Law Above War

The Law Society Gazette featured Jonathan Gimblett and David Zionts as counsel for Ukraine in two cases this year, which have significance in its legal and actual battles with Russia. Jonathan and David discuss the International Court of Justice’s decisions in the two cases and the importance these cases have in ensuring criminal and civil liability for Russia’s aggression against Ukraine.

Jonathan provides his insight into a judgment that held Russia liable for violations of core obligations under two conventions-the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. Jonathan states that this is a significant case. “The Russian Federation has never been held accountable by any counterparty for its violations of international law.” Jonathan continues, stating, “This was also the court’s first chance to judge violations under the two conventions.”

David commented on the second judgment concerning one of Russia’s stated justifications for its 2022 invasion-that Ukraine had committed genocide. The accusation was a pretext for Russia’s recognition in 2022 of the Donetsk and Luhansk People’s Republics and its full scale invasion of Ukraine. David stated that the judgement’s significance is that “by rejecting Russia’s effort to shield its false claims from scrutiny, the court has cleared the way for Ukraine to demonstrate on the merits that Russia’s stated justification for its full-scale invasion of Ukraine was baseless.”

Jonathan adds that the case needs to be read in the context of the ICJ’s provisional measures order which ordered Russia to ‘immediately suspend the military operations it commenced in the territory of Ukraine.’ This judgement confirmed the jurisdiction asserted by the court in the provisional measures order. As Jonathan stated, “This was Ukraine calling Russia out. This was necessary. We should also note that the provisional measures order remains in force…It’s Russia’s turn to explain itself.”

Jonathan also counters critics of the ICJ who question the significance of its judgements. Jonathan believes, “The record it important here. This is why this process is important in the context of Russia’s aggression.” Jonathan argues that “Faced with a violation, it is creating the record.”

He continues, stating, “When the court lacks jurisdiction to address a particular violation of international law, it is all the more important that states-whose practice is what creates international law-are ready to speak up and act.” Jonathan notes, “The current consideration being given by G7 and EU states to the potential confiscation of immobilized Russian state assets as a countermeasure to Russia’s war of aggression is a great example of the role states can play in encouraging compliance with international law.”