Ukraine’s recent application against Russia at the International Court of Justice raises the question of the permissibility of the use of force outside the exceptions in the Charter of the United Nations for the purpose of preventing genocide.
When the application is read together with the statements made by Ukraine’s lawyers during the provisional measures hearing of 7 March 2022, it seems clear that there are two facets of the dispute between the two States. The first is factual: do acts perpetrated by Ukraine amount to the crime of genocide, as Russia seems to have alleged? Ukraine contends that the charges are frivolous. The second is legal: does the Genocide Convention authorise Russia to use force in order to prevent genocide outside its territory?
The application itself is somewhat unclear. Paragraph 27 of the application states: ‘The duty to prevent and punish genocide enshrined in Article I of the Convention necessarily implies that this duty must be performed in good faith and not abused, and that one Contracting Party may not subject another Contracting Party to unlawful action, including armed attack, especially when it is based on a wholly unsubstantiated claim of preventing and punishing genocide.’ This might be read as suggesting that where there is substantial evidence of genocide, article I of the Convention might authorise a State to undertake an armed attack.
But the lack of clarity in the application was dispelled in the pleadings at the oral hearing. Prof. Jean-Marc Thouvenin clearly set out the two prongs of Ukraine’s case, the first being the factual dispute and the second the legal one. His submissions on the legal issue begin at paragraph 41, which is entitled ‘absence de base juridique dans la convention sur le génocide autorisant la Russie à conduire une guerre en vue de prévenir et réprimer le génocide allégué’. Nothing in the Convention authorises a State to invade the territory of another in order to prevent or punish the crime of genocide, he said (para. 44). Prof. Thouvenin referred to statements of the Court in Bosnia and Herzegovina v. Serbia about the duty on States to prevent genocide that takes place outside their territory. But, he added, this must be understood in conjunction with the admonition, in Nicaragua v. the United States, that ‘the use of force could not be the appropriate method’ (Nicaragua, para. 268).
How then is the duty to prevent genocide to be implemented? Prof. Thouvenin cited article 8 of the Convention, providing for recourse to the Security Council and the General Assembly, as well as article 9 which gives jurisdiction to the International Court of Justice. ‘L’Ukraine affirme que la Russie n’avait en revanche strictement aucun droit, en vertu de la convention, d’engager l’action militaire débutée le 24 février 2022’, he said (para. 51). This is because, as the Court explained in Bosnia and Herzegovina v. Serbia, ‘every State may only act within the limits permitted by international law’ (para. 430). Indeed, nobody has ever suggested that when the Court faulted Serbia for failing to prevent genocide its intention was to authorise or encourage military intervention. Prof. Thouvenin’s observations were echoed by another member of Ukraine’s legal team, Marney Cheek. ‘Article VIII thereby anchors the duty to prevent and punish genocide in the principles of international law reflected in the Charter of the United Nations’, she said (para. 34).
Readers of this blog may recall the arguments that were made in 1999 to provide some rationalisation for NATO’s military intervention in Serbia. Because there was no authorisation under Chapter VII of the Charter, some contended the use of force was nevertheless warranted by an overriding jus cogens duty to prevent genocide. This was later recast as the ‘responsibility to protect’ doctrine. But in the formulation of R2P adopted by the General Assembly in 2005, known as the ‘Outcome Document’, there is a commitment ‘to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII’.
Not everyone agreed that the Outcome Document had ruled out military intervention to prevent genocide in the absence of a Security Council decision. A report issued in the United States in 2008, authored by Madeleine Albright and William Cohen, did not rule out the unilateral use of force to prevent genocide. ‘While the United States may face criticism for taking strong action in these cases, we must never rule out doing what is necessary to stop genocide or mass atrocities’, it said.
At the Kampala Review Conference of the Rome Statute, the United States proposed an ‘understanding’ aimed at carving out an exception to the crime of aggression. It said ‘any act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression’. But the proposed understanding was rejected by the delegates, as Harold Koh, who was the head of the United States delegation at Kampala and who is now counsel to Ukraine, will recall.
Perhaps the United States government disagrees with Ukraine when it says the prevention of genocide cannot justify the use of force against another country. But the Russian aggression underscores the terrible danger of tolerating military intervention based on unilateral claims that genocide is threatened. On the facts, Russia’s claim that the Genocide Convention has been violated is preposterous. But it is not the only country to indulge in far-fetched allegations of genocide.
The International Court of Justice is currently deliberating on Ukraine’s request for provisional measures. Perhaps at this stage it does not need to address itself to the validity of Ukraine’s contention about the absence of any legal basis for the use of force premised upon article I of the Genocide Convention. However, a statement to this effect would be very welcome. Unequivocal rejection of the doctrine that there are any exceptions to the use of force that are not specified in the Charter of the United Nations will make the world a safer place.
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