Gerda Grauberg: On Estonia joining the Ukraine-Russia litigation

Gerda Grauberg.
Gerda Grauberg. Source: Private collection

On September 22, Estonia petitioned the International Court of Justice to participate in the Ukraine v. Russia matter. Countries that will join the case will not become sides to proceedings, Gerda Grauberg writes.

While International Court of Justice (ICJ) disputes are usually between specific parties, its application saw Estonia join 14 other countries that have sought to partake in the case based on an exceptional provision in the court's statute.

What is the dispute about?

Let us recall that on February 26, Ukraine filed an application with the ICJ for the court to confirm that the country has not carried out genocide.

Ukraine wants to overturn Russia's claim that it invaded Ukraine as a result of alleged genocide in the country that Russia claims is grounds for its "military special operation." Ukraine also asked the court to order Russia to end the military operation in its territory.

The Russian Federation has so far refused to take part in proceedings, suggesting that the ICJ lacks jurisdiction in the matter. Russia also did not attend a court session held in March. Nevertheless, the court satisfied Ukraine's preliminary legal protection application and prohibited Russia from continued military action and obstructing proceedings. Evidently, Russia has complied with neither.

What does Article 63 of the statute say?

Based on subsection 2 of Article 63, states have the right to join ongoing cases, while the court's interpretation of relevant legal norms will in that case be binding for those states. States that join have to be parties to applicable international agreements.

The question of how to interpret the Convention on the Prevention and Punishment of the Crime of Genocide matters to the joining states as it determines, among other things, whether Russia had grounds to invade Ukraine over alleged genocide in February.

Estonia is a party of the convention since 1992 that made it possible for the country to join the case. Based on the statute, Russia and Ukraine can comment on the applications of other states to join.

What can the additional participants do?

Countries that join proceedings will not become parties to it. Their say will be limited to how the provisions of the international agreement in question should be interpreted. This means that Estonia and other states that have joined proceedings can express their option on how the Convention on the Prevention and Punishment of the Crime of Genocide and its guidelines should be interpreted.

It is unclear from past ICJ practice whether the opinions of additional participants in terms of the court's jurisdiction are also government by Article 63. Most countries to have joined, including Estonia, have touched on the subject matter and support the court having jurisdiction in the matter.

What did Estonia say in its declaration?

By supporting Ukraine's argument that the International Court of Justice has jurisdiction, Estonia also emphasized that if the genocide convention provides that the court is authorized to establish whether genocide has been committed, the court also has the right to establish it has not been done.

The ICJ also has jurisdiction over unilateral use of military force for obstructing and punishing alleged genocide.

In terms of interpreting the convention, Estonia emphasized that the Convention on the Prevention and Punishment of the Crime of Genocide first requires impartial collection of evidence, for example, through an international criminal investigation.

Furthermore, preventing and ending genocide as an internationally condemned crime cannot be a single country's mission but requires coordinated action from the international community. Especially concerning measures taken in another country's territory.

Are there any other participants?

Latvia and Lithuania were the first to seek to join proceedings in July. New Zealand, UK, Germany, USA, Sweden, France, Romania, Poland, Italy, Denmark and Ireland have joined since. Finland filed on the same day as Estonia.


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Editor: Marcus Turovski

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