The Curious Fate of the False Claim of Genocide

The International Court of Justice (ICJ) delivered another blow to Ukraine’s litigation strategy. On February 2, 2024, it narrowly confirmed its jurisdiction in the Ukraine v Russia case involving alleged breaches of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The Preliminary Objections (Jurisdiction) Judgment was preceded by a disappointing judgment for Ukraine in the first case it had earlier brought against Russia concerning alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The ICJ only confirmed its jurisdiction for considering Ukraine’s narrow claim that it had not committed genocide in Donbas (Judgment, para. 151). Ukraine had lodged a lawsuit against Russia at the ICJ alleging that Russia violated the Genocide Convention when it invoked the purported “genocide in Donbas” as the pretext for launching its full-scale war against Ukraine on 24 February 2022 (Ukraine’s application, paras 26-29). Ukraine later expanded its argument by submitting that Russia’s use of force and the recognition of the DPR/LPR violated the duty to prevent and punish genocide under Articles 1 and 4 of the Convention (Ukraine’s Memorial, para 178). The ICJ found it did not have jurisdiction under the Genocide Convention to examine the issues pertaining to the use of force and the recognition of states, which are extrinsic to the Convention and governed by other rules of international law (Judgment, paras 146-147).

This is the first case involving a false claim of genocide that is brought before the ICJ, in which the applicant state seeks a declaratory judgment that there was no credible evidence to support Russia’s allegations of genocide. Ukraine’s non-violation (reverse compliance) claim was closely intertwined with its primary argument that Russia’s false claim of genocide amounted to an abusive bad faith interpretation of the Genocide Convention and therefore violated the duty to prevent and punish genocide. Ukraine’s creative legal argument resonated with 33 other states that chose to intervene in the proceedings invoking Article 63 of the ICJ Statute. However, the unprecedented mass intervention did little to bolster Ukraine’s success in the case. This blog invites Ukraine to look beyond the false claim of genocide and consider bringing a new lawsuit before the ICJ alleging that Russia engaged in genocide in Ukraine through its coordinated policy of forcibly transferring Ukrainian children, which falls under Article II (e) of the Genocide Convention.

Ukraine’s creative legal argumentation and mass intervention

Prior to the delivery of the judgment on preliminary objections, the case held great promise for Ukraine. It was submitted to the ICJ on the second day following Russia’s full-scale invasion of Ukraine, which was disguised as a ‘special military operation’ (SMO). Among numerous goals pursued by the SMO (e.g. ‘demilitarization’ and ‘denazification’ of Ukraine), President Putin mentioned the need “to protect people who have been subjected to abuse and genocide by the Kiev regime for eight years” in his infamous speech to the nation. The Ukrainian government responded to the Kremlin’s ‘genocidal’ rhetoric by creatively interpreting  the Genocide Convention. They argued that Russia’s false claim of genocide in Donbas, used as a justification for its military aggression against Ukraine, had violated the duty to prevent and punish genocide under the Convention.

The case received wider international resonance, with 33 states submitting Article 63 declarations (32 found  admissible by the ICJ), which condemned the abusive bad faith interpretation of the duty to prevent and punish genocide as a pretext for Russia’s unilateral use of force. Although all intervening states sided with Ukraine, it is important to note that they did not become parties to the proceedings as their interventions solely pertained to the construction of the Genocide Convention.

Given the overwhelming support for Ukraine’s case, with the brightest legal minds from various foreign ministries crafting compelling legal argumentation, it appeared that Ukraine stood a fair chance of success.  As acknowledged by Judge Charlesworth, this case marked the first time in the Court’s history where such a large number of states chose to intervene under Ar. 63 of the ICJ Statute (Separate Opinion Charlesworth, para. 2). However, the Court paid scant attention to the declarations made by intervening states. This is despite Judge Charlesworth’s remark that the declarations “enriched the Court’s consideration of the Parties’ arguments” (Ibid.). William Schabas warned that intervening States may be “chastened by the damp squib of their interventions” in the case. It remains to be seen whether the modest impact of Article 63 declarations on the ICJ’s legal reasoning in the present case will discourage states from intervening in future proceedings. However, it seems unlikely that states will remain passive observers in cases involving highly contested matters before the ICJ where the interpretation of fundamental legal issues is at stake.

As matters stand, while the ICJ decided to proceed to the merits stage, it will only examine a narrow non-violation (reverse compliance) claim advanced by Ukraine that no genocide attributable to Ukraine has been committed in Donbas. The Majority, by a 12:4 decision, found that the fundamental question of whether Russia’s use of force and the recognition of DPR/LPR under the guise of preventing and punishing genocide violated Articles I and IV of the Convention, fell outside its jurisdiction (Judgment, para. 147).

By bifurcating Ukraine’s argument and rejecting to examine the second aspect of the dispute, the ICJ reduced the scope of its jurisdiction to a bare minimum. At present, it is unclear what Ukraine could potentially gain from an ICJ finding that it has not committed genocide in Donbas. Apart from Russia and those who may side with the Kremlin, no one is buying into the allegations of genocide in Donbas. Most importantly, a finding of non-violation will not engage the responsibility of Russia (Judgment, para. 54), which means that Ukraine will not be able to seek reparations in the form of compensation from Russia for the colossal harm it has caused since its full-scale invasion of Ukraine.

What comes next for Ukraine?

At present, Ukraine has no other choice but to proceed with the case, even though the anticipated outcome is far from what Ukraine had hoped for when it first initiated proceedings at the ICJ. In essence, the ICJ will only address the legality of Ukraine’s conduct. In its press release, the Russian Ministry of Foreign Affairs “applauds” Kyiv for “putting itself on the bench of defendants within the scope of its claims” as this leaves the ICJ with the sole question to answer as to whether “Ukraine committed genocide in Donbas”. In an interview with Ukrainian media, Ambassador Anton Korynevych, Ukraine’s agent before the ICJ, countered that it is Russia’s responsibility to prove that Ukraine committed the “imaginary genocide” in Donbas. This raises the question of the allocation of burden of proof in cases where the ICJ has to reach a negative finding. Is it a task for Ukraine to disprove the commission of genocide in Donbas or is it for Russia to prove that Ukraine engaged in genocide?

Referring to the ICJ’s inconsistent case law on the subject, Judge Tomka flagged the issue and urged the Parties to address the matter as the case proceeds to the merits (Declaration of Judge Tomka, para. 20). Given Russia’s assertion of genocide in Donbas and its presumed access to ‘supporting evidence,’ it seems logical to depart from the principle of actoti incumbit onus probandi (i.e. ‘the burden of proof weighs on the plaintiff’) and to allocate the burden of proof to Russia in the present case. Yet, the ICJ may opt for a more equitable distribution of the burden of proof. The evaluation of the allocation of the burden of proof is always case specific. It is hard to imagine what kind of evidence can be submitted by Ukraine to demonstrate that it has not committed genocide. Could the silence of the international community regarding Russia’s alleged genocide in Donbas serve as evidence, from which the absence of genocide may be inferred?

Acknowledging the narrow scope of the jurisdiction of the ICJ, Ambassador Korynevych emphasised the binding nature of the provisional measures order, which earlier obliged Russia to “immediately suspend its military operation … commenced on 24 February 2022 in the territory of Ukraine” and ensure that military or irregular armed units under its control or direction “take no steps in furtherance of the military operation” (Order, para. 86). The same order imposed a standard non-aggravation obligation on Russia (Ibid.). By analogy, he drew attention to the final Judgment in Ukraine v Russia (CERD and ICSFT) where the ICJ found that Russia violated its obligations under the provisional measures order with respect to maintaining the ban of the Mejlis (Judgment, para. 391). This finding was reached independently of the Majority’s ruling, which concluded that the ban of the Mejlis did not violate Russia’s obligations under CERD (Ibid.).

In the same judgment, the ICJ found that Russia’s recognition of the DPR/LPR as states and its launch of the “special military operation against Ukraine” violated the non-aggravation obligation imposed on Russia (Ibid., para 397). Although the Majority ruling is significant, and Ukraine is correct in interpreting it in its favour, it is important to bear in mind that the judges were divided on whether the ICJ was entitled to find the violations of the provisional measures order going beyond the violations it had established on the merits (Declaration of Judge Tomka); and the scope of a non-aggravation obligation (Declaration of Judge Yusuf, Declaration of Judge Bennouna cf. Dissent of Judge Sebutinde, paras 33-36; Separate Opinion of Judge Charlesworth, paras 35-41).

Ukraine’s last glimmer of hope is that the ICJ would establish Russia’s violations of the provisional measures order, which could in turn create an obligation for Russia “to make reparation in an adequate form” (Judgment, para. 400). Given that there is no end in sight to Russia’s war in Ukraine, it is not unreasonable for Ukraine to expect such an outcome. What remains unclear is what the ICJ would consider an adequate form of satisfaction for Ukraine if it were to establish that Russia breached the provisional measures order.

Beyond the false claim of genocide: another genocide case for Ukraine?

As we have previously argued, given the expected modest outcome of the case for Ukraine, it would make sense for Ukraine to expand its litigation strategy beyond the false claim of genocide. Ukraine may consider lodging a new lawsuit before the ICJ under the Genocide Convention, alleging that Russia breached the Convention by committing genocide against Ukrainians as a protected national group (see also Weller’s blog). However, this approach is not without risks and uncertainties.

Even with additional evidence of alleged genocide committed by the Russian armed forces in deoccupied (e.g. Bucha, Izyum) and occupied territories (e.g. Mariupol), which became available a few months into Russia’s full-scale war, a broader claim asserting that Russia is committing genocide in Ukraine by waging its aggressive war in order to destroy Ukrainians as a protected group under the Genocide Convention would face an uphill battle at the ICJ. The previous findings in the ICJ Bosnian Genocide Case do not inspire much optimism.

A potentially more promising litigation strategy for Ukraine may be to focus specifically on Russia’s forcible transfer of Ukrainian children from Ukraine to Russia as an underlying genocidal act under Article II (e) of the Genocide Convention. There appears to be overwhelming support in political (PACE Res 2495, FPC briefing), academic (Loffe’s article, Yale Conflict Observatory Report) and professional legal circles (OPG-JIT agreement, ZMINA report) that Russia’s practice of the forcible transfer of Ukrainian children may constitute genocide.

Even if Ukraine does not ultimately succeed in convincing the ICJ of Russia’s liability for genocide involving the forcible transfer of Ukrainian children, the case would force Russia to disclose information about the missing children, their whereabouts, and the conditions in which they have been held. This is information that Ukrainian authorities and/or families of missing children are desperate to obtain.

In the unlikely event that Russia refuses to participate in the proceedings, Ukraine would still be able to draw more attention to the plight of Ukrainian children, and garner international support for their rescue and subsequent rehabilitation. Additionally, the weight of a pending ICJ case may also facilitate the return of Ukrainian children. Therefore, pursuing ICJ litigation with a focus on the forcible transfer of Ukrainian children as genocide may be a risk worth taking.