Written statement of Ukraine on the preliminary objections raised by the Russian Federation

INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
WRITTEN STATEMENT OF OBSERVATIONS AND SUBMISSIONS ON THE
PRELIMINARY OBJECTIONS OF THE RUSSIAN FEDERATION
SUBMITTED BY UKRAINE
3 February 2023

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Table of Contents
Chapter 1: Introduction ........................................................................................ 1
The Russian Federation Attempts to Distract from Its
Violations of the Genocide Convention. ............................... 3
The Russian Federation Distorts the Factual Background to
this Dispute. ........................................................................... 5
Brief Procedural History and Structure of Ukraine’s
Written Statement. ................................................................ 8
Chapter 2: There Is a Dispute Between Ukraine and the Russian Federation
Relating to the Genocide Convention .............................................. 11
The Russian Federation Applies the Wrong Test to
Determine Whether a Dispute Existed Between the Parties
Under the Genocide Convention at the Time of Ukraine’s
Application. ......................................................................... 12
The Evidence Before the Court Demonstrates that a
Dispute Between Ukraine and the Russian Federation
Relating to the Genocide Convention Existed at the Time of
Ukraine’s Application. ......................................................... 16
The Subject-Matter of the Dispute Relates to the
Interpretation, Application, or Fulfilment of the Genocide
Convention. ......................................................................... 44
Chapter 3: The Court Has Jurisdiction Ratione Materiae Over Ukraine’s
Claims that the Russian Federation Violated Articles I and IV of
the Genocide Convention ................................................................ 50
The Court’s Broad Jurisdiction Under Article IX of the
Convention. ......................................................................... 51
Ukraine’s Claims Are Capable of Falling Within the
Provisions of the Genocide Convention, and a Definitive
Interpretation of Articles I and IV Can Be Deferred to the
Merits. .................................................................................. 58
A Proper Interpretation of Articles I and IV of the Genocide
Convention Supports the Court’s Exercise of Jurisdiction
Ratione Materiae. ............................................................... 61
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Chapter 4: Ukraine’s Claims Are Admissible ..................................................... 82
Ukraine’s Claims in Its Memorial Fall Within the Subject-
Matter of the Dispute Presented in Its Application. .......... 82
A Judgment of this Court Upholding Ukraine’s Claims
Would Have Practical Effect. .............................................. 88
The Court May Declare that There Is No Credible Evidence
that Ukraine Has Committed Genocide in Violation of the
Genocide Convention. ......................................................... 91
Ukraine’s Application Is Not an Abuse of Process. ............ 94
Chapter 5: The Court Has Jurisdiction Over Ukraine’s Claim that the Russian
Federation Is Responsible for Violating the Court’s Binding
Provisional Measures Order ............................................................ 99
The Russian Federation Has Continued Its Violations of the
Provisional Measures Order Since Ukraine Submitted Its
Memorial. .......................................................................... 101
This Court Has Jurisdiction Over the Russian Federation’s
Violations of the Provisional Measures Order. ................ 106
Conclusion and Submissions ................................................................................................. 113
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CHAPTER 1: INTRODUCTION
1. Pursuant to this Court’s Order of 7 October 2022, Ukraine submits this Written
Statement of Observations and Submissions on the Preliminary Objections of the Russian
Federation.
2. Ukraine has brought this case under the Convention on the Prevention and
Punishment of the Crime of Genocide. In ratifying that landmark human rights treaty, the
Russian Federation made a solemn undertaking to prevent and punish genocide. Yet instead
of fulfilling that obligation in good faith, Russia has distorted and abused it. Ukraine’s
Memorial demonstrated Russia’s cynical manipulation of the Genocide Convention.
Genocide has long “occupie[d] a special place as ‘the crime of crimes’” under international
law.1 Since 2014, the Russian Federation has leveled against Ukraine and its officials the
exceptionally serious accusation of genocide in violation of the Genocide Convention. Russia
has made these allegations despite their utter falsity, and on the basis of no due diligence. In
this regard, Ukraine and Russia have a long-standing dispute relating to the Genocide
Convention: Russia has alleged since 2014 that Ukraine has been committing genocide in
violation of the Convention; Ukraine strongly denies these allegations.
3. In February 2022, the Russian Federation escalated the situation. Relying on
its baseless allegations, the Russian Federation took unilateral measures for the express
purpose of stopping a genocide allegedly committed by Ukraine in Donbas. Russia
recognized the purported independence of the Donetsk and Luhansk regions of Ukraine in
reliance on these false allegations. Russia also commenced what it called a “special military
1 William A. Schabas, Introductory Note, Convention for the Prevention and Punishment of the Crime
of Genocide, United Nations Audiovisual Library of International Law (2008), p. 4, accessed at
https://legal.un.org/avl/pdf/ha/cppcg/cppcg_e.pdf.
2
operation,” but what in fact was a full-scale invasion, perpetrated through brutality and
criminality. Russia could not have been clearer as to the justification for, and purpose of,
these actions. In the words of Russia’s president in a speech submitted to the U.N. Security
Council, Russia “had to stop that atrocity, that genocide,” and its “purpose” was “to protect
people who, for eight years now, have been facing humiliation and genocide perpetrated by
the Kyiv regime.”2 Thus, an existing dispute related to allegations of a State’s responsibility
for genocide under the Genocide Convention crystallized into a dispute relating to an
unprecedented misuse and abuse of that Convention, amounting to a violation of the
Convention’s core tenets.
4. When the Russian Federation ratified the Genocide Convention, it did more
than commit to a good faith fulfilment of its terms. Russia consented to the jurisdiction of
this Court over any dispute “relating to the interpretation, application or fulfilment of” the
Convention, “including those relating to the responsibility of a State for genocide.” Article IX
of the Convention is written expansively; for example, it reaches beyond matters of
“interpretation or application” encompassed by many compromissory clauses, and adds a
further basis for jurisdiction over disputes that relate to “fulfilment” of the Convention. The
dispute that Ukraine has brought to the Court falls squarely within Article IX.
5. Nevertheless, Russia has now raised a series of preliminary objections in an
attempt to evade its consent to the Court’s jurisdiction. Russia’s Preliminary Objections
misstate the law, ignore the facts, and should be rejected by the Court. Under a proper
interpretation of the Genocide Convention consistent with this Court’s well-established
jurisprudence, as well as a review of the full evidentiary record put forward by Ukraine, the
2 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial, Annex
6); Letter Dated 24 February 2022 from the Permanent Representative of the Russian Federation to
the United Nations Addressed to the Secretary-General, U.N. Doc. S/2022/154 (24 February 2022)
(transmitting the speech to the U.N. Security Council).
Ukraine uses its own transliteration spellings of Ukrainian place names such as “Donbas” and “Kyiv.”
3
dispute before the Court relates to the interpretation, application, or fulfilment of the
Genocide Convention. As such, this dispute is within the Court’s jurisdiction to resolve. Nor
is there any basis for Russia’s admissibility objections, which in large part are merely repackaged
versions of Russia’s meritless jurisdictional objections.
The Russian Federation Attempts to Distract from Its Violations of the
Genocide Convention.
6. In evaluating Russia’s Preliminary Objections, this Court should take special
note of Russia’s allegations of abuse of process, which are not only specious, but indicative of
Russia’s legally flawed approach more broadly. In submitting the parties’ dispute to this
Court, Ukraine has done precisely what Article IX envisages. By filing its Application,
requesting provisional measures, demanding reparation from Russia, and seeking relief from
the principal judicial organ of the United Nations, Ukraine has reaffirmed its commitment to
international law and the peaceful resolution of disputes. The Court’s exercise of its
fundamental role within the United Nations system is all the more important where other
parts of that system are immobilized.
7. As the Court noted in its Provisional Measures Order, “[t]he Court is mindful
of the purposes and principles of the United Nations Charter and of its own responsibilities
in the maintenance of international peace and security as well as in the peaceful settlement
of disputes under the Charter and the Statute of the Court.”3 Ukraine is equally mindful of
the Court’s proper role, and the significant responsibility placed on the Court by the
Contracting Parties to the Genocide Convention under its compromissory clause,
encompassing all disputes related to the interpretation, application, or fulfilment of the
Convention.
8. The Russian Federation, by contrast, defies international law and the authority
of this Court. It does so not only through its flawed arguments seeking to narrow the Court’s
3 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, para. 18
[hereinafter Provisional Measures Order of 16 March 2022].
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jurisdiction under the Genocide Convention, but through its blatant, express rejection of the
Court’s Provisional Measures Order. Against this backdrop, it is remarkable that Russia
devotes a considerable portion of its Preliminary Objections to accusing Ukraine of an “abuse
of process.”4 The Russian Federation’s claim of “abuse” by Ukraine is emblematic of Russia’s
backwards view of international law. In Russia’s conception, the Genocide Convention is not
a shield to protect vulnerable peoples from the most heinous of crimes, but a sword to wield
against a sovereign State, its democratically elected government, and its people.
9. In Russia’s vision, it may repeatedly allege that a Contracting Party has violated
the Genocide Convention without creating a dispute that relates to the Genocide Convention.
According to Russia, nothing in the Genocide Convention restrains States from performing
their obligations in bad faith and abusing their undertaking to prevent and punish genocide,
in order to harm another party to the Convention. The only “abuse” that Russia is able to
perceive is the peaceful act of filing an application with the International Court of Justice.
Russia’s willingness to advance such an argument is revealing as to the nature of its
Preliminary Objections as a whole.
10. Indeed, even when not framed directly as an abuse of process, much of Russia’s
Preliminary Objections consist of flawed procedural critiques of Ukraine’s manner of
proceeding before this Court. For example, Russia claims that Ukraine has made “a
remarkable substantial change” in its case, which supposedly “transformed its initial request
to confirm that the Russian Federation’s actions had no basis in the Genocide Convention
into requests to establish the responsibility of the Russian Federation for allegedly violating
4 See Russia’s Objections, Chapter V, Section D.
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Articles I and IV of the Convention.”5 Yet the “remarkable substantial change” that Russia
perceives does not exist. From the beginning of this case, the Court correctly understood
Ukraine’s central claim: that “the Russian Federation has acted inconsistently with its
obligations and duties, as set out in Articles I and IV of the Convention,” and that it had “a
right under the Convention not to be harmed by the Russian Federation’s misuse and abuse
of the Convention.”6
11. The Russian Federation’s lack of justification for its actions under the Genocide
Convention, and its violation of the Genocide Convention through those actions, are simply
two sides of the same coin — or, in this case, the same dispute. It is routine in this Court’s
practice for a party to elaborate on and develop its claims and legal arguments in its
Memorial, and that is what Ukraine has done. Ukraine has not transformed the dispute,
much less committed an abuse of process.
The Russian Federation Distorts the Factual Background to this Dispute.
12. The Russian Federation also distorts the factual record in this dispute in
Chapter II of its submission, which purports to present a lengthy “Factual Background” in
order “to set the record straight.”7 In reality, Chapter II of Russia’s Preliminary Objections is
a work of fiction.
13. Ukraine is prepared to address the facts in detail at the appropriate time — at
the merits stage of this proceeding. It is well settled that, in order to determine its jurisdiction
ratione materiae at the preliminary objections phase, the Court assesses whether the dispute
is capable of falling within the provisions of the treaty in question, on the basis of the facts as
alleged by the Applicant.8 At the merits phase, Russia will have an opportunity to try to
persuade the Court that its alternative narrative should be accepted. What is relevant now
5 Ibid., para. 72; see also ibid., Chapter V, Section A.
6 Provisional Measures Order of 16 March 2022, paras. 52, 54.
7 Russia’s Objections, para. 5.
8 See infra Chapter 3, Section B.
6
are the facts as Ukraine has alleged them. For that reason, Ukraine will not respond in detail
to Russia’s narrative, which, for the avoidance of doubt, Ukraine rejects in all respects.
Ukraine will, however, offer three brief observations on the Russian Federation’s
presentation.
14. First, Ukraine invites the Court to compare the sources upon which each party
has relied in presenting the factual background to this case. In its Memorial, Ukraine’s
presentation of the facts is based principally on impartial reports of international
organizations, including the U.N. Office of the High Commissioner for Human Rights and the
Organization for Security and Co-operation in Europe (“OSCE”).9 Russia, by contrast,
principally cites press reports, and, in particular the organizations TASS and Russia Today,
which are owned by the Russian government.10 This difference in approach is a strong
indication as to which party is presenting the facts, and which is presenting propaganda.
15. Second, the Russian Federation presents an alternate reality where the victim,
not the perpetrator, is responsible for suffering invasion and atrocity. In accusing Ukraine of
starting a “civil war” on its own territory in 2014, for example, Russia ignores what U.N.
human rights monitors found to be a “reign of intimidation and terror” perpetrated by illegal
armed groups on Ukrainian territory, as well as the Russian Federation’s own welldocumented
role in fueling that conflict.11 Russia applies the same approach to the
consequences of its February 2022 invasion. In one egregious example, Russia accuses the
Ukrainian armed forces of shelling Ukrainian civilians at the Kramatorsk train station on
9 See, e.g., Ukraine’s Memorial, paras. 27–30, 52–54, 66–68 and accompanying notes.
10 See, e.g., Russia’s Objections, paras. 23, 56 and accompanying notes.
11 See OHCHR, Report on the Human Rights Situation in Ukraine (15 July 2014), para. 26, accessed at
https://www.ohchr.org/sites/default/files/Documents/Countries/UA/Ukraine_Report_15July2014.p
df.
7
8 April 2022 — citing only a statement of Russia’s own Ministry of Defense.12 Impartial
observers, by contrast, including the OSCE, have rejected Russia’s attempt to shift
responsibility, finding not only that Russia was responsible, but that “[b]ased on the collected
evidence, it is reasonable to believe that the Russian Federation deliberately attacked civilians
seeking safety at Kramatorsk train station.”13
16. Third, Russia also applies its tactic of distorting the facts to matters more
relevant to its Preliminary Objections, i.e., the existence of a dispute relating to the Genocide
Convention. The Russian Federation selectively quotes the speeches by President Putin of 21
and 24 February 2022, including the absurd remark that “Russia has done everything to
preserve Ukraine’s territorial integrity.”14 In doing so, however, Russia omits the part of
President Putin’s 21 February speech claiming that 4 million people in Ukraine were facing a
“genocide.”15 Likewise, Russia’s presentation of President Putin’s 24 February speech simply
ignores his justification of the use of force based on a “genocide perpetrated by the Kyiv
regime” and the need to “stop that atrocity, that genocide of the millions of people who live
12 Russia’s Objections, para. 55.
13 OSCE & ODIHR, Interim Report on Reported Violations of International Humanitarian Law and
International Human Rights Law in Ukraine (20 July 2022), para. 46 [hereinafter OSCE Interim
Report], accessed at https://www.osce.org/files/f/documents/c/d/523081_0.pdf; see also Pierre
Vaux, Benjamin Strick, and Benjamin Den Braber, Verification of a Bombing: Kramatorsk, Ukraine,
Centre for Information Resilience (October 2022), pp. 3–4, accessed at https://www.infores.
org/post/verification-of-a-bombing-kramatorsk-ukraine. The attack on the Kramatorsk train
station was carried out using Tochka-U missiles with cluster munitions. The OSCE concluded that,
“[c]ontrary to the claims by the Russian Federation, there is substantial evidence indicating that its
armed forces have been using Tochka-U systems during the current conflict.” OSCE Interim Report,
para. 44.
14 Russia’s Objections, para. 39.
15 See ibid., paras. 38–39.
8
there.”16 While Putin’s comments were false and absurd, they also are directly relevant to the
existence of a dispute, and Russia’s failure to mention them is telling. In short, Russia
mischaracterizes the reality of the situation — and the nature of Ukraine’s claims — in order
to try to avoid accountability under the Genocide Convention.
Brief Procedural History and Structure of Ukraine’s Written Statement.
17. On 26 February 2022, two days after Russia commenced its full-scale invasion
of Ukraine, Ukraine filed its Application Instituting Proceedings against the Russian
Federation. That same day, Ukraine also requested that the Court indicate provisional
measures. On 7 March 2022, the Court held a public hearing on Ukraine’s request for
provisional measures. On 16 March 2022, the Court issued an order indicating provisional
measures (the “Order” or “Provisional Measures Order”), finding on a prima facie basis that
it had jurisdiction over the parties’ dispute and that Ukraine had invoked plausible rights
under the Genocide Convention.17 The Court ordered as follows:
1. “The Russian Federation shall immediately suspend the military operations that it
commenced on 24 February 2022 in the territory of Ukraine”;
2. “The Russian Federation shall ensure that any military or irregular armed units
which may be directed or supported by it, as well as any organizations and persons
which may be subject to its control or direction, take no steps in furtherance of the
military operations”; and
3. “Both Parties shall refrain from any action which might aggravate or extend the
dispute before the Court or make it more difficult to resolve.”18
16 See Russia’s Objections, paras. 44–45; President of Russia Vladimir Putin, Address by the President
of the Russian Federation (24 February 2022), accessed at http://en.kremlin.ru/events/
president/news/67843 (Ukraine’s Memorial, Annex 6).
17 Provisional Measures Order of 16 March 2022, paras. 48, 64.
18 Ibid., para. 86.
9
18. On 17 March 2022, the day after this Court issued its Provisional Measures
Order, the spokesperson for the President of the Russian Federation announced that Russia
“will not be able to take this decision into account.”19
19. On 23 March 2022, the Court issued an order fixing the time-limits for the
submission of Ukraine’s Memorial and Russia’s Counter-Memorial. Ukraine filed its
Memorial and accompanying annexes on 1 July 2022. The Russian Federation filed its
Preliminary Objections on 3 October 2022.
20. On 7 October 2022, the Court issued an order fixing 3 February 2023 as the
time-limit within which Ukraine may present a written statement of its observations and
submissions on the preliminary objections raised by the Russian Federation. Pursuant to
that order, Ukraine now respectfully presents its Written Statement of Observations and
Submissions on the Preliminary Objections of the Russian Federation, which is organized as
follows:
21. Chapter 2 addresses the Russian Federation’s first preliminary objection
alleging that there is no dispute under the Genocide Convention. Contrary to Russia’s
assertions, the evidence before this Court demonstrates that at the time of Ukraine’s
Application to this Court, there existed a dispute between Ukraine and the Russian
Federation relating to the interpretation, application, or fulfilment of the Genocide
Convention.
22. Chapter 3 addresses the Russian Federation’s second preliminary objection
which asserts that the Court lacks jurisdiction ratione materiae over Ukraine’s claims.
Russia’s objections raise interpretative issues that present merits questions not appropriately
resolved at the preliminary objections stage of these proceedings. In any event, Ukraine has
properly interpreted the Convention. A party that abuses its solemn undertaking to prevent
19 Sofia Stuart Leeson, Russia Rejects International Court Ruling to Stop Invasion of Ukraine,
EURACTIV (17 March 2022), accessed at https://www.euractiv.com/section/europe-seast/
news/russia-rejects-international-court-ruling-to-stop-invasion-of-ukraine/.
10
and punish genocide, and takes measures in purported fulfilment of the Convention that are
not within the limits of international law, violates the Genocide Convention.
23. Chapter 4 sets out Ukraine’s response to the Russian Federation’s objections
to the admissibility of Ukraine’s claims. Contrary to Russia’s admissibility objections, (1) the
claims presented in Ukraine’s Memorial fall within the subject-matter of the dispute
presented in its Application, (2) a judgment from this Court upholding Ukraine’s claims
would have practical effect, (3) the Court may declare that there is no credible evidence that
Ukraine has violated the Genocide Convention, and (4) Ukraine’s Application is in not an
abuse of process.
24. Chapter 5 explains that the Court has jurisdiction over Ukraine’s claim that
the Russian Federation is responsible for violating the Court’s binding Provisional Measures
Order. Russia’s submissions ask the Court to declare that it lacks jurisdiction over all of
Ukraine’s claims, which would include its claim regarding Russia’s violations of provisional
measures. Chapter 5 establishes — for the avoidance of doubt — that the Court has
jurisdiction over Russia’s violations of the Provisional Measures Order, either in conjunction
with adjudicating the merits, or on the independent basis of its authority under Article 41 of
the Statute.
25. Finally, Ukraine offers brief concluding observations and sets out its
Submissions.
* * *
26. The Russian Federation’s violations of the Convention are far from academic,
as the people of Ukraine continue to bear the consequences of Russia’s brutal abuse, misuse,
and violation of the Genocide Convention, as well as of Russia’s continuing violation of this
Court’s Provisional Measures Order. Ukraine urges the Court to reject Russia’s Preliminary
Objections and promptly proceed to the merits, thereby contributing to the purposes of the
U.N. Charter and advancing the peaceful settlement of this significant dispute between the
parties.
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CHAPTER 2: THERE IS A DISPUTE BETWEEN UKRAINE AND THE RUSSIAN FEDERATION
RELATING TO THE GENOCIDE CONVENTION
27. Ukraine’s Memorial demonstrated that there exists a dispute between Ukraine
and the Russian Federation relating to the interpretation, application, or fulfilment of the
Genocide Convention. Specifically, Ukraine asks this Court to resolve a dispute relating to
Russia’s allegations that Ukraine is committing genocide in violation of the Genocide
Convention and Russia’s reliance on these false allegations to take unilateral action in and
against Ukraine beginning in February 2022.20
28. In its first preliminary objection, the Russian Federation contends that there is
no dispute between the parties relating to the Genocide Convention.21 Russia claims that
Ukraine has failed to submit sufficient evidence establishing the existence of such a dispute
at the time Ukraine filed its Application.22 In the alternative, Russia argues that, to the extent
there exists a dispute between the parties, that dispute concerns issues that are manifestly
outside the Convention’s scope.23
29. As Ukraine demonstrates in this Chapter, the Russian Federation’s objection is
unsustainable. Russia both misrepresents Ukraine’s claims and inappropriately discounts
the relevance of the evidence Ukraine has presented demonstrating the existence of a dispute.
Section A of this Chapter addresses Russia’s unfounded attempt to impose a new, more
burdensome test for establishing the existence of a dispute, inconsistent with the Court’s wellestablished
jurisprudence. Section B demonstrates that a dispute existed at the time Ukraine
20 Ukraine’s Memorial, para. 149.
21 Russia’s Objections, Chapter III.
22 See generally ibid., Chapter III, Sections A–C.
23 Ibid., Chapter III, Section D.
12
filed its Application, and that the two sides held opposing positions regarding the subjectmatter
of this dispute. Finally, Section C addresses Russia’s incorrect and unilateral attempt
to reframe the dispute that Ukraine has brought to the Court.
30. The Court examined much of the evidence relevant to the Russian Federation’s
first preliminary objection when it indicated provisional measures, finding “prima facie the
existence of a dispute between the Parties relating to the interpretation, application or
fulfilment of the Genocide Convention.”24 The Court can now definitively conclude that a
dispute exists within the scope of Article IX of the Convention.
The Russian Federation Applies the Wrong Test to Determine Whether a
Dispute Existed Between the Parties Under the Genocide Convention at
the Time of Ukraine’s Application.
31. The standards the Court applies when determining the existence of a dispute
are well established. In its first preliminary objection, however, the Russian Federation asks
the Court to effectively disregard these standards and require a level of specificity in the
parties’ exchanges that is wholly unsupported by the Court’s jurisprudence.25 Specifically,
the Russian Federation maintains that Ukraine “must demonstrate that a dispute existed
with respect to each of the claims as formulated in the Memorial at the time of the filing of
the Application” — which according to Russia, Ukraine has failed to do.26 Further, Russia
asserts — without support — that the Court’s jurisprudence requires the evidence of a dispute
to be “specific enough and made in such a manner that the Parties were aware, or could not
have been unaware, that they hold positively opposed views with respect to the specific
24 Provisional Measures Order of 16 March 2022, para. 47.
25 See Russia’s Objections, para. 61–62.
26 Ibid., para. 72 (emphasis added); see also ibid., para. 63 (“Ukraine must demonstrate that the claims
it has put before the Court on the basis of the Convention had been positively opposed by the Russian
Federation before these proceedings were instituted.”).
13
obligations under the Convention, which are the subject-matter of Ukraine’s claim.”27 In
short, according to Russia, the existence of a dispute under a particular treaty would require
an applicant to fully set out its legal and factual claims under that treaty, and to share them
with the respondent before it seizes the Court.
32. By attempting to impose this novel test on Ukraine, the Russian Federation
asks the Court to depart from its recent judgment in The Gambia v. Myanmar.28 In that case,
also brought under the Genocide Convention, Myanmar contested the existence of a dispute
on the basis that statements made prior to The Gambia’s application “did not specifically
articulate its legal claims.”29 Like Russia does now, Myanmar argued that the existence of a
dispute required “the prospective respondent State to be made aware of the facts said to
amount to a breach of international law, as well as of the provisions of international law said
to have been thereby breached.”30 Rejecting that argument, the Court explained that it “does
not consider that a specific reference to a treaty or to its provisions is required in this
regard.”31 The Court reiterated that “it is not necessary that a State must expressly refer to a
specific treaty in its exchanges with the other State to enable it later to invoke that instrument
before the Court,” and that States may instead “refer to the subject-matter of the treaty with
27 Ibid., para. 65 (emphasis added).
28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, paras. 72–77.
29 Ibid., para. 70; see also Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections of Myanmar (20 January
2021), paras. 530–531, 538–540, 552.
30 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections of Myanmar (20 January 2021), para. 531.
31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 72; see also
Provisional Measures Order of 16 March 2022, para. 44.
14
sufficient clarity to enable the State against which a claim is made to identify that there is, or
may be, a dispute with regard to that subject-matter.”32
33. The Court’s decision in The Gambia v. Myanmar is consistent with the
well-established principle that “it is for the Court to determine, taking account of the parties’
submissions, the subject-matter of the dispute of which it is seised.”33 If no dispute could be
brought to this Court without prior articulation of detailed factual claims and specific
reference to individual provisions of a treaty, arguably there would not be any reason for the
Court to inquire into the subject-matter of the dispute: its subject-matter would be clear.
Further, if Russia were correct that a party’s detailed legal and factual claims need to have
been explicitly specified in advance of seizing the Court, the Court would have found no
dispute in a number of cases where the Court has in fact exercised jurisdiction. To take just
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 72 (citing Application
of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 85, para. 30); see also
Provisional Measures Order of 16 March 2022, para. 44.
Russia relies on Marshall Islands v. United Kingdom and Questions Relating to the Obligation to
Prosecute or Extradite to support its position, but those cases are not helpful to Russia. See Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 853, para. 49 (finding that a single statement made in a multilateral forum in hortatory
terms had not referred to the subject-matter of a claim with sufficient clarity to enable the United
Kingdom, in that case, to identify that there was a dispute with regard to that subject-matter); Questions
Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012, pp. 444–445, para. 54 (finding that though Belgium had set out clearly the dispute between the
parties relating to the interpretation or application of the Convention against Torture, it had not set out
any dispute relating to Senegal’s obligations to prosecute the alleged crimes under customary
international law and therefore the subject-matter and scope of the dispute did not extend to this
specific obligation under customary international law).
33 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021,
p. 26, para. 52 (citing Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
I.C.J. Reports 1998, pp. 447–449, paras. 29–32).
15
one example, in Oil Platforms, there was no suggestion that Iran had earlier invoked the
Treaty of Amity, much less its specific provisions, prior to seizing the Court.34
34. In this case, the subject-matter of the dispute is genocide and the appropriate
measures to be taken to prevent and punish genocide. As discussed below, Ukraine has
shown that, since 2014, the Russian Federation has accused Ukraine and its officials of
committing genocide in Donbas in violation of the Genocide Convention and that, in February
2022, on the explicit basis of bringing this alleged genocide to an end, Russia took unilateral
action in and against Ukraine. By the time of its Application, Ukraine had rejected Russia’s
allegations of genocide, as well as Russia’s reliance on these allegations to recognize the socalled
“Donetsk People’s Republic” (“DPR”) and “Luhansk People’s Republic” (“LPR”) and to
invade Ukraine.
35. Russia wrongly asserts that Ukraine has “transformed its initial request to
confirm that the Russian Federation’s actions had no basis in the Genocide Convention into
requests to establish the responsibility of the Russian Federation for allegedly violating
Articles I and IV of the Convention.”35 There has been no such transformation. Ukraine’s
Memorial clarifies and elaborates upon the claims Ukraine made in its Application, in which
it maintained that Russia’s actions are “incompatible with the Genocide Convention and
violate[] Ukraine’s rights.”36 Ukraine’s development of this claim in its Memorial is permitted
34 Iran and the United States had no diplomatic relations at the time the dispute arose, and Iran’s
application referred only to a meeting between civil servants during which the Iranian representative
requested payment of damages, with no mention of the Treaty of Amity. See Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1996,
pp. 809–810, para. 16; see also Oil Platforms (Islamic Republic of Iran v. United States of America),
Iran’s Application Instituting Proceedings (2 November 1992), pp. 5–6.
35 Russia’s Objections, para. 72.
36 Ukraine’s Application Instituting Proceedings, para. 29.
16
by the Court’s Rules and jurisprudence (as discussed in more detail in Chapter 4, with respect
to Russia’s admissibility objection making the same argument).37 Whether Russia’s actions
are justified under the Genocide Convention, and whether Russia has violated the Genocide
Convention by those actions, are simply two sides of the same coin and constitute the same
dispute.38
The Evidence Before the Court Demonstrates that a Dispute Between
Ukraine and the Russian Federation Relating to the Genocide Convention
Existed at the Time of Ukraine’s Application.
36. In its Memorial, Ukraine presented ample evidence of the parties’ dispute.
Ukraine has shown that, since 2014, the Russian Federation has alleged that Ukraine and its
officials are committing genocide in the Donbas region of eastern Ukraine, and Russia has
stated that this purported genocide violates the Genocide Convention.39 On the asserted basis
of bringing this alleged genocide to an end, in February 2022, Russia recognized the
“independence” of the DPR and LPR and shortly thereafter commenced a large-scale military
invasion of Ukraine. Through both words and actions, Ukraine has contested Russia’s
allegations of genocide and rejected Russia’s reliance on allegations of genocide as grounds
for Russia’s February 2022 actions in and against Ukraine. Conversely, by taking unilateral
action on the explicit basis of bringing an alleged genocide to an end, Russia also has
demonstrated through its conduct that it had a dispute with Ukraine relating to Ukraine’s
interpretation, application, or fulfilment of the Genocide Convention.
37. The Russian Federation asks this Court to disregard the evidence and instead
to conclude that there existed no such dispute between the parties. This strains credulity.
The evidence before the Court confirms that Russia has accused Ukraine and its officials of
committing genocide in violation of the Genocide Convention and has seized upon these
allegations as a pretext for unilateral action in and against Ukraine. The evidence also
37 See infra Chapter 4, Section A.
38 See infra Chapter 4, Section A; supra Chapter 1, Section A.
39 Ukraine’s Memorial, paras. 34–51.
17
confirms that by the time of its Application, Ukraine had rejected Russia’s allegations of
genocide as well as Russia’s reliance on those allegations to recognize the DPR and LPR and
to invade Ukraine on 24 February 2022. In these circumstances, there existed a divergence
of views between the parties relating to the interpretation, application, or fulfilment of the
Genocide Convention.
The Russian Federation Has Accused Ukraine of Committing Genocide
in Violation of the Genocide Convention, and It Has Used These
Allegations to Justify Its Unilateral Action in and Against Ukraine.
38. The evidentiary record reflects that the Russian Federation has repeatedly
accused Ukraine and its officials of responsibility for an alleged genocide committed on
Ukraine’s own territory in violation of the Genocide Convention — an accusation on which
Russia expressly relied in February 2022 to justify its recognition of the DPR and LPR and its
large-scale invasion of Ukraine. In its Memorial, Ukraine recalled, among other examples,
that:
• Beginning in 2014, the Investigative Committee of the Russian Federation (the
“Investigative Committee”) has pursued criminal proceedings against highranking
Ukrainian officials based on alleged acts of genocide against the
Russian-speaking population of the Donbas region of Ukraine, and has
repeatedly alleged that Ukrainian officials have committed crimes under the
Genocide Convention.40
• In the lead-up to Russia’s invasion of Ukraine on 24 February 2022,
high-ranking Russian officials intensified their allegations, asserting, for
example, that “Kyiv’s actions . . . actually fall under the UN Convention On the
Prevention of Genocide.”41
• On 21 February 2022, Russian President Vladimir Putin recognized the
“independence” of the DPR and LPR on the basis that the people living in this
40 See ibid., paras. 36–37; see also Provisional Measures Order of 16 March 2022, para. 37.
41 See Ukraine’s Memorial, para. 38.
18
region were victims of genocide.42 President Putin later reiterated that “the
main motivating force behind our decision to recognise the independence of
the Donbas people’s republics” was the “feelings and pain of these people” in
Donbas who have suffered “genocide.”43
• On 24 February 2022, President Putin announced a so-called “special military
operation” against Ukraine, explaining that “[t]he purpose of this operation is
to protect people who, for eight years now, have been facing humiliation and
genocide perpetrated by the Kyiv regime.”44
39. President Putin’s statements leave no doubt as to the purpose of Russia’s
recognition of the DPR and LPR and Russia’s so-called “special military operation.” The
existence of an alleged genocide in Donbas was the expressly claimed reason for the invasion
of Ukraine in February 2022. President Putin’s statements confirmed that “for eight years”
there had been a dispute between the parties relating to Russia’s allegations that “the Kyiv
regime” committed genocide, a dispute that Russia then took unilateral action to address in
February 2022.
40. The Russian Federation does not and cannot challenge the fact that it made
these repeated and grave accusations of genocide against Ukraine. Instead, Russia seeks to
undermine the relevance of its statements — or it simply ignores them. First, Russia argues
that it “has not invoked Ukraine’s responsibility under the Convention,”45 and further claims
that, in any event, the use of the word genocide does not necessarily refer to the Genocide
42 Ibid., para. 40.
43 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial, Annex
6); see also Ukraine’s Memorial, para. 41.
44 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial, Annex
6); see also Ukraine’s Memorial, paras. 42–43.
45 Russia’s Objections, para. 95.
19
Convention.46 Second, Russia claims that Ukraine relies on “statements that do not represent
the position of [the] State on the international level.”47 Third, Russia attempts to advance its
objection through omission: Russia all but ignores the statements of President Putin and
other high-ranking Russian officials expressly justifying Russia’s unilateral February 2022
actions in and against Ukraine on the basis of bringing an alleged genocide to an end.48 In
short, Russia asks the Court to ignore the express claims of its leaders and State organs and
conclude that Russia’s actions have nothing to do with genocide or the Genocide Convention.
Such arguments should be rejected.
i. Express Invocation of State Responsibility, or of the Name of
the Treaty, Are Not Required for a Dispute to Exist, But in Any
Event Both Are Present.
41. The Russian Federation asks this Court to disregard all evidence of its
allegations that Ukraine is committing genocide in violation of the Genocide Convention on
the basis that Russia never formally “invoked” Ukraine’s responsibility under the
Convention.49 Specifically, Russia asserts that “Ukraine has produced no evidence showing
that the Russian Federation has taken the necessary steps to invoke Ukraine’s responsibility
for the breach of the obligations under the Convention.”50 Relying on the International Law
46 Ibid., para. 104.
47 See ibid., para. 108.
48 See generally ibid., Chapter III.
49 Ibid., para. 95; see also ibid., paras. 96–97, 106. The Investigative Committee did in fact allege that
Ukrainian officials were violating the Genocide Convention, beginning in 2014. See Ukraine’s
Memorial, paras. 35–36. Russia appears not to directly advance its “invocation” argument with respect
to the statements of the Investigative Committee. See Russia’s Objections, para. 106, n.149. Instead,
Russia claims that the Investigative Committee’s statements “do not represent the position of [the] State
on the international level” or are concerned with a “national investigation of the crime of genocide.”
Ibid., paras. 108–112. Those arguments also should be rejected and are discussed below. See infra
Chapter 2, Section (B)(1)(i).
50 See, e.g., Russia’s Objections, para. 95.
20
Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (“ILC
Articles on State Responsibility”), Russia argues that “invocation” of responsibility must be
done through “measures of a relatively formal character,”51 and that “an injured State which
wishes to invoke the responsibility of another State [must] give notice of its claim to that
State.”52
42. Here again, Russia’s position is inconsistent with this Court’s jurisprudence. In
Marshall Islands, the United Kingdom relied on Article 43 of the ILC Articles on State
Responsibility to contend that “a State intending to invoke the responsibility of another State
must give notice of its claim to that State, such notice being a condition of the existence of a
dispute.”53 The Court disagreed, reiterating that the existence of a dispute is a matter of
“substance,” and observing that the commentaries to the ILC Articles on State Responsibility
specify that the articles “are not concerned with questions of the jurisdiction of international
courts and tribunals, or in general with the conditions for the admissibility of cases brought
before such courts or tribunals.”54
43. Yet even if the Court were to consider the framework for invocation of State
responsibility as reflected in the ILC Articles on State Responsibility, Russia has invoked
51 Ibid., para. 96 (quoting ILC Report of the International Law Commission on the Work of Its Fifty-
Third Session, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
Commentaries, 53rd Session, U.N. Doc. No. A/56/10 (23 April–1 June, 2 July–10 August 2001), art.
42, p. 117, para. 2 [hereinafter ILC Commentaries on Draft Articles on State Responsibility]).
52 Ibid., para. 97 (quoting ILC Commentaries on Draft Articles on State Responsibility, art. 43, p. 119,
para. 3).
53 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 2016, p. 846, para. 27.
54 Ibid., para. 45 (citing ILC Commentaries on Draft Articles on State Responsibility, art. 44, p. 120,
para. 1).
21
Ukraine’s responsibility for alleged violations of the Genocide Convention. The
commentaries explain that invocation consists not only of making an allegation, but also of
“taking measures” in response, and offer a non-exclusive set of examples of “specific actions”
that could constitute invocation of responsibility.55 In this case, Russia has not merely
advanced allegations that Ukraine violated the Genocide Convention, but has taken measures
against Ukraine on the basis of that allegation: recognizing the DPR and LPR, and using force
in and against Ukraine.
44. The Russian Federation next asserts that the “use of the word genocide by no
means automatically implies expression of a position regarding the performance or nonperformance
of international obligations under the Convention.”56 In short, Russia suggests
that when it alleged “genocide,” it did not mean “genocide” under the international treaty that
defines and addresses genocide.57 But, as noted above, the existence of a dispute does not
turn on whether a State has referred expressly to a specific treaty.58 It is sufficient that there
is a reference “to the subject-matter of the treaty with sufficient clarity to enable the State
against which a claim is made to ascertain that there is, or may be, a dispute with regard to
that subject-matter.”59 The Russian Federation’s allegations of genocide against Ukraine and
55 See ILC Commentaries on Draft Articles on State Responsibility, art. 42, p. 117, para. 2.
56 Russia’s Objections, para. 104 (emphasis in original).
57 See Florian Jeẞberger, The Definition of Genocide, in THE UN GENOCIDE CONVENTION: A COMMENTARY
(Paola Gaeta, ed., Oxford University Press 2009), p. 88 (“Today, the definition [of genocide] contained
in Article II of the [Genocide] Convention is widely accepted and generally recognized as the
authoritative definition of the crime of genocide.”) (Ukraine’s Memorial, Annex 25).
58 See supra Chapter 2, Section A.
59 Provisional Measures Order of 16 March 2022, para. 44 (citing Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 85, para. 30).
22
its officials unquestionably fall within the subject-matter of the Genocide Convention:
genocide, and the prevention and punishment thereof.
45. Further, and in any event, the Russian Federation’s argument is directly refuted
by the statements of its State organs and high-ranking officials that have repeatedly, and
expressly, made clear that its allegations fall under the Genocide Convention.60 For example,
the Investigative Committee explicitly alleged that Ukrainian officials are committing
genocide “in violation of the 1948 Convention ‘On the Prevention and Punishment of the
Crime of Genocide,’” in the regions of Donetsk and Luhansk.61 Nowhere in its Preliminary
Objections does Russia even attempt to address why the Investigative Committee’s explicit
claims that Ukrainian officials violated the Genocide Convention do not constitute evidence
of the parties’ dispute under that Convention.62
46. High-ranking Russian officials also claimed that Ukraine’s actions violate the
Genocide Convention. For example, just a few months before Russia’s large-scale invasion of
Ukraine, a Russian diplomat responsible for the Contact Group on Settling the Situation in
Eastern Ukraine expressly claimed that a decree by President Putin supporting the DPR and
LPR was a “forced response to Kyiv’s actions, which are aimed at escalating the conflict and
actually fall under the UN Convention On the Prevention of Genocide.”63 Similarly, shortly
60 See supra Chapter 2, Section B(1); see also Ukraine’s Memorial, paras. 36–38.
61 Investigative Committee of the Russian Federation, The Investigative Committee Opened a Criminal
Investigation Concerning the Genocide of the Russian-Speaking Population in the South-East of
Ukraine (29 September 2014) (Ukraine’s Memorial, Annex 9); see generally Ukraine’s Memorial,
paras. 35–37.
62 Ukraine addresses the Russian Federation’s claims that the Investigative Committee does not
represent Russia at the “international level” or are concerned with a “national investigation of the crime
of genocide” below at Chapter 2, Section (B)(1)(i). See Russia’s Objections, para. 108.
63 RIA Novosti, Gryzlov Called Putin’s Decree on Donbas a Response to Kyiv's Actions (18 November
2021) (Ukraine’s Memorial, Annex 35); see also TASS, Putin’s Decree on Donbas is Response to Kyiv’s
23
after the February 2022 invasion commenced, the Russian Ambassador to the European
Union defended President Putin’s reliance on genocide by referring to “the official term of
genocide as coined in international law,” asserting that “[i]f you read the definition, it fits
pretty well.”64
47. Finally, the Russian Federation asserts that its past statements did not “refer[]
specifically to Ukraine’s State responsibility for commission of genocide,” whereas Ukraine’s
claims purportedly “excluded” matters such as “individual criminal responsibility for
genocide or State responsibility for failing to prevent and punish genocide.”65 Russia
mischaracterizes Ukraine’s claims, which do assert that Russia has accused Ukraine and its
officials of committing genocide in violation of the Genocide Convention.66 Russia also
mischaracterizes its own statements, which unequivocally accuse Ukraine itself of
responsibility under the Genocide Convention. For example, as noted above, a high-ranking
official referenced the actions of “Kyiv” — a reference to the Ukrainian government, not any
individual — as actions that “fall under” the Convention.67
Refusal to Honor Minsk Accords – Envoy (18 November 2021), accessed at https://tass.com/politics/
1363441.
64 Georgi Gotev, Russian Ambassador Chizhov: Nord Stream 2 Is Not Dead, It’s a Sleeping Beauty,
EURACTIV (25 February 2022), accessed at https://www.euractiv.com/section/globaleurope/
interview/russian-ambassador-chizhov-nord-stream-2-is-not-dead-its-a-sleeping-beauty/.
Whether or not there is an alternative definition of “genocide” under domestic or international law, that
is irrelevant in the present dispute, where Russia’s allegations have often been specifically grounded in
the Convention.
65 Russia’s Objections, para. 107.
66 See generally Ukraine’s Memorial, paras. 34–46.
67 See, e.g., RIA Novosti, Gryzlov Called Putin's Decree on Donbas a Response to Kyiv's Actions (18
November 2021) (18 November 2021) (Ukraine’s Memorial, Annex 35); see also TASS, Putin’s Decree
on Donbas is Response to Kyiv’s Refusal to Honor Minsk Accords – Envoy (18 November 2021),
accessed at https://tass.com/politics/1363441.
24
48. Russia’s argument also ignores the fact that allegations that Ukrainian officials
are committing genocide are allegations that Ukraine is responsible for committing genocide.
The Investigative Committee, for example, alleged that “persons from among the top political
and military leadership of Ukraine,”68 including two consecutive Ministers of Defense,
violated the Genocide Convention.69 Under established principles of State responsibility, the
actions of these officials are attributable to Ukraine as a State.70 As the Court has observed,
where a State’s officials commit genocide, the State is responsible for genocide under the
Convention.71 Having directly accused Ukraine’s officials, including its Ministers of Defense,
of committing genocide in violation of the Genocide Convention, Russia cannot credibly insist
68 Investigative Committee of the Russian Federation, The Investigative Committee Opened a Criminal
Investigation Concerning the Genocide of the Russian-Speaking Population in the South-East of
Ukraine (29 September 2014) (Ukraine’s Memorial, Annex 9); see also Investigative Committee of the
Russian Federation, Kommersant: “Ukraine Has Been Compared to South Osetia” (30 September
2014) (Ukraine’s Memorial, Annex 10).
69 Investigative Committee of the Russian Federation, A Criminal Case Has Been Initiated Against a
Number of High-Ranking Officials of the Armed Forces of Ukraine (2 October 2014) (Ukraine’s
Memorial, Annex 11); Investigative Committee of the Russian Federation, Criminal Proceedings Have
Been Initiated Against High-Ranking Ukrainian Military Personnel, As Well as Against Oleg Lyashko,
A Member of the Parliament (10 September 2015) (Ukraine’s Memorial, Annex 13).
70 See U.N. General Assembly Resolution 56/83, U.N. Doc. A/RES/56/83, Responsibility of States for
Internationally Wrongful Acts (12 December 2001), Annex, art. 4 (“The conduct of any State organ
shall be considered an act of that State under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in the organization of the State,
and whatever its character as an organ of the central government or of a territorial unit of the State.”).
71 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 130, para. 449 (finding that, since the acts Serbia
alleged constituted genocide were committed by the regular armed forces or police of Croatia, they
would be sufficient to “engage Croatia’s international responsibility . . . simply because they were carried
out by one or more of its organs”); see also Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 242, paras. 213–214 (noting that
it is a “well-established rule of international law,” reflected in Article 91 of Additional Protocol I to the
Geneva Conventions, that “a party to an armed conflict shall be responsible for all acts by persons
forming part of its armed forces,” whether or not the individual soldiers and officers “acted contrary to
the instructions given or exceeded their authority”).
25
that it has never alleged that Ukraine is responsible for genocide under the Genocide
Convention.
ii. The Russian Federation’s Allegations Against Ukraine
Cannot Be Disregarded Because of Russia’s Assertion that Its
Statements Do Not Represent the Position of the State “on the
International Level.”
49. The Russian Federation also argues that “Ukraine attempts to use statements
that do not represent the position of [the] State on the international level (because the
authority to speak on behalf of the Russian Federation is not included in the relevant mandate
of the speakers), are taken out of context or made in an informal setting.”72 Simply put, it is
nonsensical to suggest that State organs and high-ranking officials can accuse another State
and its officials of genocide without raising any issue “on the international level.”73 An
allegation of genocide against another State, particularly an allegation often made expressly
in terms of violations of an international treaty, is an inherently international allegation.
50. The Russian Federation has cited no authority that suggests this Court should
disregard numerous statements of Russian officials for purposes of establishing a dispute on
the basis that the statements do not represent the State internationally. For example, in
Democratic Republic of Congo v. Rwanda, relied upon by Russia, the Court considered
whether Rwanda’s Minister of Justice had authority to withdraw Rwanda’s reservation to the
Genocide Convention.74 But that case is inapposite. The question of whether a particular
official has authority to make binding international legal commitments for the State is wholly
different from whether a particular statement is evidence that two States have opposing views
72 Russia’s Objections, para. 108.
73 See ibid.
74 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 27, para. 46.
26
on a matter.75 In Ukraine’s case before the Court, numerous Russian officials and organs
exercising governmental authority — up to and including the President of the Russian
Federation — made allegations of genocide against Ukraine, and took action on the explicit
basis of preventing and punishing such alleged genocide.
51. The Russian Federation develops its “international level” argument only with
respect to the statements and conduct of its Investigative Committee.76 Yet the Investigative
Committee is a State organ of the Russian Federation that is supervised by its President.77
Whatever authority the Investigative Committee may or may not have under domestic law to
“represent the position of the Russian Federation at the international level,”78 the
Investigative Committee has, as a matter of fact, done precisely that. In addition to leveling
allegations of an inherently international nature against Ukrainian officials, representatives
of the Investigative Committee have, for example, attended formal negotiations between
75 Russia is also not aided by Georgia v. Russian Federation, where the Court merely observed that, in
considering the evidence of the parties’ dispute, it would pay “primary attention” to “statements made
or endorsed by the Executives of the two Parties.” Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011, p. 87, para. 37. The Court did not suggest that no other
statements could be relevant. On the contrary, as the Court reiterated in The Gambia v. Myanmar, in
determining whether a dispute exists between Contracting P, “it takes into account in particular any
statements or documents exchanged between the parties,” paying “special attention to ‘the author of
the statement or document, their intended or actual addressee, and their content.’” Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Preliminary Objections, Judgment of 22 July 2022, para. 64 (citing to Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 100, para. 63).
76 See Russia’s Objections, paras. 108–114; ibid., n.152.
77 Investigative Committee of the Russian Federation, The Federal Law of 28.12.2010 No 403-FZ “On
the Investigative Committee of the Russian Federation” (Extract), accessed at
https://en.sledcom.ru/Legal_information.
78 Russia’s Objections, para. 110.
27
Ukraine and Russia.79 Further, even as a matter of Russian law, the Investigative Committee
is not envisioned as a purely domestic institution. Its domestic statute confers upon it the
competency to interact with the authorities of foreign states and international
organizations.80
52. Russia’s attempts to dismiss the Investigative Committee’s statements on the
basis that the Investigative Committee is “conducting a national investigation into the crime
of genocide,”81 also make no sense. Ukraine does not rely on the mere fact of an investigation,
but on the Investigative Committee’s explicit assertion that high-ranking Ukrainian officials
committed genocide in violation of the Genocide Convention.
53. Otherwise, the Russian Federation does little to clarify which statements of its
officials it considers “informal” or “taken out of context,82 but the facts speak for themselves.
Ukraine has referred to statements by Russian State organs and high-ranking officials made
in their official capacity in which these State organs and officials reference allegations of
genocide against Ukraine.83 Russia has no response, for example, regarding the statement by
79 See Report on the Results of the First Round of Negotiations of the Delegation of Ukraine with the
Russian Federation on the Meaning and Application of the International Convention for the
Suppression of the Financing of Terrorism (28 February 2015) (Ukraine’s Written Statement, Annex 2).
Petr Andreevich Lytvyshko was Head of the Unit of International Cooperation of the Department of
International and Legal Cooperation of the Investigative Committee of the Russian Federation at the
time.
80 Investigative Committee of the Russian Federation, The Federal Law of 28.12.2010 No 403-FZ “On
the Investigative Committee of the Russian Federation” (Extract), art. 3, accessed at
https://en.sledcom.ru/Legal_information (“The Investigative Committee within the powers interacts
with competent authorities of foreign states, concludes agreements, cooperates with the international
organizations according to international treaties and participates in development of international
treaties of the Russian Federation in the established field of activity.”).
81 Russia’s Objections, para. 110.
82 See ibid., para. 108.
83 See generally Ukraine’s Memorial, paras. 35–39.
28
Russia’s international envoy to the Contact Group on Settling the Situation in Eastern
Ukraine that “Kyiv’s actions . . . actually fall under the UN Convention On the Prevention of
Genocide.”84 By definition, Russia’s appointed envoy responsible for settling the situation in
Donbas has authority to speak for the State internationally in describing Russia’s assessment
of the situation in that region of eastern Ukraine.
54. All of the allegations made by the Russian Federation over eight years must also
be viewed in light of their culmination in February 2022, when the Russian Federation
recognized the DPR and LPR as independent and commenced a large-scale invasion of
Ukraine for the stated purpose of bringing a genocide to an end. Given these specific actions,
Russia’s suggestion that prior allegations of genocide should be disregarded as informal, out
of context, or not reflecting of the position of the Russian Federation, is simply untenable.
iii. The Statements of President Putin and Other High-Ranking
Officials Expressly Relying on Genocide to Justify Russia’s
Actions Are Clear Evidence of the Parties’ Dispute.
55. In the context of its first preliminary objection, Russia all but ignores the
statements of its President. In a single footnote, Russia suggests that certain statements to
which Ukraine refers — apparently including those of President Putin, though without
mentioning these statements directly — do not refer to or invoke Ukraine’s responsibility
under the Convention.85 Yet President Putin was plainly addressing the subject-matter of the
Convention: genocide, and the prevention and punishment of genocide.86
84 RIA Novosti, Gryzlov Called Putin's Decree on Donbas a Response to Kyiv's Actions (18 November
2021) (Ukraine’s Memorial, Annex 35); see also TASS, Putin’s Decree on Donbas is Response to Kyiv’s
Refusal to Honor Minsk Accords – Envoy (18 November 2021), accessed at
https://tass.com/politics/1363441.
85 Russia’s Objections, paras. 106–107, n.149.
86 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 72.
29
56. Further, the statements President Putin made were not made in the abstract,
but were linked to the recognition of the DPR and LPR and to the invasion of Ukraine. In an
address made on 21 February 2022, President Putin recognized the “independence” of the
DPR and LPR, describing the situation in those regions as a “horror and genocide, which
almost 4 million people are facing.”87 Later, on 24 February 2022, President Putin explained
that the “purpose” of Russia’s use of force in and against Ukraine was “to protect people who,
for eight years now, have been facing humiliation and genocide perpetrated by the Kyiv
regime.”88 President Putin stated that Russia “had to stop that atrocity, that genocide of the
millions of people who live there,” adding that Russia “will seek to demilitarise and denazify
Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against
civilians, including against citizens of the Russian Federation.”89
57. These statements show that the Russian Federation took unilateral action
against another sovereign State on the stated basis of bringing to an end an alleged genocide.
Russia confirmed this fact when it communicated President Putin’s statement of 24 February
2022 to the U.N. Security Council as the official justification for its actions.90 As Ukraine
noted in its Memorial, other Russian officials, including ambassadors, echoed President
87 President of Russia Vladimir Putin, Address by the President of the Russian Federation (21 February
2022), accessed at http://en.kremlin.ru/events/president/transcripts/statements/67828 (Ukraine’s
Memorial, Annex 5).
88 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial, Annex
6).
89 Ibid.
90 Letter Dated 24 February 2022 from the Permanent Representative of the Russian Federation to
the United Nations Addressed to the Secretary-General, U.N. Doc. S/2022/154 (24 February 2022).
30
Putin’s justification.91 It is not credible for Russia to suggest that Russia’s express reliance
on genocide to justify its actions had nothing to do with the Genocide Convention.
58. In the months since Ukraine’s Application, the Russian Federation has
continued to traffic in these lies. Russian officials, including President Putin himself, have
continued to claim that Ukraine is committing genocide and to justify Russia’s ongoing
invasion of Ukraine on the purported basis of bringing this alleged genocide to an end.92 In
the months since Ukraine filed its Memorial, Russian officials have repeated this rationale for
Russia’s actions. For example, on 21 December 2022, at a meeting of Russia’s Defense
Ministry Board 10 months after the invasion commenced, Russian Defense Minister Sergei
Shoigu stated plainly, “[w]e are taking action to save the population from genocide and
terrorism.”93 The Court should reject Russia’s plea not to be bound by the repeated words of
its most senior leaders.
Ukraine Rejected the Russian Federation’s Allegations of Genocide as
well as Russia’s Reliance on Those Allegations to Take Unilateral
Action in and Against Ukraine.
59. Ukraine demonstrated in its Memorial that, through its statements, Ukraine
rejected Russia’s claims of genocide and its unilateral actions to bring an end to that alleged
genocide in Ukraine. Had Ukraine remained silent in the face of Russia’s allegations,
however, such silence would itself support the existence of a dispute between the parties
relating to Ukraine’s responsibility for genocide. This Court has consistently recognized that
“the existence of a dispute may be inferred from the failure of a State to respond to a claim in
91 Ukraine’s Memorial, paras. 44–45.
92 See ibid., para. 46; infra Chapter 4, Section B.
93 The Kremlin, Vladimir Putin Spoke at an Expanded Meeting of the Board of the Defence Ministry,
Which Was Held at the National Defence Control Centre (21 December 2022) (Ukraine’s Written
Statement, Annex 8).
31
circumstances where a response is called for.”94 Given the seriousness of an allegation of
genocide, the failure of a State to respond to such an allegation would constitute evidence that
the allegation is rejected and a dispute exists between the parties.95
60. Such a conclusion is particularly warranted in relation to allegations of
genocide under the Genocide Convention where, pursuant to Article I, a State has an
obligation to take action to prevent and punish genocide that it is aware is occurring. Since
Ukraine would have been obliged to act had there been merit in Russia’s allegations, failure
to act to prevent and punish the alleged genocide in the Donbas region of Ukraine reflects
Ukraine’s denial by conduct of the allegations against it. As the Court has previously stated,
“[i]n the determination of the existence of a dispute, as in other matters, the position or the
attitude of a party can be established by inference.”96 Ukraine’s inaction thus would have
provided sufficient evidence of the parties’ dispute relating to an alleged genocide in Donbas
in contravention of the Genocide Convention.
61. Ukraine, however, did not remain silent. Ukraine’s State organs and officials
denied the Russian Federation’s allegations of genocide and rejected Russia’s reliance on
94 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, p. 84, para. 30; see also Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.
95 This conclusion is supported by the only case on which Russia relies to object to the relevance of
Ukraine’s conduct to the parties’ dispute. See Russia’s Objections, para. 113 (citing Republic of Ecuador
v. United States of America, PCA Case No. 2012-05, Award, 29 September 2012, para. 223). In that
case, the arbitral tribunal observed that “positive opposition” may be inferred in situations including,
for example, “when a State remains silent when faced with a serious allegation of breach of its
international obligations.” Republic of Ecuador v. United States of America, PCA Case No. 2012-05,
Award, 29 September 2012, para. 223.
96 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.
32
these allegations as a basis for its actions in and against Ukraine in February 2022.97
Nonetheless, Russia asks the Court to disregard Ukraine’s statements and conduct. Russia
attempts to dismiss statements made by Ukrainian officials as the statements of “low-ranking
officials,”98 or as “imprecise” or “vague”99 in their content. Russia also seeks to diminish the
evidentiary value of Ukraine’s conduct in response to Russia’s unilateral actions in and
against Ukraine to purportedly prevent and punish genocide. Lastly, Russia attempts to
discredit the statement published by the Ministry of Foreign Affairs of Ukraine on 26
February 2022 “on Russia’s False and Offensive Allegations of Genocide as a Pretext for its
Unlawful Military Aggression.”100 As explained below, there is no sound basis to ignore
Ukraine’s statements and conduct, which confirm the existence of a dispute prior to the filing
of Ukraine’s Application.
i. Ukraine’s Statements and Conduct Confirm the Existence of
a Dispute.
62. In its Memorial, Ukraine demonstrated that, through both its statements and
conduct, Ukraine rejected the Russian Federation’s false allegations of genocide, as well as
Russia’s reliance on those allegations as a pretext for its actions in and against Ukraine in
February 2022.101 For example, Ukraine noted that:
97 See Ukraine’s Memorial, paras. 47–51.
98 Russia’s Objections, para. 99.
99 Ibid., para. 80.
100 Ministry of Foreign Affairs of Ukraine, 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), accessed at https://www.kmu.gov.ua/en/news/zayava-mzs-ukrayini-shchodonepravdivih-
ta-obrazlivih-zvinuvachen-rosiyi-v-genocidi-yak-privodu-dlya-yiyi-protipravnoyivijskovoyi-
agresiyi.
101 See Ukraine’s Memorial, paras. 47–51.
33
• Ukrainian officials denounced the allegations of genocide put forward by
Russia’s Investigative Committee beginning in 2014. These statements
included those of two advisers to the Ukrainian Minister of the Interior
denouncing the actions of the Investigative Committee as “nonsense.”102 As
one adviser remarked, it was a “thankless task” to comment on the “nonsense
of the Investigative Committee of the Russian Federation,” “[e]specially when
they use terms like genocide.”103 It was also publicly reported that the
Prosecutor General’s Office of Ukraine had stated that the Investigative
Committee’s actions were “groundless.”104
• Ukraine continued to reject Russia’s allegations of genocide as Russian officials
intensified their rhetoric in the lead-up to Russia’s recognition of the DPR and
LPR and its large-scale invasion in late February 2022.105 For example, on 26
January 2022, the information agency of the Ukrainian Ministry of Defense
published an article responding to Kremlin propaganda “myths” in which it
stated “there is no evidence that Russian-speaking or ethnic Russians in
eastern Ukraine are being persecuted, not to mention genocide, by the
Ukrainian authorities.”106
• Through its actions, Ukraine rejected the Russian Federation’s reliance on false
allegations of genocide to recognize the DPR and LPR and to launch its largescale
military attack on Ukraine: Ukraine did not permit Russia to enter its
102 BBC News, The Prosecutor General’s Office Opened Proceedings Against Russian Investigators (30
September 2014) (Ukraine’s Memorial, Annex 31); Lyubov Chyzhova, It is Putin Who Should be Tried
for Genocide—Adviser to the Head of the Ministry of Internal Affairs of Ukraine, RFE/RL (1 October
2014) (Ukraine’s Memorial, Annex 32).
103 Lyubov Chyzhova, It is Putin Who Should be Tried for Genocide—Adviser to the Head of the Ministry
of Internal Affairs of Ukraine, RFE/RL (1 October 2014) (Ukraine’s Memorial, Annex 32).
104 BBC News, Investigative Committee of Russia Accused the Military Leadership of Ukraine of
“Genocide” (2 October 2014) (Ukraine’s Memorial, Annex 33). As Ukraine explained in its Memorial,
also at this time the Prosecutor General’s Office initiated its own criminal proceedings against Russian
officials of the Investigative Committee. See Ukraine’s Memorial, para. 49 and accompanying sources.
105 See Ukraine’s Memorial, para. 50.
106 Ruslan Tkachuk, Seven Myths of the Kremlin Propaganda About the Russian-Ukrainian Conflict,
ArmyINFORM (26 January 2022) (summarizing the research of EUvsDisinfo, a project of the European
External Action Service’s East StratCom Task Force) (Ukraine’s Memorial, Annex 3). ArmyINFORM is
the information agency of the Ukrainian Ministry of Defense. See ArmyINFORM, About Us (27 May
2019) (Ukraine’s Memorial, Annex 2).
34
territory for the stated purpose of halting genocide, but instead mounted a
strong national defense.107
63. The Russian Federation cannot reasonably contest the evidentiary relevance of
Ukraine’s statements and conduct to the existence of the parties’ dispute. Instead, Russia
attempts to dismiss statements made by Ukrainian officials as the statements of “low-ranking
officials,”108 or as “imprecise” or “vague”109 in their content, and seeks to diminish the
evidentiary value of Ukraine’s conduct.110 Russia also asks the Court to attribute weight to
the absence of any formal diplomatic correspondence in which Ukraine set out its “concerns
regarding the Genocide Convention.”111 These arguments are unsustainable and should be
rejected.
64. The Russian Federation first claims that it “could not have been expected to be
aware” of statements by “low-ranking officials” that “do not have the authority to represent
the view of a State at the international level.”112 But the statements to which Ukraine has
referred — statements by Ukrainian officials and state agencies — are evidence of Ukraine’s
consistently held position, and many were publicized in independent news outlets, such as
the BBC and Radio Free Europe.113 In any event, these statements are merely examples of
Ukraine’s rejection of the Russian Federation’s false allegations of genocide. Additional
examples are numerous and include the following:
107 Ukraine’s Memorial, para. 51.
108 Russia’s Objections, para. 99.
109 Ibid., para. 80; see also ibid., para. 100.
110 Ibid., paras. 113–114.
111 Ibid., paras. 76; see also ibid., para. 98.
112 Ibid., para. 99.
113 See Ukraine’s Memorial, paras. 47–49 and accompanying sources.
35
• In October 2014, then-President of Ukraine, Petro Poroshenko, “comment[ed]
on the decision of the investigative bodies of the Russian Federation to open a
criminal case against the military leadership of Ukraine for the alleged genocide
of the Russian-speaking population of Donbas,” remarking, “I am sure that the
blow to the Russian-speaking people was inflicted by the northern neighbor.”114
• At the same time, one of the officials accused by the Investigative Committee —
the then-Minister of Defense, Mr. Valeriy Heletey — publicly rejected the
Committee’s allegations, denouncing “the criminal case against [him] and [his]
colleagues in Russia for ‘genocide of the Russia-speaking population’” as “a
complete delusion.”115 Mr. Heletey added that only “Kremlin propagandists
can accuse the Ukrainian army, which is 40% Russian-speaking, of hating other
Russian-speakers.”116
• Later, in November 2015, following additional allegations of genocide by the
Investigative Committee, the press secretary to Ukraine’s Presidential
Administration on Anti-Terrorist Operational Issues explained that “the
Russian side is fabricating data about Ukraine’s alleged genocide of the
Russian-speaking population in Donbas.”117
65. For the Russian Federation to suggest it was not aware of Ukraine’s position
with respect to its allegations of genocide is nonsensical.118 Russia accused Ukraine of
committing one of the most heinous crimes under international law — the crime of genocide.
This claim was consistently contested by Ukraine. And, as Ukraine has explained, even had
114 VGOLOS, It Was Russia Who Dealt a Blow to the Russian-Speaking Population – Poroshenko (11
October 2014) (Ukraine’s Written Statement, Annex 15); UNIAN, Russian-Speaking Ukrainians
Suffered the Most from the Actions of Russia – Poroshenko (11 October 2014) (Ukraine’s Written
Statement, Annex 14).
115 Facebook Post of Valeriy Heletey (Minister of Defense of Ukraine) (3 October 2014) (Ukraine’s
Written Statement, Annex 1).
116 Ibid.
117 Tatiana Tkachenko, Russia is Going to Accuse Ukraine of “Genocide” of the Russian-Speaking
Population in The Hague – Presidential Administration’s Speaker, ZU.UA (12 November 2015)
(Ukraine’s Written Statement, Annex 17); see also Korrespondent.net, Poroshenko’s Officials Accused
the Russian Federation of Preparing Provocations (12 November 2015) (Ukraine’s Written Statement,
Annex 16).
118 See Russia’s Objections, para. 99.
36
it not been, the parties’ dispute would have been evident. The Russian Federation was aware
— and certainly could not have been unaware — that Ukraine disputed Russia’s allegations of
genocide against Ukraine and its officials.
66. Russia further complains about the statement before the U.N. General
Assembly of Ukraine’s Foreign Minister, Mr. Dmytro Kuleba, following Russia’s recognition
of the so-called DPR and LPR on the basis of an alleged genocide in Donbas on 23 February
2022.119 As Russia concedes, Minister Kuleba “railed against ‘Russia’s absurd
accusations.’”120 While Russia is correct that Mr. Kuleba did not directly refer to the Genocide
Convention in his remarks, his statement condemning Russia’s rhetoric and actions on
Ukrainian territory was a rejection of the Russian narrative.
67. In addition to its statements, Ukraine openly demonstrated by its actions that
it rejected the Russian Federation’s claimed right under the Genocide Convention to use force
to prevent, punish, and bring to an end purported acts of genocide: Ukraine did not permit
Russia to enter its territory for this purpose, but instead mounted a strong national defense.121
Russia’s objection to the relevance of Ukraine’s conduct simply assumes the correctness of its
position on the merits, advanced throughout its Preliminary Objections, that Russia did not
in fact justify its invasion as a measure to address an alleged genocide. According to Russia:
[W]here the Russian Federation has been compelled to use force
based on Article 51 of the UN Charter and related rules of
customary international law, and made these reasons publicly
119 See ibid., paras. 100–101.
120 Ibid., paras. 100–101; see also Ministry of Foreign Affairs of Ukraine, Statement by H.E. Mr. Dmytro
Kuleba, Minister of Foreign Affairs of Ukraine, at the UN General Assembly Debate on the Situation
in the Temporarily Occupied Territories of Ukraine (23 February 2022), accessed at
https://www.kmu.gov.ua/en/news/vistup-ministra-zakordonnih-sprav-ukrayini-dmitra-kuleba-nadebatah-
generalnoyi-asambleyi-oon-situaciya-na-timchasovo-okupovanih-teritoriyah-ukrayini-
23022022.
121 Ukraine’s Memorial, para. 51.
37
known, Ukraine’s conduct can at best be interpreted as evidence
of a response to what Ukraine identifies as ‘an attack on the
sovereignty and territorial integrity of Ukraine’ that are
categories beyond the scope of the Genocide Convention.122
68. If the Russian Federation wishes to defend its actions as based on the U.N.
Charter rather than the Genocide Convention, the appropriate time to do so is on the merits.
But Ukraine’s claim is that Russia invaded Ukraine for the stated purpose of stopping a
genocide, which is amply supported by the Russian Federation’s contemporaneous
justification for its actions. When President Putin called out Ukraine’s alleged wrongdoing
to justify Russia’s invasion of Ukraine, the only accusation he directed at Ukraine was one of
genocide.123 Ukraine’s refusal to let Russia on its territory to (in Putin’s words) “protect
people who, for eight years now, have been facing humiliation and genocide perpetrated by
the Kyiv regime” was a rejection of Russia’s position and reflects a disagreement between
Russia and Ukraine within the subject-matter of the Genocide Convention.124
69. The Court has previously confirmed that the “conduct of the parties may also
be relevant” to the assessment of whether or not a dispute exists, “especially when there have
122 Russia’s Objections, para. 114. In support of this claim, Russia cites a single case from the Permanent
Court of Arbitration to argue that “[c]onduct can be interpreted as ‘positive opposition,’ ‘only when all
other reasonable interpretations of the respondent’s conduct and surrounding facts can be excluded.’”
Ibid., para. 113 (quoting Republic of Ecuador v. United States of America, PCA Case No. 2012-05,
Award, 29 September 2012, para. 223). This standard has not been articulated by this Court, and there
is no basis for the Court to apply such a heightened standard to its assessment of the parties’ conduct in
this case. Nonetheless, for the reasons Ukraine has explained above, Ukraine’s conduct in this case
satisfies even this standard.
123 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial,
Annex 6).
124 Ibid.
38
been no diplomatic exchanges.”125 In Marshall Islands v. United Kingdom, for example, the
Court pointed to Bosnian Genocide as a case where, in circumstances of an ongoing armed
conflict, the conduct of the parties alone was sufficient to establish the existence of a
dispute.126 Here, there is much more, but the conduct of the parties alone is also powerful
evidence of the existence of a dispute relating to the Genocide Convention.
70. Finally, in the circumstances of the present case, the absence of formal
diplomatic correspondence evidencing the existence of a dispute is not determinative. For
example, it is unsurprising that there are no notes verbales subsequent to 24 February 2022,
as Ukraine severed diplomatic relations with the Russian Federation on that date after
Russia’s invasion.127 Russia cannot credibly suggest, in these circumstances, that Ukraine
could not submit a dispute to the Court pursuant to Article IX of the Genocide Convention
without first utilizing formal diplomatic channels which were no longer open. As the Court
observed in Alleged Violations of Sovereign Rights and Maritime Space in the Caribbean
Sea (Nicaragua v. Colombia), “a formal protest is not a necessary condition” to the existence
125 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 2016, p. 850, para. 40.
126 Ibid., para. 54 (discussing the Court’s judgment on preliminary objections in Bosnian Genocide and
observing that “the Court did not explicitly reference any evidence before the filing of the application
demonstrating the existence of a dispute . . . in the particular context of that case, which involved an
ongoing armed conflict, the prior conduct of the parties was sufficient to establish the existence of a
dispute”); see Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996, p. 614, paras. 27–29.
127 Ministry of Foreign Affairs of Ukraine, Statement by the Ministry of Foreign Affairs of Ukraine
Regarding the Severance of Diplomatic Relations with the Russian Federation (24 February 2022),
accessed at https://mfa.gov.ua/en/news/statement-ministry-foreign-affairs-ukraine-regardingseverance-
diplomatic-relations-russian-federation.
39
of the parties’ dispute.128 The question of whether or not a dispute exists is one of substance,
and not of form. As Judge Crawford observed in his dissenting opinion in Marshall Islands
v. United Kingdom, “[e]gregious conduct can create a dispute ipso facto, without the need
for a letter before action or other communication.”129 Russia’s invasion of Ukraine on 24
February 2022 — on the expressly stated reason of bringing to an end an alleged genocide
without any evidence to substantiate that claim — is a paradigmatic example of such
“egregious conduct.”
ii. The Existence of the Parties’ Dispute Was Conclusively
Confirmed Prior to Ukraine’s Application to the Court on 26
February 2022.
71. Ukraine has demonstrated above that, at the time of its Application on 26
February 2022, there existed a dispute between the parties relating to the Russian
Federation’s allegations of genocide and Russia’s reliance on those allegations as a pretext for
its recognition of the DPR and LPR and its invasion of Ukraine. As of 26 February 2022, the
opposing positions of the two sides were already established by each State’s statements and
conduct, and no further action was required from either the Russian Federation or Ukraine
128 Alleged Violations of Sovereign Rights and Maritime Space in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 32, para. 72:
Concerning Colombia’s argument that Nicaragua did not lodge a complaint of
alleged violations with Colombia through diplomatic channels until long after it
filed the Application, the Court is of the view that although a formal diplomatic
protest may be an important step to bring a claim of one party to the attention of
the other, such a formal protest is not a necessary condition. As the Court held in
the case concerning Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), in determining whether a dispute exists or not, ‘[t]he matter is one of
substance, not of form’ (Preliminary Objections, Judgment, I.C.J. Reports 2011
(I), p. 84, para. 30).
129 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 2016, Dissenting Opinion of Judge Crawford, p. 1100, para. 17.
40
in order to evidence the existence of a dispute relating to the Genocide Convention.130 The
Court could end its analysis here.
72. In light of the Russian Federation’s objections, however, Ukraine emphasizes
that the existence of the parties’ dispute was conclusively confirmed by the statement of
Ukraine’s Ministry of Foreign Affairs “on Russia’s False and Offensive Allegations of
Genocide as a Pretext for Its Unlawful Military Aggression,” published prior to Ukraine’s
Application on 26 February 2022.131 Russia attempts to undermine the relevance of this
statement to the Court’s determination of the existence of a dispute based on its timing and
the manner its publication, as well as Ukraine’s word choice.132 But an examination of the
26 February statement reveals that it confirms the existence of a dispute between the parties.
73. Ukraine filed its Application with the Court at 21:30 on 26 February 2022
(22:30 Kyiv time and 23:30 Moscow time).133 As Russia notes, the statement was published
on the Ministry’s website approximately four hours earlier, at 18:39 Kyiv time and 19:39
Moscow time.134 It is therefore common ground that Ukraine’s Application was made after
130 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 71 (observing that “the
conclusion that the parties hold clearly opposite views concerning the performance or non-performance
of legal obligations does not require that the respondent must expressly oppose the claims of the
applicant”). This conclusion is consistent with the broad terms of Article IX, where the existence of a
dispute relating to the interpretation, application, or fulfilment of the Genocide Convention is the only
precondition to the seisen of the Court. There was no requirement to negotiate with Russia once the
dispute crystallized.
131 Ministry of Foreign Affairs of Ukraine, 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), accessed at https://www.kmu.gov.ua/en/news/zayava-mzs-ukrayini-shchodonepravdivih-
ta-obrazlivih-zvinuvachen-rosiyi-v-genocidi-yak-privodu-dlya-yiyi-protipravnoyivijskovoyi-
agresiyi.
132 Russia’s Objections, paras. 80–82.
133 Provisional Measures Order of 16 March 2022, para. 1.
134 Russia’s Objections, para. 81.
41
the Ministry of Foreign Affairs published the 26 February 2022 statement. Given the fastpaced
nature of events and the fact that Russia would have been monitoring Ukraine’s public
statements since diplomatic relations had ceased two days earlier, the 26 February statement
is relevant to confirming that a dispute had materialized by the time the Application was filed.
74. There is also nothing in the Court’s jurisprudence or the Genocide Convention’s
compromissory clause to suggest that a dispute between parties relating to the Convention
could not “materialise” on the same day as a State’s application, as Russia claims.135 It is
sufficient that the dispute exist “at the time” the application is submitted to the Court.136
Article IX of the Convention includes no precondition to the Court’s jurisdiction beyond the
existence of a dispute relating to interpretation, application, or fulfilment of the Convention,
and the Court has made plain that “notice of an intention to file a case is not required as a
135 Ibid. The sources cited by Russia in support of this argument are not applicable to this case. Ibid.,
n.125 (citing Hugh Thirlway, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE: FIFTY
YEARS OF JURISPRUDENCE, Vol. 1 (Oxford University Press 2013), p. 568; G. Distefano, Time Factor and
Territorial Disputes, in, RESEARCH HANDBOOK ON TERRITORIAL DISPUTES IN INTERNATIONAL LAW (M.
Kohen & M. Hebie eds., Elgar Publishing, 2018), pp. 402–403). Both sources address the “critical date”
principle in territorial disputes that is used to determine which party possesses title at a particular time.
There is simply no analogy to be drawn between these cases and the situation before the Court.
136 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, p. 84, para. 30 (“[t]he dispute must in principle exist at the time the Application is submitted to
the Court.” (emphasis added)); Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 851, para. 42 (noting that the Court’s function under
Article 38(1) of the Court’s Statute to decide disputes “relates to disputes existing at the time of their
submission” (emphasis added)); see also Questions Relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 445, para. 55 (analyzing whether or
not a dispute existed “at the time of the filing of the Application” (emphasis added)); Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 34, para. 79 (same); Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary
Objections, Judgment of 22 July 2022, para. 77 (same).
42
condition for the seisen of the Court.”137 Accordingly, the only question for the Court is
whether or not there existed a dispute relating to the interpretation, application, or fulfilment
of the Genocide Convention “at the time of the filing of the Application.”138 A public statement
issued before the filing of an application, even shortly before, may confirm that there was a
dispute “at the time of the filing of the Application.”
75. In view of the severance of diplomatic relations between Ukraine and the
Russian Federation, the Ministry of Foreign Affairs published the statement on its website
and across its official social media platforms, including Facebook and Twitter.139 Russia’s
argument that this statement should not be credited because Ukraine issued this public
statement on a “non-working day” borders on the ridiculous, since Russia most obviously did
not pause its invasion of Ukraine because it was a Saturday, and it is reasonable to presume
that it did not stop monitoring the statements of the Ukrainian government over the weekend,
either.140
76. As to Russia’s claim that the Ministry’s statement of 26 February is “imprecise,
vague and therefore cannot serve as evidence of a dispute that had crystallised between the
137 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 2016, p. 849, para. 38.
138 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012, p. 445, para. 55.
139 MFA Statement on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its
Unlawful Military Aggression, Facebook Post of the Ukrainian Ministry of Foreign Affairs / MFA of
Ukraine, dated 26 February 2022 (Ukraine's Written Statement, Annex 3); MFA Statement on Russia’s
False and Offensive Allegations of Genocide As a Pretext For Its Unlawful Military Aggression, Twitter
Post of the Ukrainian Ministry of Foreign Affairs (@MFA_Ukraine), dated 26 February 2022 (Ukraine's
Written Statement, Annex 4). The statement was posted on Twitter at 18:02 Kyiv time (or 11:02 UTC-
05:00).
140 Russia’s Objections, para. 81.
43
Parties regarding an alleged violation of Articles I and IV of the Convention,” this argument
is refuted by the plain text of the Ministry’s statement.141 The Ministry issued its statement
“on Russia’s False and Offensive Allegations of Genocide as a Pretext for Its Unlawful Military
Aggression.”142 In that statement, the Ministry emphasized that “Ukraine strongly denies
Russia’s allegations of genocide and denies any attempt to use such manipulative allegations
as an excuse for unlawful aggression.”143 In addition, the Ministry explained that “the
Russian Federation has twisted the concept of genocide, and the solemn treaty obligations
concerning genocide, in order to justify aggression and its own blatant human rights
violations.”144 The Ministry criticized Russia’s “brazen manipulation” of the Genocide
Convention, strongly denied Russia’s allegations of genocide against Ukraine, and called
upon Russia to “immediately cease its unlawful aggression against Ukraine taken under this
baseless pretext.”145 Accordingly, the Ministry emphasized that “Russia’s claims of genocide
as justification for its lawless conduct are an insult to the Genocide Convention, and to the
work of the international community in preventing and punishing the world’s most serious
crime.”146
141 Ibid., para. 80.
142 Ministry of Foreign Affairs of Ukraine, 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), accessed at https://www.kmu.gov.ua/en/news/zayava-mzs-ukrayini-shchodonepravdivih-
ta-obrazlivih-zvinuvachen-rosiyi-v-genocidi-yak-privodu-dlya-yiyi-protipravnoyivijskovoyi-
agresiyi.
143 Ibid.
144 Ibid.
145 Ibid.
146 Ibid.
44
77. It is hard to imagine a clearer repudiation of Russia’s allegations of genocide
and its abuse and misuse of the Genocide Convention. This statement of Ukraine’s Ministry
of Foreign Affairs is far more specific in its reference to the Genocide Convention than, for
example, statements made by Georgia prior to filing its application in Georgia v. Russian
Federation, where the Court found that statements that did not mention the relevant treaty
at all were sufficient to establish the existence of a dispute under that treaty.147
78. Moreover, even after the Ministry’s statement on 26 February 2022, after
Ukraine filed its Application, and after this Court indicated provisional measures, Russia’s
response has been unflinching. Russia has continued to claim that its actions in and against
Ukraine are based on bringing to an end an alleged genocide.148 As the Court recently
confirmed in The Gambia v. Myanmar, “conduct of the parties subsequent to the application
may be relevant for various purposes, in particular to confirm the existence of a dispute.”149
Russia’s statements and conduct subsequent to Ukraine’s Application leave no doubt that a
dispute exists between the parties relating to the Genocide Convention.
The Subject-Matter of the Dispute Relates to the Interpretation,
Application, or Fulfilment of the Genocide Convention.
79. The Russian Federation argues in the alternative that, even if a dispute exists
between the parties, it concerns issues that are manifestly outside the scope of the
147 See generally Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, pp. 118–120, paras. 108–113.
148 Ukraine’s Memorial, para. 46; see also supra Chapter 2, Section B(1); infra para. 156.
149 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 64; see also
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 851, para. 43.
45
Convention.150 According to Russia, the “real issues” in dispute are: “(a) whether the Russian
Federation’s recognition of the DPR and LPR complies with customary international law, and
(b) whether the Russian Federation’s use of force as an act of collective self-defence meets the
criteria of Article 51 of the UN Charter.”151
80. The Russian Federation’s argument that the real object of the dispute is
something other than the Genocide Convention is based on Russia’s improper tactic of
ignoring Ukraine’s actual claims and the statements made by the Russian Federation on
which those claims are based. It is well established that “it is for the Court to determine,
taking account of the parties’ submissions, the subject-matter of the dispute of which it is
seised.”152 Put another way, “it is the Court’s duty to isolate the real issue in the case and to
identify the object of the claim.”153 The Court has explained that its “determination of the
subject-matter of the dispute is made ‘on an objective basis’ . . ., ‘while giving particular
attention to the formulation of the dispute chosen by the Applicant.’”154 The Court has also
stated that:
150 Russia’s Objections, Chapter III, Section D.
151 Ibid., para. 136.
152 See, e.g., Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J.
Reports 2021, p. 26, para. 52; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court,
Judgment, I.C.J. Reports 1998, pp. 447–449, paras. 29–32.
153 See, e.g., Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29;
Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021,
p. 26, para. 52.
154 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021,
p. 26, para. 53 (quoting Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile),
Preliminary Objection, Judgment, I.C.J. Reports 2015, pp. 602–603, para. 26 and Fisheries
46
To identify the subject-matter of the dispute, the Court bases
itself on the application, as well as on the written and oral
pleadings of the parties. In particular, it takes account of the
facts that the applicant identifies as the basis for its claim.155
81. Ukraine has demonstrated that the dispute that it has brought to the Court
relates to the Genocide Convention. As Ukraine has explained above, the subject-matter of
this dispute is the Russian Federation’s long-standing allegation that Ukraine is committing
genocide in violation of the Genocide Convention, and Russia’s reliance on this false
allegation to recognize the independence of the DPR and LPR and engage in its large-scale
invasion of Ukraine. Ukraine alleges that Russia’s actions violate the Genocide Convention.
The Russian Federation may disagree with Ukraine’s position on the merits, but that does not
change the fact that, considering the claims Ukraine has brought to the Court, there is a
dispute that relates to the Genocide Convention.
82. Even if Ukraine and Russia also had a dispute that related to customary
international law or the U.N. Charter, that would not affect the Court’s jurisdiction to hear
this dispute. As the Court recently observed in Alleged Violations of the 1955 Treaty of
Amity, “[c]ertain acts may fall within the ambit of more than one instrument and a dispute
relating to those acts may relate to the ‘interpretation or application’ of more than one treaty
or other instrument.”156
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para.
30).
155 Ibid. (emphasis added); Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile),
Preliminary Objection, Judgment, I.C.J. Reports 2015, pp. 602–603, para. 26.
156 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021,
p. 27, para. 56; see also Provisional Measures Order of 16 March 2022, para. 46; Application of the
International Convention for the Suppression of the Financing of Terrorism and of the International
Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 576, para. 28 (“The fact that a dispute before
47
83. The Court’s analysis in Alleged Violations of the 1955 Treaty of Amity is
directly relevant to the dispute before this Court. In that case, the United States objected to
the Court’s jurisdiction on the grounds that the dispute before the Court was solely concerned
with the United States’ withdrawal from the Joint Comprehensive Plan of Action (“JCPOA”),
“and has no real relationship to the Treaty of Amity.”157 In support of this argument, the
United States emphasized diplomatic correspondence on which Iran relied as evidencing the
dispute before the Court, in which Iran had referred only to the JCPOA and made no reference
to the Treaty of Amity.158 The United States also noted that Iran brought its claims regarding
the alleged wrongful conduct under the Treaty of Amity only after the measures it challenged
were reinstated as a result of the United States’ withdrawal from the JCPOA, even though the
measures at issue had been in force prior to the JCPOA.159
84. The Court unanimously rejected the United States’ objection.160 Dismissing the
United States’ objection, the Court concluded:
The Respondent’s argument is that the very subject-matter of
Iran’s claims in this case relates exclusively to the JCPOA, and
not to the Treaty of Amity. The Court does not see how it could
support such an analysis without misrepresenting Iran’s claims
as formulated by the Applicant. The Court’s ‘duty to isolate the
real issue in the case and to identify the object of the claim’ . . .
does not permit it to modify the object of the submissions,
especially when they have been clearly and precisely formulated.
the Court forms part of a complex situation that includes various matters, however important, over
which the States concerned hold opposite views, cannot lead the Court to decline to resolve that dispute,
provided that the parties have recognized its jurisdiction to do so and the conditions for the exercise of
its jurisdiction are otherwise met.”).
157 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021,
p. 24, para. 42.
158 Ibid., para. 43.
159 Ibid., para. 44.
160 Ibid., para. 114(1).
48
In particular, the Court cannot infer the subject-matter of a
dispute from the political context in which the proceedings have
been instituted, rather than basing itself on what the applicant
has requested of it.161
85. The Court’s analysis applies to the present dispute with equal force. Ukraine
has brought to the Court a dispute relating to the Genocide Convention. As in Alleged
Violations of the 1955 Treaty of Amity, the Court cannot conclude that that the subjectmatter
of Ukraine’s claims relates exclusively to matters outside that treaty, and only to
customary international law or the U.N. Charter, “without misrepresenting [Ukraine’s]
claims as formulated by the Applicant.” Russia’s protest that this dispute has no relationship
with the Genocide Convention should be rejected.
86. Further, to the extent the Russian Federation asks this Court to adjudicate the
question of whether or not it expressly invoked Article 51 as the sole and independent basis
for its unilateral actions in and against Ukraine, and should the Court accept Russia’s
invitation to consider that issue, that is plainly for consideration at the merits stage of these
proceedings. As Ukraine explained in its Memorial, Russia’s invocation of Article 51 was both
legally incoherent and not independent of Russia’s reliance on the Genocide Convention.162
In the speech that Russia transmitted to the United Nations as the sole justification for its
actions in and against Ukraine, Russia referred to Article 51 only in stating that “[t]he people’s
republics of Donbas have asked Russia for help,” and Russia stated expressly that the
“purpose” of that help was to “protect people” from “genocide.”163
* * *
161 Ibid., para. 59 (emphasis added).
162 Ukraine’s Memorial, para. 159.
163 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial, Annex
6); Letter Dated 24 February 2022 from the Permanent Representative of the Russian Federation to
the United Nations Addressed to the Secretary-General, U.N. Doc. S/2022/154 (24 February 2022).
49
87. Ukraine has brought to the Court a dispute relating to the Russian Federation’s
allegations that Ukraine has committed genocide in violation of the Genocide Convention,
and the actions that Russia has taken in and against Ukraine on the pretext of preventing and
punishing this alleged genocide and bringing it to an end. Both parties’ statements and
conduct demonstrate the existence of such a dispute, and, accordingly, Russia’s first
preliminary objection should be dismissed.
50
CHAPTER 3: THE COURT HAS JURISDICTION RATIONE MATERIAE OVER UKRAINE’S
CLAIMS THAT THE RUSSIAN FEDERATION VIOLATED ARTICLES I AND IV
OF THE GENOCIDE CONVENTION
88. As detailed in Ukraine’s Memorial, the undertaking to prevent and punish
genocide is held erga omnes among the Contracting Parties and creates both duties and
correlative rights to see violations by other Contracting Parties brought to an end. In
committing to this undertaking, a State commits to perform these rights and duties in good
faith and without abuse. Ukraine claims that Russia has done the opposite. Based on false
allegations of genocide in Donbas, the Russian Federation has undertaken to prevent and
punish genocide to the severe prejudice of Ukraine — a gross abuse, and violation, of Articles
I and IV of the Genocide Convention.
89. Under Russia’s view, Articles I and IV impose no constraint on abusive or
unlawful measures taken for the stated purpose of preventing and punishing genocide, and
this Court has no jurisdiction over a dispute relating to abusive acts taken in purported
fulfilment of the Convention. If the Court were to adopt Russia’s interpretation, any
Contracting Party may falsely accuse another of a violation of the Convention and use that as
a pretext for military invasion. As explained below, however, such an interpretation is
contrary to the text of Articles I and IV, interpreted in good faith, in context, and in light of
the object and purpose of the Convention.
90. Russia’s objection that Ukraine’s claims fall outside the Court’s jurisdiction
ratione materiae is notably silent regarding Article IX of the Convention, the provision that
defines the scope of this Court’s jurisdiction. Accordingly, Section A of this Chapter addresses
the proper interpretation of Article IX. Section B addresses the premature nature of Russia’s
objection, through which Russia advances an interpretation of Articles I and IV without
regard to the standard applicable at this stage of the proceedings. The only proper inquiry at
the preliminary objections stage is whether Ukraine’s claims are capable of falling within the
51
scope of the Convention.164 For the reasons explained in its Memorial and on which it
elaborates in Section C below, Ukraine’s claims are well founded under Articles I and IV and
therefore meet this test.
The Court’s Broad Jurisdiction Under Article IX of the Convention.
91. The Russian Federation’s failure to engage with the language of Article IX,
interpreted according to customary rules of treaty interpretation, is particularly striking in
light of Article IX’s distinctive characteristics. This Court, in the Bosnian Genocide case, had
occasion to note that “one unusual feature” of Article IX that distinguishes it from “a standard
dispute settlement provision” is that the Court’s jurisdiction “includ[es] those disputes
relating to the responsibility of a State for genocide.”165 In Democratic Republic of the Congo
v. Rwanda, five Members of the Court pointed to another unusual feature of Article IX,
observing that it “speaks not only of disputes over the interpretation and application of the
164 See Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, p. 319, para. 85 (“The Court will determine whether the actions by
France of which Equatorial Guinea complains are capable of falling within the provisions of the Palermo
Convention.”); see also Application of the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2019, p. 584, para. 57 (“[I]n order to determine the Court’s jurisdiction ratione materiae under a
compromissory clause concerning disputes relating to the interpretation or application of a treaty, it is
necessary to ascertain whether the acts of which the applicant complains ‘fall within the provisions’ of
the treaty containing the clause.”); Legality of Use of Force (Yugoslavia v. Belgium), Provisional
Measures, Order, I.C.J. Reports 1999, p. 137, para. 38 (“[T]he Court must ascertain whether the
breaches of the Convention alleged by Yugoslavia are capable of falling within the provisions of that
instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione
materiae to entertain pursuant to Article IX.”).
165 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, paras. 168–169.
52
Convention, but over the ‘fulfilment of the Convention.’”166 As further noted in The UN
Genocide Convention: A Commentary:
[Article IX was written] to close down all possible loopholes
weakening the jurisdictional reach of the Court. The purpose
pursued in 1948 was to grant the Court a jurisdiction as wide as
possible in the life of the Convention, forestalling all the
potential subtle arguments denying jurisdiction on account of
an insufficient link with that Convention.167
92. Russia now argues that there is an insufficient link between this dispute and
the Convention, doing precisely what the drafters of the Genocide Convention sought to
forestall. The present dispute would fall within this Court’s jurisdiction even under a more
typical compromissory clause, but the specific features of Article IX reinforce the flawed
nature of Russia’s attempt to avoid that provision’s broad conferral of jurisdiction.
The Convention’s Compromissory Clause Covers Disputes Related to
the “Interpretation, Application or Fulfilment of the Present
Convention.”
93. Like other compromissory clauses that come before this Court, Article IX refers
to the “interpretation” and “application” of the Convention. The reference to the
Convention’s “interpretation” is straightforward. With regard to “application,” as the PCIJ
explained in Factory at Chorzów, a dispute “relating to the application” of provisions of a
treaty “include[s] not only those relating to the question [of] whether the application of a
particular clause has or has not been correct, but also those bearing upon the applicability of
these articles, that is to say, upon any act or omission creating a situation contrary to the said
166 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, Joint Separate
Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, p. 72, para. 28.
167 Robert Kolb, The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ, in THE UN
GENOCIDE CONVENTION: A COMMENTARY (Paola Gaeta, ed., Oxford University Press 2009), p. 453
(Ukraine’s Memorial, Annex 26).
53
articles.”168 Ukraine’s claims of an abuse, misuse, and violation of the Genocide Convention
by Russia relate to whether Russia has applied Articles I and IV of the Genocide Convention
correctly, as well as whether Russia’s acts have created a situation contrary to Articles I and
IV.
94. In addition, unlike other compromissory clauses, Article IX includes the word
“fulfilment.” That addition must be understood to add something to this Court’s jurisdiction,
consistent with the principle that each term of a treaty should be given effect and not rendered
superfluous.169 The ordinary meaning of “fulfilment” is “[t]he action or an act or process of
fulfilling something; accomplishment, performance, completion.”170 To “fulfil” is “[t]o carry
out (something commanded or required); to obey, to follow (the law, a command, etc.); to
accomplish (a duty, task, mission, etc.),” “[t]o achieve, to realize (a purpose, plan, end); to
satisfy, to meet (a requirement, condition, standard, etc.); to perform (a function).”171 The
term used in the official French-language version of the Convention, “l’exécution,” is likewise
ordinarily used to refer to the performance of an obligation. Thus, the addition of the word
“fulfilment” to Article IX clarifies that it encompasses disputes relating to the manner in
168 Factory at Chorzów, Judgment No. 8, 26 July 1927, Jurisdiction, P.C.I.J., Series A. – No. 9, pp.
20–21.
169 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, pp. 125–126, paras. 133–134 (rejecting an interpretation because “a key phrase of this provision
would become devoid of any effect” and would render the phrases “meaningless and no legal
consequences would be drawn from them contrary to the principle that words should be given
appropriate effect whenever possible”); Application of the Interim Accord of 13 September 1995 (The
Former Yugoslav Republic of Macedonia v. Greece), Judgment, I.C.J. Reports 2011, p. 673, para. 92
(rejecting an interpretation because it would render a phrase “without legal effect”).
170 Oxford English Dictionary, fulfilment, n. (3rd ed., 2016), accessed at https://www.oed.com/
view/Entry/75295?redirectedFrom=fulfilment#eid.
171 Oxford English Dictionary, fulfil, v. (3rd ed., 2016), accessed at https://www.oed.com/view/Entry
/75291?redirectedFrom=fulfil&.
54
which the parties “fulfil,” i.e., perform and carry out (exécutent), their undertakings under
the Genocide Convention. That addition is notable in the present case, where the dispute
relates to the abusive manner in which the Russian Federation has purported to fulfil its
rights and obligations under the Genocide Convention.
95. The travaux préparatoires confirm the added breadth intended by the word
“fulfilment.” The first draft of what would become Article IX included the more traditional
phrase “interpretation or application.”172 Belgium and the United Kingdom submitted an
amendment to add the word “fulfilment,” which was adopted.173 The Indian delegation
commented that “the word ‘fulfilment’ referred to the compliance or non-compliance of a
party with the provisions of the [C]onvention,” which it regarded as having “a much wider
meaning” than the term “application.”174 Following this intervention, the delegations
defeated a proposal to delete the word “fulfilment,” confirming the parties’ intent to extend
the Court’s jurisdiction to a broad range of possible disputes relating to the Convention,
including the parties’ performance of their obligations under the Convention.175
172 U.N. Economic and Social Council, Draft Convention on the Crime of Genocide, U.N. Doc. No. E/447
(26 June 1947), p. 10.
173 Official Records of the Third Session of the General Assembly, Part I, Sixth Committee, Summary
Records of Meetings 21 September–10 December 1948, U.N. Doc. No. A/C.6/SR.61-140, pp. 428, 447.
174 Ibid., p. 437.
175 Ibid., p. 447. Some commentators have suggested that the concept of “fulfilment” is a subset of, and
already encompassed by, the word “application.” See Robert Kolb, The Scope Ratione Materiae of the
Compulsory Jurisdiction of the ICJ, in THE UN GENOCIDE CONVENTION: A COMMENTARY (Paola Gaeta,
ed., Oxford University Press 2009), p. 452 (Ukraine’s Memorial, Annex 26). That interpretation would
render the word “fulfilment” as mere surplusage. At the time the Genocide Convention was drafted, the
inclusion of the word “fulfilment” reflected a decision to adopt a compromissory clause that would
extend as broadly as possible.
55
The Phrase “Relating to” and the Use of the Word “Including” in Article
IX Underscore Its Broad Scope.
96. Article IX also uses the phrase “relating to” (in French, “relatifs à”). The
ordinary meaning of “relate” is to have a “connection with” or “relation to” something.176
Thus, to fall within Article IX, it is sufficient that a dispute has a connection or relationship
with the interpretation, application, or fulfilment of the Convention.
97. The word “concerning” is often used as a synonym of “relating.”177 The Court
has explained that a dispute may “concern” certain measures even if the dispute’s “immediate
‘subject-matter’” is not itself “the measures in question.”178 The same logic applies to the
word “relating.” Judge Schwebel reached a similar conclusion in an advisory proceeding
interpreting the phrase “question of law relating to the provisions of the Charter of the United
Nations.” He explained that “an error of law ‘relating to’ provisions of the United Nations
Charter need not squarely and directly engage a provision of the Charter.”179 Citing dictionary
definitions of “relate” and “relating,” Judge Schwebel observed that “[i]t is sufficient if such
an error is ‘in relationship to’ the Charter, ‘has reference to’ the Charter, or ‘is connected with’
176 Oxford English Dictionary, relate, v. (3rd ed., 2009), accessed at https://www.oed.com/view
/Entry/161807?rskey=0DDggi&result=1&isAdvanced=false#eid; see also Merriam-Webster
Dictionary, relate, v., accessed at https://www.merriam-webster.com/dictionary/relate.
177 As noted above, the French version of Article IX of the Genocide Convention uses “relatifs à” to
correspond to the English “relating to.” By way of an additional example, in the compromissory clause
of the U.N. Convention on the Law of the Sea, the English word “concerning” corresponds to the French
phrase “relatif à.” U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397, art.
288.
178 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment, I.C.J. Reports 1998, p. 458, para.
62; see also Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, pp. 34,
36, paras. 81, 86.
179 Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1987, Dissenting Opinion of Judge Schwebel, pp. 113–114. Although
Judge Schwebel made these observations in dissent, this interpretive point was not remarked upon by
the majority.
56
the Charter.”180 By the same token, a dispute relates to the interpretation, application, or
fulfilment of the Genocide Convention if the dispute is in relationship to, has reference to, or
is connected with, the Convention’s interpretation, application, or fulfilment.
98. The phrase “including those relating to the responsibility of a State for genocide
or for any of the other acts enumerated in article III” also underscores the comprehensive
nature of Article IX. As the Court previously observed in Bosnian Genocide, the “including”
clause is an “unusual feature of Article IX.”181 The Court explained that “[t]he word ‘including’
tends to confirm that disputes relating to the responsibility of Contracting Parties for
genocide, and the other acts enumerated in Article III to which it refers, are comprised within
a broader group of disputes relating to the interpretation, application or fulfilment of the
Convention.”182
Disputes May Be Submitted to the Court “At the Request of Any of the
Parties to the Dispute.”
99. Article IX provides that when a dispute exists and relates to the interpretation,
application, or fulfilment of the Convention, the Court has jurisdiction when “any of the
parties” submits it to the Court. This language further underscores that the Court’s
jurisdiction is not limited to situations where the applicant claims the respondent is
responsible for genocide. Where there is a dispute between two parties to the Convention,
and where that dispute relates to the interpretation, application, or fulfilment of the
180 Ibid., p. 114; see also Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, Separate
Opinion of Judge Shahabuddeen, pp. 62–63 (noting Judge Schwebel’s interpretation of “relating to” as
applicable to “concerning,” a word that Judge Shahabudeen viewed as having “amplitude and
elasticity”).
181 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, para. 169.
182 Ibid.
57
Convention, including but not limited to a State’s responsibility for genocide, “any of the
parties” to that dispute may submit it to the Court for resolution.
* * *
100. By its express terms, therefore, Article IX encompasses any dispute relating to
the interpretation, application, or fulfilment of the Genocide Convention; such disputes
include (though are not limited to) those relating to the responsibility of a State for genocide;
and a dispute may be submitted to this Court by any of the parties to the dispute. Together,
these textual features accomplish Article IX’s recognized purpose of “grant[ing] the Court a
jurisdiction as wide as possible in the life of the Convention.”183
101. Applying Article IX, the Court’s jurisdiction over the present case is
straightforward. As demonstrated in Chapter 2, Ukraine and the Russian Federation have a
dispute relating to Russia’s allegations that Ukraine is responsible for committing genocide
in violation of the Convention, and Russia’s reliance on those allegations to take action in and
against Ukraine under the pretext of preventing and punishing genocide. That dispute relates
to, i.e., has a connection or relationship with, “the responsibility of a State for genocide.” An
important component of this dispute is Russia’s allegation that Ukraine is responsible for
genocide. The dispute further relates to Ukraine’s claim that Russia has violated Articles I
and IV of the Genocide Convention, which is unquestionably a matter of interpretation,
application, or fulfilment of the Convention. And, finally, this dispute relates to the
application and/or fulfilment of the Convention, as Ukraine complains of the abusive and
unlawful manner in which the Russian Federation has purported to carry out its rights and
obligations under the Genocide Convention.
102. In objecting to this Court’s jurisdiction ratione materiae, Russia never
addresses the obvious: that a dispute over allegations of genocide under the Convention, and
183 Robert Kolb, The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ, in THE UN
GENOCIDE CONVENTION: A COMMENTARY (Paola Gaeta, ed., Oxford University Press 2009), p. 453
(Ukraine’s Memorial, Annex 26). See also Ukraine’s Memorial, para. 148.
58
measures taken to prevent and punish such a genocide, naturally relate to the interpretation,
application, or fulfilment of the Genocide Convention. For this reason, much of Russia’s
argument is beside the point. The crux of Russia’s second preliminary objection is that
Ukraine bases its claims on sources of law external to the Genocide Convention, such as
general principles of good faith and international law rules on the use of force. Russia
incorrectly characterizes Ukraine’s claims, which are grounded in Articles I and IV of the
Convention. But even if other sources of law are relevant and place limits on the manner in
which the Russian Federation may perform its rights and obligations under the Genocide
Convention, a claim that Russia breached those limits straightforwardly relates to the
application and/or fulfilment of the Convention. In light of the comprehensive nature of
Article IX, the Russian Federation’s second preliminary objection is readily dismissed at the
threshold.
Ukraine’s Claims Are Capable of Falling Within the Provisions of the
Genocide Convention, and a Definitive Interpretation of Articles I and IV
Can Be Deferred to the Merits.
103. A further threshold error made by Russia is to insist that the Court engage in a
definitive interpretation of Articles I and IV at this stage of the proceedings. The Court’s wellestablished
inquiry for assessing a preliminary objection based on lack of jurisdiction ratione
materiae is whether the applicant’s claims are “capable of falling within the provisions” of
the relevant treaty.184
104. The Court has previously recognized that the scope of the duty to prevent and
punish genocide under the Genocide Convention raises merits questions. At the preliminary
objections stage of Bosnian Genocide, Yugoslavia advanced a narrow interpretation of the
184 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, p. 319, para. 85.
59
duty to prevent and punish, contending that the Convention did not encompass questions
regarding State responsibility for genocide.185 The Court dismissed Yugoslavia’s objection,
observing that:
[I]t is sufficiently apparent from the very terms of that objection
that the Parties not only differ with respect to the facts of the
case, their imputability and the applicability to them of the
provisions of the Genocide Convention, but are moreover in
disagreement with respect to the meaning and legal scope of
several of those provisions.186
The Court concluded that there was “no doubt that there exists a dispute between them
relating to ‘the interpretation, application or fulfilment of the . . . Convention.’”187
105. The Court should follow a similar approach here. The interpretive issue in this
case concerns the scope and content of the undertakings in Articles I and IV of the Genocide
Convention — precisely the type of interpretive dispute that this Court in Bosnian Genocide
concluded was a merits question. That approach is particularly warranted here, since the
question of whether an abuse of Articles I and IV occurred is not a pure question of law to be
assessed in the abstract, but one best considered in light of particular factual circumstances
alleged to constitute the abuse.188
185 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment, I.C.J. Reports 1996,
p. 616, para. 32.
186 Ibid., para. 33.
187 Ibid. In its merits judgment, the Court recalled that arguments concerning the scope of the duty to
prevent genocide had been “left by the Court for resolution at the merits stage.” Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 107, para. 152.
188 Cf. Application of the International Convention for the Suppression of the Financing of Terrorism
and of the International Convention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 586, para.
63 (dismissing preliminary objection requiring interpretation of the mental elements of the offence of
60
106. If, however, the Court chooses to address the interpretation of Articles I and IV
at this stage, the Court’s task remains more limited than Russia suggests. To determine
whether claims are “capable” of falling under a treaty, the Court has consistently followed the
methodology used in its Oil Platforms judgment, considering the legal plausibility of a claim
after accepting as true the applicant State’s factual allegations. As Judge Higgins observed in
her separate opinion in that case, “[t]he only way in which . . . it can be determined whether”
the applicant’s claims “are sufficiently plausibly based upon the . . . Treaty is to accept pro
tem the facts as alleged . . . to be true.”189 Under this approach, the Court assesses “whether
the facts as claimed by the applicant might give [rise] to a violation of a specified provision.”190
107. For present purposes, therefore, the Court should assume as true, inter alia:
that there is no credible evidence of Ukraine’s responsibility for genocide in Donbas; that
Russia conducted no due diligence before taking actions based on its allegations of genocide;
and that Russia relied on its false accusation of genocide as the justification for its recognition
terrorism financing, because whether the requisite scienter was present “raises complex issues of law
and especially of fact that divide the Parties and are properly a matter for the merits”).
In Alleged Violations of the 1955 Treaty of Amity, the Court found that because some of the economic
measures at issue “directly target third States or the nationals or companies of third States does not
suffice for them to be automatically excluded from the ambit of the Treaty,” “[o]nly through a detailed
examination of each of the measures in question, of their reach and actual effects” could the Court
determine whether they fell within the scope of the Treaty of Amity. On the merits, the Court’s
evaluation of whether the United States’ measures violated the provisions at issue would require
assessing the “reach and actual effects” of the United States’ measures. Thus, the Court held that the
U.S. objection raised legal and factual questions which were “properly a matter for the merits.” Alleged
Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 33–34,
paras. 81–82.
189 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 1996, Separate Opinion of Judge Higgins, p. 856, para. 32.
190 Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10
March 1998, I.C.J. Reports 1998, Separate Opinion of Judge Higgins, p. 219.
61
of the DPR and LPR and its invasion of Ukraine. On the basis of these facts as alleged by
Ukraine, Ukraine’s claims are “capable” of falling within the Convention.
A Proper Interpretation of Articles I and IV of the Genocide Convention
Supports the Court’s Exercise of Jurisdiction Ratione Materiae.
108. As Ukraine explained in its Memorial, when interpreted pursuant to customary
rules of treaty interpretation, Articles I and IV do not permit a Contracting Party to act to
another Contracting Party’s detriment on the pretext of responding to a falsely alleged
genocide.191 States taking measures to prevent and punish genocide, or to bring another
State’s violation of the Convention to an end, must act in good faith and without abuse, as
well as abide by the limits of international law.192
109. Ukraine does not, as Russia contends, seek to “unduly broade[n]” the Court’s
jurisdiction by incorporating into the Genocide Convention “alleged implicit” obligations
untethered to its text.193 As explained below, Ukraine’s claims are firmly grounded in the text
of the Genocide Convention and Russia’s undertakings therein.
The Genocide Convention Does Not Permit a Contracting Party to Act
to Prevent and Punish a Falsely Alleged Genocide.
110. Articles I and IV are to be interpreted “in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose.”194 Properly interpreted, the mutual undertakings set forth in these
191 See Ukraine’s Memorial, Chapter 3, Section A(1).
192 See ibid., Chapter 3, Section A(2)–(3).
193 See Russia’s Objections, paras. 143–144; see also ibid., paras. 170, 216.
194 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 31(1).
62
provisions do not allow a Contracting Party to invoke the prevention and punishment of an
alleged genocide as a pretext for destructive actions against another State.195
111. Russia mischaracterizes Ukraine’s position as requiring that “every reference
to genocide made at a political level triggers a breach of Articles I and IV of the Convention
and engages international responsibility of the State concerned, unless the latter produces or
discloses evidence in support of that allegation.”196 That is not Ukraine’s position. Instead,
Ukraine’s position is that Articles I and IV do not authorize, but rather prohibit, one
Contracting Party harming another Contracting Party under the guise of preventing and
punishing a genocide that has been alleged without basis or due diligence. As further
elaborated below, that position is supported by settled principles of treaty interpretation.
112. Ukraine’s interpretation follows, in part, from the collective nature of the duty
to prevent and punish genocide, as reflected in the text of the Convention. Article I states
that “[t]he Contracting Parties confirm that genocide, whether committed in time of peace or
in time of war, is a crime under international law which they undertake to prevent and to
punish.” The word “undertake” reflects a mutual commitment among the Contracting
Parties. As noted by the Court in Bosnian Genocide, “[t]he ordinary meaning of the word
‘undertake’ is to give a formal promise, to bind or engage oneself, to give a pledge or promise,
to agree, to accept an obligation.”197
195 Ukraine’s Memorial, Chapter 3, Section A(1).
196 Russia’s Objections, para. 153; see also ibid., paras. 152–154. Russia’s second preliminary objection
focuses mainly on whether Russia has violated Articles I and IV by abusing those articles and acting
outside the limits of international law. Those arguments do not apply to Ukraine’s request for a
declaration that there is no credible evidence that Ukraine is responsible for committing genocide. See
Ukraine’s Memorial, para. 178(b).
197 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 111, para. 162.
63
113. As this Court also explained in Bosnian Genocide in regard to Article I, “a
State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the
State learns of, or should normally have learned of, the existence of a serious risk that
genocide will be committed.”198 In its Memorial, Ukraine detailed how the ordinary meaning
of “prevent” indicated that a genocide or risk of genocide must exist before action to prevent
can be taken.199
114. A similar result holds true with regard to Article IV. Article IV states that
“[p]ersons committing genocide or any of the other acts enumerated in article III shall be
punished, whether they are constitutionally responsible rulers, public officials or private
individuals.” The ordinary meaning of “punish” is “[t]o cause (an offender) to suffer for an
offence, esp. a transgression of a legal or moral code; to subject to a penalty or sanction as
retribution or as a caution against further offences.”200 If no offense has occurred, there is
nothing that a State could, or should, “punish.” Russia declines to engage with the ordinary
meaning of these terms.
115. Reading Articles I and IV in their context, and in light of the object and purpose
of the Convention, further underscores that a State may not act to prevent and punish a falsely
alleged genocide. The Preamble of the Convention refers to “international co-operation” as a
core objective, and multiple other provisions speak to cooperative measures of
198 Ibid., para. 431.
199 See Ukraine’s Memorial, para. 81. The ordinary meaning of “prevent” is “[t]o preclude the
occurrence” of “an anticipated event, state, etc.” See Oxford English Dictionary, prevent, v. (3rd ed.,
2007), accessed at https://www.oed.com/view/Entry/151073?rskey=aXTcHQ&result=2&isAdvanced
=false#eid. As Ukraine explained in its Memorial, the meaning “[t]o preclude the occurrence of”
indicates that the possibility of genocide must be reasonably anticipated before action can be taken to
“prevent.”
200 See Oxford English Dictionary, punish, v. (3rd ed., 2007), accessed at https://www.oed.com/view/
Entry/154671?redirectedFrom=punish#eid. See also Ukraine’s Memorial, para. 81.
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enforcement.201 In addition, as enunciated in the Court’s 1951 Advisory Opinion on
Reservations to the Genocide Convention, “[t]he Convention was manifestly adopted for a
purely humanitarian and civilizing purpose,” including to “confirm and endorse the most
elementary principles of morality.”202 When a State fulfils its “undertaking” under Article I,
it must do so consistent with the Convention’s objective of fostering international
cooperation, and may not instead unilaterally take harmful measures to the detriment of
another Contracting Party based on a false accusation of genocide.
116. The travaux préparatoires further reflect a concern with misuses of the
Convention that would harm other Contracting Parties.203 For example, the drafters rejected
a proposal for the protection of “political groups,” which was viewed as “provid[ing] a very
convenient pretext for interference in the internal affairs of States.”204 Similarly, the drafters
rejected a proposal to penalize certain forms of propaganda because of the risk such a
provision could “become a pretext for serious abuses.”205 Articles I and IV, which codify a
solemn undertaking to prevent and punish genocide, should not be interpreted in a way that
would permit the serious abuses that the drafters sought to prevent.
201 Article VII refers to a pledge among the Contracting Parties to “grant extradition,” and Article VIII
provides that Parties “may call upon the competent organs of the United Nations,” a forum for
international cooperation, to take action “for the prevention and suppression of acts of genocide.”
202 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 23.
203 See Ukraine’s Memorial, para. 84.
204 See Summary Record of Meetings of the Economic and Social Council, Two Hundred and Eighteenth
Meeting, U.N. Doc. E/SR.218, p. 712 (26 August 1948) (Mr. Katz-Suchy (Poland)). See also Ukraine’s
Memorial, para. 84, n.158.
205 See Sixth Committee of the General Assembly, Eighty-Seventh Meeting, U.N. Doc. A/C.6/SR.87, pp.
251, 253 (29 October 1948) (Mr. Fitzmaurice (United Kingdom)). See also Ukraine’s Memorial, para.
84, n.159.
65
A Contracting Party Taking Action to Prevent or Punish Genocide
Under the Convention Must Act in Good Faith and Without Abuse.
117. Articles I and IV must not only be properly interpreted, but the rights and
obligations they embody must be fulfilled in good faith and without abuse. The Russian
Federation attempts to diminish this requirement by referring to it as an “alleged implicit”
obligation, but ignores the specific ways in which these obligations are rooted in the text of
the Convention and established principles of the law of treaties.206
118. For example, under the principle of pacta sunt servanda and as explained by
the Court in its Gabčikovo-Nagymaros Project (Hungary/Slovakia) judgment, parties are
obliged to “apply [the treaty] in a reasonable way and in such a manner that its purpose can
be realized.”207 With respect to Article I of the Genocide Convention in particular, the Court
in its Provisional Measures Order recognized that although “Article I does not specify the
kinds of measures that a Contracting Party may take to fulfil th[e] obligation” to prevent and
punish genocide, “the Contracting Parties must implement this obligation in good faith.”208
119. Thus, when the Contracting Parties undertook to prevent and to punish
genocide, they necessarily bound themselves to good faith implementation of that obligation
— and of the correlative right to take action to address another Contracting Party’s breach.
In particular, the Contracting Parties committed themselves to take measures only to prevent
and punish a genocide that has diligently and reasonably been determined to be occurring or
at serious risk of occurring, and not to abuse or misuse their rights for improper purposes.
206 See Russia’s Objections, paras. 143–144.
207 Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, pp. 78–79,
para. 142. See also Ukraine’s Memorial, para. 87, n.162 (and sources cited therein).
208 Provisional Measures Order of 16 March 2022, para. 56.
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120. The principles governing the proper implementation of Articles I and IV are
well supported in international law. As Judge Keith observed in his Declaration in Mutual
Assistance in Criminal Matters, under “the principles of good faith, abuse of rights and
détournement de pouvoir,” a State exercising a treaty-supplied right must “exercise the
power for the purposes for which it was conferred and without regard to improper purposes
or irrelevant factors.”209 Professor Bin Cheng similarly wrote that “[t]he reasonable and bona
fide exercise of a right implies an exercise which is genuinely in pursuit of those interests
which the right is destined to protect and which is not calculated to cause any unfair prejudice
to the legitimate interests of another State.”210 The eighth edition of Oppenheim’s
International Law treatise explained that a State abuses a right “when [it] avails itself of its
right in an arbitrary manner in such a way as to inflict upon another State an injury which
cannot be justified by a legitimate consideration of its own advantage.”211 Contrary to Russia’s
cursory assertion that Ukraine “made no effort in its Memorial to demonstrate the existence
of the prohibition of abuse of rights as a rule of international law, and what the precise
conditions for its application are,” these authorities do precisely that.212
209 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J.
Reports 2008, Declaration of Judge Keith, p. 279, para. 6. See Ukraine’s Memorial, para. 89.
210 Bin Cheng, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS,
pp. 131–132 (Stevens and Sons Ltd. 1953) (Ukraine’s Memorial, Annex 20).
211 L. Oppenheim, INTERNATIONAL LAW: A TREATISE, VOLUME 1 — PEACE, p. 345 (H. Lauterpacht, ed.,
David McKay Company Inc., 8th ed. 1955) (Ukraine’s Memorial, Annex 21); see also OPPENHEIM’S
INTERNATIONAL LAW: VOLUME 1 PEACE, p. 407 (Robert Jennings & Arthur Watts, eds., Oxford University
Press, 9th ed. 2008) (Ukraine’s Memorial, Annex 24); Robert Kolb, GOOD FAITH IN INTERNATIONAL LAW,
p. 144 (Hart 2017) (explaining that a “more general sphere of abuse of rights . . . encompasses arbitrary,
unreasonable and fraudulent acts”) (Ukraine’s Memorial, Annex 28).
212 Russia’s Objections, para. 218; see also Ukraine’s Memorial, paras. 87–89 and accompanying notes.
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121. Russia’s criticism of so-called “implied” obligations is particularly misplaced in
the context of the Genocide Convention. The Court has previously recognized that although
some obligations might not be expressly stated by that Convention, they follow from its
terms.213 In the Bosnian Genocide case, the Court identified an obligation not to commit
genocide that was not stated “expressis verbis,” but followed from what the Convention
“necessarily implies.”214 When the Contracting Parties agreed to “categorize[] genocide as ‘a
crime under international law,’” they “must logically be undertaking not to commit the act so
described.”215 Similarly, a State that undertakes to prevent and punish the crime of genocide
must also logically be undertaking not to abuse that responsibility.
122. The Russian Federation also has no response to Ukraine’s explanation that
Russia’s abuse and misuse of the Convention violates the Convention. In Certain German
Interests in Polish Upper Silesia, the PCIJ recognized that an abuse of right can amount to a
treaty breach.216 Discussing the Treaty of Versailles, the PCIJ explained that a “misuse” of a
right to alienate property would “endow” such an act “with the character of a breach of the
Treaty.”217 Similarly, Professor Bin Cheng observed in his treatise that an action “inconsistent
with the bona fide execution of the treaty obligation” constitutes “a breach of the treaty.”218
213 See Ukraine’s Memorial, para. 93.
214 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 113, para. 166. See
Ukraine’s Memorial, para. 93.
215 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 113, para. 166.
216 Ukraine’s Memorial, para. 91 (citing Certain German Interests in Polish Upper Silesia (Germany v.
Poland), Merits, Judgment No. 7, 25 May 1926, P.C.I.J., Series A. – No. 7, p. 30).
217 Certain German Interests in Polish Upper Silesia (Germany v. Poland), Merits, Judgment No. 7, 25
May 1926, P.C.I.J., Series A. – No. 7, p. 30.
218 Bin Cheng, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS, p.
125 (Stevens and Sons Ltd. 1953) (Ukraine’s Memorial, Annex 20). With respect to United States -
68
Russia addresses these authorities in a cursory manner, and points to nothing rejecting
Ukraine’s position.219 Nor does Russia respond to Ukraine’s point that this conclusion applies
with particular force to Articles I and IV, in light of the Genocide Convention’s “purely
humanitarian and civilizing purpose.”220 As the Court set forth in its Advisory Opinion on
Reservations to the Genocide Convention, the Genocide Convention’s performance must
reflect the Contracting Parties’ “common interest” in “the accomplishment of those high
purposes which are the raison d’être of the convention.”221
123. The Russian Federation’s main response to Ukraine’s extensive discussion of
how its claims flow directly from the text of the Genocide Convention is to frame Ukraine’s
abuse claim as based solely on a claimed “violation of a general principle, and not of a
particular treaty.”222 This contention is both wrong and irrelevant.
Import Prohibition of Certain Shrimp and Shrimp Products, Russia asserts that “the Appellate Body
did not find that the US had abused Article XX, but that it applied it in an arbitrary and discriminatory
manner.” See Russia’s Objections, para. 218, n.273. However, Ukraine’s point was simply that the
reasoning of the Appellate Body itself suggests that a measure applied in an arbitrary manner
constitutes an abuse of right in violation of the treaty. The Appellate Body noted: “[W]e address now
the issue of whether the application of the United States measure, although the measure itself falls
within the terms of Article XX(g), nevertheless constitutes ‘a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail’ or ‘a disguised restriction on
international trade.’ We address, in other words, whether the application of this measure constitutes
an abuse or misuse of the provisional justification made available by Article XX(g).” Appellate Body
Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc.
WT/DS58/AB/R (12 October 1998), p. 62, para. 160.
219 See Russia’s Objections, para. 218.
220 See Ukraine’s Memorial, para. 92 (quoting Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23).
221 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 23.
222 Russia’s Objections, para. 218.
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124. As reflected in Certain German Interests, an abuse of substantive rights may
constitute a violation of the relevant treaty; the concept is not merely a violation of a general
principle outside of the treaty. In one of the main cases cited by Russia, Border and
Transborder Armed Actions (Nicaragua v. Honduras), the Court indicates that good faith
as a general principle is not independent of the underlying obligation.223 As the Court
explained, good faith “is not in itself a source of obligation where none would otherwise exist,”
but is “one of the basic principles governing the creation and performance of legal
obligations.”224 At issue in this case is Russia’s performance of its legal obligations under the
Genocide Convention. It is appropriate to consider Russia’s performance in light of the
requirement that treaty rights and obligations under the Genocide Convention be exercised
in good faith and without abuse.
125. Moreover, even if the Russian Federation were correct that its obligation to
implement the Convention in good faith and without abuse derives only from general
principles of international law, this Court’s jurisdiction ratione materiae would be unaltered.
223 See ibid., para. 219, n.277.
224 Border and Transborder Armed Actions (Nicaragua v. Honduras), Judgment, I.C.J. Reports 1988,
p. 105, para. 94 (emphasis added). See also Hugh Thirlway, THE LAW AND PROCEDURE OF THE
INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS OF JURISPRUDENCE, Vol. I, p. 20 (Oxford University Press
2013) (Ukraine’s Written Statement, Annex 9) (explaining that “the argument of Honduras was not so
much that good faith had created an obligation on Nicaragua’s part, as that the admitted commitment
to the Contadora Process entered into by Nicaragua entailed an undertaking not to resort to judicial
settlement procedures, such recourse being inconsistent with performance in good faith of the admitted
obligation. Hence the question raised in this case—but not examined by the Court, for the reasons
stated—was one of good faith execution of an obligation, good faith stricto sensu”). Similarly, in the
Nuclear Tests cases, the Court suggested that “good faith” functions as a determinant of the creation
and performance of other rights and duties. As the Court stated: “One of the basic principles governing
the creation and performance of legal obligations, whatever their source, is the principle of good faith.
. . . Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is
the binding character of an international obligation . . . .” See Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 268, para. 46.
70
As explained above, this Court has jurisdiction over any dispute that relates to, i.e., has a
relationship or connection with, the interpretation, application, or fulfilment of the
Convention.225 A claim that a Contracting Party has performed its rights and obligations
under Articles I and IV of the Convention in a bad-faith, abusive manner plainly has a
relationship or connection with the fulfilment of the Convention, at the very least. By the
unequivocal terms of Article IX, the Court has jurisdiction over such a dispute, regardless of
whether the obligation of good faith performance arises from the Convention itself, general
principles of law, or both.
126. In addition to its mistaken argument that abusive performance of the Genocide
Convention does not relate to the interpretation, application, or fulfilment of the Genocide
Convention, Russia faults Ukraine for “not identify[ing] any right under the Convention that
the Russian Federation has allegedly abused.”226 Yet as explained above, Russia has
obligations and rights under Articles I and IV, and it has abused both. As this Court has
recognized on multiple occasions, “the rights and obligations enshrined by the Convention
are rights and obligations erga omnes.”227 Despite the emphasis on this point in Ukraine’s
225 See supra paras. 96—97.
226 Russia’s Objections, para. 223.
227 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment, I.C.J. Reports 1996,
p. 616, para. 31; see also Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (The Gambia v. Myanmar), Provisional Measures, Order, I.C.J. Reports 2020, p. 17, para.
41 (“[A]ny State party to the Genocide Convention, and not only a specially affected State, may invoke
the responsibility of another State party with a view to ascertaining the alleged failure to comply with
its obligations erga omnes partes, and to bring that failure to an end.”); Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, Joint Separate Opinion by Judges
Higgins, Kooijmans, Elaraby, Owada, and Simma, p. 72, para. 28 (“Under that Convention it is States
who are the monitors of each other’s compliance with prohibition on genocide.”); Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), Provisional Measures, Order, I.C.J. Reports 1993, Separate Opinion of Judge
71
Memorial, Russia ignores its significance. As obligations held erga omnes partes, Articles I
and IV entail a corresponding right and interest for every Contracting Party to take steps to
bring to an end violations of the Convention by other Contracting Parties. Russia has
undertaken to prevent and punish genocide, and it has abused that obligation by taking
harmful action against Ukraine on the pretext of preventing and punishing genocide. It
makes no sense for Russia to assert that this obligation does not “come into being” before
there is an actual genocide;228 the obligation always exists (hence the requirement of due
diligence), and Russia misused that obligation in order to attack a State that was not in fact
committing genocide. Russia also has a right to take action to bring a breach of the
Convention to an end: as summarized by Professor Giorgio Gaja in Annuaire de l’Institut de
droit international, “[w]hen a State is under an obligation erga omnes, all the States to whom
the obligation erga omnes is owed have a corresponding right.”229 Russia has abused that
right by taking harmful action against Ukraine on the pretext of stopping a genocide
committed by Ukraine.230
ad hoc Lauterpacht, p. 436, para. 86 (explaining that “[t]he duty to ‘prevent’ genocide is a duty that rests
upon all parties and is a duty owed by each party to every other,” creating a “network of duties” that “is
matched by a network of correlative rights”).
228 Russia’s Objections, para. 149.
229 Giorgio Gaja, Obligations and Rights Erga Omnes in International Law, Second Report, Annuaire
de l’Institut de droit international, Vol. 71, p. 191 (Krakow Session, 2005) (Ukraine’s Memorial, Annex
23). The Court reiterated the same, with respect to the erga omnes partes obligations in the Convention
against Torture, in the Belgium v. Senegal case. Questions Relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 450, para. 69 (“It follows that any
State party to the Convention may invoke the responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations erga omnes partes.”).
230 Russia also contends that it “has not taken any measure of a formal character to invoke Ukraine’s
responsibility.” Russia’s Objections, para. 224. That is too narrow a characterization of the rights and
obligations at issue, which go beyond a mere right to formally invoke the responsibility of a State. In
any event, as explained above, a State may invoke the responsibility of another State not only through
72
127. The Russian Federation again errs when it suggests that the “right” Ukraine
claims is abused is a right to “resort to the use of force or [to] recognise States on the basis of
the Convention.”231 Russia goes on to argue that “[i]t is hard to conceive how Ukraine’s claim
of abuse of rights could succeed when the right allegedly abused is at the same time denied
by Ukraine.”232 This assertion misunderstands Ukraine’s argument. By improperly using
force and recognizing the DPR and LPR for the stated purpose of bringing a violation of the
Genocide Convention to an end, Russia has abused its undertaking to prevent and punish
genocide, and its right to take lawful action to end genocide. Those obligations are firmly
grounded in the text of the Genocide Convention.
128. Finally, Russia repeats its assertion that its actions were grounded in “other
sources of international law,” including Article 51 of the U.N. Charter and principles of selfdetermination.
233 But that is a merits argument that is wholly irrelevant to this Court’s
jurisdiction ratione materiae. As noted above, the question of whether Ukraine’s claims are
“capable” of falling within the Genocide Convention can only be answered by assuming as
true, pro tem, Ukraine’s factual allegations. The claim advanced by Ukraine, supported by
evidence, is that Russia recognized the DPR and LPR and used force in and against Ukraine
for the express purpose of stopping a genocide committed by Ukraine. Russia cannot avoid
the Court’s jurisdiction ratione materiae by advancing a factual argument that it acted for
different reasons.
diplomatic protest, but by taking “specific action.” See ILC Commentaries on Draft Articles on State
Responsibility, art. 42, p. 117, para. 2. Russia took such action against Ukraine. See supra para. 43.
231 Russia’s Objections, paras. 225–226.
232 Ibid., paras. 225–226.
233 Ibid., para. 226 (citing to Russia’s Objections, paras. 37, 44, 46–50, which refer to Russia’s purported
international law bases for its actions).
73
A State Must Act Within the Limits of International Law When Taking
Action Under Articles I and IV.
129. In contrast to the relatively cursory treatment that the Russian Federation’s
submission gives to Ukraine’s claim of a misuse and abuse of the Convention, Russia devotes
significant attention to Ukraine’s observation that a State taking measures to prevent and
punish genocide must act within the limits of international law.234 According to Russia,
Ukraine improperly seeks to “incorporate into the Convention an indefinite number of rules
of international law that fall outside its scope of application,” with the goal of “unduly
expanding the Court’s jurisdiction ratione materiae.”235 On this point as well, Russia’s claim
is based on a mischaracterization of Ukraine’s argument and an unsupportable interpretation
of the Convention.
130. A State may not claim to enforce international law by violating international
law. As the Court explained in Bosnian Genocide, “it is clear that every State may only act
within the limits permitted by international law.”236 The Russian Federation’s attempt to
minimize this Court’s observation as merely “hortatory in nature” is untenable.237 The Court’s
affirmation that “every State may only act within the limits permitted by international law”
appears in a section of the Court’s judgment in Bosnian Genocide discussing the obligation
to prevent genocide under Article I of the Convention. As the Court stated:
Various parameters operate when assessing whether a State has
duly discharged the obligation concerned. The first, which
varies greatly from one State to another, is clearly the capacity
234 See ibid., Chapter IV, Section D.
235 Ibid., para. 170; see also ibid., paras. 150, 173.
236 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430. See
also Ukraine’s Memorial, para. 95.
237 Russia’s Objections, para. 176.
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to influence effectively the action of persons likely to commit, or
already committing, genocide. . . . The State’s capacity to
influence must also be assessed by legal criteria, since it is clear
that every State may only act within the limits permitted by
international law; seen thus, a State’s capacity to influence
may vary depending on its particular legal position vis-à-vis
the situations and persons facing the danger, or the reality, of
genocide.238
131. No aspect of that reasoning suggests that the Court regarded this principle as
merely hortatory. Rather, the Court set out generally applicable criteria to be applied when
“assessing whether a State has duly discharged the obligation concerned.”239
132. Russia is no more successful criticizing this Court’s reliance on Bosnian
Genocide in its Provisional Measures Order.240 Responding to the Order, Russia asserts that
“[t]he fact that a State should respect its obligations under international law when giving
effect to a treaty is an obvious proposition. But those obligations arise under their relevant
sources (treaties, customary international law or general principles of law); not under the
treaty being executed.”241 Contrary to Russia’s suggestion, no one disputes that rules of
international law, such as the prohibition on the use of force, originate outside of the
Convention. The point reflected in Bosnian Genocide is that when a State acts to prevent
and punish genocide, the Convention obligates States to respect the limits that international
law imposes. As Judge Robinson explained in his Separate Opinion: “Article I of the Genocide
238 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430
(emphasis added).
239 Russia also asserts that the Court would have used the phrase “as provided for by article I of the
Convention” had the obligation been derived from Article I. See Russia’s Objections, para. 176.
However, this assertion ignores the statement’s contextualization in a paragraph elaborating on the
content of the Article I obligation as a whole.
240 Russia’s Objections, paras. 180–182.
241 Ibid., para. 181.
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Convention imposes an obligation on Russia not only to act to prevent genocide, but to act
within the limits permitted by international law to prevent genocide.”242
133. That conclusion is reinforced when Article I is read in its context. Articles VIII
and IX indicate that the undertaking to prevent and punish genocide must be performed
within the limits of international law and in a manner consistent with the goals and structure
of the U.N. system.243 Articles VIII and IX refer to the role of the political and judicial organs
of the United Nations with respect to genocide prevention and punishment.244 In particular,
they describe the type of measures that, in the words of the Court in The Gambia v.
Myanmar, a State might invoke to engage “the responsibility of another State party with a
view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and
to bring that failure to an end.”245 Even if resort to these U.N. mechanisms is not the exclusive
means available of stopping genocide, they reflect the type of measure contemplated by the
242 Provisional Measures Order of 16 March 2022, Separate Opinion of Judge Robinson, para. 27.
243 See Ukraine’s Memorial, para. 97.
244 Genocide Convention, art. VIII (“Any Contracting Party may call upon the competent organs of the
United Nations to take such action under the Charter of the United Nations as they consider appropriate
for the prevention and suppression of acts of genocide or any of the other acts enumerated in article
III.”); art. IX (“Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the responsibility of a State for
genocide or for any of the other acts enumerated in article III, shall be submitted to the International
Court of Justice at the request of any of the parties to the dispute.”).
245 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 17,
para. 41. In its recent judgment on preliminary objections, the Court repeated this view. See
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 112 (“It follows that
any State party to the Genocide Convention may invoke the responsibility of another State party . . .
with a view to determining the alleged failure to comply with its obligations erga omnes partes under
the Convention and to bringing that failure to an end.”).
76
Convention — and demonstrate that measures anathema to the principles and structure of
the U.N. system cannot be permissible under the Convention.
134. Russia responds by misreading this Court’s judgment in The Gambia v.
Myanmar, where the Court observed that Article VIII “does not govern the seisin of the
Court.”246 Myanmar had sought to invoke its reservation to Article VIII, arguing incorrectly
that this Court was one of the “organs” referred to in that provision.247 Ukraine does not
argue that this Court is such an “organ,” or that anything about Article VIII qualifies the
jurisdiction of this Court. Rather, Ukraine follows established principles of treaty
interpretation by looking to Articles VIII and IX as relevant context, shedding light on the
type of measures that are permitted and not permitted under Articles I and IV.248 Similarly,
it is appropriate to read a compromissory clause such as Article IX as providing relevant
context, not to treat such a clause as imposing substantive obligations, but to shed light on
the obligations imposed in other provisions.249
135. Interpreting Article I to impose an obligation to act within the limits of
international law is likewise supported by the Convention’s object and purpose. As the Court
has observed, “[t]he Convention was manifestly adopted for a purely humanitarian and
246 See Russia’s Objections, para. 190 (quoting Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment
of 22 July 2022, paras. 88–90).
247 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, paras. 80–90.
248 For essentially the same reasons, Russia’s claim that Article VIII “does not impose a specific
obligation upon States,” and its associated citation to Bosnian Genocide, are misplaced. See Russia’s
Objections, para. 190. Ukraine neither refers to Article VIII in order to confer jurisdiction beyond that
provided by the Statute, nor claims that Article VIII sets forth any additional substantive obligation.
249 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, paras.
168–169 (relying on Article IX to confirm its interpretation of Article I).
77
civilizing purpose.”250 That purpose would surely be undermined if a Contracting Party
could, consistent with Article I of the Convention, use a claim of genocide as a basis to violate
fundamental rules of international law. This case illustrates the consequences of a
Contracting Party acting for the express purpose of preventing and punishing genocide, but
doing so with patently un-civilized aims and anti-humanitarian results.
136. In response, the Russian Federation asks this Court to ignore the wellrecognized
purposes of the Convention, asserting that “[i]t is clear from th[e] preamble that
the object and purpose of the Convention is limited to criminalising genocide under
international law and liberating mankind from this crime.”251 The Preamble is far from
limited in this manner, but rather speaks broadly of “the spirit and aims of the United
Nations.” The Court has already repudiated the extreme suggestion that the Convention’s
Preamble, as well as Articles VIII and IX, have no bearing on the manner in which a State can
implement obligations under the Convention. As stated by the Court in its Provisional
Measures Order, although “Article I does not specify the kinds of measures that a Contracting
Party may take to fulfil this obligation,” “the Contracting Parties must implement this
obligation in good faith, taking into account other parts of the Convention, in particular
Articles VIII and IX, as well as its Preamble.”252 The Preamble’s reference to “the spirit and
aims of the United Nations” is not a “superficial reference,” as Russia says,253 but indicative
250 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 23.
251 Russia’s Objections, para. 187.
252 Provisional Measures Order of 16 March 2022, para. 56.
253 Russia’s Objections, para. 187.
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of the Convention’s humanitarian object and purpose, which would be undermined by
Russia’s narrow reading of Article I.
137. Russia also offers misplaced reliance on various cases in which the Court has
addressed the relationship between different treaties and other bodies of international law.
Russia characterizes these cases as involving a rejection by the Court of a State’s attempt to
“incorporat[e] other rules of international law with a view to expanding the Court’s
jurisdiction ratione materiae.”254 However, the requirement that a State acting to prevent
and punish genocide abide by international law limits in no way involves an “incorporation”
of separate bodies of law into the Convention, so these cases do not support Russia’s position.
Further, none of these cases involves a compromissory clause extending the Court’s
jurisdiction to disputes relating to “fulfilment,” which encompasses claims of unlawful means
of fulfilling treaty rights or obligations, regardless of the source of the norms making the
party’s fulfilment of the treaty unlawful.
138. For example, Russia points to the Court’s conclusion in Oil Platforms that
Article I of the Treaty of Amity between Iran and the United States did not “incorporat[e]”
the international law concerning the use of force, in the sense that any unlawful use of force
by one party against another would violate the treaty.255 Similarly, in Certain Iranian Assets,
254 Ibid., para. 194.
255 Ibid., para. 195 (citing Oil Platforms (Islamic Republic of Iran v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 814, para. 28). More specifically, Iran
argued that the attacks on certain oil platforms by United States naval forces breached, inter alia, Article
I of the Treaty of Amity. As summarized by the Court, under Iran’s interpretation, Article I — which
states that “[t]here shall be firm and enduring peace and sincere friendship between the United States
. . . and Iran” — imposed on the parties an obligation to conduct themselves in “accordance with the
relevant provisions of the Charter of the United Nations and of customary law governing the use of
force.” Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 1996, p. 812, paras. 24–25. The Court did not accept this argument, holding
that Article I did not “incorporat[e]” the international law concerning the use of force but rather
79
the Court rejected the suggestion that the Treaty of Amity effected a wholesale incorporation
of the customary law of sovereign immunities.256 Ukraine, by contrast, does not argue that
any use of force in violation of the U.N. Charter violates Article I of the Genocide Convention.
Articles I and IV reflect the more modest, but critical, principle that when a State acts to
prevent and punish genocide, it must respect the limits of international law.257
139. Russia’s comparison to Immunities and Criminal Proceedings is also
misplaced. Equatorial Guinea had argued that Article 4(1) of the Palermo Convention, by
obligating parties to carry out the Convention consistent with principles of sovereign equality,
imposed an obligation to respect the immunities of States and State officials. The Court did
not disagree that Article 4(1) imposes obligations on the manner in which a State carries out
the Palermo Convention.258 Rather, it rejected the more specific incorporation argument
advanced by Equatorial Guinea, explaining that “Article 4 does not refer to the customary
provided an “objective, in the light of which the other Treaty provisions are to be interpreted and
applied.” Ibid., para. 28.
256 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, pp. 26–35, paras. 51–80.
257 In fact, the Court’s judgment on the merits in Oil Platforms counters Russia’s position. The Court
concluded that the law governing the use of force — specifically the doctrine of self-defense — was
relevant in determining what “measures” could permissibly be taken under the treaty’s security
exception. See Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J.
Reports 2003, p. 182, paras. 41–43. Oil Platforms thus confirms that the categorical view underlying
Russia’s position — that any claim involving violations of the use of force falls outside the Genocide
Convention — is incorrect. See ibid., para. 41 (“The Court cannot accept that Article XX, paragraph 1
(d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of
international law on the use of force, so as to be capable of being successfully invoked, even in the limited
context of a claim for breach of the Treaty, in relation to an unlawful use of force.”).
258 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, p. 321, para. 92 (explaining that Article 4(1) is mandatory, and “[i]ts
purpose is to ensure that the States parties to the Convention perform their obligations in accordance
with the principles of sovereign equality, territorial integrity and non-intervention in the domestic
affairs of other States”).
80
international rules, including State immunity, that derive from sovereign equality but to the
principle of sovereign equality itself.”259 That narrow conclusion, focused on the particular
wording of the treaty provision, has no bearing on whether Articles I and IV of the Genocide
Convention impose an obligation not to take action to prevent and punish genocide in a
manner that violates international law.260
140. Finally, the Court’s judgment in Croatian Genocide does not support Russia’s
position. In a section of the judgment ignored by Russia, the Court observed that, although
it lacked “power to rule on alleged breaches of other obligations under international law, not
amounting to genocide, particularly those protecting human rights in armed conflict,” “[t]hat
does not prevent the Court from considering, in its reasoning, whether a violation of
259 Ibid., para. 93. See also Russia’s Objections, para. 197.
260 See Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, pp. 321–323, paras. 91–103. To the contrary, the Court’s analysis
supports Ukraine’s interpretation. The Court observed that the object and purpose of the Palermo
Convention “is the promotion of co‑operation to prevent and combat transnational organized crime
more effectively,” which had little connection to the sovereign immunity rules invoked by Equatorial
Guinea. Ibid., para. 95. By contrast, the rules governing the use of force are substantially connected
with the “humanitarian and civilizing purpose” for which the Genocide Convention was “manifestly
adopted.” See Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 110,
para. 161 (quoting Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951,
p. 23); ibid., para. 167.
The Legality of Use of Force cases are also inapposite, as Ukraine only refers to the use of force in
describing the requirement that a State acting to prevent and punish genocide act within the bounds of
international law. Russia’s reliance on these cases appears to be based on extrapolations from the
Court’s treatment of Yugoslavia’s argument that Belgium was committing acts of genocide in using
force. See Russia’s Objections, para. 207. As Russia is compelled to acknowledge in a caveat that
overtakes any comparison: “the Court approached the question before it from the point of view of
Article II of the Genocide Convention and whether the acts of NATO Member States showed a
genocidal intent.” See ibid., para. 208 (emphasis added). Moreover, there is no merit in Russia’s
suggestion that because Court did not proprio motu rely on a jurisdictional link between use of force
and genocide in the Legality of Use of Force cases, any such link was implicitly rejected. See ibid., para.
211. No inference can be drawn from a decision not to proprio motu assert a jurisdictional theory not
invoked by the applicant.
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international humanitarian law or international human rights law has occurred to the extent
that this is relevant for the Court’s determination of whether or not there has been a breach
of an obligation under the Genocide Convention.”261
* * *
141. Russia’s invitation for the Court to conduct a comprehensive interpretation of
Articles I and IV of the Convention at this stage should be declined. Consistent with the
Court’s jurisprudence, the disagreement between the parties over the correct interpretation
and application of these provisions is part of the merits of a dispute over which this Court has
jurisdiction.
142. If the Court chooses to address the interpretive questions at the preliminary
objections stage, it should find that it has jurisdiction because Ukraine’s claims are capable
of falling within the provisions of the Genocide Convention. The interpretations advanced by
Russia are untenable and disregard the erga omnes partes character of the undertakings
provided by Articles I and IV, the ordinary meaning of the terms of these articles read in their
context, and the object and purpose of the Genocide Convention. Whichever path the Court
follows, the Russian Federation’s second preliminary objection should be rejected.
261 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia), Judgment, I.C.J. Reports 2015, pp. 45–46, para. 85. Russia instead attempts to rely on the
Court’s determination in Croatian Genocide that the Court’s exercise of jurisdiction over alleged
violations otherwise outside of the scope of the Convention depends on whether there is “discernible
intention” in the Convention that the Court entertain such claims. See Russia’s Objections, para. 214.
However, the issue before the Court in that case was whether it could adjudicate claims related to
Serbia’s alleged genocide which occurred prior to the Convention entering into force for Serbia. That
issue is simply not presented here.
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CHAPTER 4: UKRAINE’S CLAIMS ARE ADMISSIBLE
143. In its third, fourth, fifth, and sixth objections, the Russian Federation argues
that even if the Court has jurisdiction over the dispute, it should still dismiss Ukraine’s claims
as inadmissible. Russia makes four admissibility objections: (1) Ukraine has purportedly
included “new” claims in its Memorial; (2) an eventual judgment would be devoid of practical
effect; (3) a so-called “reverse compliance” request is inadmissible; and (4) Ukraine’s
Application is an abuse of process. In advancing these objections, Russia continues to
mischaracterize Ukraine’s Application and Memorial, and re-packages many of its
jurisdictional objections as also presenting issues of admissibility. Whether the Court treats
these as questions of admissibility or jurisdiction, however, Russia’s arguments are both
legally and factually incorrect and should be rejected.
Ukraine’s Claims in Its Memorial Fall Within the Subject-Matter of the
Dispute Presented in Its Application.
144. Russia is simply wrong that “Ukraine’s submissions in the Application are
manifestly different to those advanced in the Memorial,” or that Ukraine has “introduced
multiple new claims in its Memorial.”262 As noted in The Statute of the International Court
of Justice: A Commentary, the “preliminary and tentative exposition of the subject of the
dispute and the nature of the claim and the succinct statements of facts and legal grounds in
the application . . . are provided for in such a manner under Article 40 and the provisions of
the Rules with the expectation that they will be supplemented and elaborated in the further
proceedings” — a common-sense point underscored by the fact that submissions may be
262 Russia’s Objections, paras. 242–243.
83
amended until the end of oral proceedings.263 Since it is well established in the Court’s
jurisprudence that a party is expected to develop and elaborate on its claims during the course
of the proceedings, it follows that the submissions may evolve accordingly.264
145. The Court has explained that a claim should not be treated as new if it is
“implicit in the application or [arose] directly out of the question which is the subject-matter
of [the] Application.”265 Confirming the propriety of amending or adding claims as a case
proceeds, the Court has recognized that “claims advanced . . . even subsequently to the
application” may properly “clarify[] the scope of the dispute submitted,” even if “they cannot
create a dispute de novo.”266 The Court’s jurisprudence thus emphasizes the subject-matter
of the Application in relation to the modification or addition of claims. For example, in
Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court permitted a claim
founded “on different legal grounds” than what was presented in the Application, since it
related to the same subject-matter.267 Similarly, in Territorial and Maritime Dispute
(Nicaragua v. Honduras), the Court concluded that a claim was admissible on the basis that
263 Sienho Yee, Article 40, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY
(Zimmermann et al., eds., Oxford University Press 2019), p. 1077 (Ukraine’s Written Observations,
Annex 12).
264 See Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 318–319, para. 99.
265 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J.
Reports 1992, p. 266, para. 67 (internal citations omitted).
266 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 2016, p. 855, para. 54.
267 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 665,
para. 111.
84
it was “inherent” in the original claim.268 And in Diallo, the Court found a claim was not
implicit in the application when it related to events from a “different time and in different
circumstances”269 — a situation quite different from the present dispute. In that case, five
Members of the Court noted in a Joint Declaration that “what matters as regards the
admissibility of a formally new claim is that it should fall within the subject of the dispute
which has been brought before the Court.”270
146. All of Ukraine’s claims and submissions relate to the subject-matter of the
dispute before the Court: Russia’s allegations that Ukraine is committing genocide in
violation of the Genocide Convention and Russia’s reliance on these false allegations to take
unilateral action in and against Ukraine. As noted in Chapter 2, Ukraine’s Memorial does not
“transform the dispute.”271 Ukraine’s claims fall within the subject-matter of its
Application.272
147. The Russian Federation makes three principal arguments in support of this
objection, each of which should be rejected. First, Russia perceives Ukraine’s Application as
having been limited to a “request to confirm that the Russian Federation’s actions had no
basis on the Convention,” and asserts that Ukraine’s Memorial asserted a new claim by
seeking “to establish the responsibility of the Russian Federation for allegedly violating
268 Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 697, para. 115.
269 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
Judgment, I.C.J. Reports 2010, pp. 657–658, para. 43.
270 Ibid., Joint Declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, and Yusuf,
p. 696, para. 4.
271 See supra, Chapter 2, Section A.
272 At a minimum, Ukraine’s claims were “implicit in the application.” See Certain Phosphate Lands in
Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 266, para. 67.
85
Articles I and IV of the Convention.”273 Russia is simply mistaken, and appears to be making
a point that is mere semantics rather than substance. In its Application, Ukraine alleged that
Russia’s actions are “incompatible with the Genocide Convention and violate[] Ukraine’s
rights.”274 The Court understood Ukraine’s claims as such, noting in its Provisional Measures
Order that Ukraine’s allegations against Russia included that “the Russian Federation has
acted inconsistently with its obligations and duties, as set out in Articles I and IV of the
Convention,” and that “the Russian Federation has abused and misused the rights and duties
stipulated in the Convention.”275
148. A claim that Russia’s actions are “incompatible” with the treaty, and violate
Ukraine’s rights under the treaty, is a claim that Russia violated the treaty. It is simply not
true that Ukraine’s Application was limited to establishing a lack of legal authorization in the
Convention for Russia’s actions.
149. At a minimum, Ukraine’s claim that Russia’s abuse and misuse of the
Convention constitutes a violation arises directly from, and is implicit in, the subject-matter
of the dispute established in the Application: Russia’s allegations that Ukraine is committing
genocide in violation of the Genocide Convention and Russia’s reliance on these false
allegations to take unilateral action in and against Ukraine beginning in February 2022. A
claim that Russia lacked legal justification for its actions under the Genocide Convention, and
a claim that Russia violated the Genocide Convention by those actions, are two sides of the
same coin. Under the Court’s jurisprudence, even if Ukraine’s Memorial were seen as
273 Russia’s Objections, para. 243.
274 Ukraine’s Application, para. 29; see also ibid., para. 26 (outlining the legal grounds for Ukraine’s
Application).
275 Provisional Measures Order of 16 March 2022, paras. 52–53.
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advancing “different legal grounds” from its Application while addressing the same dispute,
its claims would still be admissible.276 But in fact, Ukraine has advanced the same
fundamental claims that were articulated in its Application. Ukraine’s Memorial simply
clarifies those claims.
150. Second, Russia contends that “Ukraine has also changed the nature of its claims
in respect of [the] acts of genocide” that the Russian Federation has alleged against Ukraine
and its officials.277 Specifically, Russia argues that there has been a “shift in the relief sought”
from the Application, which asked the Court to “declare that . . . no acts of genocide, as defined
by Article III of the Genocide Convention, have been committed,” to the Memorial, which
asked the Court to “declare that there is no credible evidence that Ukraine is responsible for
committing genocide in violation of the Genocide Convention.” 278 Again, Russia’s argument
is one of semantics rather than substance. Ukraine has not transformed the dispute by
requesting that the Court find there is no credible evidence Ukraine committed acts of
genocide in Donbas. Ukraine simply added specificity to this particular submission, as is
permitted and directly contemplated by the Court’s Rules.279
151. To decide the dispute that Ukraine has submitted to the Court, it will be
necessary for the Court to determine whether there is credible evidence of Ukraine’s
276 See Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p.
665, para. 111.
277 Russia’s Objections, para. 249.
278 Ibid., paras. 249–251.
279 See Rules of the Court, art. 49(4) (“Every pleading shall set out the party’s submissions at the relevant
stage of the case, distinctly from the arguments presented, or shall confirm the submissions previously
made.”). A party’s submissions can be changed until the end of a hearing, when final submissions are
due. Ibid., art. 60(2) (“At the conclusion of the last statement made by a party at the hearing, its agent,
without recapitulation of the arguments, shall read that party’s final submissions.” (emphasis added)).
87
responsibility for genocide. A declaration on this point will advance the resolution of the
dispute. It is ultimately for the Court to decide the particular language of any declaration it
makes after hearing the merits, and a declaration framed in terms of an absence of acts of
genocide, or of an absence of credible evidence of such acts, would equally advance the
resolution of the present dispute.280 Ukraine’s adjustment of the precise wording of the
declaration it seeks comes nowhere close to transforming the nature of the dispute itself.
152. Finally, Russia argues that because Ukraine’s Application did not expressly
mention Article IV of the Genocide Convention, claims regarding this article are “completely
new and, for this reason alone, should be declared inadmissible.”281 Ukraine’s Article IV
claim, however, is related to its claim under Article I and arises from the same subject-matter.
The Memorial (and, before that, Ukraine’s oral pleadings on provisional measures) clarified
that the legal grounds of Ukraine’s claims implicate both Articles I and IV.282 Article I
establishes that the Contracting Parties undertake to both prevent and punish genocide, and
Article IV focuses on a specific aspect of that undertaking in the form of individual
punishment. The close relationship between Articles I and IV of the Genocide Convention
stands in contrast to the new claim that was rejected in M/V Louisa, the only authority cited
by Russia to support its argument, where the International Tribunal for the Law of the Sea
280 Russia also contends that, “by focusing exclusively on State responsibility for commission of acts of
genocide, Ukraine leaves out its possible responsibility for failing to take the required measures to
prevent and/or punish genocide.” Russia’s Objections, para. 251. This point again mischaracterizes
what Ukraine is asking of the Court, and in any event, there is no credible evidence Ukraine committed
acts of genocide.
281 Russia’s Objections, para. 244.
282 Ukraine explicitly raised Article IV during the hearing on Ukraine’s request for the indication of
provisional measures. See Allegations of Genocide Under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Verbatim Record of Oral
Proceedings Held 7 March 2022, CR 2022/5 (corrected), pp. 38–39, 47, paras. 5–6, 33 (Cheek); ibid.,
p. 61, para. 17 (Koh).
88
rejected the addition of a claim based on an entirely different section of UNCLOS than the
previously advanced claims, and where the applicant advanced that additional claim only
after the close of the written pleadings.283 Here, the Memorial’s invocation of Article IV in
conjunction with Article I arises directly from the subject-matter of the Application.
A Judgment of this Court Upholding Ukraine’s Claims Would Have
Practical Effect.
153. In its fourth preliminary objection, Russia argues that any judgment rendered
by the Court would lack practical effect because, “instead of the Convention, other bodies of
international law, namely, the UN Charter and customary international law, are the basis for
the Russian Federation’s conduct that Ukraine has challenged before the Court.”284
154. This Court’s prior decisions do not support Russia’s admissibility objection.
Contrary to Russia’s suggestion, the Northern Cameroons and Nuclear Tests cases do not
establish that a judgment in this case would be without practical consequence. In Northern
Cameroons, the Court noted a judgment “must have some practical consequence in the sense
that it can affect existing legal rights or obligations of the parties, thus removing uncertainty
from their legal relations.”285 The Court found in that case that no judgment on the merits
would have a practical consequence because, as Cameroon recognized, the treaty at issue was
no longer in force and “would not be revived and given new life by the judgment,” and the
respondent, the United Kingdom, “would have no right or authority to take any action with a
view to satisfying the underlying desires of the Republic of Cameroon.”286
155. Here, Ukraine is asking the Court to hold the Russian Federation accountable
for its violations of the Genocide Convention, a convention still in force between Ukraine,
283 The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), ITLOS Case No.
18, Judgment of 28 May 2013, paras. 140–142.
284 Russia’s Objections, para. 268.
285 Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections, Judgment of 2 December 1963, I.C.J. Reports 1963, p. 34.
286 Ibid., p. 33.
89
Russia, and 150 other signatories and for which a judgment would “affect existing legal rights
or obligations.” A judgment would establish that Russia has violated the Convention and has
no legal right to invade Ukraine to prevent and punish an alleged genocide. A judgment also
would establish that Russia has an obligation to perform its obligations under the Convention
in good faith.
156. The Nuclear Tests cases can be similarly distinguished. There, the Court
declined to proceed to the merits because, subsequent to the filing of the applications, the
dispute before the Court was rendered moot. In their applications, Australia and New
Zealand asked the Court to declare that France’s continued atmospheric nuclear testing
violated their rights under international law, and during the proceedings, French authorities
declared they would stop atmospheric testing and move to underground testing.287 The Court
therefore concluded that “[t]he object of the claim having clearly disappeared, there is
nothing on which to give judgment.”288 The present dispute is not moot. To this day, Russia
continues its lethal military operations in Ukraine, just as it continues to allege that Ukraine
is responsible for committing acts of genocide in Donbas. For example, on 8 December 2022,
President Putin stated that the Russian Federation was targeting civilian infrastructure in
Ukraine in response to alleged acts of genocide by Ukraine in Donbas: “There’s a lot of noise
right now about our strikes against the energy infrastructure of the neighbouring country.
Yes, we are doing it but who started it? . . . Who is not providing water to Donetsk? Not
287 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, pp. 459–460, 471, paras. 11,
43; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 256, 266, paras. 11, 40.
288 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 62; Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 271–272, para. 59.
90
providing water to a city with 1 million population is an act of genocide.”289 Even if Russia
had ceased its wrongful conduct, there would remain a live dispute concerning the reparation
owed by Russia for its prior conduct in violation of the Convention. The “object” of Ukraine’s
claims is thus very much still alive, and continuing these proceedings towards resolution is
not “fruitless.”290
157. Unlike the Nuclear Tests cases, the basis of Russia’s objection is not genuinely
a matter of admissibility. Rather, Russia seeks to prejudge the merits of the dispute. Ukraine
claims that the Russian Federation abused, misused, and therefore violated the Genocide
Convention by accusing Ukraine of committing genocide in violation of the Convention and
relying on those false allegations to recognize the DPR and LPR and invade Ukraine on the
pretext of preventing and punishing genocide.291 Ukraine has supported that claim with
extensive evidence, including statements by the President of the Russian Federation and
other high-ranking Russian officials asserting that Russia’s actions were done for the purpose
of preventing and punishing genocide. If Russia wishes to deny that the Convention played
any role in its actions, notwithstanding its express reliance on allegations of genocide to
justify its conduct, then Russia is free to present that alternative factual narrative as a defense
on the merits.
158. If Ukraine is able to establish the facts that it has alleged in its Application and
Memorial, then a judgment of this Court will necessarily have practical effect. Such a
judgment will determine whether Russia had a basis under the Genocide Convention to use
force against Ukraine, as Russia has claimed, or whether Russia’s actions violated the
Genocide Convention, as Ukraine claims. Such a judgment from the Court will determine the
289 See Twitter Post of Dmitri (@wartranslated) (8 December 2022), accessed at
https://twitter.com/wartranslated/status/1600847388242894848; George Wright, Putin Vows to
Continue Hitting Ukraine’s Power Grid, BBC News (8 December 2022), accessed at
https://www.bbc.com/news/world-europe-63907803.
290 See Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 61; Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271, para. 58.
291 See Ukraine’s Memorial, Chapter 3.
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rights and responsibilities of each party under the Genocide Convention, irrespective of
whether or not Russia may assert some separate justification for its actions under Article 51
of the U.N. Charter. Ukraine also has claimed a violation of this Court’s Provisional Measures
Order. Any finding of such a violation would also have practical effect and result in reparation
for the harm suffered due to Russia’s non-compliance.
The Court May Declare that There Is No Credible Evidence that Ukraine
Has Committed Genocide in Violation of the Genocide Convention.
159. The Russian Federation argues in its fifth preliminary objection that Ukraine’s
request that the Court “adjudge and declare that there is no credible evidence that Ukraine is
responsible for committing genocide in violation of the Genocide Convention in the Donetsk
and Luhansk oblasts of Ukraine” is inadmissible.292
160. By framing this as an objection to admissibility, Russia attempts to circumvent
the indisputable point that the Court has jurisdiction over such a request under Article IX.
Article IX provides that the jurisdiction of the Court reaches disputes “relating to the
responsibility of a State for genocide,” and that “any of the parties to the dispute” can submit
the dispute to the Court. That is the case with respect to the declaratory request Russia alleges
to be inadmissible: Ukraine and the Russian Federation have opposing views as to whether
Ukraine is responsible for committing genocide in violation of the Convention and Ukraine,
as a party to such a dispute, may seek its resolution by this Court. In light of Article IX’s
express instruction that “any of the parties” may submit such a dispute to the Court, there
292 Russia’s Objections, para. 274. As an initial matter, Ukraine notes that this dispute is not limited to
a question about Ukraine’s compliance with the Genocide Convention. This is not a standalone
question; rather, it is part of the necessary findings the Court needs to make to assess Russia’s violations
of the Convention. Russia focuses on this to distract from Ukraine’s request that the Court find that
Russia has violated the Genocide Convention.
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cannot be an objection grounded in the premise that only the State advancing an accusation
of genocide may bring such a dispute.293
161. Ukraine’s request falls within the scope of Article IX for an additional reason:
it is a dispute relating to the “fulfilment” of the Genocide Convention. As noted above, Article
IX is a broadly drafted compromissory clause. The travaux préparatoires reflect that the
Parties to the Convention viewed “fulfilment” as “referr[ing] to the compliance or noncompliance
of a party with the provisions of the convention” and having “a much wider
meaning” than the term “application” alone.294 Ukraine’s request that the Court find it has
not committed genocide is a request regarding its compliance with the provisions of the
Convention and therefore falls squarely within the Convention’s compromissory clause.
162. Even setting aside the dispositive text of Article IX, this Court has in other
contexts admitted requests for what Russia describes as a declaration of “reverse
compliance,” but which in this case is more accurately described as a declaration of
conformity or compliance. For example, in Rights of Nationals, the Court admitted France’s
request to find that its actions were “in conformity” with the relevant treaty.295 Russia
attempts to distinguish this case by relying on irrelevant factual differences, which do not
negate the fact that the Court entertained France’s request.296 Similarly, in the Lockerbie
293 See supra Chapter 3, Section A(3).
294 See supra Chapter 3, Section A(1); U.N. General Assembly Official Records, Third Session: Part I,
Sixth Committee, U.N. Doc. No. A/C.6/SR.61-140 (21 September–10 December 1948), p. 437.
295 Rights of Nationals of the United States of America in Morocco (France v. United States of
America), Judgment, I.C.J. Reports 1952, p. 182.
296 See Russia’s Objections, para. 287.
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cases, which are not raised by Russia, the Court admitted Libya’s request that the Court find
it had “fully complied” with the Montreal Convention.297
163. The Russian Federation is also incorrect in denying this Court’s capacity to
make findings regarding an alleged genocide in eastern Ukraine. Russia argues first that the
Court may not adjudicate whether or not “there is no credible evidence that Ukraine is
responsible for committing genocide,” as such a finding would be “incompatible with the
judicial function of the Court, which is tasked with settling legal disputes and not acting as a
fact-finding body while criminal investigations on the commission of the crime of genocide
are ongoing.”298 To the contrary, acting as a fact-finding body — in order to resolve a dispute
in which facts are contested — is inherent in this Court’s function as a judicial body. Article
IX of the Convention provides the Court with jurisdiction over disputes “relating to the
responsibility of a State for genocide,” and it can only perform this function by engaging in
“fact finding” — and it has previously exercised this function.299
164. Russia next argues that Ukraine’s claim is “premature” because it “may
interfere with the right of the Russian Federation to invoke Ukraine’s responsibility in the
future, should it decide to do so.”300 There is nothing “premature” about Ukraine’s request.
It was Russia that not only leveled the serious accusation of genocide against Ukraine, but
then used the pretext of that alleged genocide to recognize the DPR and LPR and to use force
in and against Ukraine. Russia acted unilaterally to prevent and punish a genocide it claims
297 See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 14, para. 13.
298 Russia’s Objections, para. 277.
299 See generally Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007
(examining evidence presented by the applicants — including independent reporting by U.N. agencies,
witness statements, and evidence collected in other adversarial proceedings — to determine if the
respondents had violated the Genocide Convention); Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (same).
300 Russia’s Objections, para. 277.
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Ukraine is responsible for; Ukraine asserts that such action is a misuse, abuse, and therefore
a violation of the Convention. Thus, a dispute exists between the Russian Federation and
Ukraine that relates to, inter alia, the responsibility of a State for genocide, and “any of the
parties to the dispute” — not just the State making the allegation of genocide — is entitled to
seek resolution of that dispute in this Court, including through an adjudication of “the
responsibility of a State for genocide.”
Ukraine’s Application Is Not an Abuse of Process.
165. Finally, as its sixth preliminary objection, Russia makes the outrageous
argument that, by turning to this Court for peaceful resolution of a dispute relating to the
Convention, as it is entitled to do as a Contracting Party to that treaty, Ukraine has committed
an abuse of process.301 The Court frequently rejects such objections to admissibility of a
claim, and should do so here.302 As the Court has observed, “[i]t is only in exceptional
circumstances that the Court should reject a claim based on a valid title of jurisdiction on the
ground of abuse of process.”303 To make such a finding, there must be “clear evidence that
the applicant’s conduct amounts to an abuse of process.”304 There is absolutely no evidence
301 See ibid., para. 289.
302 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(The Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, paras. 48–50; Alleged
Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021, p. 37, para.
95; Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 43, paras. 114–115; Immunities and Criminal
Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018,
p. 337, para. 152; Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019, p. 433, paras. 49–50.
303 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, p. 336, para. 150.
304 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 43, para. 113.
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in this case that Ukraine’s conduct amounts to such an abuse; to the contrary, it is a lawful
invocation of process.
166. Russia makes four arguments supporting its abuse of process allegation, which
are largely just repackaged versions of its prior arguments. First, Russia argues that Ukraine
is abusing the Convention’s dispute settlement mechanism by “creat[ing] an illusory
jurisdictional link to make the Court examine matters outside the Convention.”305 The
Convention’s compromissory clause was intentionally drafted broadly to “close down all
possible loopholes weakening the jurisdictional reach of the Court.”306 It cannot possibly be
an abuse of process to rely on the Convention’s broad compromissory clause for jurisdiction
over a dispute that falls within the scope of the Convention.
167. Second, without citing any support, Russia argues that Ukraine is “abusively
changing its legal case.”307 For the reasons explained above, Ukraine has not changed its legal
case.308
168. Third, Russia argues that the timing of Ukraine’s Application is abusive.309
Ukraine notes in its Memorial that, since 2014, Russia has falsely accused Ukraine and its
officials of genocide in Donbas in violation of the Genocide Convention. Russia asks why
Ukraine did not lodge an application with this Court before 2022.310 Of course, the dispute
305 Russia’s Objections, para. 301 (italics omitted); see also ibid., Chapter V, Section D(i).
306 Robert Kolb, The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ, in THE UN
GENOCIDE CONVENTION: A COMMENTARY (Paola Gaeta, ed., Oxford University Press 2009), p. 453
(Ukraine’s Memorial, Annex 26); see supra Chapter 3, Section A.
307 Russia’s Objections, Chapter V, Section D(ii).
308 See supra Chapter 4, Section A.
309 Russia’s Objections, Chapter V, Section D(iii).
310 Ibid., para. 310.
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before the Court is not limited to the fact that Russia advanced these allegations, but includes
Russia’s use of those allegations as a pretext to recognize the DPR and LPR and to use force
in and against Ukraine. The parties have had a disagreement over Ukraine’s alleged
responsibility for genocide since before 2022, but that disagreement took on new importance
when Russia relied on its false allegations of genocide as a pretext for its recognition of the
DPR and LPR and its invasion of Ukraine.
169. In any event, Ukraine’s decision with regard to the timing of its application
cannot amount to an abuse of process, as the Court has found that it “cannot concern itself
with the political motivation which may lead a State at a particular time, or in particular
circumstances, to choose judicial settlement.”311
170. Finally, Russia argues that the significant number of interventions filed in this
case amounts to abuse.312 Specifically, the Russian Federation argues that Ukraine has acted
“in bad faith” to “obtain[] an illegitimate advantage to the detriment of the other Party to the
proceedings.”313 To date, thirty-two declarations of intervention have been filed with the
Court by parties to the Convention. This Court has recognized that an intervention under
311 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 91, para. 52 (emphasis added); see also Alleged Violations of the 1955
Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States
of America), Preliminary Objections, Judgment, I.C.J. Reports 2021, p. 37, para. 95. Russia’s reliance
on Nauru as support for its argument that there was undue delay in this case is entirely misplaced.
There, despite the fact that a dispute had existed for at least 20 years before Nauru filed its application,
the Court still found the claim admissible. As noted by the Court in that case, “international law does
not lay down any specific time-limit . . . . It is therefore for the Court to determine in the light of the
circumstances of each case whether the passage of time renders an application inadmissible.” Certain
Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, pp. 253–254, para. 32.
312 Russia’s Objections, paras. 313–329.
313 Ibid., para. 329.
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Article 63 “constitutes the exercise of a right.”314 The exercise by third parties of a “right”
conferred by the Statute of the Court cannot divest Ukraine of its own right under Article IX
of the Convention to submit this dispute to the Court. Since interveners do not become
parties to the case, the Court has noted that — contrary to Russia’s suggestion — “intervention
cannot affect the equality of the Parties to the dispute.”315 For the same reason, Russia’s
suggestion of conflicts of interest for judges of the same nationality as certain interveners
ignores the language of both the Statute and the Rules which focus on whether judges are of
the nationality of the parties.316
171. The significant number of interventions in this case is not an abuse by Ukraine.
The interventions reflect the importance of the Genocide Convention, the erga omnes nature
of the obligations at issue, and the magnitude of the concern presented by Russia’s distorted
interpretation of the Convention, which would permit the Convention to be misused and
abused to justify the use of force on the pretext of preventing and punishing genocide. Given
these unique circumstances, it is understandable that so many Contracting Parties would
wish to be heard on the construction of this Convention. That many States have exercised
their right under Article 63 to be heard on matters of interpretation of the Convention is a
testament to how blatantly Russia’s misinterpretation has abused the Convention, not any
abuse of process by Ukraine.
314 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order
of 6 February 2013, I.C.J. Reports 2013, p. 5, para. 7; see also Territorial and Maritime Dispute
(Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2011, p.
434, para. 36.
315 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order
of 6 February 2013, I.C.J. Reports 2013, p. 9, para. 18 (emphasis added).
316 Statute of the Court, art. 31 (emphasis added); Rules of the Court, arts. 1, 7–8.
98
172. As the Declaration of Intervention by the United Kingdom noted, for example,
“intervening in this case enables Contracting Parties to the Genocide Convention to reaffirm
their collective commitment to upholding the rights and obligations contained in the
Convention, including by supporting the crucial role of the Court and emphasising that
international co-operation is required to prevent, adjudicate on and punish acts of
genocide.”317 Similarly, Estonia “considers that the legal issues raised by this case touch on
some of the most fundamental principles and obligations of international law. It is the
understanding of the Republic of Estonia that the Genocide Convention is of utmost
importance to prevent and punish genocide.”318 As such, according to Estonia, Contracting
Parties “ha[ve] a direct interest in the construction that might be placed upon provisions of
the Convention by the Court in these proceedings.”319 Where dozens of third-party States
choose to exercise their right to intervene under Article 63, that signals a legitimate and broad
interest in proper interpretation of the Convention. It makes no sense to argue that Ukraine
has in any way abused the dispute resolution process before this Court based on the decision
of other Contracting Parties to the Convention to intervene.
317 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russia), Declaration of Intervention Under Article 63 of the United Kingdom of
Great Britain and Northern Ireland (5 August 2022), p. 6, para. 11. As the declarations of intervention
have not yet been admitted, Ukraine relies on them for the discrete and limited purpose of noting what
the declarants have said regarding their decision to exercise their right to intervene under Article 63.
318 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russia), Declaration of Intervention Under Article 63 of the Republic of Estonia
(22 September 2022), p. 4, para. 13.
319 Ibid., para. 16.
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CHAPTER 5: THE COURT HAS JURISDICTION OVER UKRAINE’S CLAIM THAT THE
RUSSIAN FEDERATION IS RESPONSIBLE FOR VIOLATING THE COURT’S
BINDING PROVISIONAL MEASURES ORDER
173. In its Memorial, Ukraine claimed that the Russian Federation has been in
continuous violation of the Court’s Provisional Measures Order and presented evidence of
Russia’s breach from the date of the Order’s issuance through the submission of the Memorial
on 1 July 2022.320 Since 1 July 2022 to the date of this Written Statement, Russia has
continued to defy the Court’s Provisional Measures Order. As explained in the Memorial, the
Russian Federation’s blatant violation of a binding Provisional Measures Order of this Court
constitutes an internationally wrongful act for which the Russian Federation is responsible
and owes reparation.321 The Russian Federation nowhere in its Preliminary Objections
advances any argument that the Court lacks jurisdiction over Ukraine’s claim relating to
Russia’s violation of the Order. In its submissions, however, Russia requests the Court to
“declare that it lacks jurisdiction over the claims brought by Ukraine against the Russian
Federation in its Application dated 26 February 2022 and Memorial dated 1 July 2022,”
which would include Ukraine’s claim that Russia violated the Court’s Order.322 For the
avoidance of doubt, and as explained below, this Court has jurisdiction to adjudicate
Ukraine’s claim that the Russian Federation breached the Court’s Provisional Measures
320 Ukraine’s Memorial, Chapter 4.
321 Ibid.
322 See Russia’s Objections, para. 331.
100
Order, regardless of how the Court may rule on matters on which Russia has interposed its
Preliminary Objections.323
174. A State’s obligation to comply with provisional measures is based on Article 41
of the Court’s Statute and Article 94(1) of the U.N. Charter.324 As this Court explained in
LaGrand, provisional measures orders issued pursuant to Article 41 of the Court’s Statute
“have binding effect.”325 The jurisprudence of this Court since the LaGrand case confirms
that any provisional measures ordered by the Court are binding.326 The Russian Federation
323 This Court emphasized in the LaGrand case that reparation in cases of non-compliance with
provisional measures ordered by the Court can only be granted if a claim to this effect was made. See
LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 508, para. 116.
Ukraine has accordingly made such a request.
324 Article 41 of the Court’s Statute provides in its first paragraph that “[t]he Court shall have the power
to indicate, if it considers that circumstances so require, any provisional measures which ought to be
taken to preserve the respective rights of either party.” Under Article 94(1) of the U.N. Charter, all U.N.
Member States have accepted an obligation to comply with a decision of the Court. See U.N. Charter,
art. 94(1). The term “decision” applies to judgments and any other decision rendered by the Court,
including provisional measures. See LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 108.
325 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109.
326 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 258, para. 263; Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional
Measures, Order of 23 July 2018, I.C.J. Reports, p. 433, para. 77; Alleged Violations of the 1955 Treaty
of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of
America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018, p. 652, para. 100;
Application of the International Convention on the Elimination of all Forms of Racial Discrimination
(Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports
2008, p. 397, para. 147; Request for Interpretation of the Judgment of 15 June 1962 in the Case
Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order of 18
July 2011, I.C.J. Reports 2011, p. 554. para. 67; see also Karin Oellers-Frahm & Andreas Zimmermann,
Article 41, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (Zimmermann et
al., eds., Oxford University Press 2019), p. 1187 [hereinafter Zimmermann, Article 41] (Ukraine’s
Written Statement, Annex 11); Pierre d’Argent, Preliminary Objections and Breaches of Provisional
Measures, RIVISTA DI DIRITTO INTERNAZIONALE (2021), p. 117 (Ukraine’s Written Statement, Annex 13).
101
itself has recognized in other cases the binding and mandatory nature of this Court’s
provisional measures orders.327
175. Against this background, Russia’s continued defiance of this Court is
extraordinary. The day after the Court issued its Order, the spokesperson for the President
of the Russian Federation unequivocally announced that Russia would “not be able to take
this decision into account.”328 Such disrespect is an affront to the judicial integrity of this
Court and the U.N. system of which the Court is a part. In light of the flagrant and continuing
nature of Russia’s violation, Ukraine will briefly provide the Court with new information
concerning Russia’s violations since the filing of the Memorial on 1 July 2022 and address
the Court’s jurisdiction to adjudicate Russia’s violation of the binding Order.
The Russian Federation Has Continued Its Violations of the Provisional
Measures Order Since Ukraine Submitted Its Memorial.
176. On 16 March 2022, this Court indicated provisional measures pursuant to
Article 41 of the Statute of the Court. The Court ordered the Russian Federation, first, to
327 See e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Verbatim Record of Oral Proceedings Held 10
September 2008, CR 2008/27 (uncorrected), p. 46, para. 36 (Kolodkin) (“Provisional measures as they
were formulated by the Applicant in the Requests cannot be granted since they would impose on Russia
obligations that it is not able to fulfil.”); Application of the International Convention for the
Suppression of the Financing of Terrorism and of the International Convention on the Elimination of
All Forms of Racial Discrimination (Ukraine v. Russian Federation), Verbatim Record of Oral
Proceedings Held 7 March 2017, CR 2017/2 (corrected), p. 22, para. 3 (Wordsworth) (“[T]he Court
cannot now make any determination on matters of fact, it is a necessary corollary of the mandatory
nature of a provisional measures order that there must be something more than acceptance at face value
of the facts as alleged by Ukraine.”); ibid., Verbatim Record of Oral Proceedings Held 9 March 2017, CR
2017/4 (translation), p. 54, para. 47 (Forteau) (“[T]he Court is to decide whether to impose binding
obligations on a sovereign State in the form of provisional measures.”).
328 Sofia Stuart Leeson, Russia Rejects International Court Ruling to Stop Invasion of Ukraine,
EURACTIV (17 March 2022), accessed at https://www.euractiv.com/section/europe-seast/
news/russia-rejects-international-court-ruling-to-stop-invasion-of-ukraine/; see also Interfax,
Russia Can’t Accept Int’l Court of Justice Order to Halt Operation in Ukraine – Peskov (17 March
2022), accessed at https://interfax.com/newsroom/top-stories/76917/.
102
“immediately suspend the military operations that it commenced on 24 February 2022 in the
territory of Ukraine,” and second, to “ensure that any military or irregular armed units which
may be directed or supported by it, as well as any organizations and persons which may be
subject to its control or direction, take no steps in furtherance of the military operations.”329
Third, the Court unanimously ordered both parties to “refrain from any action which might
aggravate or extend the dispute before the Court or make it more difficult to resolve.”330
177. As the world knows, Russia did not immediately suspend its military
operations in the territory of Ukraine. To the contrary, it escalated them in a brutal campaign
of aggression and atrocity. Nor did Russia refrain from aggravating and extending the
dispute.
178. Since the filing of Ukraine’s Memorial on 1 July 2022, Russia has continued to
act in open defiance of the Court’s binding order, violating every measure indicated. For
example, as part of its continuation of military operations throughout the territory of Ukraine,
the Russian Federation has continued to press an offensive aimed at capturing the eastern
city Bakhmut using irregular armed units such as the Russian mercenary “Wagner Group.”331
Russia has also escalated its systematic, intentional attacks on Ukraine’s energy and heating
329 See Provisional Measures Order of 16 March 2022, para. 86.
330 Ibid.
331 Cassandra Vinograd, More Than 60 Percent of Bakhmut Has Been Destroyed, a Ukrainian Official
Says, The New York Times (5 January 2023), accessed at
https://www.nytimes.com/2023/01/05/world/europe/bakhmut-ukraine-war.html; CBS News, Russia
Begins New Assault on 2 Cities in Ukraine's Donetsk Region (6 August 2022), accessed at
https://www.cbsnews.com/news/russia-assault-2-cities-ukraine-donetsk-region-bakhmut-avdiivka/;
Peter Beaumont & Pjotr Sauer, ‘Every House a Fortress’: Wagner Leader Counts Cost as Russia Stalls
in Bakhmut, The Guardian (3 January 2023), accessed at https://www.theguardian.com/
world/2023/jan/03/ukraine-wagner-leader-counts-cost-as-russian-offensive-stalls-in-bakhmut;
EURACTIV, Wagner Boss Says He Wants Bakhmut in Ukraine for its ‘Underground Cities’ (8 January
2023), accessed at https://www.euractiv.com/section/global-europe/news/wagner-boss-says-hewants-
bakhmut-in-ukraine-for-its-underground-cities/.
103
infrastructure, which has resulted in widespread blackouts as well as heat and power cuts to
civilians across Ukraine.332 These widespread, repeated, and heinous attacks by Russia on
energy infrastructure have “weaponized winter,” depriving millions of civilians of “access to
electricity, water, heat, and related vital services ahead of [and during] the cold winter
months.”333 All these military actions and atrocities are in direct violation of the Court’s first
and second provisional measures ordering the Russian Federation to “immediately suspend
the military operations that it commenced on 24 February 2022 in the territory of Ukraine,”
and to “ensure that any military or irregular armed units which may be directed or supported
by it . . . take no steps in furtherance of the[se] military operations.”334
179. In further direct contravention of that order, and as Ukraine informed the
Court in a letter of 29 September 2022, Russia instituted a “partial mobilization” of
approximately 300,000 troops in support of Russia’s invasion of Ukraine.335 Specifically, on
332 See, e.g., U.N. General Assembly, U.N. Doc. A/77/533, Report of the Independent International
Commission of Inquiry on Ukraine (18 October 2022), paras. 26, 33, 40, 50, 110; Courtney Austrian,
The Russian Federation’s Ongoing Aggression Against Ukraine, U.S. Mission to the OSCE (22
December 2022), accessed at https://osce.usmission.gov/the-russian-federations-ongoingaggression-
against-ukraine-36/; OSCE Special Permanent Council 1393 Vienna, EU Statement on the
Russian Federation’s Ongoing Aggression Against Ukraine: Intensified, Indiscriminate and
Asymmetrical Military Attacks on Ukraine’s Civilian Population, EEAS (11 October 2022), accessed at
https://www.eeas.europa.eu/delegations/vienna-international-organisations/osce-specialpermanent-
council-1393-vienna-11_en?s=66; Francesca Ebel, Putin Admits Attacks on Civilian
Infrastructure, Asking: ‘Who started it?’, The Washington Post (8 December 2022), accessed at
https://www.washingtonpost.com/world/2022/12/08/russia-attacks-ukraine-infrastructure-putin/;
Nathan Rott et al., How Russia is Weaponizing the Ukrainian Winter, NPR (20 November 2022),
accessed at https://www.npr.org/2022/11/20/1137698269/russia-weaponizes-winter-ukraine-war.
333 Human Rights Watch, Ukraine: Russian Attacks on Energy Grid Threaten Civilians (6 December
2022), accessed at https://www.hrw.org/news/2022/12/06/ukraine-russian-attacks-energy-gridthreaten-
civilians.
334 Provisional Measures Order of 16 March 2022, para. 86.
335 Letter from Anton Korynevych, Agent of Ukraine, to the Registrar of the International Court of
Justice (dated 29 September 2022); see also President of Russia Vladimir Putin, Address by the
President of the Russian Federation (21 September 2022), accessed at http://en.kremlin.ru/
104
21 September 2022, President Putin announced that he had signed an Executive Order
instituting a “partial mobilisation” in support of Russia’s use of force in Ukraine.336 On 28
October 2022, the Defense Minister of the Russian Federation confirmed that 300,000
people were mobilized, 82,000 of whom had already been deployed “to the area of the special
military operation,” i.e., to Ukrainian territory.337 These actions violate the Court’s first and
second provisional measures.
180. Through its conduct since the filing of Ukraine’s Memorial, the Russian
Federation has further continued to aggravate and extend the dispute to a new dangerous
level, in violation of the Court’s third provisional measure to “refrain from any action which
might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
Specifically, Russia continues to carry out brutal attacks on civilian infrastructure that have
resulted in the unlawful loss of civilian lives and the destruction of hospitals, residential
buildings, schools, and other civilian infrastructure.338
events/president/news/69390 (Ukraine’s Written Statement, Annex 5); Guy Faulconbridge, Putin
Escalates Ukraine War, Issues Nuclear Threat to West, Reuters (21 September 2022), accessed at
https://www.reuters.com/world/europe/putin-signs-decree-mobilisation-says-west-wants-destroyrussia-
2022-09-21/.
336 See President of Russia Vladimir Putin, Address by the President of the Russian Federation (21
September 2022), accessed at http://en.kremlin.ru/events/president/news/69390 (Ukraine’s Written
Statement, Annex 5).
337 TASS, Shoigu Tells Putin Partial Mobilization Over in Russia (28 October 2022), accessed at
https://tass.com/politics/1529415; see also Emmanuel Grynszpan, Russia’s Mobilized Soldiers Speak
Out: ‘We Were Thrown on to the Frontline with No Support’, Le Monde (10 November 2022), accessed
at https://www.lemonde.fr/en/international/article/2022/11/10/russia-s-mobilized-soldiers-speakwe-
were-thrown-onto-the-frontline-with-no-support_6003764_4.html; Mikhail Metzel, Russia's
Partial Mobilisation is Complete, Shoigu Says, Reuters (28 October 2022), accessed at
https://www.reuters.com/world/europe/russias-shoigu-says-partial-mobilisation-complete-82000-
recruits-conflict-zone-2022-10-28/.
338 See Clooney Foundation for Justice, Ukraine: Investigating War Crimes During Conflict (2
December 2022), accessed at https://cfj.org/the-docket-projects/ukraine-investigating-war-crimesduring-
conflict/; Human Rights Watch, Ukraine: Russian Attacks on Energy Grid Threaten Civilians
105
181. Further, on 21 September 2022, following the physical occupation of parts of
Ukraine (including territory occupied after the Court issued its Provisional Measures Order),
President Putin announced “decisions to hold referendums” in the Donetsk, Luhansk,
Kherson, and Zaporizhzhia oblasts of Ukraine.339 On 30 September 2022, Russia signed
purported treaties on accession of these regions of Ukraine to the Russian Federation.340 The
President of the Russian Federation even made nuclear threats regarding these territories,
warning that he is ready to “make use of all weapon systems available” to defend the
territories Russia has purportedly acquired, despite the reality that these territories remain
part of Ukraine.341 The dispute before this Court relates, in part, to Russia’s recognition of
the independence of the so-called Donetsk People’s Republic and the Luhansk People’s
(6 December 2022), accessed at https://www.hrw.org/news/2022/12/06/ukraine-russian-attacksenergy-
grid-threaten-civilians; U.N. Meetings Coverage, Security Council, Senior Official Condemns
Russian Federation’s Missile Strikes Against Ukraine’s Critical Infrastructure, as Security Council
Holds Emergency Meetings on Attacks (23 November 2022), accessed at
https://press.un.org/en/2022/sc15118.doc.htm.
339 See President of Russia Vladimir Putin, Address by the President of the Russian Federation (21
September 2022), accessed at http://en.kremlin.ru/events/president/news/69390 (Ukraine’s Written
Statement, Annex 5).
340 The Kremlin, Signing of Treaties on Accession of Donetsk and Lugansk People's Republics and
Zaporozhye and Kherson Regions to Russia (30 September 2022), accessed at
http://en.kremlin.ru/events/president/news/69465/photos (Ukraine’s Written Statement, Annex 6);
The State Duma, The State Duma Ratified Treaties and Adopted Laws on Accession of DPR, LPR,
Zaporozhye and Kherson Regions to Russia (3 October 2022), accessed at
http://duma.gov.ru/en/news/55407/ (Ukraine’s Written Statement, Annex 7); TASS, Treaties on
Accession of Donbass and Other Liberated Territories to Russia Signed (30 September 2022), accessed
at https://tass.com/politics/1516023.
341 President of Russia Vladimir Putin, Address by the President of the Russian Federation (21
September 2022), accessed at http://en.kremlin.ru/events/president/news/69390 (Ukraine’s Written
Statement, Annex 5). Public-source information has reported that Russian military leaders have
discussed recently the use of nuclear weapons in Ukraine. Julian E. Barnes & Eric Schmitt, Russian
Military Leaders Discussed Use of Nuclear Weapons, U.S. Officials Say, The New York Times (2
November 2022), accessed at https://www.nytimes.com/2022/11/02/us/politics/russia-ukrainenuclear-
weapons.html.
106
Republic, which Russia justified on the pretext of its false allegations of genocide.342 Russia’s
annexation of the same, plus additional regions of Ukraine, constitutes a serious extension
and aggravation of this dispute, in violation of Russia’s obligation under the Court’s Order to
“refrain from any action which might aggravate or extend the dispute before the Court or
make it more difficult to resolve.” Additionally, Russia carried out the purported
referendums by threatening the use of force and intimidating the local population with armed
soldiers — in some cases being deployed door-to-door to collect votes, and at times making
residents vote “at gunpoint.”343 These actions also violate the Court’s first and second
provisional measures.
This Court Has Jurisdiction Over the Russian Federation’s Violations of
the Provisional Measures Order.
182. The Court has two independent grounds on which it may exercise jurisdiction
over Ukraine’s claim that Russia violated its obligations under the Court’s Order.
183. First, the Court has previously exercised jurisdiction over violations of a
provisional measures order at the merits stage of a case. In LaGrand, the Court explained
that where it “has jurisdiction to decide a case, it also has jurisdiction to deal with submissions
requesting it to determine that an order indicating measures which seeks to preserve the
342 See Ukraine’s Memorial, paras. 153–159.
343 See Yulia Gorbunova, Fictitious Annexation Follows ‘Voting’ at Gunpoint, Human Rights Watch (30
September 2022), accessed at https://www.hrw.org/news/2022/09/30/fictitious-annexation-followsvoting-
gunpoint; David L. Stern & Robyn Dixon, With Kalashnikov Rifles, Russia Drives the Staged
Vote in Ukraine, The Washington Post (24 September 2022), accessed at
https://www.washingtonpost.com/world/2022/09/24/ukraine-putin-referendums/; Jason Beaubien
et al., Occupied Regions of Ukraine Vote to Join Russia in Staged Referendums, NPR (27 September
2022), accessed at https://www.npr.org/2022/09/27/1125322026/russia-ukraine-referendums;
James Waterhouse et al., Ukraine ‘Referendums’: Soldiers Go Door-to-Door for Votes in Polls, BBC
News (23 September 2022), accessed at https://www.bbc.com/news/world-europe-63013356.
107
rights of the Parties to this dispute has not been complied with.”344 As explained in this
Written Statement, the Court has jurisdiction over the present dispute relating to the
interpretation, application, or fulfilment of the Genocide Convention. It therefore also has
jurisdiction over violations of its Provisional Measures Order.345
184. Second, independent of the Court’s jurisdiction under Article 36(1) of the
Statute of the Court and Article IX of the Genocide Convention, Article 41 of the Statute
provides a necessary and sufficient basis for jurisdiction over Russia’s non-compliance with
the Court’s Provisional Measures Order.346
185. The Court’s jurisdiction to indicate provisional measures in the first instance is
derived from Article 41 of the Statute, which confers on the Court the “power” to indicate such
measures in order “to preserve the respective rights of either party.” By consenting to the
Statute of the Court, a State consents to the Court’s exercise of this power. The Court
considers on a prima facie basis whether it has jurisdiction over the merits, not as an
independent source of its jurisdiction to indicate provisional measures, but in order to decide
344 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 484, para. 45
(citing Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J.
Reports 1974, p. 175, para. 72).
345 See e.g., Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica),
Judgment, I.C.J. Reports 2015, p. 713, para. 127 (“Nicaragua breached its obligations under the Order
of 8 March 2011 by excavating two caños and establishing a military presence in the disputed
territory.”); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, I.C.J. Reports 2005, p. 259, para. 264 (“Uganda did not comply with the Court’s
Order on provisional measures of 1 July 2000.”); Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
I.C.J. Reports 2007, pp. 236, 238, paras. 469, 471(7) (“Serbia has violated its obligation to comply with
the provisional measures ordered by the Court on 8 April and 13 September 1993 in this case, inasmuch
as it failed to take all measures within its power to prevent genocide in Srebrenica in July 1995.”).
346 See Ukraine’s Memorial, para. 150.
108
whether it is appropriate to exercise the jurisdiction created by Article 41. As Judge Abraham
explained in his Separate Opinion in Qatar v. United Arab Emirates:
The Court’s jurisdiction to entertain a request for provisional
measures, for its part, does not derive from the jurisdictional basis
invoked in the proceedings on the merits . . . . It is based directly
on Article 41 of the Court’s Statute, which gives the Court the power,
when seised of a case, to indicate any provisional measures which
ought to be implemented to preserve the rights of either party. This
basis of jurisdiction is entirely independent of that relied on, by the
applicant or by both parties, in the context of the principal
proceedings.
What, then, is the raison d’être of the concept of “prima facie
jurisdiction”? It is not intended to found the Court’s jurisdiction to
rule on a request for provisional measures (for which Article 41 of
the Statute is sufficient). Rather, it is one of the cumulative
conditions that must be met for a provisional measure to be
indicated . . . .347
186. For similar reasons, the Court’s jurisdiction to address compliance with its
Provisional Measures Order derives from Article 41 of the Statute; it is not derivative of
jurisdiction over the merits of the dispute. Article 41 makes plain that the purpose of
provisional measures is “to preserve the respective rights of either party” while a case is
pending before the Court. A restriction on the Court’s ability to address violations of
obligations under a provisional measures order would be inconsistent with the object and
purpose of the Statute to ensure the peaceful settlement of disputes and the effective
administration of justice.348
347 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 14 June 2019, I.C.J.
Reports 2019, Separate Opinion of Judge Abraham, pp. 379–380, paras. 9–10; see also Zimmermann,
Article 41, p. 1191 (Ukraine’s Written Statement, Annex 11); Pierre d’Argent, Preliminary Objections
and Breaches of Provisional Measures, RIVISTA DI DIRITTO INTERNAZIONALE (2021), p. 118 (Ukraine’s
Written Statement, Annex 13).
348 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, p. 43, para. 93 (“The Court therefore feels bound to observe that an
operation undertaken in those circumstances, from whatever motive, is of a kind calculated to
109
187. The Court’s power to indicate measures “to preserve the respective rights of
either party” necessarily entails the power to address the responsibility of a State that violates
such measures. By the same token, where a State consents to the Statute of the Court, and
thus to the Court’s power to indicate provisional measures, it necessarily consents to the
Court’s jurisdiction over any proceedings relating to that indication of provisional measures.
Inherent in the jurisdiction conferred under Article 41 of the Statute is the power not only to
indicate binding provisional measures, and to monitor compliance, but also to adjudicate
alleged breaches of such measures.349 A contention to the contrary would defeat the purpose
of the Court’s Article 41 authority in the first place, i.e., to preserve the respective rights of the
parties in a case.
188. The Court’s jurisprudence further supports the Court’s jurisdiction to
determine non-compliance with provisional measures independent of the question of its
jurisdiction over the merits. In Request for Interpretation of the Avena Judgment, Mexico
sought to invoke the Court’s jurisdiction under Article 60 of the Statute, and requested
provisional measures. The Court indicated provisional measures, ordering that several
identified Mexican nationals not be executed “pending judgment on the Request for
undermine respect for the judicial process in international relations ; and to recall that in paragraph 47,
1 B, of its Order of 15 December 1979 the Court had indicated that no action was to be taken by either
party which might aggravate the tension between the two countries.”).
349 See Zimmermann, Article 41, p. 1191 (Ukraine’s Written Statement, Annex 11); Pierre d’Argent,
Preliminary Objections and Breaches of Provisional Measures, RIVISTA DI DIRITTO INTERNAZIONALE
(2021), p. 136 (Ukraine’s Written Statement, Annex 13); Paolo Palchetti, Responsibility for Breach of
Provisional Measures of the ICJ: Between Protection of the Rights of the Parties and Respect for the
Judicial Function, RIVISTA DI DIRITTO INTERNAZIONALE (2017), p. 12 (Ukraine’s Written Statement,
Annex 10).
110
interpretation submitted by the United Mexican States.”350 Ultimately, the Court decided
that “the question underlying Mexico’s Request for interpretation is outside the jurisdiction
specifically conferred upon the Court by Article 60.”351 Nonetheless, the Court concluded that
it had “incidental jurisdiction to make findings about alleged breaches of the Order indicating
provisional measures,” and that jurisdiction exists “even when the Court decides, upon
examination of the Request for interpretation, as it has done in the present case, not to
exercise its jurisdiction to proceed under Article 60.”352 As summarized in The Statute of the
International Court of Justice: A Commentary, the judgment in Request for Interpretation
of the Avena Judgment “stands in line with the Court’s inherent jurisdiction under Article 41
which implies the possibility of a finding on non-compliance even in a judgment establishing
the lack of jurisdiction.”353
189. Scholars have likewise observed that the Court has jurisdiction to address noncompliance
with an order on provisional measures, independent of the Court’s basis for
jurisdiction over the merits.354 As explained by Professor Pierre d’Argent:
350 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and
Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 16 July
2008, I.C.J. Reports 2008, p. 331, para. 80.
351 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and
Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17,
para. 45.
352 Ibid., para. 51.
353 Zimmermann, Article 41, p. 1191 (Ukraine’s Written Statement, Annex 11).
354 See ibid.; Pierre d’Argent, Preliminary Objections and Breaches of Provisional Measures, RIVISTA
DI DIRITTO INTERNAZIONALE (2021), p. 136 (Ukraine’s Written Statement, Annex 13); Paolo Palchetti,
Responsibility for Breach of Provisional Measures of the ICJ: Between Protection of the Rights of the
Parties and Respect for the Judicial Function, RIVISTA DI DIRITTO INTERNAZIONALE (2017), pp. 10–13
(Ukraine’s Written Statement, Annex 10).
111
While the function of the Court is to settle disputes, it would be
paradoxical that it be deprived of the power to adjudicate upon the
violation of obligations it has itself created — thereby adding to the
dispute grievances resulting from its own intervention — for the reason
that it finally decides not to address the merits of the case. It would also
be quite paradoxical that the hope of prevailing on preliminary
objections could lead the respondent to disregard the provisional
measures it is bound to respect.355
190. As similarly noted in The Statute of the International Court of Justice: A
Commentary, “as provisional measures are binding upon the parties until the judgment has
been delivered, non-compliance with such measures entails the responsibility of the noncomplying
party even if ex post facto the Court finds that it lacks subject-matter
jurisdiction.”356
191. Exercise of this Court’s jurisdiction to address non-compliance with a
provisional measures order is particularly critical under the extraordinary circumstances of
this case. As noted above, there is no possibility that Russia may have misunderstood its
precise obligations under the Order, nor is there any evidence that Russia attempted in good
faith to comply with the Order but fell short in its efforts. Rather, the Russian Federation
declared the day after the Court issued its Order that it would “not be able to take this decision
into account.” 357 The record before this Court therefore conclusively establishes that Russia
has not complied, and has never intended to comply with the Court’s Order.
355 Pierre d’Argent, Preliminary Objections and Breaches of Provisional Measures, RIVISTA DI DIRITTO
INTERNAZIONALE (2021), p. 136 (Ukraine’s Written Statement, Annex 13).
356 Zimmermann, Article 41, p. 1191 (Ukraine’s Written Statement, Annex 11); see also Paolo Palchetti,
Responsibility for Breach of Provisional Measures of the ICJ: Between Protection of the Rights of the
Parties and Respect for the Judicial Function, RIVISTA DI DIRITTO INTERNAZIONALE (2017), pp. 10–13
(Ukraine’s Written Statement, Annex 10).
357 Sofia Stuart Leeson, Russia Rejects International Court Ruling to Stop Invasion of Ukraine,
EURACTIV (17 March 2022), accessed at https://www.euractiv.com/section/europe-seast/
news/russia-rejects-international-court-ruling-to-stop-invasion-of-ukraine/.
112
192. In the same statement, the Russian Federation also questioned its consent to
the Court’s powers to issue provisional measures in the first place, stating “[t]he International
Court of Justice has such a concept such as the consent of the parties. There can be no consent
here.”358 But to the contrary, there is consent, under the Statute of the Court — an instrument
to which the Russian Federation is a party, and through which it unmistakably has given its
consent to the Court’s exercise of jurisdiction to indicate binding provisional measures. To
treat provisional measures as optional and non-binding despite Russia’s consent through the
Statute of the Court is a defiant challenge to the Court as an institution and to its overall
competence to indicate provisional measures. It would deprive Article 41 of its effectiveness
should the Court not have jurisdiction to answer such a challenge.
* * *
193. Accordingly, the Court has jurisdiction over Ukraine’s claim that the Russian
Federation breached the Court’s binding Provisional Measures Order, jurisdiction which it
may exercise in connection with its jurisdiction over the merits of this case, as well as on the
basis of its stand-alone jurisdiction under Article 41 of the Statute. However the Court rules
on the Preliminary Objections Russia has interposed, the Court undeniably has jurisdiction
over, and must adjudicate in any event, Ukraine’s claim for Russia’s breach of the Court’s
Provisional Measures Order.
358 Ibid.
113
CONCLUSION AND SUBMISSIONS
194. Ukraine submits this Written Statement to the Court almost one year after the
Russian Federation commenced its full-scale invasion. As of January 2023, the U.N. Office
of the High Commissioner for Human Rights has confirmed thousands of innocent Ukrainian
lives lost.359 The residents of Bucha have been massacred. On the day of this Court’s
Provisional Measures Order, Russia murdered children sheltering at a drama theater in
Mariupol and, in the ensuing months, flattened that city. The residents of Kherson endured
long months of brutal occupation before being liberated. Ordinary people across Ukraine
have been terrorized by indiscriminate attacks from missiles and Iranian drones. Russia has
deliberately targeted civilian infrastructure in an effort to freeze the Ukrainian people in the
depths of winter. Russia has gravely wounded Ukraine’s economy, and triggered a food
insecurity crisis around the world.
195. Russia has done all of this for one stated reason. According to its president, the
“purpose” of Russia’s actions has been “to protect people who, for eight years now, have been
facing humiliation and genocide perpetrated by the Kyiv regime.”360 These actions are the
culmination of almost a decade of Russian allegations that Ukraine is responsible for acts of
genocide that “actually fall under the UN Convention On the Prevention of Genocide.”361
Russia’s allegations and actions have created a dispute that relates to the interpretation,
application, or fulfilment of the Genocide Convention. This Court has jurisdiction to resolve
that dispute, and to deliver justice to a country and its people who have suffered from Russia’s
abuse, misuse, and violation of the Genocide Convention.
359 OHCHR, Ukraine: Civilian Casualty Update (23 January 2023), accessed at
https://www.ohchr.org/en/news/2023/01/ukraine-civilian-casualty-update-23-january-2023.
360 President of Russia Vladimir Putin, Address by the President of the Russian Federation (24 February
2022), accessed at http://en.kremlin.ru/events/president/news/67843 (Ukraine’s Memorial, Annex
6).
361 See Ukraine’s Memorial, para. 38.
114
196. Accordingly, for the reasons set out in this Written Statement, Ukraine makes
the following submissions, respectfully requesting the Court to:
a. Dismiss the Preliminary Objections filed by the Russian Federation on 3
October 2022;
b. Adjudge and declare that the Court has jurisdiction to hear the claims
presented by Ukraine as set forth in its Application and Memorial, and that those claims are
admissible; and
c. Proceed to hear those claims on the merits.
115
3 February 2023
Mr. Anton Korynevych
Agent of Ukraine
Ms. Oksana Zolotaryova
Co-Agent of Ukraine
116
CERTIFICATION
I hereby certify that the annexes are true copies of the documents
referred to and that the translations provided are accurate.
3 February 2023
Mr. Anton Korynevych
Agent of Ukraine
117
TABLE OF CONTENTS
TO THE INDEX OF ANNEXES TO THE WRITTEN STATEMENT
Page
A. Ukrainian Government Documents ........................................................................... 118
B. Russian Government Documents .............................................................................. 118
C. Scholarly Authorities .................................................................................................. 119
D. Press Reports .............................................................................................................. 119
118
INDEX OF ANNEXED DOCUMENTS
ANNEXES
A. UKRAINIAN GOVERNMENT DOCUMENTS
Page
Facebook Post of Valeriy Heletey (Minister of Defense of
Ukraine) (3 October 2014)
p. 1
Report on the Results of the First Round of Negotiations of the
Delegation of Ukraine with the Russian Federation on the
Meaning and Application of the International Convention for
the Suppression of the Financing of Terrorism (28 February
2015)
p. 5
MFA Statement on Russia’s False and Offensive Allegations of
Genocide As a Pretext For Its Unlawful Military Aggression,
Facebook Post of the Ministry of Foreign Affairs of Ukraine/
MFA of Ukraine (26 February 2022)
p. 11
MFA Statement on Russia’s False and Offensive Allegations of
Genocide As a Pretext For Its Unlawful Military Aggression,
Twitter Post of the Ministry of Foreign Affairs of Ukraine
(@MFA_Ukraine) (26 February 2022)
p. 15
B. RUSSIAN GOVERNMENT DOCUMENTS
Page
President of Russia Vladimir Putin, Address by the President of
the Russian Federation (21 September 2022)
p. 19
The Kremlin, Signing of Treaties on Accession of Donetsk and
Lugansk People’s Republics and Zaporozhye and Kherson
Regions to Russia (30 September 2022)
p. 27
The State Duma, The State Duma Ratified Treaties and
Adopted Laws on Accession of DPR, LPR, Zaporozhye and
Kherson Regions to Russia (3 October 2022)
p. 31
The Kremlin, Vladimir Putin Spoke at an Expanded Meeting of
the Board of the Defence Ministry, Which Was Held at the
National Defence Control Center (21 December 2022)
p. 37
119
C. SCHOLARLY AUTHORITIES
Page
Hugh Thirlway, THE LAW AND PROCEDURE OF THE
INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS OF
JURISPRUDENCE, Vol. I (Oxford University Press 2013)
p. 51
Paolo Palchetti, Responsibility for Breach of Provisional
Measures of the ICJ: Between Protection of the Rights of the
Parties and Respect for the Judicial Function, RIVISTA DI
DIRITTO INTERNAZIONALE (2017)
p. 69
Karin Oellers-Frahm & Andreas Zimmermann, Article 41, in
THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A
COMMENTARY (Zimmermann et al., eds., Oxford University
Press 2019)
p. 91
Sienho Yee, Article 40, in THE STATUTE OF THE INTERNATIONAL
COURT OF JUSTICE: A COMMENTARY (Zimmermann et al., eds.,
Oxford University Press 2019)
p. 113
Pierre d’Argent, Preliminary Objections and Breaches of
Provisional Measures, RIVISTA DI DIRITTO INTERNAZIONALE
(2021)
p. 125
D. PRESS REPORTS
Page
UNIAN, Russian-Speaking Ukrainians Suffered the Most from
the Actions of Russia – Poroshenko (11 October 2014)
p. 151
VGOLOS, It Was Russia Who Dealt a Blow to the Russian-
Speaking Population – Poroshenko (11 October 2014)
p. 155
Korrespondent.net, Poroshenko’s Officials Accused the Russian
Federation of Preparing Provocations (12 November 2015)
p. 159
Tatiana Tkachenko, Russia is Going to Accuse Ukraine of
“Genocide” of the Russian-Speaking Population in The Hague –
Presidential Administration’s Speaker, ZU.UA
(12 November 2015)
p. 163