Commentary Series

WAR IN UKRAINE: POLITICS, LAW, AND IDENTITY

Authors: Dion Kramer, Davor Petrić, Victoria Kerr, Sofia Stolk, Renske Vos
Abstract:

Very shortly after the Russian military invasion of Ukraine on the 24th of February this year,
students and academic staff set out to organise a get-together to reflect on the awful outbreak of
the war. The resulting symposium entitled War in Ukraine: Politics, Law & Identity – organised
by the department of Transnational Legal Studies and the VU Interdisciplinary Centre of European
Studies – took place on 8 March in an overcrowded room at the Vrije Universiteit and more than
60 virtual attendees. In the title, ‘war’ was meant to avoid the euphemisms that were still in fashion
at that time.

The words ‘politics’ and ‘law’ were intended to acknowledge the fundamental way in which those
social domains are mutually constitutive. The word ‘identity’ to stimulate thinking about the ways
in which the war fosters and mobilises old and new identities.

Three of the contributions to the symposium now appear here as commentaries. Davor Petrić
discusses the possibilities of EU enlargement; Victoria Kerr and Sofia Stolk draw out the potential
of international accountability mechanisms like the ICC; and Renske Vos details the case brought
by Ukraine against Russia currently pending before the ICJ. These introductions are introduced by
a preface by Dion Kramer.

• Dion Kramer, ‘Preface to Symposium: War in Ukraine: Politics, Law, and Identity’

• Davor Petrić, ‘International and EU Law in (Post-)Conflict States: Any Lessons for
Ukraine?’

• Victoria Kerr and Sofia Stolk, ‘Assembling the Pieces: The Accountability Puzzle for
International Crimes in Ukraine’

• Renske Vos, ‘The Case of Ukraine v. Russian Federation before the International Court of
Justice’

1
Preface to Symposium: War In Ukraine: Politics, Law, And Identity

Dion Kramer1

Where practice is least ethical, theory becomes most utopian.2

In an attempt to reconcile the half-truths of both naturalists and realists of his time, E.H. Carr
famously wrote in 1939 that international law – like all law – is a function of political society. Like
politics, it is a meeting point for ethics and power. The defects of international law are not due to
‘any technical shortcomings’, but due to the ‘embryonic’ international community in which it
functions.3 Still today, international law is largely characterised by what international lawyers call
‘decentralisation’: international law is not formed without the will of states, enforcement relies on
states themselves in the absence of an effective centralised enforcement machinery and
international courts do not enjoy jurisdiction without the consent of the states involved. Hence the
paradox that in times of the most flagrant violations of international law, in face of raw state power
and least ethical practices on the ground, the words of international lawyers appear most utopian.

Very shortly after the Russian military invasion of Ukraine on the 24th of February this year,
students and academic staff set out to organise a get-together to reflect on the awful outbreak of
the war. The resulting symposium entitled War in Ukraine: Politics, Law & Identity – organised
by the department of Transnational Legal Studies and the VU Interdisciplinary Centre of European
Studies – took place on 8 March in an overcrowded room at the Vrije Universiteit and more than
60 virtual attendees. In the title, ‘war’ was meant to avoid the euphemisms that were still in fashion
at that time. The words ‘politics’ and ‘law’ were intended to acknowledge the fundamental way in
which those social domain are mutually constitutive. The word ‘identity’ to stimulate thinking
about the ways in which the war fosters and mobilises old and new identities. Not only in Ukraine
and Russia, but also in the European Union. Ultimately, the war has also revealed that being a
‘soft’ or ‘normative’ power, as the Union upholds to be, does no longer come for free, especially
now that a non-Member State sends its citizens to fight for a ‘European future’.

Admittedly, talking about the role of law as soon as two weeks after the Russian invasion risked
coming across as a largely utopian exercise in the midst of horrifying stories emerging from
Ukraine even though there was surprisingly much to say from within the academic discipline.
Nevertheless, the contributions to the symposium, three of which now appear in the current special
issue, were firmly grounded in the scholarly tradition of law and politics.

1
Dion Kramer is Assistent Professor at the Department of Transnational Legal Studies, Faculty of Law, Vrije
Universiteit Amsterdam.
2
E. H. Carr, The Twenty Years’ Crisis 1919-1939, The MacMillan Press, p. 174.
3
Ibid, pp. 177-180.

2
Warning the reader that every war is tragic in its own way, Davor Petrić clearly reminds us of the
international response and subsequent development of that other war that was fought in the heart
of Europe throughout the 1990’s. Authorised UN intervention could not prevent the worst of
crimes against humanity from being committed in Bosnia. From the perspective of European
enlargement, he recalls the remarkable historical fact that Yugoslavia was offered a fast-track
membership in 1991. History would take a different course. Now, apart from Slovenia and Croatia,
‘enlargement fatigue’ has brought the entry processes of other states largely to a highly
uncomfortable standstill.

Turning our eyes towards the future prosecution of the war crimes that have been and continue to
be committed in Ukraine, Victoria Kerr and Sofia Stolk draw on their work at the Asser Institute
to provide an exposé of the various accountability mechanisms. Taking the message behind the
term ‘Westplaining’ – coined in response to uncritical Western commentary on Eastern European
affairs – seriously, their contribution not only discusses the potential of international accountability
mechanisms like the International Criminal Court and a ‘Special Tribunal’, but also points our
direction at the committed work that has been done and continues to be done locally, that is to say
within Ukraine in cooperation with international counterparts.

Finally, in her contribution, Renske Vos shines light on the remarkable way in which Ukraine
overcame the decentralised character of international law, using the Russian allegations of
genocide in order to convince the Court of its jurisdiction. The outcome of the case, an order of
provisional measures, suggests that the ICJ takes up a role of de facto Security Council in its
deadlocked absence. Countering the predictable realist critique, non-compliance with an ICJ
judgment is another breach of international law and is likely to contribute to the waning of support
for Russia by (third) states.

3
International and EU law in (post-)conflict states: any lessons for Ukraine?
Davor Petrić4

Introduction

In the very first line of his classic novel Anna Karenina, great Leo Tolstoy wrote that ‘[h]appy
families are all alike; every unhappy family is unhappy in its own way’. In the same manner, one
could say that all countries living in peace are all alike, whereas every country that goes through a
war is tragic in its own way.

The currently ongoing war in Ukraine is one of its kind. Perhaps it is unfair to compare it to armed
conflicts that happened elsewhere throughout the history. And importantly, it is still current and
ongoing. So, many comparisons and accounts will inevitably be speculative.

Nonetheless, after seeing and reading what was going on in Ukraine since February 2022, many
were reminded of the tragedies of the Yugoslav wars that occurred in the territories of Croatia,
Bosnia and Herzegovina, Serbia, and Kosovo during the 1990s.5 The siege of Kiev in the first part
of the Russian invasion was compared to the siege of Sarajevo, which lasted from 1992 to 1995.
Massacre in Bucha was compared to the killings of captured civilians and prisoners of war in
Vukovar in 1991. And the faith of Mariupol was compared to the faith of Srebrenica, where
genocide was committed in 1995.

For scholars and students of law, parallels with the Yugoslav wars provide opportunities for
thinking about what the role of (international and EU) law in the war in Ukraine is or could/should
be. In this brief contribution, I offer several thoughts on those matters.

International law

Following the collapse of communism, former socialist Yugoslav federation disintegrated in a

stream of violent conflicts between or within the newly independent states. From the very
beginning, what we know as the ‘international community’ responded differently from how it
responded to the war in Ukraine, not only regarding the 2022 invasion but also with the 2014
events (Russian annexation of Crimea and attempted secession of eastern regions of Donetsk and
Luhansk).

4
Davor Petrić is Assistant Lecturer and PhD Candidate at the Department of European Public Law, Faculty of
Law, University of Zagreb. Email: [email protected].
5
Cf Bruno Tertrais and Loïc Tregoures, ‘From Sarajevo to Mariupol: what the Yugoslav Wars can teach us about
Ukraine’s fate’ (Institut Montaigne, 21 April 2022) <https://www.institutmontaigne.org/en/blog/sarajevo-mariupol-
what-yugoslav-wars-can-teach-us-about-ukraines-fate>.

4
The first and very obvious thing was that the UN Security Council was operative. Since none of
the ‘permanent five’ members of the Security Council were directly involved in the Yugoslav
conflicts, some important resolutions could be passed. They, for instance, introduced arms
embargoes, instituted no-fly zones, established peacekeeping forces, etc. Unlike today, when the
Security Council is effectively in a deadlock, it’s given that Russia can veto every proposal.

Despite the Security Council authorising certain actions, war crimes and crimes against humanity
could not be fully prevented. At different points in time, the UN peacekeeping missions were
deployed in different parts of the former Yugoslavia; while in Bosnia, the UN even designated
several ‘safe areas’. But these missions and mandates were understaffed, underfunded,
underequipped, and eventually poorly executed. Peacekeepers were lightly armed and could not
stand against the local armies and militias. In fact, there was hardly any peace to keep. The UN
troops thus failed to enforce their mandate to keep the ‘safe areas’ safe.6 So, although some action
by the UN is better than the UN’s complete inaction, the Yugoslav experience shows that it can
hardly ever be a complete success story. Such failure led to events like in Srebrenica, where
Bosnian Serb forces committed genocide against local Bosniak i.e. Muslim population before the
eyes of paralysed UN troops.

That genocide happened in Srebrenica was confirmed in several judgments of the International
Criminal Tribunal for former Yugoslavia (ICTY).7 This tribunal was also established by the
resolution of the Security Council. At this point, it is difficult to have a similar tribunal that would
deal with the violations of international humanitarian and criminal law in Ukraine, or even
impossible to imagine.

Despite the existence of judgments of international tribunals confirming the occurrence of

genocide, it is nevertheless disputed until today by smaller or larger parts of the society in Serbia
and Bosnia. In particular, some Bosnian Serb leaders and Serbian politicians keep denying that
genocide in Srebrenica ever happened.8 For them, the ICTY (and arguably the ICJ too) is a political
court, which is biased against their ethnic group. Therefore, its decisions are discarded as partisan
and illegitimate. So despite having a number of final decisions delivered by international tribunals,

6
Cf Yasushi Akashi, ‘The Use of Force in a United Nations Peace-Keeping Operation: Lessons Learnt from the
Safe Areas Mandate’ (1995) 19 Fordham International Law Journal 312.
7
See ICTY, Prosecutor v Krstić, Case No IT-98-33-A (Appeal Judgment, 19 April 2004); ICTY, Prosecutor v
Popović, Case No IT-05-88-A (Appeal Judgment, 30 January 2015); and ICTY, Prosecutor v Tolimir, Case No IT-
05-88/2-A (Appeal Judgment, 8 April 2015). The International Court of Justice (ICJ) likewise found that genocide
in Srebrenica occurred; see Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 2007 ICJ 140 (26 February 2007). In this case, the
ICJ held that Serbia did not commit genocide nor was complicit in its perpetration, but it ruled that Serbia did breach
the Genocide Convention by failing to prevent the genocide and punish its perpetrators.
8
Although some of them do admit that mass killing of Bosniak civilians did occur in Srebrenica. So, actus reus can
be established, and what happened in Srebrenica could be qualified as a war crime. But absent mens rea (or
genocidal intent), it cannot be qualified as genocide. Others still allege that the number of killed persons is
fabricated or even completely made up.

5
there is still no one, shared version of history. International law is regularly disputed and
manipulated. And although international institutions were more responsive and functional than in
the case of Ukraine, it is questionable whether or how much they have contributed to transitional
justice in these countries and dealing with the history of the Yugoslav wars.

The current Russian leadership and President Putin are likewise manipulating and abusing
international law to show that their invasion of Ukraine is somehow justified. On one hand, they
are toying with the notion of genocide, alleging that Ukrainian government has been perpetrating
it in the Eastern Ukraine against Russophone population, and using as a pretext for the invasion.
On the other hand, the Russian government is trying to justify their intervention in Ukraine by
presenting it as being the same as NATO military interventions, especially in Serbia in 1999, which
were conducted without the Security Council’s authorisation.

At the same time, Russia ignores the ICJ’s order by which it is asked to ‘immediately suspend the
military operations’ in Ukraine, in the ongoing case brought by Ukraine under the Genocide
Convention.9 This again merely shows the inherent fragility of the institutional system set up under
international law, which is primarily related to weak or inexistent enforcement mechanisms.

EU law

As disintegration of Yugoslavia was looming, then-European Community was actively engaged

in trying to prevent the armed conflict from escalating. To that end, one of the offered ‘carrots’
was a fast-track membership, complemented by a package of substantial financial assistance, as
some contemporaries have recalled.10 But nationalist leaders that won the first democratic elections
in the two biggest federal republics, Croatia and Serbia, rejected the offer, since their countries
were already in an open confrontation.

Thirty years from that, the situation has changed. Now it is Ukraine who is asking for a fast-track
accession to the EU. Some Member States of the EU are in favour of letting Ukraine in quickly.
Others are more cautious, with some concerns about the consequences of such a move.

9
See Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v Russia), Order on provisional measures (16 March 2022).
10
As recounted by Kiro Gligorov (first president of (now North) Macedonia, one of the newly independent
Yugoslav republics), in late May 1991 the European ‘troika’ comprised of Jacques Delors (President of the
European Commission), Jacques Santer (Prime Minister of Luxembourg, which held a rotating presidency of the
Council at the time), and Hans van den Broek (Dutch Minister of Foreign Affairs, country that was about to take
over the Council’s presidency) met with Yugoslav leaders and declared political willingness to support an
immediate accession of Yugoslavia to the European Community, and to invest $4.5 billion in the country’s
economic reforms. See Andera Bekić, ‘London i Bonn – dva pola politike Europske zajednice prema priznanju
Republike Hrvatske 1991. godine’ (2010) 42 Časopis za suvremenu povijest 339, 346–347.

6
The accession process is meant to fully prepare a candidate country for the membership in the
Union. It has different stages, and it takes a lot of time to get through all of them. The EU has
adopted the so-called Copenhagen accession criteria that every candidate has to satisfy before
being admitted.11 They are divided into three different categories, namely legal/political,12
economic,13 and administrative criteria.14 Member States must unanimously agree that every step
in the accession negotiations was successfully completed by a candidate country.

For some of the Western Balkans countries, the EU has developed additional special criteria. The
most important one is the requirement of cooperation with the ICTY. This criterion was the key
point on the agenda of the EU accession process for Croatia, Bosnia and Herzegovina, and Serbia
since the early 2000s. It was tailor-made for these post-conflict societies. Its main rationale was to
contribute to reconciliation and transitional justice, and by extension to democratisation and
stabilisation of these countries.15 But as to how effectively the application of this condition could
contribute to these goals remains questionable. It seems certain that it failed to ensure genuine
reconciliation in the region. In Bosnia, there are talks about secession and new armed conflict
every other year.16 The High Representative for Bosnia and Herzegovina regularly complains
about the threats to peace and security in Bosnia in his annual reports on the implementation of
the Dayton Peace Accords to the UN Security Council.17 The fear of a war and breakup is even
greater in the wake of Russian invasion of Ukraine, given the Russian interest and recent meddling
in Bosnia.18

Of countries that saw the most violent conflicts during the Yugoslav wars, only Croatia managed
to join the EU. This happened in 2013. Serbia and Montenegro are candidates for a decade now,
yet both saw a limited progress in accession negotiations. Bosnia and Herzegovina and Kosovo
are still only potential candidates, but each of them has specific difficulties with their contested
statehood.

The EU’s side of equation struggles with the credibility of membership offer and coherence and
consistency in the application of pre-accession conditionality. ‘Enlargement fatigue’ and

11
See European Commission, ‘Enlargement – Accession criteria’ <https://ec.europa.eu/neighbourhood-
enlargement/enlargement-policy/glossary/accession-criteria_en>.
12
They concern ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and
protection of minorities’; see ibid.
13
They concern ‘a functioning market economy and the capacity to cope with competition and market forces’; see
ibid.
14
They concern ‘administrative and institutional capacity to effectively implement the acquis and ability to take on
the obligations of membership’; see ibid.
15
Iavor Rangelov, ‘A Regional Approach to Justice? Rethinking EU Justice Policies in Conflict and Transition’
(European Policy Centre 2011).
16
‘Bosnia is on the brink of falling apart again’ (The Economist, 12 February 2022)
<https://www.economist.com/europe/2022/02/12/bosnia-is-on-the-brink-of-falling-apart-again>.
17
Office of the High Representative, ‘HR’s Reports’ <http://www.ohr.int/cat/hrs-reports/>.
18
‘Is Bosnia on the brink of a civil war?’ (The Week, 14 April 2022) <https://www.theweek.co.uk/news/world-
news/europe/954657/could-war-return-to-europe-bosnia>.

7
‘absorption capacity’ are phrases that usually get repeated to explain the Union’s half-hearted
engagement with the countries of the Western Balkans that remain outside the EU.

The same concerns could burden the Union’s engagement with Ukraine. The Ukrainian
government has already submitted a bid to join the EU in a special accelerated procedure. 19 The
heads of EU states and governments have afterwards invited the European Commission to prepare
an opinion – so-called ‘avis’ – on this bid, in which the Commission should evaluate how prepared
Ukraine is to open negotiations.20

Getting an instant candidate status will probably not be an issue. As commentators noted, although
‘[t]here is no fast-track for reaching full membership’, ‘a “fast start” is feasible and an absolutely
required’ option.21 But under existing arrangements, this merely launches a painstaking process of
negotiations and reforms to satisfy the Copenhagen criteria. Without meaningful reforms of the
standard accession procedure, it seems illusory that a country in the midst of invasion could
realistically work on the reforms that the Commission will be requiring.

There was also some discussion of an example of instant EU membership that happened virtually
overnight, although rarely we think about it as a classical enlargement – the reunification of
Germany.22 In 1990, Eastern Germany (DDR) united with the Federal Republic of Germany. In
essence, one until then independent country united with an EU Member State, without much talk
or accession negotiations.

But there existed an enormous historical momentum, following the fall of the Berlin wall and that
of the Cold war. And there was political will and preparedness in the EU, especially on the part of
the biggest members of the bloc, to bear all the costs of that ‘enlargement’ and not to hold it back.
In what has become an urban myth, France agreed to everything only after Germany accepted to
give up its Deutschmark and support the introduction of common currency (euro).23

So, fast-track membership may not be impossible after all. The only question is whether there is a
will to bear all kinds of costs that would come with such a move in the case of Ukraine, or with
reform of the existing accession procedure that would introduce, say, conditional or gradual
membership or some other special status. These costs would not only be of financial and economic,

19
Alexandra Brzozowski, ‘Ukraine requests EU membership under fast-track procedure’ (EURACTIV, 1 March
2022).
20
Michael Emerson, Steven Blockmans, Veronika Movchan and Artem Remizov, ‘Opinion on Ukraine’s
application for membership of the European Union’ (2022) Centre for European Policy Studies, Policy Insights No
2022-16.
21
ibid 13.
22
Georgi Gotev, ‘The Brief – Is instant EU membership possible?’ (EURACTIV, 3 March 2022)
<https://www.euractiv.com/section/europe-s-east/opinion/the-brief-is-instant-eu-membership-possible/>.
23
Michael Sauga, Stefan Simons and Klaus Wiegrefe, ‘Was the Deutsche Mark Sacrificed for Reunification?’ (Der
Spiegel, 30 September 2010) <https://www.spiegel.de/international/germany/the-price-of-unity-was-the-deutsche-
mark-sacrificed-for-reunification-a-719940.html>.

8
but also of political and security and demographic nature. At least some Member States from the
EU’s ‘core’ seem hesitant to go into that direction.

Whether in the near future Ukraine gets a regular candidate status or preferential accession
treatment or even fact-track membership depends exclusively on the EU itself. But decision-
making process in the EU is not a simple matter. Its key institutional actors may not speak with
one voice, and they usually do not when it comes to the enlargement. The European Parliament is
mostly like ‘let’s go’, since it sits on the sidelines and only gives its consent. It is primarily
concerned with values, so it can afford to be enthusiastic and ambitious. The European
Commission is typically like ‘all in good time’, since it is in charge of running the entire business:
leading the negotiations, screening and monitoring the candidates, etc. It is primarily concerned
with technicalities, and needs to be diligent, mindful, and thorough. The Council is almost always
like ‘hold on’, since Member States need to reach unanimity on any accession bid, and there are
always doubtful ones. It is mostly concerned with national interests, so it can appear incoherent
and inconsistent.

With cards being dealt this way, it becomes apparent that Ukrainian future in the EU is primarily
about politics, not about law. The main provision of the Treaties – Article 49 TEU – is sufficiently
open-textured and malleable. It does not prevent any of the abovementioned options. Inability of
twenty-seven Member States to agree and find a political will is the only real obstacle. 24 Looking
back at the German reunification, the only question is whether the war in Ukraine is special and
historic enough to warrant a special approach. Some think it is;25 but then again, such an appraisal
seems possible only from a sufficient distance in time.

Concluding remarks

This brief comparison between the current situation in Ukraine and what happened before and after
the Yugoslav wars leads me to the following two thoughts.

First, when guns go loud, law becomes silent. In war, the law as we know it – be it international
or municipal – reaches its limits. In this state of exception, institutions and rules of law lose much
of its effectiveness. The superstructure of law collapses. In its rubbles, one can discern politics.
And at its base squats the bare power.

24
Dimitry V Kochenov and Ronald Janse, ‘Admitting Ukraine to the EU: Article 49 TEU is the “Special
Procedure”’ (EU Law Live, 30 March 2022) <https://eulawlive.com/op-ed-admitting-ukraine-to-the-eu-article-49-
teu-is-the-special-procedure-by-dimitry-kochenov-and-ronald-janse/>.
25
Dimitry V Kochenov, ‘Take Down the Wall. And Make Russia Pay for It: The Case for the Immediate Accession
of Ukraine to the European Union’ (Verfassungsblog, 21 March 2022) <https://verfassungsblog.de/take-down-the-
wall-and-make-russia-pay-for-it/>.

9
Second, EU integration started off like a peace project. Commitment to and maintenance of the
peace is arguably the core fabric of the Union’s political and moral identity. Nevertheless, the EU
was less successful in preserving the peace at its borders. Once those conflicts were done, it was
also not completely successful in assisting those neighbours, now candidate countries, in
democratic transition and state-building, in preparation for the accession. The EU enlargement
policy for these post-conflict states introduced national identity- and sovereignty-sensitive criteria,
like requirement for Serbia and Kosovo to reach a deal on the latter’s status. Insistence on these
criteria and their inconsistent application can create backlash.26 Imagine Ukrainian leaders being
pressured to make hard compromises over the Crimean Peninsula, or the status of eastern regions
of Donetsk and Luhansk, or the integration of the separatists’ structures in the system of
governance. Not an easy thing to do right now. Moreover, the experience of some Western Balkans
countries shows that the progress on the accession path is reversible. Pushing back too hard against
statehood, ethno-national identities, and war memories can strengthen radical nationalist and anti-
EU politics; consequently, enthusiasm for accession disappears.

Ukraine will hopefully soon become one of these post-conflict states. When and in what shape and
form is anyone’s guess. Once we learn what happens, much of the things we are discussing and
writing about now will make more sense. Until that day comes, but also in everything that will
follow in Eastern Europe, what the EU says and does will define what the EU is.

***

26
I discussed this in an earlier paper; see Davor Petrić, ‘EU Pre-Accession Political Requirements for Western
Balkans: Unravelling the Application and Compliance Record of the ICTY Conditionality’ (2016) 2 European
studies 115.

10
Assembling the pieces: the accountability puzzle for international crimes in Ukraine
Victoria Kerr and Sofia Stolk27

The response from the international community to the Russian invasion of Ukraine has been
unprecedented: a myriad of measures has been taken to express condemnation of Putin’s so-called
‘special military operation’; to establish the illegality of the invasion under international law; and,
of great importance to many Ukrainians,28 in the pursuit of accountability for international crimes
which have been committed. To the latter end, a number of actors on the international and national
levels are working tirelessly to document and gather evidence of such crimes occurring in Ukraine,
and several accountability avenues are being pursued. Questions however remain: are the
accountability mechanisms being pursued sufficient, or do gaps remain; what are the implications
of the proliferation of involved actors and mechanisms; and who bears ultimate responsibility
when it comes to pursuing accountability?

Fuelled by intense media coverage of the conflict and international outrage, the response from the
International Criminal Court to the invasion was unparalleled. On 28 February, the ICC
Prosecutor, Karim Khan QC, announced that he would be seeking authorisation to open an
investigation into the situation in Ukraine, on the basis of the December 2020 conclusions of the
Office of the Prosecutor’s preliminary examination.29 The investigation was opened on 2 March
2022, following the referral by 39 Member States,30 and covers any allegations of war crimes,
crimes against humanity or genocide committed on any part of the territory of Ukraine by any
person from 21 November 2013 onwards. The ICC is, however, not a panacea. Firstly, the crime
of aggression cannot currently be investigated by the ICC with regards to the Ukrainian situation,
as Russia is not a State Party to the Rome Statute, and the UN Security Council has not, and is
unlikely to refer the situation. It could potentially prosecute war crimes and crimes against
humanity in this situation however, secondly, the ICC operates under a principle of
complementarity: it only steps in when the relevant States are unwilling or unable to do so.
Moreover, the ICC would only aim to try perpetrators most responsible for international crimes.

27
Victoria Kerr holds a Master’s degree in Law and Globalisation from Maastricht University. Victoria currently
works as a junior researcher at T.M.C. Asser Instituut.
Sofia Stolk holds a PhD in International Law from Vrije Universiteit (VU) Amsterdam. Sofia currently works as a
researcher at T.M.C. Asser Instituut.
28
See e.g. Maksym Vishchyk, ‘Insight from Ukraine: Revitalizing Belief in International Law’, Just Security, 18
March 2022, online at https://www.justsecurity.org/80719/insight-from-ukraine-revitalizing-belief-in-international-
law/ (accessed 4 May 2022).
29
It is worth noting that Ukraine accepted the jurisdiction of the ICC by declarations under Article 12 (3) of the
Rome Statute giving the ICC jurisdiction over crimes perpetrated in the territory of Ukraine from November 2013
onward.
30
Note that further States have referred the situation, including Japan, since. See e.g. ‘Statement of ICC Prosecutor,
Karim A.A. Khan QC, on the Situation in Ukraine’, 11 March 2022, online at https://www.icc-
cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-additional-referrals-japan-and (accessed 4
May 2022).

11
Thirdly, ICC trials are lengthy, complex and expensive, and fourthly, Russia refuses to cooperate
with the ICC, meaning that there is an enforceability gap.

A number of other accountability mechanisms have also been tabled. A group of high-profile legal
and political actors have called for a Nuremberg-style special tribunal for the punishment of crime
of aggression in Ukraine to be created which is complementary to other accountability
mechanisms.31 Although supported by Ukrainian officials, the suggestion of a Special Tribunal
has been met with criticism. As Kevin Jon Heller argues, in a similar way to the ICC, without
regime change in Russia, it is unlikely that Russia would cooperate with such a Special Tribunal,
and indeed if regime change did occur, Russia could either ratify the Rome Statute (again) or try
perpetrators itself domestically and a special tribunal would be redundant.32 Although the creation
of such a tribunal could send a powerful symbolic message, without Russian cooperation, there is
also a risk that perpetrators would never be tried in person, and also even if they could be, they
may enjoy immunity rationale personae, which could turn the tribunal into a symbol of Russian
impunity instead.33 Such a Special Tribunal would again be expensive to fund, and may also suffer
from questionable legitimacy, given that it would be established by countries such as the UK and
US, who pressed for the exclusion of non-State parties from the crime of aggression at the ICC,
and the leaders of which are argued by many to have committed this crime themselves in the
context of the invasion of Iraq.34

Accountability also does not only need to be pursued on an international level. In fact, several
European countries have initiated universal jurisdiction investigations, including Poland,
Germany, Spain, Estonia, Lithuania, Slovakia, France, Norway, Latvia, Sweden and
Switzerland.35 While universal jurisdiction prosecutions could serve as ‘gap-fillers’ where justice
cannot be reached at an international level, the provisions of each state which may allow for
prosecution of perpetrators vary, and in some cases are open to interpretation.36 Not all of these
states have universal jurisdiction over the crime of aggression, immunities mean that these states
may only be able to try lower-level perpetrators, and in many cases universal jurisdiction

31
‘Statement calling for the creation of a special tribunal for the punishment of the crime of aggression against
Ukraine’, issued on 4 March 2022, oline at https://gordonandsarahbrown.com/wp-
content/uploads/2022/03/Combined-Statement-and-Declaration.pdf.
32
Kevin Jon Heller, ‘Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea’, Opinio Juris, 7
March 2022, online at https://opiniojuris.org/2022/03/07/creating-a-special-tribunal-for-aggression-against-ukraine-
is-a-bad-idea/ (accessed on 4 May 2022).
33
Ibid.
34
Ibid.
35
Annegret Hartig, ‘‘Domestic Criminal Courts as Gap-Fillers? Avoiding Impunity for the Commission of the
Crime of Aggression against Ukraine’, Völkerrechtsblog, 12 April 2022, online at
https://voelkerrechtsblog.org/domestic-criminal-courts-as-gap-fillers/ (accessed on 4 May 2022).
36
Ibid.

12
provisions require the presence of the accused in the prosecuting state.37 Convictions may therefore
only be ‘symbolic’.38

One problematic aspect of the initiatives described above is the centring of the West in the pursuit
of accountability. This relates to ‘whataboutism’ or ‘why not us’ arguments, in that the Western
willingness in supporting Ukraine disregards other ongoing conflicts, and also the idea of
‘West(s)plaining’: the ‘phenomenon of people from the Anglosphere loudly foisting their
analytical schema and political prescriptions onto the [Eastern European] region.’ 39 In the
accountability sphere, careful attention must be given to ‘the standpoint of those doing the
condemning’ or pursuing accountability for at least two reasons.40 Firstly, because of the potential
for bias and hypocrisy41 alluded to briefly above: that Western states are only willing to prosecute
violations of international law committed by those they oppose, but not their own (and also when
it suits them, if we consider that the situations in Crimea, Donetsk and Luhansk have been largely
ignored since 2014). Another example of such selective practices is the sudden increase of
voluntary donations by certain State parties to support the ICC’s investigations in Ukraine.42
Secondly, because a Western-centric or Euro-centric version of accountability negates other
perspectives, in this case Eastern European understanding. The Western willingness to assist
‘others’43 (or, another interpretation, the placing of the burden on the West to intervene in not only
the Ukrainian situation, but all conflicts) only reinforces colonial narratives and international
(criminal) law’s politics of selectivity. In this sense, the role of Ukraine itself in pursuing
accountability warrants our undivided attention.

Prior to the invasion, many conflict-related crimes had been charged domestically in Ukraine either
as terrorism offences or as ordinary crimes, which did not adequately reflect the gravity or context
of the offences. There had been some progress: Ukraine had taken steps to align its domestic law
and framework with international criminal law standards, with the adoption of Bill 2689 (which

37
Ibid.
38
Witold Zonte, ‘Can Putin Be Tried in Poland?’, Verfassungsblog, 20 April 2022, online at
https://verfassungsblog.de/can-putin-be-tried-in-poland/(accessed on 4 May 2022).
39
Patryk I. Labuda, ‘On Eastern Europe, ‘Whataboutism’ and ‘West(s)plaining’: Some Thoughts on International
Lawyers’ Responses to Ukraine’, EJIL:Talk!, 12 April 2022, oline at https://www.ejiltalk.org/on-eastern-europe-
whataboutism-and-westsplaining-some-thoughts-on-international-lawyers-responses-to-ukraine/, referencing Jan
Smoleński and Jan Dutkiewicz, ‘The American Pundits Who Can’t Resist “Westsplaining” Ukraine’, The Soapbox,
4 March 2022, oline at https://newrepublic.com/article/165603/carlson-russia-ukraine-imperialism-nato (accessed 4
May 2022).
40
Ralph Wilde, ‘Hamster in a Wheel: International Law, Crisis, Exceptionalism, Whataboutery, Speaking Truth to
Power, and Sociopathic, Racist Gaslighting’, Opinio Juris, 17 March 2022, online at
http://opiniojuris.org/2022/03/17/hamster-in-a-wheel-international-law-crisis-exceptionalism-whataboutery-
speaking-truth-to-power-and-sociopathic-racist-gaslighting/ (accessed on 4 May 2022).
41
Ibid.
42
Mark Kersten, ‘Should the ICC accept Western funding for its probe in Ukraine?’, Al Jazeera, 7 April 2022,
online at https://www.aljazeera.com/opinions/2022/4/7/should-the-icc-accept-western-funding-for-its-probe-in-
ukraine (accessed 4 May 2022).
43
Labuda (n 36).

13
still however needs Presidential approval), and the creation of a War Crimes Unit and investigative
units, and had seen three conflict-related crimes convictions under Article 438 of its Criminal Code
(“violations of the laws and customs of war”). Since the invasion, the Prosecutor General, Irina
Venediktova, and the Office of the Prosecutor General (OPG) have demonstrated a willingness to
actively investigate and prosecute crimes.44 Given that the OPG are already dealing with over
11,000 registered crimes,45 capacity-building of investigators, prosecutors and other criminal
justice actors in Ukraine remains imperative,46 and it is encouraging that Ukrainian actors are open
to advice and assistance from international counterparts.47 In early April, President Zelensky
announced that he had approved a decision to create a ‘special mechanism of justice in Ukraine’
which is intended to be ‘the joint work of national and international experts: investigators,
prosecutors and judges.’ No further details have been provided about the mechanism, although
some are speculating a court similar to the War Crimes Chamber in Bosnia and Herzegovina.48

Regardless of in which forum(s) perpetrators will be brought to justice, widespread documentation

of crimes, and the collection and preservation of evidence has already commenced. An initial team
of ICC investigators was sent to Ukraine on 3 March 2022, an online portal for submitting evidence
was launched on 11 March 2022,49 and Karim Khan QC has personally visited Ukraine with the
aim of ensuring cooperation between Ukrainian and ICC investigations.50 A joint investigation
team between Ukraine, Lithuania, Poland and the Office of the Prosecutor at the ICC has been set
up with the support of Eurojust.51 A number of open-source investigators, international and
national civil society organisations (CSOs) are also documenting and verifying reports of

44
See https://twitter.com/GP_Ukraine (accessed 4 May 2022).
45
https://twitter.com/GP_Ukraine/status/1518843962349572096?s=20&t=V-ELwbklxWYfnDaTkl4GPw Note that
this figure represents crimes occurring since the “full-scale invasion” only, and does not include crimes which
occurred before 24 February 2022, meaning that the figure is likely to be considerably higher.
46
The T.M.C. Asser Instituut and Global Rights Compliance have been working on a partnered project entitled
‘Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes’ since 2020, which is funded
by the Netherlands Ministry of Foreign Affairs. See https://www.asser.nl/matra-ukraine/
47
See, e.g. https://twitter.com/VenediktovaIV/status/1517472127527571456?s=20&t=V-
ELwbklxWYfnDaTkl4GPw and Doughty Street Chambers, ‘Government of Ukraine Announces the Creation of a
Legal Task Force on Accountability for Crimes Committed in Ukraine’, 29 March 2022, online at
https://www.doughtystreet.co.uk/news/government-ukraine-announces-creation-legal-task-force-accountability-
crimes-committed-ukraine (accessed 4 May 2022).
48
Kathryn Allinson and Lawrence Hill-Cawthorne, ‘Ukraine: Zelensky’s ‘special mechanism’ for prosecuting war
crimes explained’, The Conversation, 11 April 2022, online at https://theconversation.com/ukraine-zelenskys-
special-mechanism-for-prosecuting-war-crimes-explained-180902 (accessed 4 May 2022).
49
‘Statement of ICC Prosecutor’ (n 3).
50
‘Statement of ICC Prosecutor, Karim A.A. Khan QC, on his visits to Ukraine and Poland: “Engagement with all
actors critical for effective, independent investigations.”’, 16 March 2022, online at
https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-his-visits-ukraine-and-poland-engagement-
all-actors (accessed on 4 May 2022)
51
Eurojust, ‘ICC participates in joint investigation team supported by Eurojust on alleged core international crimes
in Ukraine’, Press release, 22 April 2022, online at
https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-
international-crimes (accessed 4 May 2022).

14
violations of IHL and ICL with a view to feeding this into future accountability mechanisms.52
The United Nations Human Rights Council has also adopted an Independent International
Commission of Inquiry on Ukraine.53

With a proliferation of mechanisms available which each have merits, gaps, and which may or
may not complement each other, and with overwhelming amounts of documentation, much of
which may not be of a standard admissible in future proceedings, the picture is complex. Questions
of coordination and over-documention are of ongoing relevance. The centralisation of evidence
collection, documentation and storage could be an option, but immediately raises concerns about
the who, when, where, and how. The ‘who’ question is an especially delicate one in light of the
earlier discussed worrisome power dynamics and the Western oriented, funded, and controlled
accountability initiatives. Centralised control over evidence and accountability can be convenient
but will inevitably also cause the exclusion of certain voices and initiatives.

With this short contribution we do not aim to provide solutions, but rather to provide an exposé of
the proliferating initiatives with a view to flagging some of the questions that arise when pursuing
accountability for international crimes committed in the context of the war in Ukraine. We
emphasise the importance of continuing reflection on the long-term implications of ad-hoc actions
and call for the inclusion and amplification of Ukrainian voices in the international legal debate.

***

52
See, e.g. Zmina, ‘Ukraine. 5 AM Coalition devoted to documenting war crimes is launched in Ukraine’, 15 March
2022, online at https://zmina.ua/en/event-en/ukraine-5-am-coalition-devoted-to-documenting-war-crimes-is-
launched-in-ukraine/ (accessed 4 May 2022); Bellingcat, ‘Ukraine’, multiple entries, online at
https://www.bellingcat.com/tag/ukraine/ (accessed 4 May 2022).
53
UNHRC, ‘Independent International Commission of Inquiry on Ukraine’, online at https://www.ohchr.org/en/hr-
bodies/hrc/iicihr-ukraine/index (accessed 4 May 2022).

15
The Case of Ukraine v. Russian Federation before the International Court of Justice
Renske Vos54

What is wryly remarkable to note with regards to events in Ukraine, is how early international law
caught on. On 27 February, days after Russia invaded Ukraine, President Zelensky announced -
via twitter- that Ukraine had filed an application against Russia before the International Court of
Justice (ICJ).55 In an extraordinarily creative move, Ukraine turned Russian allegations of
genocide around to claim jurisdiction based on the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide (Genocide Convention). In a further bold move, Ukraine
asked the Court once there to also issue provisional measures in order to bring the conflict to a
halt. Below, I will discuss each move in turn.

Jurisdiction
As the Application Instituting Proceedings submitted by Ukraine recounts, the Russian Federation
memorably claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of
Ukraine, and that these alleged acts of genocide warranted the military actions subsequently
undertaken by Russia against Ukraine on Ukrainian territory.56 Hitherto this moment, international
monitors have found no evidence of such genocidal acts committed by Ukraine. 57 Ukraine itself
too denies that any such acts have occurred,58 stating that “Russia’s claims are baseless and
absurd”.59 Ukraine does however hold that given the situation, a dispute has arisen relating to the
interpretation and application of the Genocide Convention, “as Ukraine and Russia hold opposite
views on whether genocide has been committed in Ukraine, and whether Article I of the

54
Dr. Renske Vos is Assistant Professor in International Law at the Vrije Universiteit Amsterdam and research
fellow at the Centre for the Politics of Transnational Law (CePTL).
55
Володимир Зеленський @ZelenskyyUa, Twitter, 27 February 2022, available:
https://twitter.com/ZelenskyyUa/status/1497885721931268103?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweete
mbed%7Ctwterm%5E1497885721931268103%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.
ejiltalk.org%2Fukraine-files-icj-claim-against-russia%2F.
56
ICJ, ‘Dispute Relating to Allegations of Genocide’ (Ukraine v. Russian Federation), Application Instituting
Proceedings, 26 February 2022, available: https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-
01-00-EN.pdf, para 8; refers to: Address by the President of the Russian Federation of 21 February 2022, available:
http://en.kremlin.ru/events/president/transcripts/statements/67828; Address by the President of the Russian
Federation of 24 February 2022, available: http://en.kremlin.ru/events/president/transcripts/statements/by-
date/24.02.2022; Statement and reply by Permanent Representative Vassily Nebenzia at UNSC briefing on Ukraine,
23 February 2022, available: https://russiaun.ru/en/news/230222un.
57
NOS, ‘De Russische stoelen bleven leeg bij zitting INternationaal Gerechtshof’, 7 March 2022, available:
https://nos.nl/collectie/13888/artikel/2420208-de-russische-stoelen-bleven-leeg-bij-zitting-internationaal-
gerechtshof.
58
ICJ, Application Instituting Proceedings (Ukraine v. Russian Federation), para 9
59
ICJ, Application Instituting Proceedings (Ukraine v. Russian Federation), para 10, refers to: Statement of the
Ministry of Foreign Affairs of Ukraine on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its
Unlawful Military Aggression, 26 February 2022, available: https://mfa.gov.ua/en/news/zayava-mzs-ukrayini-
shchodo-nepravdivih-ta-obrazlivih-zvinuvachenrosiyi-v-genocidi-yak-privodu-dlya-yiyi-protipravnoyi-vijskovoyi-
agresiyi.

16
Convention provides a basis for Russia to use military force against Ukraine to ‘prevent and to
punish’ this alleged genocide.”60

Ukraine thus makes use of the Russian allegations of genocide to declare the existence of a dispute
on the matter between itself and the Russian Federation. The existence of such a dispute is crucial
for a subsequent invocation of Article IX of the Genocide Convention, which in conjunction with
Article 36(1) of the ICJ Statute, provides that such disputes “shall be submitted to the ICJ at the
request of any of the parties to the dispute.” Ukraine moreover needs to take this route via Article
IX of the Genocide Convention, as Russia does not recognize the compulsory jurisdiction of the
ICJ on the basis of Article 36(2) of the ICJ Statute. This means that Russia would have to consent
on an ad hoc basis for a dispute to be brought to and heard by the ICJ via Article 36(1) of the ICJ
Statute directly, which is politically unlikely. The Article IX Genocide Convention door is
moreover open, as importantly neither Ukraine nor Russia have any reservations to this Article in
place to limit the jurisdiction of the ICJ. The clever reversal of allegations and segue to the
Genocide Convention by Ukraine have been greeted by commentators as “reverse compliance”61
and as so “surprisingly-creative-it-might-actually- work”.62

The written application filed by Ukraine subsequently makes a number of requests to the ICJ. First
of all, Ukraine asks the ICJ to essentially clear its name by declaring that no acts of genocide have
been committed in Luhansk and Donetsk. Secondly, Ukraine asks the ICJ to declare that given that
the claims of genocide are false, they cannot form a lawful basis for Russia’s military actions in
or against Ukraine. Therefore, thirdly and fourthly, Ukraine asks the ICJ to declare that both the
recognition of Donetsk and Luhansk as independent states, as well as the “special military
operation” launched on 24 February 2022 are based on false claims of genocide and therefore have
no basis in the Genocide Conventions. And so, fifthly, Ukraine requests a Russian guarantee of
non-repetition of such actions, as well as, sixthly, full reparation for all damage caused.63

Provisional measures
ICJ international law cases are lengthy affairs, and so at the time of writing the jury is still out on
the final decision in the case of Ukraine v. Russian Federation. Yet in a second clever move,
Ukraine accompanied its application to the ICJ with a request for provisional measures, which
were subsequently granted. The Court issued as provisional measures that: the Russian Federation
shall immediately suspend military operations in the territory of Ukraine; and shall ensure that any

60
ICJ, Application Instituting Proceedings (Ukraine v. Russian Federation), para 11.
61
Deepak Raju, ‘Ukraine v Russia: A “Reverse Compliance” case on Genocide’, EJIL: Talk!, 15 March 2022,
available: https://www.ejiltalk.org/ukraine-v-russia-a-reverse-compliance-case-on-genocide/.
62
Marko Milanovic, ‘Ukraine Files ICJ Claim against Russia’, EJIL: Talk!, 27 February 2022, available:
https://www.ejiltalk.org/ukraine-files-icj-claim-against-russia/.
63
ICJ, Application Instituting Proceedings (Ukraine v. Russian Federation), para 30.

17
military or irregular armed units (…) take no steps in furtherance of the military operations; and
that both parties shall refrain from any action which might aggravate or extend the dispute.64

The ICJ has the power to indicate provisional measures under Article 41 of its Statute and Articles
73, 74, and 75 of the Rules of the Court. Such provisional measures are moreover legally binding.65
The indication of provisional measures depends on a three-part test: the Court needs to have prima
facie jurisdiction; there needs to be a link between the rights whose protection is sought and the
measures requested; and, there needs to be a risk of irreparable harm and urgency.66

In its order of provisional measures of 16 March 2022, the ICJ found that all three parts of the test
were met. First, prima facie jurisdiction, entails that the ICJ should determine to have jurisdiction
over the case literally ‘at first sight’, or on first impression. This thus entails a lower threshold for
jurisdiction than is needed for the eventual decision. In the case at hand, the ICJ found sufficient
elements to establish prima facie the existence of a dispute between Ukraine and the Russian
Federation relating to the interpretation, application or fulfilment of the Genocide Convention.67
Secondly, the Court also found a link between the requested provisional measures and the right
claimed by Ukraine. Being: the request to suspend military actions and Ukraine’s right “not to be
subject to a false claim of genocide”, and “not to be subject to another State’s military operations
on its territory based on a brazen abuse of Article I of the Genocide Convention”.68 Third, the
Court found indeed that “any military operation, in particular one on the scale carried out by the
Russian Federation on the territory of Ukraine, inevitably causes loss of life, mental and bodily
harm, and damage to property and to the environment”.69

The indication of provisional measures against Russia by the ICJ, was hailed by commentators as
a “near total win for Ukraine”.70 Commentators also noted how the language of the Court in its
order was “often very direct, going out of its way to make points that it was not legally required to

64
ICJ, ‘Allegation of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide’
(Ukraine v. Russian Federation), Request for the Indication of Provisional Measures, Order of 16 March 2022,
available: https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf, para 86.
65
ICJ, ‘LaGrand’ (Germany v. United States of America) judgement, 27 June 2001, available: https://www.icj-
cij.org/public/files/case-related/104/104-20010627-JUD-01-00-EN.pdf, para 110.
66
Art. 41 ICJ Statute and ICJ Jurisprudence, e.g. ICJ ‘Application of the Convention on the Prevention and
Punishment of the Crime of Genocide’ (The Gambia v. Myanmar), provisional measures order, 23 January 2020,
available: https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-01-00-EN.pdf, para 16.
67
ICJ, Order of Provisional Measures (Ukraine v. Russian Federation), para 47.
68
ICJ, ‘Request for the Indication of Provisional Measures Submitted by Ukraine’ 27 February 2022, available:
https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf, para 12 in: ICJ, Order of
Provisional Measures (Ukraine v. Russian Federation), para 52.
69
ICJ, Order of Provisional Measures (Ukraine v. Russian Federation), para 74.
70
Marko Milanovic, ‘ICJ Indicates Provisional Measures Against Russia, in a Near Total Win for Ukraine; Russia
Expelled from the Council of Europe’, EJIL: Talk!, 16 March 2022, available: https://www.ejiltalk.org/icj-indicates-
provisional-measures-against-russia-in-a-near-total-win-for-ukraine-russia-expelled-from-the-council-of-europe/;
and “a very clear and absolute decision in Ukraine’s favor” in Chimène Keitner, Zoe Tatarsky and Just Security,
‘Q&A: The ICJ’s Order on Provisional Measures in Ukraine v. Russian Federation’, Just Security, 16 March 2022,
available: https://www.justsecurity.org/80703/qa-icj-order-on-provisional-measures-ukraine-russia/.

18
make but were required by the necessity of the moment”.71 Yet, it has not gone unnoticed that the
Russian Federation chose to remain absent from the proceedings and that it has not recognized the
jurisdiction of the ICJ in the case.72 Most notably, Russia denies that its actions fall within the
scope of the Genocide Convention, including under the compromissory clause of Article IX.73

Concluding reflections
Given the scale and gravity of events ongoing in Ukraine, a legal case before a Court in The Hague
might seem a relatively small or peripheral event. Such a view might be bolstered by a Russian
refusal to observe the provisional measures. Yet there are a few points of note to observe. First,
how at a time when the UN Security Council faces a deadlock in decision-making over current
events in Ukraine, notably due to the Russian veto,74 the ICJ is resorted to instead. Indeed, the
message carried in the provisional measures -to suspend military actions- is likely to be similar to
what the UN Security Council would have called for in a resolution, should it have been able to
issue it. Such recourse to the ICJ for provisional measures moreover echoes a similar strategy to
request provisional measures by The Gambia against Myanmar.75 Second, even when provisional
measures indicated by the ICJ go unobserved, such disregard does constitute a new breach of an
international obligation. As such, this might moreover constitute a basis for new sanctions or
countermeasures to be issued, and it might make it more difficult for third states to (continue to)
support Russia. Thirdly, the ICJ remains the authority on pronouncing international law, and as
such its order of provisional measures and its forthcoming decision on the case will be of historic
importance.

***

71
Ibid.
72
Reuters, ‘Russian no show at U.N. court hearing on Ukrainian ‘genocide’’, 7 March 2022, available:
https://www.reuters.com/world/europe/ukraine-russia-face-off-world-court-over-genocide-claim-2022-03-06/;
Diego Sanchez Borjas, ‘The ICJ Order in Urkaine v. Russia’, Völkerrechtsblog, 28 March 2022, available:
https://voelkerrechtsblog.org/the-icj-order-in-ukraine-v-russia/.
73
ICJ, ‘Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of
jurisdiction” of the Court in the case’, 7 March 2022, available: https://www.icj-cij.org/public/files/case-
related/182/182-20220307-OTH-01-00-EN.pdf.
74
UN, ‘Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian Federation Wields
Veto’ 25 February 2022, available: https://www.un.org/press/en/2022/sc14808.doc.htm.
75
Note how incidentally, public hearings on the preliminary objections raised by Myanmar took place at the same
time that Ukraine filed its application. ICJ, ‘Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (The Gambia v. Myanmar) Latest Developments, available: https://www.icj-cij.org/en/case/178.

19
20