Ukraine-Russia situation in the United Nations: military intervention or fight against genocide?

In his statement of February 24, 2022, Vladimir Putin referred that the genocide taking place in Donbas was one of the reasons for his military intervention in Ukraine (without mentioning that the [tension between Ukraine and Russia has a longer history](https ://cemeri.org/opinion/el-polvorin-que-representan-rusia-y-ukrania/)). He also mentioned that said region turned to Russia for help. Consequently, Putin claimed that his “special military operation” in Donbas would be carried out in accordance with Article 51 of the United Nations Charter[1], as well as in accordance with the Friendship Treaties. and Mutual Assistance concluded between Russia and the Donetsk and Luhansk People's Republics.[2]

What was the response of the political organs of the United Nations?

On February 25, 2022, the United Nations Security Council (SC) voted for the approval of a resolution under Chapter VII of the United Nations Charter (action in case of threats to the peace, breaches of the peace or acts of aggression) demanding Russia's immediate, full and unconditional withdrawal from the territory of Ukraine. However, Russia itself asserted its membership in the SC and voted against the resolution.[3]

Within the United Nations system, the veto of one of the five permanent members of the SC (United States of America, United Kingdom, France, China and Russia) is enough to prevent the issuance of a resolution. In this case, eleven countries voted in favour: Albania, Brazil, Gabon, Ghana, Kenya, the United States, France, Great Britain, Ireland, Mexico and Norway; three abstained: China, India and the United Arab Emirates; and, only Russia voted against.

In response to the above, the SC approved resolution 2623 (2022) of February 27, 2022, in which it convened a special emergency session of the United Nations General Assembly (GA) to rule on the situation. On March 2 of the same year, resolution A/RES/ES-11/1 was issued, in which the GA demanded Russia to cease the use of force against Ukraine, as well as to immediately, completely and unconditionally withdraw its forces. military on Ukrainian territory. In the same way, he demanded that he retract the recognition of the independence of the Luhansk and Donetsk provinces.[4]

Proceedings before the International Court of Justice

Ukraine initiated proceedings before the International Court of Justice on February 26, 2022. The European country stated that the recognition of the independence of Luhansk and Donetsk, as well as the "special military operation", constituted illegal Russian acts under international law. This is because, after a series of statements made by the Russian government, Ukraine interpreted that Russia was basing its actions on the alleged commission of genocide in the aforementioned provinces.[5]

Consequently, Ukraine claimed that the Convention on the Prevention and Punishment of the Crime of Genocide did not in any way authorize Russia to act in this way. Likewise, on the same day the claimant country requested the Court to order provisional measures in the case, based on Article 41 of the Statute of the Court.[6] However, Ukraine did not advance a defense given the possibility that the Russian military intervention constituted an act of legitimate defense based on Article 51 of the United Nations Charter, which could be [Russia's most probable position](https://www.ejiltalk.org/ what-is-russias-legal-justification-for-using-force-against-ukraine/).

Ukraine requested four measures, namely: that the Russian military operation started on February 24, 2022 be suspended; that any regular or irregular activity in support of the aforementioned military operation be halted, either directly or indirectly; that Russia refrain from taking actions that would escalate or escalate the dispute; as well as to provide a report to the Court on the implementation of the provisional measures.

Subsequently, on March 16, 2022, the International Court of Justice issued its decision on Ukraine's request for provisional measures, which was approved. In this regard, to order provisional measures, the Court must corroborate three aspects: 1) that it has prima facie[7] jurisdiction to order provisional measures; 2) the plausible existence of the rights sought to be protected by the indication of provisional measures and their link with the measures requested; and, 3) the urgency of issuing the measures due to the risk to the rights involved.

First, Ukraine claimed that Article IX of the Genocide Convention provided the jurisdictional basis for the institution of the procedure. The Court granted this supposition, considering the existence of prima facie jurisdiction in this case, when estimating the existence of a dispute between the two countries regarding the application, interpretation, or compliance with the Convention.

Secondly, the claimant State argued that it sought to protect its right not to be subjected to a false claim of commission of genocide, as well as not to be subjected to the military operations of another State that based its action on Article I of the Convention. on genocide (obligation to prevent and punish genocide). In this regard, the Court determined that, in effect, the right not to be subjected to Russian military operations for the purpose of preventing or punishing an alleged genocide in Donbas was plausible.

Likewise, the Court found satisfied the requirement of a link between the rights alleged by the requesting country and the provisional measures sought, since the request for the suspension of the Russian military operation in Ukraine and any regular or irregular support for it is naturally related to the arguments of the applicant State. In the same way, the remaining measures are related to the rights claimed, by trying to prevent the dispute from aggravating or extending.

Third, the urgency requirement was met because the attack carried out by Russia on Ukrainian territory is of such a nature that it can cause irreparable damage, both in terms of damage to human life, property and the environment. Therefore, there is a real and imminent risk that the Russian special military operation will harm Ukraine's rights in the present case before the Court can reach a final decision on the merits of the case.

Consequently, in exercise of its discretion to indicate the most appropriate measures, the Court adopted three of the measures requested by Ukraine and rejected one (that Russia provide a report to the Court on the implementation of the provisional measures). The first two measures on the suspension of the military operation and any regular or irregular support for said operation were approved by 13 votes in favor and 2 against (Vice President Gevorgian of Russia and Judge Xue of China). While the third measure, on avoiding aggravating or extending the dispute, was approved unanimously.

What will happen to the Ukraine vs. Russia case in court?

Whether or not the military intervention in Ukraine is justified as a fight against genocide is something that the Court will determine at a later stage of the proceedings, since the order for provisional measures does not prejudge the merits of the case. In that sense, to resolve the issue two points should be addressed: whether Ukraine's acts in Donbas constitute genocide and, if so, whether the Genocide Convention would authorize the use of force to prevent or punish genocide outside its territory. Meanwhile, it is doubtful that Russia will abide by the measures ordered by the Court, assuming that in principle it refused to participate in the procedure.