Asking the Improper Question and then Tackling it with an Improper Solution?: The ICJ’s Flawed Analysis on Jurisdiction ratione materiae in the Ukraine-Russia Genocide Convention Case

This article critically examines the ICJ’s 2024 Allegations of Genocide (Ukraine v. Russia) preliminary objections judgment’s analysis on the Court’s jurisdiction ratione materiae based on the compromissory clause of the Genocide Convention. In this decision, the majority opinion adopted a narrow construction of Ukraine’s claim regarding Russia’s misapplication of the Convention, and then applied to that narrowly constructed claim a jurisdictional test that modifies the Oil Platforms test by adding a ‘capability requirement’ to that test, thus heightening the bar on the Court’s exercise of jurisdiction based on compromissory clauses. The dissenting opinion did not meaningfully challenge the majority’s analytical framework, instead focusing on the specific application of the majority’s jurisdictional test to Ukraine’s claim as constructed by the majority. This interaction between the majority and dissenting opinions caused the scope of the Court’s deliberation on jurisdiction concerning Ukraine’s aforementioned claim to be confined to the narrow debate on whether certain rules of general international law were incorporated into the Convention. This article argues that the majority’s analytical framework on jurisdiction, which was generally acquiesced by the dissenting opinion, is flawed. The analytical framework is flawed for two reasons, both of which were extensively raised in Judge Charlesworth’s separate opinion. First, it is flawed because it unjustly narrows the scope of Ukraine’s claim regarding Russia’s misapplication of the Convention, thus misleading the Court to applying the Oil Platforms test even to parts of the claim that fall outside the object of that test. And second, it is flawed because the majority’s revision of the Oil Platforms test into a test additionally embodying a ‘capability requirement’ unjustly conflates the preliminary stage with the merits stage by pre- judging at the preliminary stage questions that should be assessed at the merits stage. Based on this examination, this article argues that had the Court properly constructed the scope of Ukraine’s claim regarding Russia’s misapplication of the Convention and had it selected the proper jurisdictional tests to be respectively applied to each part of that claim, it would have concluded that it could exercise jurisdiction ratione materiae under the Convention’s compromissory clause for the entirety of that claim.