Summary of the ICJ Judgment on Preliminary Objections (2 Feb 2024)
This document summarizes the International Court of Justice's (ICJ) Judgment on the Russian Federation’s Preliminary Objections concerning the Court's jurisdiction and the admissibility of Ukraine's Application.
- Jurisdiction Upheld (15-1): The Court found it has jurisdiction to rule on Ukraine's claim that it has not committed genocide in the Donbas region. This is the "no-genocide" claim, which will now proceed to the merits phase.
- Jurisdiction Denied (12-4): The Court found it does not have jurisdiction over Ukraine's claims regarding the Russian Federation's alleged misuse or abuse of the Genocide Convention to justify its "special military operation."
- Key Finding: The Russian Federation's Preliminary Objection was upheld in part and rejected in part. The scope of the case is now significantly narrowed to address only Ukraine's negative finding claim.
- Intervening States: The Court confirmed that the 32 intervening States are entitled to submit observations at the merits phase, but only concerning the interpretation of the Convention's provisions relevant to the remaining claim.
HISTORY OF THE PROCEEDINGS (PARAS. 1-28)
The Court begins by recalling that, on 26 February 2022, Ukraine filed in the Registry of the Court an Application instituting proceedings against the Russian Federation concerning "a dispute... relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide" (hereinafter the "Genocide Convention" or the "Convention").
Ukraine seeks to found the Court's jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention.
Ukraine filed its Memorial on 1 July 2022. On 3 October 2022, the Russian Federation raised preliminary objections to the jurisdiction of the Court and the admissibility of the Application.
Between 21 July 2022 and 15 December 2022, 33 States filed declarations of intervention under Article 63, paragraph 2, of the Statute of the Court. By an Order dated 5 June 2023, the Court found 31 declarations admissible at the preliminary objections stage. The remaining 32 States intervening (including Canada and the Netherlands as one) are entitled to submit written observations at the merits phase.
Public hearings on the preliminary objections were held from 18 to 27 September 2023.
I. PRELIMINARY OBJECTIONS OF THE RUSSIAN FEDERATION (PARAS. 29-148)
The Existence of a Dispute (paras. 33-51)
The Court first addresses the question of whether a dispute, relating to the interpretation, application or fulfilment of the Genocide Convention, existed between the Parties at the date of the Application.
The Court finds that the dispute as presented by Ukraine has two aspects:
1. Ukraine’s claim for a negative finding of its own non-responsibility for genocide in the Donbas region (the claim that Ukraine has not committed the acts of genocide alleged by Russia);
2. Ukraine’s claim concerning the Russian Federation’s use of the Genocide Convention as a purported legal basis for its military operations and the responsibility arising therefrom (the claim that Russia's use of the Convention to justify the "special military operation" is a violation of the Convention itself).
The Court finds that a dispute existed between the Parties in relation to both aspects at the time of the Application.
The Court’s Jurisdiction to Entertain the Dispute (paras. 52-127)
The Court next examines whether it has jurisdiction to entertain the dispute on the basis of Article IX of the Genocide Convention.
Jurisdiction over the First Aspect of the Dispute (Non-responsibility Claim) (paras. 72-91)
The Court holds that the first aspect of the dispute—Ukraine's claim to a declaratory judgment of its non-responsibility for genocide—falls within the scope of Article IX. The Court concludes that it has jurisdiction to rule on this first aspect of the dispute.
Jurisdiction over the Second Aspect of the Dispute (Russia's Conduct Claim) (paras. 92-127)
The Court examines whether the second aspect of the dispute falls under Article IX, which grants jurisdiction over disputes "relating to the interpretation, application or fulfilment of the present Convention."
The Court notes that the Russian Federation's actions (military operations) undeniably involve breaches of fundamental rules of international law, such as the prohibition on the use of force. However, the Court's jurisdiction is limited by the scope of the Genocide Convention.
The Court finds that Article IX does not confer jurisdiction to address the second aspect of the dispute, as the Convention is not concerned with the legality of a State's use of force in general, even if that use of force is ostensibly justified by reference to the Convention. The Court concludes that it has no jurisdiction to rule on this second aspect of the dispute.
The Admissibility of Ukraine’s Application (paras. 128-148)
The Court rejects the Russian Federation’s objection that Ukraine's Application is inadmissible, finding that Ukraine has standing to bring a claim concerning the interpretation and application of the Convention, and the claim for a negative finding is not an abuse of process.
II. THE CLAIMS OF UKRAINE (PARAS. 149-166)
Following its findings on jurisdiction, the Court must determine which of Ukraine’s submissions fall within the scope of the remaining dispute over which it has jurisdiction (the non-responsibility claim).
The Court dismisses several of Ukraine's claims that relate to the actions of the Russian Federation itself, as these fall under the second aspect of the dispute over which the Court found it has no jurisdiction.
The only claim remaining is Ukraine's request for the Court to declare that it has not committed genocide, for which the Court retains jurisdiction.
OPERATIVE CLAUSE (PARA. 167)
For these reasons,
THE COURT,
(1) By twelve votes to four,
Upholds the preliminary objection raised by the Russian Federation as regards the second aspect of the dispute;
IN FAVOUR: Vice-President Gevorgian; Judges Tomka, Abraham, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Judge ad hoc Daudet;
AGAINST: President Donoghue; Judges Bennouna, Charlesworth, Brant;
(2) By fifteen votes to one,
Rejects the preliminary objection raised by the Russian Federation as regards the first aspect of the dispute;
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
AGAINST: Judge ad hoc Daudet;
(3) By fifteen votes to one,
Rejects the preliminary objection raised by the Russian Federation as regards the admissibility of the Application;
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
AGAINST: Judge ad hoc Daudet;
(4) By fifteen votes to one,
Finds that the Court has jurisdiction, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, to entertain the first aspect of the dispute and that the Application, insofar as it concerns that aspect, is admissible;
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
AGAINST: Judge ad hoc Daudet;
(5) By twelve votes to four,
Finds that the Court has no jurisdiction to entertain the second aspect of the dispute;
IN FAVOUR: Vice-President Gevorgian; Judges Tomka, Abraham, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Judge ad hoc Daudet;
AGAINST: President Donoghue; Judges Bennouna, Charlesworth, Brant;
(6) By fifteen votes to one,
Finds that the only remaining claim by Ukraine is the claim that it has not committed genocide in the Donbas region of Ukraine, and that the Russian Federation has no lawful basis to take any action under the Convention on the Prevention and Punishment of the Crime of Genocide on the basis of its false allegations of genocide against Ukraine.
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
AGAINST: Judge ad hoc Daudet.