Document Type : Original Independent Original Article
Highlights
Introduction
After the annexation of the Crimean Peninsula to Russia in 2014, Ukraine has taken various political and legal measures to deal with this action. Specifically, Ukraine has filed numerous lawsuits against Russia in various courts by resorting to various legal methods of dispute resolution. Two days after the Russia invasion of Ukraine on 24 February 2022, Ukraine filed a new case against Russia in the International Court of Justice. Ukraine's demand in this dispute is the subject of this paper: Is it possible to use force to prevent or punish the alleged crime of genocide? This question forms the center of the said case; particularly, due to the litigants and the judges of the Court have put forward completely conflicting opinions in this regard.
Research Methods
In the light of the descriptive-analytical method, the assumption of this paper is that it is not possible to violate a jus cogens in order to maintain or implement another jus cogens. Therefore, after a brief description of the events, we analyze the question of the relationship between resorting to force to prevent or punish genocide. Based on the analysis of the materials, it is clear that the possibility of resorting to force to prevent or suppress genocide is not considered permissible.
Findings
The main question of the paper, as well as the main focus of the discussed case, seems to be whether it is possible to resort to force to prevent or punish genocide? In fact, in the light of the violation of a jus cogens, is it possible to try to maintain or implement another jus cogens?
Russia used all its efforts to justify the military action against Ukraine in various formats, including the commission of genocide, in order to justify its action to the international community and in this way, act with the upper hand regarding its actions against Ukraine. Unaware of the fact that since 2014, Ukraine has been using every opportunity to file a lawsuit against Russia's actions in its territory in a full-scale warfare, and for this reason, the justification that Russia unintentionally pushed from the official officials of this country in recent months. It became a trap that caught himself. It is enough to imagine that if Russia did not raise issues related to the genocide in recent months, Ukraine would not have had a chance to raise this case, and this is the chance that many States observing these events have learned the necessary lessons from it.
Regarding the specific question of the relationship between the use of force and the Genocide Convention, two issues should be separated from each other. First, under no circumstances is it possible to resort to unilateral force to implement the obligation to prevent and punish the crime of genocide in contemporary international law. Individual or collective self-defense are the only permitted cases. The Security Council could not enter into the Russian invasion of Ukraine due to Russia's veto. Therefore, the authorization of the Security Council to implement the obligation to prevent and punish is not conceivable. Individual self-defense must also be carried out in light of the conditions of Article 51 of the UN Charter, including the existence of an armed attack committed against a member state; necessity and proportionality and reporting to the Security Council regarding the actions must be taken. It seems that none of the mentioned conditions have been fulfilled by Russia in the self-defense claims against Ukraine. Even in the light of the responsibility to protect, military action must be carried out in the light of the authorization of the Security Council.
The second aspect of the issue is the answer to the question, is it possible to implement the obligation to prevent and punish genocide in the form of self-defense? As the International Law Commission clearly states, it is not possible to terminate the violation of jus cogens through illegal means such as resorting to aggressive force. In fact, the violation will be intentional if in order to prevent or punish the violation of jus cogens, it is possible to try to implement jus cogens by violating another jus cogens. Another point is that according to Article 26 of the Draft Articles on State Responsibility, States cannot act in violation of jus cogens in order to justify their breach of obligation. This article is like an umbrella over the articles 20 to 25 of the above-mentioned Draft on the circumstance precluding wrongful acts. Article 21 is about the self-defense as one of the factors that precludes the wrongfulness of an act, but according to the clarity of Article 26, none of the mentioned cases can be considered as a cause or reason for violating jus cogens.
Based on this, the conclusion will be that the Court's answer to the question of the relationship between the use of force to prevent and punish the crime of genocide has priority and can be decisive in the course of this case.
Results
In this article, we discussed the conflict between two jus cogens from the perspective of Ukraine's lawsuit against Russia in the International Court of Justice. With regard to the assumption that a State is trying to implement or prevent the violation of one jus cogens, to violate another jus cogens rule, according to the contents that have been said, imagining such a thing is considered a kind of defeat the purpose. In fact, it cannot be imagined that in order to prevent genocide against a population under the protection of the Genocide Convention, it is possible to resort to unilateral force against a state that is alleged to have violated the jus cogens without obtaining permission from the Security Council (including in the form of the responsibility of protect). The experience of Kosovo in 1999 is a good example of not accepting this procedure in the international arena. Even in today's international law, saving the lives of nationals in the form of resorting to force against another State or other forms of so-called humanitarian intervention is not acceptable.
The action of the United States and the coalition forces in attacking Afghanistan in 2001 with the justification of countering terrorism and attacking Iraq with the justification of the destruction of weapons of mass destruction were carried out without obtaining the necessary permission from the Security Council and were not accepted by the international community. In addition, the experience of exercising the responsibility of supporting the Libyan people against Gaddafi's actions by Resolution in 2011 showed that even the authorization of the Security Council would not necessarily lead to the desired results. Therefore, States cannot act without regard to legal standards to prevent or punish alleged violations of normal or jus cogens rules.
Subjects
