Page:Order of 16 March 2022.pdf/10

- 8 - Ukraine contends that a dispute exists between it and the Russian Federation relating to the interpretation, application or fulfilment of the Genocide Convention. It maintains that the Parties disagree on whether genocide, as defined in Article II of the Convention, has occurred or is occurring in the Luhansk and Donetsk oblasts of Ukraine and whether Ukraine has committed genocide. In this regard, the Applicant submits that it profoundly disagrees with the unsubstantiated allegation of the Russian Federation that genocide has taken place in Ukraine and that it has made this known to the Russian Federation on multiple occasions since September 2014, including through a statement by the Minister for Foreign Affairs of Ukraine before the General Assembly of the United Nations on 23 February 2022.

Ukraine further argues that the dispute between the Parties concerns the question whether, as a consequence of the Russian Federation’s unilateral assertion that genocide is occurring, the Russian Federation has a lawful basis to take military action in and against Ukraine to prevent and punish genocide pursuant to Article I of the Genocide Convention. Ukraine considers that the Russian Federation “has turned the Genocide Convention on its head”, making a false claim of genocide as a basis for actions on its part that constitute grave violations of the human rights of millions of people across Ukraine. It asserts that, rather than taking military action to prevent and punish genocide, the Russian Federation should have seised the organs of the United Nations under Article VIII of the Convention or seised the Court under Article IX thereof. Ukraine states that it vehemently disagrees with the Russian Federation’s interpretation, application and fulfilment of the Convention. Referring, inter alia, to a statement by the Ukrainian Ministry of Foreign Affairs of 26 February 2022, Ukraine asserts that the Russian Federation “could not have been unaware, that its views were ‘positively opposed’” by Ukraine.

In the document communicated to the Court on 7 March 2022, the Russian Federation states that the only basis for jurisdiction referred to by Ukraine is the dispute resolution clause contained in Article IX of the Genocide Convention. However, according to the Respondent, it is clear from the plain language of the Convention that it does not regulate the use of force between States. The Respondent submits that, in order to “glue” the Convention to the use of force for the purposes of invoking its dispute resolution clause, Ukraine has claimed that the Russian Federation commenced its “special military operation” on the basis of allegations of genocide committed by Ukraine. The Russian Federation asserts that, in reality, its “special military operation” on the territory of Ukraine is based on Article 51 of the United Nations Charter and customary international law and that the Convention cannot provide a legal basis for a military operation, which is beyond the scope of the Convention.

The Respondent further states that the legal basis for the “special military operation” was communicated on 24 February 2022 to the Secretary-General of the United Nations and the United Nations Security Council by the Permanent Representative of the Russian Federation to the United Nations in the form of a notification under Article 51 of the United Nations Charter (circulated as document S/2022/154 of the Security Council). The Russian Federation contends that,