52. In the present proceedings, Ukraine argues that it seeks provisional measures to protect its rights “not to be subject to a false claim of genocide”, and “not to be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention”. It states that the Russian Federation has acted inconsistently with its obligations and duties, as set out in Articles I and IV of the Convention.
53. Ukraine contends that it has a right to demand good faith performance of obligations under the Genocide Convention by the Russian Federation, in accordance with the object and purpose of the Convention. It states that the Russian Federation has abused and misused the rights and duties stipulated in the Convention and that the “special military operation” of the Respondent is an aggression undertaken “under the guise” of the duty to prevent and punish genocide, enshrined in Articles I and IV of the Convention, and that it frustrates the object and purpose of the Convention.
54. The Applicant further submits that it has a right under the Convention not to be harmed by the Russian Federation’s misuse and abuse of the Convention. It considers in particular that it has a right not to suffer grave harm as a result of a military action falsely cloaked as one undertaken to prevent and punish genocide.
55. Ukraine asserts that the above-mentioned rights are grounded in a possible interpretation of the Genocide Convention and are therefore plausible.
56. The Court observes that, in accordance with Article I of the Convention, all States parties thereto have undertaken “to prevent and to punish” the crime of genocide. Article I does not specify the kinds of measures that a Contracting Party may take to fulfil this obligation. However, the Contracting Parties must implement this obligation in good faith, taking into account other parts of the Convention, in particular Articles VIII and IX, as well as its Preamble. Pursuant to Article VIII of the Convention, a Contracting Party that considers that genocide is taking place in the territory of another Contracting Party “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”. In addition, pursuant to Article IX, such a Contracting Party may submit to the Court a dispute relating to the interpretation, application or fulfilment of the Convention.
57. A Contracting Party may resort to other means of fulfilling its obligation to prevent and punish genocide that it believes to have been committed by another Contracting Party, such as bilateral engagement or exchanges within a regional organization. However, the Court emphasizes that, in discharging its duty to prevent genocide, “every State may only act within the limits permitted by international law”, as was stated in a previous case brought under the Convention (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 221, para. 430).
58. The acts undertaken by the Contracting Parties “to prevent and to punish” genocide must be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the United Nations Charter. In this regard, the Court recalls that, under Article 1 of the United Nations Charter, the purposes of the United Nations are, inter alia, “[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.
59. The Court can only take a decision on the Applicant’s claims if the case proceeds to the merits. At the present stage of the proceedings, it suffices to observe that the Court is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.
60. Under these circumstances, the Court considers 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.
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67. The Court is not called upon, for the purposes of its decision on the Request for the indication of provisional measures, to establish the existence of breaches of obligations under the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of the right found to be plausible. It cannot at this stage make definitive findings of fact, and the right of each Party to submit arguments in respect of the merits remains unaffected by the Court’s decision on the Request for the indication of provisional measures.
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74. The Court considers that the right of Ukraine that it has found to be plausible (see paragraph 60 above) is of such a nature that prejudice to it is capable of causing irreparable harm. Indeed, any military operation, in particular one on the scale carried out by the Russian Federation on the territory of Ukraine, inevitably causes loss of life, mental and bodily harm, and damage to property and to the environment.
75. The Court considers that the civilian population affected by the present conflict is extremely vulnerable. The “special military operation” being conducted by the Russian Federation has resulted in numerous civilian deaths and injuries. It has also caused significant material damage, including the destruction of buildings and infrastructure. Attacks are ongoing and are creating increasingly difficult living conditions for the civilian population. Many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large number of people are attempting to flee from the most affected cities under extremely insecure conditions.
https://www.icj-cij.org/public/files/ca ... -00-EN.pdf
