What Does The ICJ's Decision Calling For Russia To Immediately Suspend Its Military Operations Against Ukraine Mean?

 Bu yazı 25/01/2023 tarihinde yayınlanmıştır.

 *Mohammad YOUSEF/ Araştırmacı

On March 16 - 2022, the International Court of Justice (ICJ) ruled that Russia must stop military operations in Ukraine. This is the first decision in a confrontational legal dispute between Ukraine and Russia, with each country charging the other with committing genocide.

Russia accused Ukraine of committing genocide against ethnic Russian groups in Ukraine. This was the Russian's cover or alleged reason to start the war against Ukraine.

 Ukraine in its complaint which was filed on 26 Feb 2022 claimed that the Kremlin gives misleading excuses and that faulty assertions of genocide violate the 1948 Convention on the Prevention and Punishment of the Crime of Genocide 1954 (Both Russia and Ukraine ratified this convention).  Given that, Ukraine requested ICJ t to call Russia to suspend all military actions, including hostile activities.

The International Court of Justice issued a decision on provisional measures asking Russia to stop its invasion of Ukrainian lands. The decision was issued with the approval of 13 judges and the rejection of two judges (Russian and Chinese).

First of all, we must know that the decisions of the International Court of Justice, which are issued in the form of a ruling, have an obligatory character, and overruling them is in violation of international law. The decision of the International Court of Justice was issued based on the first paragraph of Article 41 of the Statute of ICJ (taking provisional measures). Article 41 of ICJ statute states: “The 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."

The court’s decision to take provisional measures does not mean that it ruled in favor of Ukraine against Russia, but rather that the consideration of the case is continuing and has not yet been decided, and the provisional measures come within the framework of preserving the special rights of either party.  Article 41 of ICJ statute ".......... any provisional measures which ought to be taken to preserve the respective rights of either party.”

Although the court’s decision is binding, it is not enforceable because the International Court of Justice lacks the concept of executive force or international police, which means that there is no means that can force Russia to comply with the court’s decision and comply with the provisional measures.

In these cases, what legal tools are available?

Based on the second paragraph of Article 94 of the Charter of the United Nations, the party which Court ruled in his favor may file a complaint with the Security Council requesting it to take action against the country that has not implemented the Court’s decision. The article 94 of UN charter states that: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

The Security Council here has the freedom to assess the situation. It can respond to the request or reject it. In the event that Ukraine files a complaint with the Security Council against Russia on the grounds of non-implementation of the decision of the International Court of Justice, any decision taken by the Security Council against Russia will absolutely face a Russian veto. This decision may encourage other countries, especially those that have been on the fence, to join in activities such as squeezing Russia's economy with sanctions and arming Ukraine.