ESTABLISHING DAMAGES FOR MASS HUMAN RIGHTS VIOLATIONS

Abstract

Declaration, Legality centred on an allegation that states engaging in the use of force were committing genocide through their use of force. In contrast, the claim in Ukraine is whether actions taken purportedly to prevent and punish genocide were lawful under the GC. Robinson explicitly linked this to the question of false claims of international law, pointing out that Ukraine has not asked the court a general question about Russia’s force; rather, it is arguing that Russia cannot lawfully rely on a false claim to act to prevent genocide under the Convention. The court’s Order is a clear win for Ukraine, even though Russia is highly unlikely to comply. The way in which Ukraine relies on the idea of falsity to characterise its rights – the right “not to be subject to a false claim of genocide” (at [52]) and for military action not to be “launched on a pretext of genocide” (at [68]) – is perhaps the most remarkable aspect of the case. Although the court stops short of directly embracing the idea of a right not to be subject to false claims of international law, it does conclude that Ukraine has “a plausible right not to be subject to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine” (at [60]). While jurisdiction is clearly based on the existence of a dispute as to whether genocide is taking place and what actions Russia may lawfully take in response, the court nevertheless signalled that Article I GC must be carried out in good faith and in a way that is compatible with general international law. At the merits stage, it may have to grapple with what this means in practice, including what it means to make “bad faith” and pre-textual claims about law and fact as opposed to making claims that are plausible but wrong. Drawing these distinctions and characterising the impact that deception has on the validity of international legal arguments is a perennial challenge for international law, as too many past examples of unilateral force have shown.