Top UN court has jurisdiction in part of Ukraine’s genocide case against Russia

Russia and Ukraine have at various times accused each other of committing genocide.

Ukraine filed its case at the International Court of Justice nearly two years ago, alleging that Moscow used trumped-up claims of genocide to justify its invasion.

Kyiv filed the case in March 2022, just days after Russia launched the invasion.

But the court said it could not rule on that issue. Instead, it will rule on whether Ukraine violated the convention, as Russian President Vladimir Putin claimed to justify the invasion.

A final, legally binding decision is likely still years away.

“In the present case, even if the Russian Federation had, in bad faith, alleged that Ukraine committed genocide and taken certain measures against it under such a pretext, which the respondent (Ukraine) contends, this would not in itself constitute a violation of obligations” under the genocide convention, the court’s president, Joan E Donoghue said.

The court said it did not have jurisdiction to rule on whether Russia’s invasion violated the 1948 genocide convention and whether Moscow’s recognition of two breakaway republics in eastern Ukraine also amounted to a breach of the convention.

Despite those setbacks, Ukraine hailed the ruling as a victory that will allow the case to continue.

The leader of Ukraine’s legal team, Anton Korynevych, told reporters: “It is important that the court will decide on the issue that Ukraine is not responsible for some mythical genocide, which the Russian Federation falsely alleged that Ukraine has committed.”

He also welcomed the fact that a preliminary order by the court that Russia immediately halt its invasion remains in place, even though Moscow has flouted it.

Russian officials left the court without commenting.

Moscow argued last year that the court should throw out the case before even considering the merits of Kyiv’s claims, but the 16-judge panel will now go ahead.

At hearings in September, the leader of Moscow’s legal team, Gennady Kuzmin, called Ukraine’s case “hopelessly flawed and at odds with the longstanding jurisprudence of this court”.

In order for the court to have jurisdiction, Ukraine had to establish that it has a dispute with Russia over the genocide convention.

A member of Moscow’s legal team, Sienho Yee, told judges in September that Russia had not used the genocide convention to justify its military actions in Ukraine, saying they “are based on the right to self-determination and its inherent right to self-defence”.

At the same hearings, Ukraine said the court has jurisdiction and criticised Moscow for openly flouting an interim order by the court to halt its invasion.

The court ordered Russia to stop military operations in Ukraine while the legal proceedings went forward during the war’s early weeks, in March 2022.

“Russia’s defiance is also an attack on this court’s authority. Every missile that Russia fires at our cities, it fires in defiance of this court,” the leader of Ukraine’s legal team, Anton Korynevych, told the 16-judge panel.

Judges at the court rebuked Russia for its invasion on Wednesday, as they ruled in another case between the two countries linked to attacks in eastern Ukraine since 2014 and discrimination in annexed Crimea.

Ukraine’s case is based on the 1948 Genocide Convention, which both Kyiv and Moscow have ratified.

The convention includes a provision that nations which have a dispute based on its provisions can take that dispute to the world court.

Russia denies that there is a dispute, a position Ukraine rejects.

The convention and the Hague-based court came under intense scrutiny in recent weeks when South Africa filed a case accusing Israel of genocide in its devastating military operation in Gaza in the aftermath of the October 7 Hamas attacks.

In a preliminary ruling that did not address the merits of South Africa’s case, the court last week ordered Israel to do all it can to prevent death, destruction and any acts of genocide in Gaza.