Strategic Litigation in Wartime: Judging the Russian Invasion of Ukraine through the Genocide Convention.

• Author: Ramsden, Michael

1. INTRODUCTION 182 II. GOALS OF UKRAINE IN ALLEGATIONS OF GENOCIDE III. GOALS OF RUSSIA 185 IV. THE ICJ'S PROVISIONAL MEASURES ORDER 192 V. EVALUATING THE IMPACT OF THE INITIATION OF 195 PROCEEDINGS AND THE PROVISIONAL MEASURES DECISION 199 VI. CONCLUSION 209 I. INTRODUCTION

   On February 24, 2022. Russia invaded Ukraine. What followed was a widespread condemnation from states and a variety of responses from international institutions. These included the imposition of sanctions, the adoption of resolutions condemning the aggression and human rights abuses, the creation of a UN commission of inquiry, the opening of an investigation by the Prosecutor of the International Criminal Court (ICC), and exclusion/suspension of Russian membership in the Council of Europe and Human Rights Council (HRC). (1) Alongside these responses, Ukraine initiated proceedings against Russia before the International Court of Justice (ICJ). (2) Given Russia's limited acceptance of the ICJ's jurisdiction over the major allegations of wrongdoing (i.e., aggression), Ukraine's application was limited to the contention that a dispute existed between the two states as to the interpretation and application of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). (3) Given that Russia partially justified its intervention on the ground of genocide prevention, Ukraine sought a declaration from the ICJ that no such genocide had occurred in its territory, thereby removing any justification for Russian action, at least insofar as it was based upon the Genocide Convention. (4) Ukraine also requested a decision from the Court ordering provisional measures so as to preserve its rights under the Genocide Convention pending an outcome on the merits of the case. (5)

   This case--Allegations of Genocide--represents the latest episode of states strategically using the ICJ to advance objectives that go beyond the confines of the litigated issues. (6) Former ICJ judge, Bruno Simma, has described this phenomenon as "juridical Nebenkriegsschauplatz," entailing collateral action within a wider political-military dispute and brought with the aim of changing the course of international relations on this wider dispute. (7) This has involved the applicant bundling various aspects of the wider dispute into the legal regime within the ICJ's jurisdiction, with the intention that the litigation be used as leverage to support the applicant's interests in international relations as well as to supply information to catalyse institutional responses on the wider dispute. (8) This practice of "strategic litigation"--brought to augment wider claims beyond the pleaded issues with a view to achieve structural change on these claims--has a long lineage in ICJ jurisprudence, including in the particular context of ongoing hostilities. (9) Of particular relevance here, Russia itself has been on the receiving end of strategic litigations in the past given its acceptance of the Court's jurisdiction over disputes under the International Convention for the Suppression of the Financing of Terrorism (CSFT) and the Convention on the Elimination of Racial Discrimination (CERD). (10) Accordingly, both Georgia and Ukraine invoked CERD (with Ukraine additionally invoking the CSFT) as a basis to challenge Russia's conduct as an occupying power within their territories. (11) As Ukraine returns to the ICJ to challenge Russian actions once more, this time under the Genocide Convention, to what extent can this legal challenge have an impact on the ongoing wider dispute? Drawing upon insights from previous strategic litigation campaigns and an analysis of the opposing parties' goals in Allegations of Genocide, this Article considers the scope of, and potential for, such litigation to deliver an impact beyond the specific issues before the Court.

   The analysis in this Article is underpinned by an understanding of the participants as strategic actors who come with an appreciation of the wider context in which the litigation is contested. But what constitutes "strategy" and who are the "participants"? At its most generic, a strategy denotes a plan developed consciously and purposefully to achieve a specific result. (12) Studies into strategy formation thus focus on identifying the intended goals of the strategists in formulating their plan. (13) In this regard, the seeking of interim remedies in the ICJ in particular has long featured as a litigation strategy of states. Aside from the limited purpose of preserving existing rights, the ordering of provisional measures has also served to provide the applicant with a preliminary indication on the strength of its case, a lower evidentiary threshold in which to substantiate their claims (i.e., prima facie), and a means to advance the cause to the international public through the media and other public channels. (14) However, it is also necessary to differentiate the pre-conceived (and possibly evolving) goals of litigation from the impact that such a case produces. (15) The strategist is unlikely to intend every outcome of the strategic litigation, good or bad. (16) Goals of the strategist can therefore be used as a baseline to evaluate litigation impact, but a wider set of unintended impacts (if arising) must also be investigated. (17) This leads into the second point, as to identifying who the participants are in a strategic litigation. Most obviously, the party initiating a strategic litigation (applicant) will come with a strategy; it is their case after all. Yet, it is also instructive to consider the preferences of the respondent party and how these preferences develop over time as the case progresses and the wider dispute in which it is embedded changes; given that the case is brought to have a wider impact, the respondent will have its own strategic calculations in approaching the case, possibly with a view of influencing perceptions or outcomes on the wider dispute. (18) It is also, finally, useful to enquire into the ICJ's own strategic choices in a case. The notion that the Court is a strategic actor in this manner is, of course, denied by the judges, who frequently profess their role to be strictly confined to questions of legality. (19) Nonetheless, as will be shown in this Article, the Court has acted strategically to promote the acceptability of its decisions amongst the parties or to assume some relevance in relation to the wider dispute or conflict. (20)

   Through the lens of Allegations of Genocide, this Article adds new insights to the scholarly literature on ICJ decision-making and, more significantly, the extent to which the parties use the litigation to advance systemic change beyond the courtroom. While much of the scholarly literature has tended to focus on doctrinal issues of ICJ decision-making, the present Article is situated in the more fledgling literature on supranational litigation impact, from the perspective of relevant actors both within the legal proceedings and outside of it. (21) In this regard, while strategic litigation impact has been extensively studied at a domestic level (particularly in the context of human rights and social justice) and somewhat at the supranational level (particularly in the regional human rights courts), there has been less of an attempt to understand the wider impact of strategic litigations before the ICJ. (22) Accordingly, this Article draws from prior ICJ strategic litigations as a context for understanding the case initiated by Ukraine, as well as to understand its scope to produce a wider impact beyond the litigation.

   Having sketched the key elements of strategic litigation, and its participants, this Article contains five parts. Part II discusses the goals of Ukraine in initiating Allegations of Genocide, considering both the declarations that it seeks from the Court and its extra-legal goals, in aiming to influence a wider international response on Russian aggression. Part III then considers Russia's goals in engaging in the litigation, situating its particular response (i.e., selective engagement) in the context of prior litigations and its prior justifications for the use of force against Ukraine. Part IV then evaluates the ICJ's response so far as can be gleaned from the choices that it made in its provisional measures order. Part V identifies the wider impact that the case has had in the weeks from the initiation of proceedings to the ordering of provisional measures (on March 16, 2022) and its aftermath. It considers the possible future impact the case may have and the extent to which it is capable of advancing Ukraine's goals relating to the wider geopolitical conflict. Part VI concludes.

2. GOALS OF UKRAINE IN ALLEGATIONS OF GENOCIDE

   Before examining Ukraine's particular goals in initiating and requesting provisional measures in Allegations of Genocide, it is beneficial to first note the variety of goals that can form part of an applicant's strategy in initiating litigation. A more specified and holistic understanding of these goals can be appreciated by focusing not merely on the declarations or remedies requested in the case (which although revealing as to the litigation goals, themselves often only provide a partial or even secondary motive in bringing the case) but also on how the litigation is being used as an opportunity to advance the applicant's preferences beyond the case. (23) These broader goals, in this regard, vary considerably and include the use of the litigation to (1) advance the applicant's narrative on a situation to the international public; (2) assuage demands of domestic constituencies; (3) reframe a political dispute through the optic of international law; (4) obtain a favourable clarification of international norms that can be used to augment claims in the political arena; (5) impose reputational costs and raise the stakes on offending/recalcitrant states for their non-observance of international law...