The ICJ's Provisional Measures Order: Unprecedented
by Ori Pomson | Mar 17, 2022
On March 16, 2022, the International Court of Justice (ICJ) rendered its provisional measures order in the application brought by Ukraine against Russia under the Genocide Convention, arguing, inter alia, that Russias invasion was an unlawful abuse of its obligation under the Convention to prevent genocide. In its order, by 13 votes to 2, the Court ordered that Russia shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine. While the ICJ has previously rendered provisional measures orders in high profile situationsthe Tehran Hostage Crisis, U.S. military activities against Nicaragua, armed clashes between Burkina Faso and Mali, Ugandas invasion of Congo and Russias invasion of Georgiait would be no exaggeration to say that the present order is the most breathtaking one it has ordered to date.
The purpose of the present post is twofold: It will first summarize the ICJs order and then offer some commentary. However, before doing so, it is useful to provide some background on the ICJs power to render provisional measures orders.
Background on Provisional Measures Orders
Article 41(1) of the ICJ Statute provides that [t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. While for many years it was debated whether such measures are binding, the Court settled this question affirmatively in its 2001 LaGrand judgment, in the context of the U.S. state of Arizonas execution of a German national despite a provisional measures order rendered to the contrary.
Since provisional measures orders are rendered before the case has been fully adjudicated, serving to protect potential rights of a party in the interim, the Courts jurisdiction and the validity of the claimed rights cannot be definitively established. However, the prospect of the Court ordering a State to actaccentuated by the LaGrand finding that such measures are binding thereonnecessitates that provisional measures have some nexus with the prospects of the case (Judge Lauterpacht in Interhandel; Judge Abraham in Pulp Mills). For such reasons, the ICJ has developed a number of conditions which must be met for provisional measures to be rendered (see Miles, p. 174).
( Extraordinary, excellent decision. )
have signed the original agreements.
outside the borders of Russia for fear of being snatched off to trial and prison. They could also us the approach that Israel used after the Munich massacre in '72.