On 26 February 2022, Ukraine instituted proceedings against the Russian Federation before the International Court of Justice in The Hague and requested that certain provisional measures be rendered to protect the rights of Ukraine in view of the all-out brutal and unprovoked military invasion of Ukraine launched by Russia two days earlier.
The International Court of Justice, also known as the World Court, was established in 1945 by the Charter of the United Nations and is the main judicial organ of the UN.
On 16 March 2022, the International Court of Justice rendered the following Order regarding the provisional measures requested by Ukraine:
“(1) The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;
- The Russian Federation shall ensure that any military or irregular armed units which
may be directed or supported by it, as well as any organizations and persons which
may be subject to its control or direction, take no steps in furtherance of the military
operations referred to in point (1) above; […].”
As a member of the UN, Russia is bound by this Order since Article 94 of the Charter of the United Nations stipulates that “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
Notwithstanding the Order of the International Court of Justice of 16 March 2022 and Russia’s obligation to comply therewith, Russia is relentlessly pursuing its vicious bombardments of the civilian population and infrastructure of Ukraine, including hospitals and schools, and committing numerous daily war crimes.
In such case, Article 94 of the Charter of the United Nations also states that: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
Unfortunately, this avenue will not resolve anything since the Russian Federation is a permanent member of the UN Security Council with a veto power, even in cases where it is in clear conflict of interest when its own contested conduct is being addressed by the Security Council.
There is, however, another available option for Ukraine and the international community to give effect to the Order of the International Court of Justice, namely Article 51 of the Charter of the United Nations, which provides that:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
This provision preserves the fundamental and inherent right of individual and collective self-defence of UN members when an armed attack occurs against a UN member, such as Ukraine, until the UN Security Council takes the necessary measures to maintain peace and security.
It is therefore incumbent on the international community to immediately ship to Ukraine the necessary air defence weapons to enable Ukraine to impose a no-fly zone over its airspace and stop Russia from committing horrific war crimes by pounding Ukraine indiscriminately with missiles, killing and injuring civilians, including innocent children, and massively destroying the civilian infrastructure in order to force Ukraine to capitulate.
There will be no such capitulation; Ukraine will win. Whereas the international community must now decide at what additional cost and then bear that on its conscience forever.
