Allegations of Genocide under the Convention on the Prevention and

Punishment of the Crime of Genocide (Ukraine v. Russian Federation),

Admissibility of the Declarations of Intervention,
Order of 5 June 2023, ICJ Rep 354 (ICJ 2023)

FACTUAL BACKGROUND
Prior to the invasion of Ukraine on 24 February 2022, Russia alleged that Ukraine was
committing genocide against Russian-speaking communities in Donetsk and Luhansk. These
claims were invoked by Russia as a justification for the use of force. Ukraine denied the
allegations, asserting that they were unfounded and constituted a misuse of the Genocide
Convention.

PROCEDURAL HISTORY
On 26 February 2022, Ukraine instituted proceedings against the Russian Federation under the
Genocide Convention and requested provisional measures, which the Court partly granted on 16
March 2022, ordering Russia to suspend its military operations. Following the filing of the
Memorial of Ukraine on 1 July 2022, 33 States submitted 32 declarations of intervention under
Article 63 of the Statute of the Court. The Russian Federation objected to the admissibility of all
those declarations, leading to the Court’s Order of 5 June 2023.

LEGAL ISSUES

I.​ Whether intentions of the States are relevant to the admissibility of the declarations.
II.​ Whether participation of numerous intervening States, aligned with one party,
undermines equality of the Parties and the good administration of justice
III.​ Whether the fact that several judges are nationals of intervening States affect impartiality.
IV.​ Whether filing declarations of intervention after public statements of support for one
party amount to an abuse of process, justifying inadmissibility.
V.​ Whether an intervention under Article 63 may deal with matters of jurisdiction.
VI.​ Whether States may intervene at the preliminary objections stage of the proceedings.
VII.​ Whether declarations of intervention assume that the Court already has jurisdiction and
that the Application is admissible, thereby prejudging the preliminary objections.
VIII.​ Whether a State that has entered a reservation may nonetheless intervene.
IX.​ Whether a joint declaration of intervention is admissible.

ARGUMENTS OF THE PARTIES AND POSITION OF THE MAJORITY

Ukraine argued that the Declarations of intervention are admissible, given that they meet all the
requirements set out in Article 63 of the Statute and Article 82 of the Rules of Court. Moreover,
Declarations of intervention concern the construction of relevant provisions of the Genocide
Convention and that the intentions of the declarant States are irrelevant to the admissibility of the
Declarations.
The Russian Federation raised objections with respect to all the Declarations of intervention.
The Russian Federation’s objections Reasoning of the majority

With respect to all the declarations of intervention

A.​ Intention behind the declarations The Court’s task is limited to ascertaining
The real object of the interventions is not the whether declarations concern interpretation of
construction of the Genocide Convention but a convention; State’s motivation is not
the pursuit by the declarant States of a joint relevant for the purposes of the admissibility.
case with Ukraine, such that they become de Similarity with Ukraine’s views does not
facto co-applicants. constitute a reason to find that the
declarations inadmissible.

B.​ Infringement of the equality of the Since the intervening State can only submit
Parties and the good administration of observations on the construction of the
justice convention, it does not become a party to the
Since the declarant States align themselves proceedings. Such an intervention did not
with and represent the same interest as affect the equality of the parties to the dispute.
Ukraine, the admissibility of their declarations Limitation of the number of intervening States
would force the Russian Federation to would encroach on their right to intervene.
respond not only to Ukraine’s arguments but The fact that some judges on the Bench are
also to those of 33 de facto co-applicants. nationals of States seeking to intervene cannot
Furthermore, seven of the sixteen judges on affect the equality of the Parties. In any event,
the Bench are nationals of States seeking to all judges are bound by their duty of
intervene. impartiality.

C.​ Abuse of process The Court’s task is not to look into the
Procedure of intervention is used in a manner motivation or intention of the declarant State,
wholly alien to its purpose, with the aim of but rather to ascertain whether the declaration
causing harm to the Russian Federation. of intervention relates to the interpretation of
States, which filed declarations after publicly the convention.
stating their intention to support Ukraine’s In the present case there are no exceptional
case before the Court, do not seek in good circumstances that would render the
faith to put before the Court their positions as declarations of intervention inadmissible.
to the proper construction of the Convention.

D.​ Inadmissibility of the declarations of Article 63 of the Statute and Article 82 of the
intervention at the preliminary Rules do not restrict the right of intervention
objections stage to a particular phase of the proceedings, or to
Since the Court has not yet ruled on the a certain type of provision in a convention.
existence of a dispute in the present case, its States may intervene at the preliminary
subject-matter and the provisions of the objections stage when the interpretation of
Convention that may be in question, the provisions relevant to jurisdiction is in
declarant States cannot show that their dispute, such as the construction of Article IX
intervention is directed at the construction of of the Genocide Convention.
provisions in dispute.

E.​ Declarations of intervention The construction of provisions relating to the

presuppose the Court’s jurisdiction jurisdiction of the Court may be in question in
and the admissibility of Ukraine’s the preliminary objections phase. When a
Application declaration of intervention concerns both the
If the Court allows the declarant States to jurisdiction of the Court and the merits of the
intervene at this stage, it will, in substance, be case, the Court will only take into account the
prejudging the preliminary objections. elements relevant to determining jurisdiction.

F.​ Intervention cannot concern the Intervention under Article 63 may concern
construction of compromissory any provision of the construction.
clauses
Article IX of the Genocide Convention, which
does not concern a substantive right, cannot
constitute the subject-matter of a dispute.

G.​ Declarations of intervention go To the extent that some declarations address

beyond the construction of the matters besides construction of the provisions
Genocide Convention of the Genocide Convention (such as the
Declarations seek to address issues unrelated existence of a dispute between the Parties, the
to the construction of the Genocide evidence, the facts or the application of the
Convention, and that their admission would Convention in the present case) the Court will
prejudge questions relating to the Court’s not consider them.
jurisdiction ratione materiae.

With respect to the joint declaration of intervention of Canada and the Netherlands

Joint declarations of intervention are not There is nothing in the Statute or the Rules
envisaged by Article 63, par 2, of the Statute preventing States from filing a joint
and Article 82 of the Rules of Court, since declaration of intervention. In fact, the joint
these provisions refer to the intervention of a presentation of shared views can advance the
State in the singular. good administration of justice

With respect to the declaration of intervention of the United States

Reservation to Article IX of the Genocide When a State seeks to intervene under Article
Convention made the declaration 63 but is not bound by a provision of the
inadmissible: (1) Article 63 applies when both convention due to a reservation, its
 the provisions and compromissory clause are declaration cannot be found admissible in
in force between the intervenor and the respect of the construction of that provision
parties; (2) a jurisdictional link is required; because such a reservation bars it from having
and (3) intervention must respect reciprocity. a “special interest” in the interpretation.

HOLDING
The Court decides that the declarations of intervention under Article 63 of the Statute are
admissible at the preliminary objections stage of the proceedings in so far as they concern the
construction of Article IX and other provisions of the Convention on the Prevention and
Punishment of the Crime of Genocide that are relevant for the determination of the jurisdiction
of the Court;
Decides that the declaration of intervention under Article 63 of the Statute submitted by the
United States of America is inadmissible in so far as it concerns the preliminary objections stage
of the proceedings;

DECLARATION OF VICE-PRESIDENT GEVORGIAN

Article 63 of the Statute leaves no discretion to reject procedurally compliant interventions, yet
the Vice-President expresses concern about the impact mass intervention strategy may have upon
the equality of parties. The Court should have analysed more carefully whether the equality of
parties may be compromised to an extent that the sound administration of justice would require
the rejection of otherwise admissible declarations. While recognizing the Court’s reluctance to
invoke “abuse of process” given its precedential implications, he regrets that many declarations
exceed the interpretative limits of Article 63 and risk exerting political pressure on the Court.

DISSENTING OPINION BY JUDGE XUE

The questions of jurisdiction and admissibility fall within the domain of judicial functions of the
Court. It is for the Court to decide whether or not it has jurisdiction in the case. Moreover, in
cases of mass intervention, the Court should be mindful of the principle of equality of the parties
to ensure good administration of justice and must assess whether the object of each declaration
truly concerns treaty interpretation. Furthermore, Article 63 intervention should be neutral and
objective, the intervener should not take sides with either of the Parties. Since as a preliminary
matter, the Court shall first adjudicate whether there exists a dispute that falls within the
jurisdiction ratione materiae, compromissory clauses normally do not give rise to intervention.
Interpretation of Article IX cannot be isolated from other provisions, totally detached from the
interpretation of substantive articles and the facts of the case. All declarations, in fact, concern
the merits of the case and must be examined and ascertained by the Court on the basis of facts
and evidence in accordance with the provisions of the Convention which do not concern matters
of the construction of the treaty. This explains why confining Article 63 intervention to
substantive provisions at the merits phase would be a fair approach. She stresses that it is not
enough that justice is done. Justice must also appear to be done.
DECLARATION OF JUDGE BHANDARI
He addresses the timing of declarations and notes that the words “as soon as possible” in Article
82 of the Rules should be interpreted strictly. Otherwise, the ongoing submission of declarations
of intervention could strain the Court’s time and resources.

DECLARATION OF JUDGE ABRAHAM

He agrees with the Court’s denial of the United States’ request to intervene under Article 63 of
the Statute, since the U.S., by reserving itself from Article IX of the Genocide Convention, has
no legal interest in its interpretation. Article 63(2), which provides that an intervening State is
“equally bound” by the Court’s interpretation of a multilateral treaty, must be understood as
producing binding effect only where the interpretation also binds the parties. Under Article 59 of
the Statute and the principle of res judicata, only the operative part of a judgment is binding,
while treaty interpretations made incidentally in the reasoning form part of the Court’s
jurisprudence but lack binding force. A distinction must be drawn between incidental
interpretations, which are persuasive only, and cases where treaty interpretation is the very
subject of the dispute and appears in the operative clause, in which case it is binding on the
parties and, pursuant to Article 63(2), also on intervening States. In the present case, the United
States cannot be bound by an interpretation of Article IX, a provision it has excluded itself from,
and any construction of the Genocide Convention in this dispute will most likely be incidental
and therefore not binding under Article 63(2).

CRITICAL EVALUATION
The Court’s reasoning raised at least two problems. Firstly, the declarations clearly went beyond
the construction of the Convention and real object of the intervention was to act as de facto
co-applicants, arguing that the Respondent’s allegation of genocide was unfounded and that it
violated the Genocide Convention. This type of intervention did not serve the purpose of Article
63 intervention and admitting these declarations despite their excessive scope will open the door
for future abuse of Article 63.
Secondly, the declarations threatened to compromise the equality of the parties and the good
administration of justice. Although the ICJ affirmed that it would not consider any arguments,
evidence, facts or rules of international law outside the Genocide Convention, one could not have
failed to recognise the political pressure that 33 intervening declarations imposed upon the Court
and the respondent. The extra work burdened upon Russia proves that intervention may infringe
on the equality of the parties.
An alternative approach, as suggested by Judge Xue, would have been to confine Article 63
interventions to the merits phase, when the construction of substantive provisions can be more
clearly distinguished from jurisdictional disputes.
CONCLUSION
The Court adopted a formalistic approach by confining its reasoning to the text of Article 63 of
the Statute and the Rules of Court, overlooking the real object and purpose of intervention under
Article 63. A more prudent approach would have been for the Court to first determine whether a
dispute existed between the Parties and whether it had jurisdiction ratione materiae before
admitting interventions.
Recent amendments to the Rules reflect the Court’s awareness of the difficulties generated by the
Ukraine v. Russia proceedings and its attempt to avoid similar scenarios. However, the time
limits and the retention of the Court’s discretion to decide whether an intervening State may
participate in the oral proceedings remain of limited effectiveness. The Court should have
established substantive criteria for assessing whether an intervening State should be permitted to
participate in the hearings such as considering how State’s submissions will be useful to the
Court and differ from those of the other parties. Otherwise, interventions aimed primarily at
expressing political solidarity would undermine the neutrality of the process. Ultimately, the
tension between preserving the equality of the parties and safeguarding the right of States to
intervene remains unresolved.