INTERNATIONAL COURT OF JUSTICE
WRITTEN OBSERVATIONS
OF THE FEDERAL REPUBLIC OF GERMANY
ON THE ADMISSIBILITY OF ITS DECLARATION OF INTERVENTION
13 Febmary 2023
In the case of
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
2
I. Introduction
1. On 1 September 2022, the Federal Republic of Germany (“Germany”)
submitted to the Court a Declaration of Intervention pursuant to Article 63
paragraph 2 of the Statute of the Court in the Case concerning The A.lkgations of
Genocide under the Convention on the Vrevention and Tunishment of the Crime of Genocide
(Ukraine v. Tussian Federation).
2. Germany submits the present observations on the admissibility of its
Intervention pursuant to the letter of the Registrar dated 31 January 2023. The
observations are submitted in reaction to the Russian Federation’s Written
Observations on the admissibility of the Declaration of Intervention of Germany
and others, filed on 17 October 2022 (hereafter: “Russian Written Observations”),
and in light of the Written Observations of Ukraine on the Declaration of
Intervention of Germany, of the same date.
3. In its Written Observations, the Russian Federation has challenged the
admissibility of the Declarations of Intervention of a number of States, including
Germany, on the following grounds:
(a) ... the interventions are not genuine: their real object is not the
construction of the relevant provisions of the Genocide Convention, as
required by Article 63 of the Statute, but rather pursuing a joint case
alongside with Ukraine as de facto co-applicants rather than non-parties.
(b) ... the participation of the Declarants in these proceedings would result
in a serious impairment of the principle of equality of the parties to the
detriment of the Russian Federation and would be incompatible with the
requirements of good administration of justice.
(c) ... the Court cannot, in any event, decide on the admissibility of the
Declarations before it has made a decision on the Preliminary Objections,
and that the Declarations address matters that presuppose that the Court has
jurisdiction and/or that Ukraine’s Application is admissible.
(d) ... the Declarations should be equally declared inadmissible because the
Declarants seek to address issues unrelated to the “construction” of the
Genocide Convention, such as the interpretation and application of other
rules of international law and several questions of fact, which is incompatible
with the limited object of Article 63. Furthermore, allowing the Declarants
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to intervene on such matters at this stage would prejudge the question of the
Court’s jurisdiction ratione materiae.1
4. Germany considers that it has fully complied with the admissibility
requirements ander Article 63 of the Statute and 82 of the Rules of the Court. As
indicated in para. 21 of its Declaration of Intervention, Germany became a party to
the Genocide Convention. Moreover, it has announced to the Court in paras. 22 ff.
of the Declaration of Intervention its intention to contribute to the interpretation of
Article IX of the Genocide Convention. In doing so, Germany has refrained from
making any Statements that could be regarded as an attempt to go beyond mere
interpretation of the Convention. Accordingly, Germany has neither the same
interest in the dispute as Ukraine nor arrogated itself any other right that is reserved
to a party to the dispute.
5. In the present observations Germany will confine itself to reacting to
the Russian Written Observations, without repeating or elaborating upon the
arguments put forward in its Declaration of Intervention.
II. Germany’s Intervention complies with the requirements of Article 63 of
the Statute and is £<genuine”
6. The Russian Federation’s first objection is that Germany’s intervention
was not genuine, i.e. not related to the subject-matter of the pending dispute. The
Russian Federation refers to the Haya de la Tom case,2 arguing that for an intervention
to be admissible, the Party should be recognised to have a “genuine intention” to
address the construction of the Convention in question.3 Quoting several political
Statements in paragraphs 15-29 of its Written Observations, the Russian Federation
takes issue with the fact that the intervention was allegedly part of a concerted
political strategy to help Ukraine in the case. This, in the view of Russia, revealed an
intention of Germany to become a de-facto co-complainant.
1 The Russian Federation's Written observations on admissibility ofthe Declorotions of intervention submitted
by France, Germany, Itoly, Lotvia, Lithuonia, New Zealond, Poland, Romania, Sweden, the United Kingdom and
the United States, 17 October 2022, para 9 (hereafter: "Russian Written Observations").
2 Hoya de la Torre Case, Judgment of June 13th, 1951:1.C.J. Reports 1951, p. 71, pp. 76-77.
3 Russian Written Observations, para 14.
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7. The Court has clearly stated that the Intervention under Article 63 of
the Statute is only subject to the conditions of the Statute and Rules of the Court, as
verified by the Court itself.4 Such conditions are: (a) that the State willing to intervene
is a Party to the Convention in question; (b) that the Declaration of Intervention
addresses the construction of the convention in question; and (c) that the Declaration
complies with the formal requirements under Article 82 of the Rules of the Court.5
8. The Court’s case law on Article 63 confirms that there are no further
conditions pertaining to the admissibility of the intervention apart from those
referred to above.
9. The Court has used the expression of “genuine intervention,, in Haya
de la Torres6 to describe how it operated the objective test of finding out whether the
object of the intervention of Cuba was the interpretation of the Havana Convention
(a “genuine” intervention) or an attempt to re-litigate another case (not a “genuine”
intervention). However, contrary to the Russian observation in paragraph 14, the
Court did not consider the text of the declaration and the context within it had been
filed to establish the “genuine Intention' of Cuba. This semantic shift from an
objective test (was the intervention “genuine”?) to a subjective test (was the
government’s intention “genuine”?) does not have any basis in the case law of the
Court. Accordingly, the decisive question is whether Germany has a genuine interest
in the constructioii of the Genocide Convention in the present case. The political
context in which Germany decided to submit its declaration of intervention is legally
irrelevant. As a party to the Genocide Convention, Germany has a genuine interest
in how the Genocide Convention and in particular, its Article IX, is being interpreted
when it comes to allegations of genocide. It follows from the international
community’s common interest in the rights and duties enshrined in the Convention
and their erga omnes character that all States parties have an interest of their own in
the proper interpretation, application and fulfilment of those obligations. Besides,
Germany has stressed in para. 14 of its declaration that, given its own past, it has a
specific interest in supporting the Court in upholding the integrity of the Genocide
Convention. Any government’s political motivation for intervening in a case before
4 Whaling in the Antorctic (Austrolia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, l.C.J. Reports 2013, p. 3, para 8.
5 A Miron, C Chinkin, 'Article 63', in A Zimmermann etal (eds), The Statute ofthe International Court of Justice:
A Commentory (3rd edn; OUR 2019) 1741, 1752 ff.
6 Haya de la Torre Case, Judgment of June 13th, 1951, l.C.J. Reports 1951, p. 71, at p. 77
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the Court has nothing to do with the prerequisites for admissibility. It suffices that
as a State party to a Convention it States the constmction of the provisions of a
Convention in question for which it contends. Germany has demonstrated a genuine
interest in the Court exercising its jurisdiction regarding the interpretation of the
Convention.
IIL Germany’s intervention does not impair the principle of equality of arms
10. In its second argument, the Russian Federation pleads admitting the
intervention would be incompatible with the equality of the Parties and the
requirements of good administration of justice.
11. In Whalingin the Antarctic Judge Owada gave some credence to the idea
of an effects test to restrict the admissibility of an intervention, as quoted extensively
in paragraphs 36-38 of the Russian Submission. However, he remained isolated with
his position in the bench. The Court itself dismissed the very idea that an intervention
would affect the equality of parties if it stays within the limits drawn by Article 63
ICJ-Statute. When admitting New Zcaland’s intervention, it mied7:
“18. Whereas the concems expressed bj Japan re late to certain procedura! issues
regarding the equality of the Parties to the dispute, rather than to the conditions for
admissibility ofthe Declaration of Intervention, as set out in Article 63 of the Statute
and Article 82 of the Kules of Court; whereas intervention under Article 63 of the
Statute is limited to submitting observations on the constmction of the Convention in
question and does not allow the intervenor, which does not become a party to the
proceedings, to deal with any other aspect of the case before the Court; and whereas
such an intervention cannot affect the equality of the Parties to the dispute;
19. Whereas New Zealand has met the requirements set out in Article 82 of the
Kules of Court; whereas its Declaration of Intervention falls within the provisions of
Article 63 of the Statute ; whereas, moreover, the Parties raised no objection to the
admissibility of the Declaration ; and whereas it follows that New Zealand’s
Declaration of Intervention is admissible”.
12. In other words, the Court confirmed that a proper declaration of
intervention under Article 63 of the Statute, which is limited to submitting
7 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013,1.C.J. Reports 2013, p. 3, at p. 9, paras. 18-19.
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observations on the constmction of the convenüon in question, cannot affect the
equality of the Parties per se.
13. While acknowledging the existence of this order (para. 37), Russia takes
issue with the fact that the high number of interventions would nevertheless raise an
issue of representativeness in the bench under Article 31(5) of the Statute (paras. 39-
43) and become “unmanageable” for itself and the Court (para. 45). Admitting
several interveners would also mn “entirely against the Court’s previous practice of
admitting only one intervener per case” (para. 49). However, contrary to the Russian
assertions expressed in paragraphs 36-48, the Court’s order in Whalingin the A.ntarctic
also presents good law when the Court faces a Situation of several interveners.
14. First, the assertion that the Court admitted only one intervener per case
is misleading. To the best knowledge of Germany the Court has never refused a
declaration of intervention with the reasoning that it had already allowed the
intervention of another State, and allowing a second one would therefore be
inadmissible.
15. Second, such an approach would also be manifesdy arbitrary. The Court
has no power to declare an intervention inadmissible because another State had
already done so before. Such a restriction would direcdy encroach of the “right of
intervention” of every State party to a Convention whose construction is at issue. It
may well be the case that States were cautious to exercise this right in the past, leading
to very few interventions in the history of the Court so far. However, that is a pure
matter of policy. According to the law, all State parties have the right to intervene
under Article 63 of the Statute at the same time, if they wish to do so. Under the
Genocide Convention, all State Parties can even invoke the responsibility of another
party for a breach of its obligations erga omnes to institute proceedings against the
other party8. In such a Situation, when the treaty embodies matters of collective
interest, the late Judge Cancado Trindade called upon all State Parties to contribute
to the proper interpretation of the treaty as sort of a “collective guarantee of the
observance of the obligations contracted by the State parties”9. In the present case,
the fact that many other States feit the need to share their interpretation of the
8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 36, paras. 107-108.
9 Separate Opinion of Judge Canpado Trindade, attached to Whaling in the Antarctic (Australia v. Japan),
Declaration of Intervention ofNew Zealand, Order of 6 February 2013, I.C.J. Reports 2013, p. 33, para 53.
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Genocide Convention with the Court cannot deprive Germany of its right to
intervene under Article 63 of the Statute on this important matter.
16. Third, it is a direct and inevitable consequence of numerous
interventions that several Judges on the bench may hold the same nationality as one
of the intervening States. However, that does not infringe upon the equality of the
parties in the case. As recalled by the Court in para. 18 of its order in the Whaling
case, the interveners do not become party to the proceedings. Therefore, Articles 31
(5) of the Statute, and Articles 32 and 36 of the Rules, as quoted by the Russian
Federation, do not apply. Moreover, all Judges at the Court are in any event bound
to impartiality in accordance with Article 20 of the Statute, irrespective of whether
there are interventions in a case or not.
17. Fourth, Germany reckons that the number of interveners in the present
case is unprecedented and may indeed present new organisational challenges to the
Court. In line with Article 30(1) of the Statute, the Court enjoys large discretion to
organise the proceedings. Germany welcomes the decision of the Court to establish
a written procedure for hearing the States seeking to intervene with an identical
deadline for all in order to streamline the process. In order to help in the good
administration of justice, it also reiterates its willingness to coordinate its further
action before the Court with other interveners, in particular other EU Member
States, to contribute to an effective management of time of the Court and both
parties.
IV. Germany is entitled to intervene under Article 63 of the Statute at the
jurisdictional stage
18. In its third argument, the Russian Federation maintains that the Court
has never allowed interventions at the preliminary stage of the proceedings in which
the jurisdiction of the Court or the admissibility of an application were challenged.
19. In paras. 50-52, it quotes six cases in Support. In the first three instances
(Isiilitary and Paramihtary Activities^ Nuclear Tests and Nuclear Tests (Kequest for
Txamination), the Court is said to have discarded interventions in the respective
phases relating to jurisdiction or admissibility. In the second three instances (Haya de
la Tom, Whaling in the Antarctic and Wimbledon), the Court accepted interventions
within the main phase, because — according to Russia in para. 51 — the jurisdiction
was not challenged in a separate stage.
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20. It appears that Russia draws from this practice a duty of the Court to
refrain from deciding on the admissibility of the interventions before considering
Russia’s preliminary objections filed on 3 October 2022 regarding the jurisdiction of
the Court and the admissibility of Ukraine’s Application.
21. However, the only precedent mentioned by the Russian Federation,
which might he relevant to the present proceedings, is the Military and Paramilitary
Mctipities case. Here, however, the Russian Written Observations contain a misleading
reading of the decision of the Court on the admissibility of interventions.
22. In Military and Paramilitary Activities, the Court5s jurisdiction depended
on an understanding of Article 36(2) and (5) of the Statute, and the merits touched
upon questions of the UN Charter and customary international law. El Salvador’s
Declaration of intervention of 15 August 1984 addressed mainly the latter and did
not contain any Statement on how it would constme Article 36(2) and (5) of the
Statute. Against that background, the Court dismissed the applicationhin as much as
it relates to the current phase of the proceedings5510. As Judge Singh11, Judges Ruda,
Mosler, Ago, Jennings and De Lacharriere12, as well as Judge Oda13 explained, it had
weighed in the Court that El Salvador5s declaration was mainly directed to the merits
of the case, but insufficient with respect to the jurisdictional question before the
Court. This explanation is shared by the doctrine14.
23. Therefore, it appears that the Court rejected El Salvador’s declaration
as inadmissible during the jurisdictional phase hecause and only insofar it did not contain
any construction of Article 36(2) and (5) of the Statute as the jurisdictional base of the case. The
Court did not find that no intervention under Article 63 of the Statute could ever he
admissible during a jurisdictional phase, as the Russian Federation seems to read into
the Court’s order of 4 October 1986. 10 11 12 13 14
10 Military and Paramilitary Activiti es in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Order of 4 October 1984,1.C.J. Reports 1984, p. 215, at p. 216.
11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Singh, I.C.J. Reports 1984, p. 218.
12 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings, and De
Lacharriere, I.C.J. Reports 1984, p. 219.
13 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Oda, I.C.J. Reports 1984, p. 220.
14 Juan Jose Quintana, Litigation at the International Court of Justice, Brill 2015, pp. 943-944.
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24. The Russian Federation criticises that Germany’s declaration of
Intervention in effect addressed matters, which presuppose that the Court has
jurisdiction and/or that Ukraine’s application is admissible. Russia complains, in
particular, that the declaration contains a constmction of Article IX of the Genocide
Convention on the jurisdiction of the Court. For Russia, this makes the declaration
inadmissible, as it is written in a way that presupposes that the Court has jurisdiction
over the alleged dispute. Thereby, Russia effectively maintains that a State may note
intervene on questions of jurisdiction, as taking a position on that point would
“presuppose” that the Court has jurisdiction. In its fifth argument, it repeats this
point with more clarity, contesting Germany’s right to intervene on Article IX of the
convention per se.
25. In Germany cs view, this line of reasoning also runs contrary to Article
63 of the Statute and to the Court’s practice.
26. According to Article 63 (1) of the Statute, a State party may intervene
on the “constmction of a convention”. The plain wording refers to the entire
Convention, including its compromissory clause, as the case may be. Accordingly,
nothing in the text suggests that a State may not offer its constmction of Article IX
of the Genocide Convention to the Court.
27. That point is further strengthened when referring to the object and
purpose of Article 63 of the Statute. The object and purpose of the right to intervene
is to give States that are not directly concerned in a case, but are a party to a
convention upon whose construction the case rests, an opportunity to advance their
views on the constmction of the relevant convention. The right to intervene
guarantees that States can advance their views on the construction of a convention
to which they are also a party. It is mirrored by the legal consequence that the
construction then later given in the Court’s judgment will be equally binding upon
them. States do not only have a legitimate interest to share with the Court their
Interpretation of substantive obligations contained in a convention at stäke before
the Court. It is of equal importance for States to be heard on jurisdictional issues, as
this may affect their own position before the Court in future cases which may be
relating to themselves. Hence, an intervention under Article 63 of the Statue may
cover both jurisdictional and substantive aspects15.
15 MN Shaw (edj, Rosenne ’s Law and Practice of the International Court 1920-2015 (5th ed, Vol III, Brill
Nijhoff 2016), p. 1533; H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of
Jurisprudence (Vol I, OUP 2013), p. 1031; A. Miron/C. Chinkin, “Article 63” in: Zimmermann/Tams/Oellers10
28. Subsequent practice before the Court points into the same direction. So
far, the Court has never dismissed an Intervention because it was (entirely or
primarily) directed to interpreting a compromissory clause. Rather, in Military and
Varamilitary Mctivities El Salvador’s attempt to influence the jurisdictional question
before the Court was unsuccessful because the declaration had not complied with
the formal requirements under Rule 82 (2) (b) and (c) in the view of the great majority
in the Court. Had it done so, it would have been of interest to the Court, as expressly
confirmed by Judge Oda16. Moreover, Judge Schwebel even found that the faults of
El Salvador’s initial declaration on jurisdiction had been healed by subsequent letters.
Based on this reading, he was prepared to admit El Salvador’s declaration on
jurisdictional matters.
29. It follows that Germany in the current case correcdy wishes to avail
itself of its right to intervene under Article 63 of the Statute. The fact that the
declaration of intervention limits itself to addressing the compromissory clause under
Article IX of the Genocide does not render the intervention inadmissible.
Y. Germany’s arguments are relevant to the constmction of the Genocide
Convention
30. In its last argument, the Russian Federation refers to Germany’s
Statements on the interpretation of Article IX as regards the notion of a cdispute
between the Contracting Parties’ (paras. 29, 30) and the relation of the dispute to cthe
interpretation, application and fulfilment of the [Genocide] Convention’. The
Russian Federation alleges that these observations do not relate to the constmction
of the Genocide Convention and contain an impermissible incursion into the
interpretation or application of other rules of international mies that are distinct from
the treaty in question and derive from different sources.
31. The argument is based on a misperception of Germany’s Statements.
Clearly, the German Submission did not introduce “matters relating to the existence
of a dispute between the Russian Federation and Ukraine”; “evidence that genocide
Frahm/Tomuschat (eds), The Statute ofthe International Court of Justice: A Commentary (3rd ed. OUP 2019), p.
1741, at p. 1763, note 46.
16 Military and Paramilitaiy Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Oda, I.C.J. Reports 1984, p. 220, at p. 221.
11
has been committed or may be committed in Ukraine”; “issues relating to the
doctrine of abuse of rights”; or “issues relating to the use of force” as a self-standing
matter. Rather, all Statements made were part of the German views of the
construction of Article IX of the Convention.
32. Such technique is permissible under international law. According to
Article 31(1) of the Vienna Convention on the Law of Treaties, which represents
customary international law17, a treaty
“shall be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object andpurpo.se. ”
33. It follows that constructing the ordinary meaning of Article IX of the
Convention, its context and the object and purpose of the Convention while
interpreting the notion of a ‘dispute’ and its relation to the Interpretation, application
and fulfilment of the Convention’ as Germany has done cannot be disqualified as
“impermissible incursion”. Rather, it contributes to the required integral
Interpretation of international law as a legal order.
34. Such Operation does not transcend the boundaries of Article 63 of the
Statute, but stays within the requirement of constructing the Convention at issue in
a case before the Court, in line with the accepted rules of treaty interpretation.
17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v,
Myanmar), Judgment of 22 July 2022, p. 31, para. 87: “The Court will have recourse to the rules of customary
international law on treaty interpretation as reflected in Articles 31 to 33 of the Vienna Convention on the Law
of Treaties of23 May 1969”; see also Application of the International Convention On the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, p. 24, para. 75 with further references.
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VI. Conclusion
35. For the reasons set out above Germany is convinced that its
Declaration of Intervention fully complies with the requirements under Article 63 of
the Statute and Article 82 of the Rules. Germany thus requests the Court to decide
that the Intervention is admissible, to allow Germany to exercise its right to intervene,
as a party to the Genocide Convention, and to present its written observations on
the construction of the Genocide Convention in good time.
Respectfully submitted,
Tania von Uslar-Gleichen
Agent of the Government of the Federal Republic of Germany
Observations écrites de l’Allemagne sur la recevabilité de sa déclaration d’intervention