On March 16, 2022, the International Court of Justice delivered its Order on Ukraine's request for the indication of provisional measures in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia). Ukraine made a number of requests, including that the Court declare that no acts of genocide have been committed in the Luhansk and Donetsk oblasts of Ukraine, contrary to the claims made by the Russian Federation.
With regard to the question whether the Court had jurisdiction to indicate provisional measures, it first considered whether there was, in fact, a dispute relating to the interpretation, application, or fulfilment of the Genocide Convention. In so doing, the Court referred to numerous statements made by Russia since 2014 alleging genocide in the Luhansk and Donetsk regions and Ukraine's response denying the allegations. Taking those statements into consideration along with the subject matter of the statements, the Court concluded that "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" (para 44).
Next, the Court examined whether the rights asserted by Ukraine are "at least plausible" so as to empower the Court to exercise its power to indicate provisional measures, and whether "a link [exists] between the rights whose protection is sought and the provisional measures being requested" (para 51). In that regard, Ukraine argued that the measures it seeks were aimed at protecting 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 also argued that "it has a right to demand good faith performance of obligations under the Genocide Convention by the Russian Federation" and a right "not to be harmed by the Russian Federation's misuse and abuse of the Convention." The Court stated that at this stage of the proceedings it "is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory" and that "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" (para 59). Thus, the Court concluded that "Ukraine has a plausible right not to be subjected to military operations" by Russia on the basis of alleged genocide in Ukraine. It then went on to find the existence of a link between the rights claimed and the measures requested.
Finally, the Court considered whether 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 Court noted that Russia's military operation has already caused "numerous civilian deaths and injuries," "significant material damage, including the destruction of buildings and infrastructure," and that "attacks are ongoing," as well as the March 2 resolution of the UN General Assembly expressing "grave concern" over attacks on the civilian population. It concluded that "disregard of the right deemed plausible by the Court . . . 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" (para 77).
Thus, the Court indicated the following provisional measures:
- Russia must immediately suspend its military operations in Ukraine (thirteen votes to two)
- Any military, irregular armed units, organizations, and persons under Russia's control or direction "take no steps in furtherance of" such military operations (thirteen votes to two)
- Both Russia and Ukraine must not take any action that could "aggravate or extend the dispute before the Court or make it more difficult to resolve" (unanimous)
Declarations were filed by Vice President Gevorgian and Judges Bennouna, Xue, Nolte and Daudet. Judge Robinson filed a separate opinion.