Oral arguments against Russia's invasion were presented by Ukraine at the International Court of Justice at The Hague, Netherlands, on March 7.Frank van Beek/Getty Images
Russia sent the world a loud message by failing to show up for an emergency hearing at the International Court of Justice on Monday, as Ukraine argued that President Vladimir Putin’s war against it is built on a lie, says Harold Hongju Koh, counsel for Ukraine.
The message: “They don’t really have a defence,” the former Yale University law dean told The Globe and Mail on Monday night.
The empty Russian table was conspicuous as the court, the principal legal body of the United Nations in The Hague, heard Prof. Koh and several other members of Ukraine’s legal team lay out their case for an order that hostilities cease immediately. The immediate result of the no-show is that a hearing set for two days ended in one. And a decision could come faster than it would have otherwise, as Russia is not expected to submit arguments that the court lacks jurisdiction. Prof. Koh says it could come in a week or two.
In an interview, Prof. Koh said he believes in the power of law, even at a time when bombs are falling on Ukrainian civilians and more than 1.5 million people have left their country to seek refuge.
“They’re fighting a battle on the field of war and the Ukrainians are defending on the field of law,” he said, citing a colleague’s statement to the ICJ. “That’s the Russian approach to the world. But there’s a limit to their power. The idea that even powerful nations are not bound by law is misjudging the extent of their power.”
How did Russia’s invasion of Ukraine unfold? A timeline in maps
Ukraine argues that Russia created a false justification for its invasion when Mr. Putin said a genocide was under way in regions of eastern Ukraine. It is asking for an injunction before irreparable harm is done, pending a full hearing of a dispute over whether a genocide is occurring.
“His lies created the jurisdiction,” Prof. Koh said. The UN’s 1948 Genocide Convention, of which both countries are members, allows for disputes to be settled at the ICJ. Without Mr. Putin’s accusation of genocide, the court would not have been able to hear Ukraine’s argument that the war is illegal and must be stopped.
“They made a mistake and that created an opening,” Prof. Koh said.
Ukraine’s hopes to “neutralize the veto” that Russia has as one of five permanent members of the UN Security Council. If the ICJ rules that a dispute exists between Russia and Ukraine, Russia could lose its veto over certain UN actions, Prof. Koh said. He did not wish to address what actions might be possible. But the Security Council will be informed of any ruling.
He described the case as a watershed moment for the post-Second World War legal order. “Can a permanent-five member deliberately wage an aggressive war and get away with it, or will the court do anything about, and will the UN do anything about it?”
The ICJ must decide whether there is “plausible evidence” – first, of whether a genocide against ethnic Russians is underway in eastern Ukraine. “If someone goes to the court and says the sky is green and there’s no proof of that, they can find as a matter of fact there’s no plausible evidence,” Prof. Koh said, adding that the bombs falling around a nuclear reactor provided evidence of the risk of irreparable harm.
Prof. Koh, who once served as legal adviser to the U.S. State Department under then-president Barack Obama, a position that required Senate confirmation, said the case has personal meaning for him. His native country of Korea, he said, was colonized for 45 years by Japan, and his parents grew up under colonial rule. “They were not even allowed to speak the language of their home country.” His father and mother later became the first of Asian descent to teach at Yale Law School, he has said.
“I don’t like human bullies and I don’t like countries that bully their neighbours. I really do not believe that might makes right.”
He described himself as an optimist.
“My dad was born in a little island off the coast of Korea. He got to the United States and met my mother. We were able to live here. I had polio as a boy. At various points I didn’t know if I would be able to walk. … Also I root for the Boston Red Sox. They were terrible for so many years and then suddenly they won four times. So I’m a believer in what goes around comes around. Sooner or later things turn in the right direction.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
Sean Fine