Lyophilization and Lawfare in Ukraine v. Russia

Written by Juliette McIntyre

 

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The Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia) case was instituted on 27 February 2022, a mere three days after the unlawful invasion of Ukraine got underway. On the one-year anniversary of these events, it is worth reflecting on what role of the International Court of Justice can play while Ukraine and Russia remain engaged in active, tragic, warfare.

The case concerns the justifications put forward for Russia’s purported ‘special military operation’ on the territory of Ukraine. President Putin’s television address in the hours before the invasion was launched alleged the perpetration of ‘genocide’ by the Ukrainian military in the eastern part of Ukraine. Ukraine’s application calls on the Court to declare that ‘contrary to what the Russian Federation claims, no acts of genocide, as defined by Article III of the Genocide Convention, have been committed’.

Following an urgent provisional measures hearing on 7 March 2022 in which Russia did not appear, the Court – in record time on 16 March – ordered Russia to immediately suspend all military operations in Ukraine. The Court stated that it was ‘profoundly concerned about the use of force’ in Ukraine, and that ‘Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine’. Russia has blatantly ignored this order.

Yet the case continues. Ukraine filed its Memorial on 1 July 2022, and Russia has altered its stance of non-appearance and filed preliminary objections. The case has also attracted an unprecedented number of third party intervenors – 33 States in total. Oral proceedings on either Russia’s objections or the admissibility of the interventions are yet to be held. A judgment of any sort is many months away, at best. The slow pace of international judicial proceedings seems decidedly incongruous with the speed of events on the ground. The military operations may be long over before the Court reaches a decision on the merits of Ukraine’s application.

Likewise, the process of turning the complex conflict into a justiciable legal dispute seems almost eccentric. It is the lyophilization of life, as Soave beautifully puts it; meaning the process by which the underlying dispute undergoes a metamorphosis from ‘unfathomable complexity’ into mere folders of arguments and exhibits that become thinner and thinner as they progress through the judicial bureaucracy. This process will render the war into a series of ‘epistemic exclusions’ in which the real context fades away, ‘obscured by the congeries of legal claims and defences presented to the court’. The case will turn on limited, technical questions such as whether the Court has jurisdiction to issue a negative declaration regarding Ukraine’s compliance with the Genocide Convention; or the importance of acting in good faith and with due diligence before taking action in the name of preventing genocide. Given that recent history suggests it is unlikely Russia will comply with any judgment the Court issues, it is not unreasonable for the average watcher of international affairs to conclude that the proceedings are, for want of a better word, pointless.

But such conclusions would be premature, because they fail to account for two of the most important (interrelated) purposes of international adjudication: symbolism and lawfare.

In regard to symbolism, theories of expressivism tell us that what the law does through its institutions is equally important as what the law says about norms. As one of the means of transmitting expressive messages, court procedures utilise performance and aesthetics ‘in order to enact justice (i.e. to make it seen)’. Bentham for this reason called the courtroom a ‘theatre of justice’. The performance undertaken by the parties serves to generate important symbolic capital for use both domestically and internationally. The Court’s proceedings generate a judgment output but are also in and of themselves an output – one that places the otherwise vastly unequal parties on a symbolically important equal footing and validates their sovereign equality. The Court is a place in which Ukraine can tell their story and can concretize their status as the defenders of ‘both European borders and European values’.

This leads us to consider lawfare. Court proceedings enable States to obtain ‘strategic outcomes, such as mobilising longer term political support for their cause’. Ukraine’s success in this respect is already marked, with declarations from western and eastern European States coming in support of their interpretation of the Genocide Convention and their claim against Russia. No intervenor makes a case in favour of Russia. As the Norwegian Foreign Minister stated, their intervention is a ‘signal to Russia and the outside world that the international community does not accept the aggression against Ukraine’. Before the Court, Ukraine can ‘win’ no matter the results on the battlefield. The strong language of the provisional measures order provides States with a legitimate justification for supporting Ukraine, be that materially or politically. President of the European Union, Ursula von der Leyen, for example, welcomed the order on Twitter.

As for Russia, their election to engage in the proceedings suggests that they too perceive the importance of symbolic lawfare. For Russia, the Court offers a forum in which to further their ‘creative reworking’ of the humanitarian intervention doctrine and possibly even score points in the wider battle for legal hegemony between Russia and the West.

The case is therefore anything but pointless. Symbolism and lawfare may seem intangible, particularly when contrasted with the very real loss and destruction taking place on Ukrainian territory. But for States, whose main form of communications are diplomacy and symbol-driven interactions, emerging victorious on stage is no less important than winning in real life.

Juliette McIntyre
Juliette McIntyre
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Juliette McIntyre has been a Lecturer in Law at UniSA since 2016. She holds a first class LL.M. in International Law from the University of Cambridge, and a BA and LLB/LP with Honours. She is presently completing her PhD at the University of Melbourne, where her particular area of specialism is international courts and tribunals, with a focus on procedure.

Ms McIntyre writes commentary on current international legal issues and her academic work has been published in a number of international journals including AJIL Unbound, East Asia Forum, Michigan Journal of International Law, Leiden International Law Journal, and the Ukrainian Law Review.

In addition to her academic work, Ms McIntyre has significant litigation experience, including as a Judge's Associate at the Supreme Court of South Australia, and as counsel in cases before the International Court of Justice and other international tribunals. Ms McIntyre has been formally sanctioned by the Russian government for her scholarship in respect of Ukraine.

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