ICJ says it has jurisdiction in part of Ukraine’s genocide case

The United Nations’ top court said on Friday it has jurisdiction to rule on a request by Ukraine for a declaration that Kyiv is not responsible for genocide.

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 ruling relates to a case filed by Ukraine alleging that Moscow breached the landmark 1948 genocide convention by fabricating claims of genocidal crimes in the eastern regions of Luhansk and Donetsk as a pretext for its 2022 invasion.

Ukraine also accuses Moscow of “planning acts of genocide.”

“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 in two other aspects of Ukraine’s case – claims that Russia’s invasion itself violated the 1948 genocide convention and that Moscow’s recognition of two breakaway republics in eastern Ukraine also amounted to a breach of the convention.

Moscow rejects the allegations, and argued last year that the court should throw out the case before even considering the merits of Kyiv’s claims.

Presiding judge Joan Donoghue, left, reads the International Court of Justice’s decision in the Ukrainian genocide case.

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.”

Another 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 (Russia’s) inherent right to self-defence”.

At the same hearings, Ukraine condemned 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.

The court will now move on to discussions of the merits of Ukraine’s arguments. A final, legally binding decision is likely still years away.

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.

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