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Tuesday, August 9, 2022

What Does the Decision of the International Court of Justice in the Hague Mean for Russia?

By: Sara Bertoncelj / Nova24tv

After Tuesday’s historic visit of the Slovenian, Polish, and Czech prime ministers to Ukraine, with which, among other things, Slovenia ranked itself among the top category countries in terms of European and world diplomacy, new breaking news came from the Hague on Wednesday: in accordance with Article 41 of the Statute of the Tribunal, the International Court of Justice (ICJ) has ordered interim measures requiring the immediate cessation of Russia’s military operations in Ukraine, as well as the operations of all other forces under the control or influence of the Russian Federation. 

The International Court of Justice in the Hague has issued an interim measure: Russia must immediately stop all military operations in Ukraine. The Court thus recognised the so-called prima facie jurisdiction, that is to say, its own jurisdiction, which Russia had denied, and the Court also actively rejected in the first phase all other concerns by Russia. According to the expert in the field of international law, Dr Miha Pogačnik, these measures are temporary and intended to prevent irreparable damage, which certainly includes new victims among the civilian population, and they do not prejudge the final solution. “However, we now have a valid order under international law,” Pogačnik pointed out. Whether the order will be complied with is, of course, another question.

“I hope it will be complied with. But states are sovereign, and sometimes a state does not comply with the orders,” Dr Ernest Petrič commented on the Court’s decision. We are currently in a situation where one country – the Russian Federation – is violating the fundamental principles of the modern international order, and it is for this reason that the former diplomat and professor of international law has his doubts about Russia complying with this court ruling. The Convention on the Prevention and Punishment of the Crime of Genocide itself stipulates that any disputes under this Convention shall be settled before the said Court. According to Petrič, the Russian Federation’s failure to accept the jurisdiction of this Court is a dubious act – namely, Russia did not attend the hearing.

Both Ukraine and the Russian Federation are parties to the Genocide Convention
The full text of the ICJ order, which lists the interim measures in a case related to genocide charges under the Convention on the Prevention and Punishment of the Crime of Genocide, is available here. Namely, on the 26th of February 2022, at 9.30 p.m., the Court lodged an application from Ukraine at the Registry of the Court of Justice, with a request to initiate proceedings against the Russian Federation, in connection with a dispute concerning the interpretation, application and implementation of the 1948 Genocide Convention. At the end of its request, Ukraine asked the Court to issue interim measures and, in accordance with Article 74, call on the Russian Federation to suspend all military operations immediately. Among other things, the Court noted that it is aware of the scale of the human tragedy taking place in Ukraine and strongly encourages the concern for the victims and human suffering they are still experiencing there. The Court is deeply concerned about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law. The Court also regrets the decision of the Russian Federation to not take part in the proceedings or to not have taken part in the interim measures. It would be useful for the Court to know the views of both parties, regardless of how they are expressed, but the Court also notes that the absence of one of the countries concerned cannot in itself constitute an obstacle to the issuance of interim measures.

This is a violation of the fundamental acts of the modern international order
A while ago, the professor of international law, Dr Ernest Petrič, already explained that not only the provisions of the Budapest memorandum were violated, but also some other basic acts. Petrič also believes that “with the attack, Russia violated the fundamental acts of the modern international order and the provision of the UN Charter,” which is based on maintaining international peace and security, developing friendly relations between nations, and promoting social progress, better living standards, and human rights. “This is a big step away from the modern international order,” Petrič said. An investigation into the events in Ukraine was launched in early March by another international tribunal, the International Criminal Court (ICC). “All past and present allegations of war crimes, crimes against humanity or genocide committed in any part of Ukraine by anyone will be investigated.” Unlike the ICJ, the ICC deals with possible violations of the international law of individuals when it comes to crimes of genocide, crimes against humanity, war crimes and aggression. But at the moment, the most crucial question is whether Russia will comply with the ICJ’s interim measures and end its war actions on Ukrainian territory – according to Petrič, the interim measures are aimed at preventing further damage.

The Hague is not just a threat to criminals – the Hague is primarily the capital of international law
Pogačnik also explained that the International Court of Justice is certainly the institution with the greatest legal reputation in the world. Maybe one day, a Slovenian judge will also sit in its composition, which has not happened yet. “I myself remember the times from thirty years ago when I participated in the discussion of the Hague Academy of International Law. It is interesting to note that I am probably one of the few civilian drivers, whom the blue helmets of the United Nations, which are guarding the Court, allowed to park in front of the Hague Peace Palace, in the heard of international law almost daily, so to speak. And there, the significant difference between my vehicle and the judges’ limousines was a special kind of attraction for the photographers and tourists,” said Pogačnik, adding that these were special, perhaps even great times. The lawyer still remembers that the head of the Court at the time was Eduardo Valencia Ospina. These times are repeating themselves. Near the International Court of Justice is also the famous TMC Asser Instituut, which was headed at the time by the legendary Alfred Kellerman, Pogačnik’s personal friend and a friend of Slovenia. TMC Asser Instituut is an institution that we might once also have. “The Hague is not just a threat to criminals. The Hague is primarily the capital of international law,” Pogačnik explained.  

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