21 Mar Are States Allowed to ‘Cry Wolf’? Genocide and Aggression in Ukraine v. Russia
[Dimitrios A. Kourtis is an Adjunct Lecturer at the University of Nicosia and a PhD researcher at the Aristotle University of Thessaloniki.]
In Aesop’s fable The Boy Who Cried Wolf a young shepherd repeatedly tricks nearby villagers into thinking that a wolf is going to attack. When this happens, poetic justice intervenes and the liar who ‘cried wolf’ is not believed. The wolf kills his sheep and moral order is restored through retribution.
Unlike Aesop’s universe, it seems that for a long period of time states were allowed to ‘cry wolf’ or more precisely raise false genocide-based claims (g-claims) with impunity. To elaborate, it is no secret that genocide remained ‘an unfulfilled crime of paper’ for a significant amount of time (1950s – early 1990s) after the adoption of the Convention (p. 14). However, politically, the notion was frequently invoked during the Cold War to stigmatize state conduct which most of the times fulfilled the conditions of aggression rather than genocide.
The hiatus between the 1950s and the early 1990s and the political use and abuse of the concept gave genocide, usually referred to as the ‘crime of crimes’, another sobriquet, that of the ‘rhetorical crime’. A comprehensive analysis of the various g-claims brought to the attention of the UN during the crucial period is beyond the scope of the present commentary. However, I can mention a few instances for the purposes of the present discussion. For example, it can be said that the exchange of genocide allegations between India and Pakistan is a practice as old as the Convention itself. A few other cases of unsubstantiated g-claims include Chad’s denouncement of a ‘campaign of veritable genocide’ conducted by Libya, an allegation made on multiple occasions, or the statements of several Latin American states according to which the United States and the Somoza regime were guilty of ‘auto-genocide’ in Nicaragua.
Nevertheless, all such allegations made during this period share the same fundamental characteristics. They were politically framed and – with the exception of the Sabra and Shatila massacres – they were patently ignored. This practice can raise interesting questions about whether there is a higher threshold for the substantiation of claims raised through Art. VIII of the Genocide Convention compared to the general right of reference under Art. 35 of the UN Charter. On the other hand, such a possibility does not alter the conclusion: at that time states were at liberty to ‘cry wolf’ or genocide without incurring responsibility for their abusive use of the term. A false or abusive claim was ignored or reinterpreted as a claim against aggression (p. 207) and like Aesop’s shepherd boy, alleging states were given a moral sanction as the UN and the international community shrugged their unsubstantiated claims off.
However, this situation has been effectively challenged by recent developments between Ukraine and Russia. Russia has made baseless allegations claiming that the Kyiv government is guilty of genocide committed against ethnic Russians in Ukraine since 2014. Moreover, on 29 September 2014 Russian authorities launched a federal investigation against Ukrainian nationals focused on alleged violations of the provisions of the Russian federal criminal code on genocide (Art. 357) and of the Genocide Convention. Finally, on 23 February 2022, President Putin repeated his country’s g-claim against Ukraine offering yet another false justification for attacking the territory of this state and breaching Art. 2(4) of the UN Charter. Despite the banality and absurdity of the Russian accusation, which has been around for more than five years, what followed was neither expected nor banal. Ukraine, based on Art. IX of the Genocide Convention instituted proceedings against Russia, claimed
that the Russian Federation’s declaration and implementation of measures in or against Ukraine in the form of a “special military operation” declared on 24 February 2022 on the basis of alleged genocide, […] violates Ukraine’s right to be free from unlawful actions, including military attack, based on a claim of preventing and punishing genocide that is wholly unsubstantiated (para 26).
Ukraine argues that the Convention and especially Arts I, II & III combined with the general principle of good faith in the interpretation and application of a treaty (Arts 26, 31 VCLT) establish a duty of sincerity when a state invokes the Convention. As a result, an abusive claim based either on a false interpretation of the Convention or a false account of the underlying facts is a breach of the law and as such it should be remedied. Put it otherwise, the Convention can be breached directly, for example when a state commits genocide (paras 166-167). However, another type of violation is also feasible. This type of violation is called an ‘abuse of right’ (AOR). Generally speaking, AOR transforms an ostensibly lawful but in mala fide exercise of a right into wrongful conduct (p. 71). The underlying assumption (p. 384) is that such an exercise breaches the principle of good faith, distorts the socio-legal object and purpose of international rights, and causes injury to fellow members of the international community.
AOR has a long doctrinal history in international law. The principle received some attention when the statute of the Permanent Court of International Justice (PCIJ), now known as the International Court of Justice (ICJ) was drafted (p. 315). Moreover, the World Court (PCIJ/ICJ) has considered its application on certain occasions. Nevertheless, its practical scope and content remain vague. For example, there is a long-standing controversy about what kind of international rights can be abused. Hersch Lauterpacht argued that all rights recognized by international law can be abused. Conversely, Nicolas Politis opined that only unconditional rights implying the exercise of wide discretionary powers by right-holding states can be abused. In any case, more recent jurisprudence seems to support a wider application of the principle (para 158) and this is commonly accepted as the correct interpretation of the law.
In Ukraine v. Russia, it appears that AOR has taken a special form (para 5), that of détournement de pouvoir since, as Ukraine observes (p. 39), Russia distorted the scope of its rights under the Convention and exercised them in striking disharmony with the latter’s object and purpose. Consequently, the scope of the rights which Russia abused need to be addressed.
Every state party to the Genocide Convention has a right to bring international attention to a potential occurrence of genocide (Arts I and VIII). This right can be referred to as the ‘right to denounce’ the perpetration of genocide. It both logically and systematically (Art. VIII) implies that states can voice their concerns or articulate allegations against another state party when they believe in good faith that the state in question is responsible for genocide.
The aforementioned right is closely connected to the duty of all states to prevent and stop the commission of genocide. To elaborate, under Art. I states have a right (and a duty) to ‘employ all means reasonably available to them, so as to prevent genocide so far as possible […] within the limits permitted by international law’ (para 430). This right should of course be exercised in accordance with the object and purpose of the Convention. If this principle is combined with the doctrine of AOR, it can be argued that states have a right to raise their concerns regarding a possible occurrence of genocide, but only if they act in good faith and provided they respect the object and purpose of the Convention. Additionally, it should be noted that under the doctrine of AOR a g-claim publicly raised, insofar as it entails an abusive exercise of the right to denounce, results in an immediate breach of the Convention.
Russia as a state party evidently has the right to denounce. However, it exercised its right abusively vis-à-vis Ukraine since (a) it based its claim on a false/falsified account of the facts and (b) it used this right not to protect an alleged beneficiary (e.g. a national or ethnic group) but to offer another flimsy justification for aggression. Furthermore, Russia’s AOR is continuous in nature, extending over a significant period of time (2014-2022). It is also reasonable to submit that Russia abused its rights under the Convention even prior to the invasion and that Ukraine suffered significant moral damage due to these allegations even before becoming the target of Russian aggression.
Given the nature of the damage caused to the reputation of the territorial state, Ukraine’s request for a negative declaratory judgment, i.e. that genocide is not taking place in its territory, is both reasonable and justified. One may argue that a claim of reparations for moral damage is also well-founded. That being said, most of the other remedies requested by Ukraine seem to go beyond the scope of the Genocide Convention and its Art. IX.
According to the applicant, the invasion was the result of Russia’s abusive exercise of the rights to denounce and prevent genocide. Therefore, both the false g-claims and the acts of aggression constitute a violation of the Genocide Convention. This is a bold assertion and inverting the factual background of the situation explains why. Let us assume (and only assume) that Russia did not abuse its rights under Art. I when it accused Ukraine of genocide and sought to prevent or stop the commission of the crime.
In this hypothetical scenario, does the non-abusive exercise of Russia’s rights under the Convention have anything to do with the illegality of its subsequent acts? From a jus ad bellum point of view, an attack is still unlawful even when committed to prevent or stop the perpetration of genocide. A state which invades the territory of another state to exercise its right/duty to prevent genocide does not act ‘within the limits permitted by international law’, as the ICJ held in Bosnian Genocide (para 430). From a phenomenological perspective, the attack might seem like a consequence of the invocation of the right to denounce or prevent, but legally it lies beyond the scope of the Convention. It is a breach of Art. 2(4) of the Charter and the applicable norms of customary international law.
Based on Ukraine’s argument, Russia’s wrongful conduct, which is justiciable under Art. IX of the Genocide Convention, does not only include the abuse of conventional rights, namely the rights to denounce and prevent, but also every unlawful act performed by Russia in relation to the abusive exercise of such rights. This is so regardless of whether such subsequent acts fall within the scope of the Genocide Convention or not. Put it otherwise, Russia’s abuse of its rights under the Convention – according to this interpretation – encompasses not only those acts envisaged by the Convention, which are rendered unlawful due to the abuse, but any act performed by Russia in relation to its false and abusive g-claims, including notably unilateral humanitarian intervention, whose legality is rightly disputed.
This interpretation has far-reaching effects, since it indirectly incorporates the logic of unilateral humanitarian intervention into the Genocide Convention. Moreover, it elides the differences between the duties (and rights) created by two distinct regimes, the law on genocide and the law on aggression. Ukraine rightly submits that Russia abused its rights under the Genocide Convention. However, this conduct is illegal because it is based on an abusive exercise of an existing conventional right and is necessarily limited by the scope of the said right. To give but one example, which Ukraine has also mentioned (p. 29): if Russia had chosen to seize the UN Security Council under Art. VIII, then the doctrine of AOR would have rendered unlawful this conduct as well. Russia’s aggression has of course immense evidentiary significance. It proves beyond doubt the abusive animus of this state. Nevertheless, aggression as such does not constitute a violation of the Convention, because the underlying conduct (unilateral intervention) is not covered by the scope of the conventional right which Russia abused.
As a result, it is doubtful whether Ukraine’s claims vis-à-vis the consequences of Russian aggression can be addressed by the ICJ under Art. IX. This provision deals with the interpretation, application, or fulfilment of the Genocide Convention. As the ICJ noted in Bosnian Genocide, Art. IX does not empower the Court to ‘rule on alleged breaches of other obligations’ not covered by the Convention ‘even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes’ (para 147). Aggression does not pertain to the interpretation, application, or fulfilment of the Convention. It is an act of gross illegality which costs millions of lives, but the Convention does not deal with it and it does not envisage unilateral forceful intervention, the underlying conduct of aggression, as an enforcement mechanism.
This is so even if we accept that the abusive exercise of the right to denounce and prevent genocide is Russia’s sole justification for attacking Ukraine. However, it should be recalled that Russia used many grounds ranging from self-defense to ‘denazification’, self-determination, intervention by invitation, and genocide prevention to justify its aggression. Despite Ukraine’s assertions (p. 20), there is no exclusive causal link between the false g-claim and the invasion. All the more since Russian allegations of genocide date back to 2014.
Russia should, without a doubt, incur responsibility not only for its breach of the fundamental rules against the use of force, but also for its abuse of the important rights enshrined in the Genocide Convention. Aesop’s moral sanction will not suffice this time. Ukraine has every right to submit that states are not allowed to ‘cry wolf’ anymore and that they are certainly not entitled to invade the territory of a sovereign country to defend their false claims. However, we should keep in mind that the Genocide Convention cannot be used to fight all the ‘wolves’ every time they attack.