The Political Use of Law

The practice of appeals to the International Court often ends up not meeting the desire for justice.

Last February 2nd, the International Court of Justice - the highest judicial body of the UN - issued a judgment on preliminary objections to Ukraine's appeal against Russia concerning the violation of the International Convention on the Prevention and Punishment of the Crime of Genocide, dated December 9, 1948.

Kiev filed a complaint against Russia shortly after the aggression of February 24, 2022. In the narrative with which the Soviet czar, the tyrant of the Kremlin, justified the so-called "special military operation," the central argument was that the Russian-speaking population of eastern Ukraine had been subjected to acts of genocide by Ukraine. Ukraine immediately turned to the Court, "categorically denying," and arguing that the genocidal accusations made by Russia as a pretext for invasion were contrary to the 1948 Genocide Convention, of which both states are parties. In a preliminary order in March 2022, the Court ruled in favor of Ukraine, ordering Russia to immediately cease hostilities. Russia ignored the Court's order. Russia sought to argue that the Court had no jurisdiction over the case, for a series of reasons all rejected by the judges in The Hague.

But Ukraine also declared that Russia's use of force with such justifications violated the genocide convention. And on this, the Court stated that it did not have jurisdiction to judge. The Court also declared that it did not have the power to rule on another point raised by Ukraine, namely that Moscow's recognition of the separatist regions of Lugansk and Donetsk had violated the convention.

It is true that Russia's objections were rejected and the proceedings will continue. But one must wonder if Kiev did well to resort to the Hague Court for violations of the genocide convention. The Court rejected the most important request for Ukrainians, that which goes to the root of the war, concerning the illegality of the February 24 invasion. On this, as explained in paragraphs 55 and 56 of its judgment, it will not express itself. So it will not even express itself on the request for reparations, which was part of the argument presented by Kiev. Why can't it do it? Because the legality of the use of force falls outside the genocide convention on which the appeal is based. The relevance is, therefore, limited to genocide alone.

The fact is that the genocide convention is one of the few treaties that has a compromissory clause. It means that any state party to the Convention can bring a case before the Court for any alleged violations. Even if it is not the victim, and even if it is not directly involved in the case. For Ukraine, it was the most immediate way to bring Russia before the Court.

But where the accusation touched on the issue of the illegality of aggression, the court had to stop. Appeals based on the Genocide Convention are therefore open to political use precisely because of the compromissory clause that makes it easy to activate. Even states unrelated to the events in question can resort to it. The accusation of genocide against Israel for Gaza was made by South Africa. And there are other similar precedents.

Ukraine wanted to respond not only militarily and diplomatically to the aggression but also legally. This is also political. And it sought the easiest way: reference to a convention that allows recourse. However, in this way, there is a risk of bypassing fundamental issues. The paradox is that when the Court will have to judge on the merits, it will probably be Ukraine - the aggressed country - that will have to prove that it has not committed acts in Donbass that can be classified as genocide. This also applies to the other recent decision of the International Court of Justice (January 31), which, again on a Ukrainian appeal accusing Moscow of financing terrorism in Donbass, almost sided with Russia, saying it only failed to investigate. Again, we ended up on technical-legal issues, all in all secondary.

The political use of appeals to the court ends up not meeting the desire for justice. The problem, even in this appeal, should have been the use of force, not the financing of terrorism and linguistic discrimination, which were instead discussed. But the heart of the matter was not addressed in the case.

One last question. Is the court really independent? In theory, yes. Judges swear not to accept or receive instructions from governments. In practice, they often vote in line with the policies of the states of which they are citizens. The Vice-President of the Court, Gevorgian, is Russian and, in judgments on this case, has always voted in favor of Moscow's requests. Meanwhile, the war continues, with the sufferings in the "tormented Ukraine" that Pope Francis continues to report. And the satrap of the Kremlin continues to perpetrate crimes, such as the one that led to the unjust detention and death of Alexei Navalny.

To get an idea of ​​the brutality of the bloody and murderous regime that unleashed the madness of this war, just read a few pages of Anna Politkovskaya's Putin's Russia. The courageous journalist warned: "Russia has already had rulers of this kind. And it ended in tragedy. In a bloodbath. In civil wars. I don't want it to happen again. That's why I'm against a typical Soviet Chekist who ascends to the throne of Russia striding triumphantly on the red carpet of the Kremlin." Anna Politkovskaya was assassinated, and the assassin is about to be triumphantly re-elected.

Edoardo Greppi
NP Marzo 2024