Thread by @mabecker17

A few initial observations about the #ICJ's order today indicating provisional measures in #Ukraine v #Russia. The bottom line is that the Court has ordered Russia to suspend immediately, without qualification, the military operation against Ukraine begun on 24 February. 1/19

As expected, the #ICJ found a dispute was established prior to seisin of the Court based on Russia’s conduct since 2014, incl criminal proceedings brought by Russia against Ukrainian officials for alleged acts in violation of the Genocide Convention. 2/19

That history put more recent assertions by both parties in context, including President Putin’s justification for the military operation commenced on 24 February. In general, I think it is positive to see the Court not taking an overly formalistic approach here. 3/19

The Court also made the basic point that acts giving rise to a dispute under the Genocide Convention can also give rise to other disputes (eg under law on use of force). One does not preclude the other (this addresses an argument in VP Gevorgian’s dissent). 4/19

On plausibility, the ICJ followed Ukraine’s adjusted arguments from the hearing. Parties must implement the Art I obligation to prevent genocide in good faith, taking into account other parts of the Convention and only within limits permitted by international law. 5/19

With no evidence before the ICJ to substantiate Russia’s genocide accusations and b/c it is ‘doubtful’ that the Convention authorizes unilateral force to prevent genocide, UKR has ‘a plausible right not to be subjected to military operations’ to prevent an alleged genocide. 6/19

The ICJ also had little difficult establishing the urgent risk of irreparable harm to the rights at issue on the merits, and made a point of relying upon the 2 March 2022 UNGA resolution that 141 states supported. 7/19

On the link requirement, the ICJ found the first two PMs sought were ‘by their very nature’ linked to preserving those rights. Ukraine had asked the ICJ to direct Russia to suspend those military operations *based on the prevention and punishment of a claimed genocide*. 8/19

The requested measures were clearly linked to the rights at issue. But the ICJ went further—this is the extraordinary part—by directing Russia to immediately suspend the military operations begun on 24 February, with no limiting language based on their purported objective. 9/19

This is a defensible outcome, in my view, but it was incumbent upon the Court to explain how these broader measures, going beyond what Ukraine sought, remain linked to the rights at issue on the merits (that is, the right not to be attacked based on false genocide claims). 10/19

For example, the ICJ might have reasoned that Russia’s alternative legal justifications (eg self-defence under Art 51) for the military operations cannot be divorced from its assertion to be acting for the purpose of preventing an ongoing genocide; they are one in the same. 11/19

Along similar lines, the ICJ might have stated that Russia’s ‘collective self-defence’ argument and the purported recognition of Donetsk and Luhansk as sovereign states is built upon the same (baseless) accusations of genocide that Ukraine disputes. 12/19

If the ICJ had indicated the precise measures sought by Ukraine, such measures would, it is true, have been easily circumvented. As I tweeted before, Russia could have claimed compliance by abandoning its genocide-prevention rationale and invoking self-defence to continue. 13/19

The ICJ has shut down that avenue by simply directing Russia to cease its military operations, full stop. In terms of crafting effective relief (at least in principle), this is a better formulation. But I think the Court’s move could have been supported by better reasoning. 14/19

On this aspect of the decision, I note that Judge Robinson asserts in his separate opinion that the Court’s Order cannot affect Russia’s inherent right of self-defence under Article 51. I won’t comment further on that for now. 15/19

I also note that Judge Bennouna voted with the majority despite taking a position in his declaration similar to those of VP Gevorgian & Judge Xue (who dissented). But he felt ‘compelled by this tragic situation’ to support the Court’s call to bring the war to an end. 16/19

In this, one is reminded of Judge Xue’s position in the 2020 provisional measures order in The Gambia v Myanmar, where her vote in support of the PMs seemed rooted in humanitarian concerns that prevailed over her doubts regarding jurisdiction and admissibility. 17/19

So will #Russia withdraw from #Ukraine because the #ICJ says so? No. But the decision is another step towards isolating Russia & delegitimizing the Kremlin's position. It should be viewed as part of the broader effort to drive the conflict towards a peaceful resolution. 18/19

Finally, this order may prompt some new thinking about the role the #ICJ can play in armed conflict situations & how self-awareness of ‘its own responsibilities in the maintenance of international peace and security’ can or should inform its dispute settlement function. END.