett, pleaded this point.

Ukraine argued that Russia's actions pose three types of threats: military, humanitarian, and environmental.

First, the Russian invasion is already causing many casualties among the Ukrainian military and civilians and destroying the state's infrastructure. The Russian tactics of medieval warfare exacerbate this factor. Ukraine explains that the aggressor tries to siege large Ukrainian cities and extensively bombards them with artillery and aviation.

On top of that, the Russian armed forces are committing numerous war crimes (read more about potential options of prosecuting those responsible for these war crimes in the article "The Tribunal is not only for Putin: ways to hold the Russian elite accountable for the aggression in Ukraine").

Second, a humanitarian catastrophe is taking place in Ukraine at the moment.

Millions of people fled their homes, and millions more were trapped under the bombardment of the Russian armed forces.

Russia shows its cynicism in this regard by attacking humanitarian corridors it itself agreed to.

The Ukrainian delegation showed the judges photos of the destruction in Kharkiv and Borodyanka and people hiding under a ruined bridge in the hope of evacuation from Irpin.

And last but not least, Russia's actions create risks of an ecological catastrophe for Europe. This relates to the shelling of the Zaporizhzhia Nuclear Power Plant in Energodar and the explosion of an oil depot in Vasilkiv.

As a result, Putin poses an imminent threat to the whole world, let alone Ukraine. 

What should the court do?

Professor Harold Hongju Koh summarized Ukraine's position and the requested provisional measures. The most interesting part of his passionate and eloquent speech is a policy argument on the long-term impact of the court's decision in this case on the role of international law and the rule-based world order.

Russia, a permanent member of the UN Security Council, implements a premeditated and naked act of aggression against its innocent neighbour based on the false pretext of "genocide."

Under the circumstances, the court has no right to remain idle.

Otherwise, it would "green light" similar actions in the future, not only by Russia.

On the contrary, the court's order should be the "essential spark" that will inspire the work of other international institutions dealing with Russian aggression, war crimes, and human rights violations.

This dispute is between Russia and the rule-based world order formed after World War II. The court's failure to confidently oppose these flagrant violations will evidence the weakness of the existing world order and the ICJ.

These arguments are not purely legal but rather a mixture of policy and legal reasoning. That said, they can make a significant impression on the judges. After all, as they indeed care about the court's reputation of being a guardian of international law, it will be difficult for them to remain idle in the face of such gross violations.

Thus, the Ukrainian side is right in pursuing this line of argumentation to invite the court to consider the global implications of its decision.

Oksana Zolotareva, Ukraine's co-agent, summed up the presentation and added a personal flavour to it by mentioning the shelling of her hometown Kharkiv.

She thanked the judges for their attention to "this matter of national life or death". Her final words were: "I respectfully urge the court to issue your order with utmost urgency. We are in your hands."

(The verbatim record of presentations of Ukrainian agents is available following the link). 

What is next?

Russia had to present its position on 8 March, but the judges proceeded directly to deliberations due to the absence of the Russian team.

Russia's non-participation only speeded up the process.

The court will announce its decision during public hearings, the date of which will be reported separately.

Given the urgency of the situation, it is realistic to expect the decision in about a week.

Authors:

Mykhailo Soldatenko, Senior Associate, Asters law firm 

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

Sergiy Sydorenko, Editor of European Pravda