Application for permission to intervene submitted by Poland

INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION
ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
APPLICATION FOR PERMISSION TO INTERVENE
BY THE GOVERNMENT OF THE REPUBLIC OF POLAND
23 July 2024
1. The Government of the Republic of Poland has the honour to request permission from the
International Court of Justice ("the Court") to intervene in the case concerning the
Allegations of Genocide under the Convention on the Prevention and Punishment of the
Crime of Genocide (Ukraine v. Russian Federation). The present Application ("Republic
of Poland's Application") is made in accordance with Article 62 of the Statute of the Court.
2. The Republic of Poland would like to stress that nothing in the Statute of the Court
precludes simultaneous interventions by the invocation of Article 63 and Article 62 of the
Statute, when the interventions accomplish a double object.1 In this case, the Republic of
Poland sees its legal interest linked not only with the construction of the treaties in question,
as presented in the declaration of intervention made under Article 63 of the Statute, but
also with the Convention's application in this case. For that reason, the Republic of Poland
is also filing an application for pern1ission to intervene under Article 62 of the Statute. The
Republic of Poland makes a clear distinction between its intervention based on Article 63,
in which it limits its comments to the mere construction of the treaties in question, and its
intervention based on Article 62, in which the Republic of Poland refers to the way
Convention has been applied by both parties to the dispute.
I. Preliminary Observations
3. The Republic of Poland limits its preliminary observations concerning the stages of the
present proceeding and refers to its observations made in the Declaration of the
Intervention submitted on 23 July 2024 based on Article 63.
4. On 26 February 2022, Ukraine instituted proceedings against the Russian Federation
("Russia") concerning a Dispute Relating to Allegations of Genocide.2
1 !CJ, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) case, Order of22 September 1995, l.C.J. Reports
1995, p. 288, at p. 292, para 11 ff. Cf. also S.S. "Wimbledon" (Question of Intervention by Poland), Judgment of
28 June 1923, P.C.I.J., Series A, No. 1, p. 11 , at p.12.
2 Dispute Relating to Allegations of Genocide (Ukraine v. Russian Federation), Application instituting proceedings
filed in the Registry of the Com1 on 26 February 2022.
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5. Following a request for provisional measures from Ukraine, the Court on 16 March 2022
ordered that:
"(1) The Russian Federation shall immediately suspend the military operation that it
commenced on 24 February 2022 on the territory of Ukraine;
(2) The Russian Federation shall ensure that any military or irregular armed units which
may be directed or supported by it, as well as any organizations and person which may
be subject to its control or direction, take no steps in furtherance of the military
operations referred to in point ( l) above; and
(3) Both Parties shall refrain from any action which might aggravate or extend the
dispute before the Court or make it more difficult to resolve.
6. In the written proceedings on the merits, the following submissions were presented on
behalf of the Govenunent of Ukraine in its Memorial:
"For the reasons set out in this Memorial, Ukraine respectfully requests the Court to:
(a) Adjudge and declare that the Cowt has jurisdiction over this dispute.
(b) Adjudge and declare that there is no credible evidence that Ukraine is responsible
for committing genocide in violation of the Genocide Convention in the Donetsk and
Luhansk oblasts of Ukraine.
(c) Adjudge and declare that the Russian Federation's use of force in and against
Ukraine beginning on 24 February 2022 violates Articles I and IV of the Genocide
Convention.
(d) Adjudge and declare that the Russian Federation's recognition of the independence
of the so-called ' Donetsk People's Republic' and 'Luhansk People's Republic' on 21
February 2022 violates Articles I and IV of the Genocide Convention.
(e) Adjudge and declare that, by failing to immediately suspend the military operations
that it commenced on 24 February 2022 in the territory of Ukraine, and by failing to
ensure that any military or irregular armed units which may be directed or supported by
it, as well as any organizations and persons which may be subject to its control or
direction, take no steps in furtherance of these military operations, the Russian
2
Federation violated the independent obligations imposed on it by the Order indicating
provisional measures issued by the Court of 16 March 2022".3
7. In the Judgment rendered on 2 February 2024, the Court concluded that it has jurisdiction,
on the basis of Article IX of the Genocide Convention, to ente1tain submission (b) in
paragraph 178 of the Memorial of Ukraine, whereby Ukraine requests the Court to
"[a]djudge and declare that there is no credible evidence that Ukraine is responsible for
committing genocide in violation of the Genocide Convention in the Donetsk and Luhansk
oblasts of Ukraine", and that this submission is admissible.4 The Court in its Judgment of
2 February 2024 on preliminary objections did not make any decisions concerning
provisional measures ordered on 16 March 2022.
8. As of the date of this Application, Russia has failed to comply with the Order of 16 March
2022 and has intensified and expanded its military operations on the territory of Ukraine.
Thus, Russia has aggravated the dispute pending before the Couit.
II. The Republic of Poland's Interest of a Legal Nature
That May Be Affected by the Decision of the Court
9. In accordance with Article 62 of the Court's Statute, States may be permitted to intervene
in a contentious case if they consider that they have an interest of a legal nature which may
be affected by the Couit's decision. In the present case, the Republic of Poland has such an
interest that stems from:
A. The erga omnes partes nature of the obligations under the Genocide Convention
10. In its 1951 Advisory Opinion, the Courl had already issued the following commentary on
the issue of "interest" with respect to the Genocide Convention: "In such a convention the
contracting States do not have any interests of their own; they merely have, one and all, a
3 The Memorial of Ukraine, I July 2022, para 178.
4 ICJ , Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation: 32 States intervening), Preliminary Objections, Judgement of 2 February 2024.
3
common interest, namely, the accomplishment of those high purposes which are the raison
detre of the convention".5
11. In its subsequent 1970 judgment concerning the Barcelona Traction, Light and Power
Company, The Court stressed that the obligations of a State towards the international
community as a whole, derived for example from the outlawing of acts of genocide, "[b ]y
their very nature ( ... ) are the concern of all States. In view of the imp01tance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes."6
12. In addition, the Court in its 2012 judgment on Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal) emphasized that "any State party to the
Convention may invoke the responsibility of another State party with a view to ascertaining
the alleged failure to comply with its obligations erga omnes partes ( .. .) and to bring that
failure to an end."7
13. This view was confirmed by the Court in its 2022 judgment in the Gambia v. Myanmar
case: "All the States parties to the Genocide Convention thus have a common interest to
ensure the prevention, suppression and punishment of genocide, by committing themselves
to fulfilling the obligations contained in the Convention. As the Court has affim1ed, such a
common interest implies that the obligations in question are owed by any State party to all
the other States parties to the relevant convention; they are obligations erga omnes partes,
in the sense that each State party has an interest in compliance with them in any given
case."8 In the Gambia v. Myanmar case, the Court also clarified that: "[t]he common
interest in compliance with the relevant obligations under the Genocide Convention entails
5 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Adviso1y
Opinion of 28 May 1951 , I.CJ. Reports 1951, p. 16, at p. 23.
6 !CJ, The Barcelona Traction, Light and Power Company, Limited (New Application: 1962, Belgium v. Spain),
Second Phase, Judgment of 5 February 1970, I.C.J. Reports I 970, p. 3, at p. 32, para. 33-34.
7 !CJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment of20
July 2012, I.C.J. Reports 20 12, p. 422, at p. 450, para. 69.
8 !CJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections, Judgment of22 July 2022, I.CJ. Reports 2022, p. 477, at. p. 515-516, para.
107.
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that any State party, without distinction, is entitled to invoke the responsibility of another
State party for an alleged breach of its obligations erga omnes partes. Responsibility for
an alleged breach of obligations erga omnes partes under the Genocide Convention may
be invoked through the institution of proceedings before the Court, regardless of whether
a special interest can be demonstrated."9
14. Therefore, if every State Party to the Genocide Convention has a legal interest sufficient to
provide it with standing in an application under Article IX of the Convention, then every
State Party must also possess an "interest of a legal nature which may be affected by the
decision in the case" contemplated by Article 62 of the Statute of the Court.
15. When matters of common interest are at stake, intervention in legal proceedings, by
providing additional elements to the Court for its consideration and reasoning, can be of
particular importance. 10
16. According to the Court, "[t]he State seeking to intervene as a non-party therefore does not
have to establish that one of its rights may be affected; it is sufficient for that State to
establish that its interest of a legal nature may be affected". 11 The Republic of Poland, as a
party to the Genocide Convention and as the beneficiary of the erga omnes rights embodied
9 Ibid., at p. 516, para. I 08. See also Article 48 of the International Law Commission's ("ILC") Articles on State
Responsibility for Internationally Wrongful Acts adopted in 2001: "(a]ny State other than an injured State is
entitled to invoke the responsibility of another State( ... ) if (a) the obligation breached is owed to a group of States
including that State, and is established for the protection ofa collective interest of the group; or (b) the obligation
breached is owed to the international community as a whole."
10 ICJ, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Declaration of Intervention by
New Zealand, Order of 6 February 2013, Separate opinion of Judge Can<;:ado Trindade, ICJ Reports 2013, p. 3, at
p. 39-40, para 76; lnstitut de Droit International, Resolution: Obligations Erga Omnes in International Law,
Krakow Session - 2005, Article 4.
11 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica for Pennission to
Intervene, Judgment, I.CJ. Reports 2011 , p. 348, at p. 358-359, para. 26; ICJ, Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras: Nicaragua intervening), Application by Nicaragua for Pem1ission to Intervene,
Judgment, I.C.J. Repo1ts 1990, p. 92, at p. 129, para. 87; ICJ, The Barcelona Traction, Light and Power Company,
Limited (New Application: 1962, Belgium v. Spain), Second Phase, Judgment of 5 February 1970, l.C.J. Reports
1970, p. 3, at p. 36, para. 46.
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in it, has a legal interest in the fulfilment of the conventional obligations by all States
parties, including Russia and Ukraine.
B. Implications of the possiblejudgmentfor assessing Polish support for Ukraine
The Republic of Poland's Position Based on the Available Facts about Ukraine,
2014-2022
17. Firstly, the Republic of Poland wishes to recall some basic facts to clarify the circumstances
of its conduct. It should be emphasized that the Russian Federation has engaged in
aggression against Ukraine since February 2014, committing all acts of aggression
identified in United Nations General Assembly Resolution 3314 of 14 December 1974,
which "reflect customary international law" .12
18. Due to the Russian veto, the United Nations (UN) Security Council has not managed to
condemn Russia's aggression in 2014. 13 Still, the UN General Assembly in its resolution
no. 68/262 of 27 March 2014 called upon all States, international organizations and
specialized agencies not to recognize any alteration of the status of the Autonomous
Republic of Crimea and the city of Sevastopol. The UN General Assembly simultaneously
affirmed "its commitment to the sovereignty, political independence, unity and territorial
integrity of Ukraine within its internationally recognized borders". Subsequent UN General
Assembly resolutions reaffirmed the non-recognition of Crimea's annexation by the
Russian Federation. 14 In the case of hostilities in eastern Ukraine, once again due to the
12 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment of27 June 1986, I.CJ. Reports 1986, p. 14, at p.103, para 195; ICJ, Anned Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda), Merits, Judgment of 19 December 2005,
l.C.J. Reports 2005, p. 168, at p. 222-223, para. 146.
13 UN Doc. S/2014/ 189 of 15 March 20 14.
14 UN Doc. A/RES/7 I /205 of 19 December 2016 (Situation of human rights in the Autonomous Republic of Crimea
and the city of Sevastopol, Ukraine); UN Doc. A/RES/72/190 of 19 December 2017 (Situation of human rights in
the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine); UN Doc. A/RES/73/263 of 22
December 20 18 (Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol,
Ukraine); UN Doc. A/RES/74/168 of 18 December 20 I 9 (Situation of human rights in the Autonomous Republic
of Crimea and the city of Sevastopol, Ukraine); UN Doc. A/RES/75/29 of 7 December 2020 (Problem of the
militarization of the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, as well as parts of the
6
high probability, verging on certainty, that Russia would use its veto, the UN Security
Council was unable to openly cite any acts of aggression committed by Russia against
Ukraine in its Eastern region. In accord with the view of the UN General Assembly, the
Republic of Poland has taken the position that since 2014, the Russian Federation has
seriously breached the prohibition of aggression, which is a peremptory norm of general
international law15. This view is shared by many other states, including 27 NATO
members. 16
19. A similar position was taken by the Council of Europe, of which Russia was a member
until its expulsion in 2022. The Parliamentary Assembly of the Council of Europe
("PACE"), in resolution no. 1988 (Recent developments in Ukraine: threats to the
functioning of democratic institutions) adopted on 9 April 2014, condemned "the Russian
military aggression and subsequent annexation of Crimea, which is in clear violation of
international law, including the United Nations Charter, the OSCE Helsinki Act and the
Statute and basic principles of the Council of Europe". Furthermore, PACE in its resolution
no. 2112 (The humanitarian concerns with regard to people captured during the war in
Ukraine), adopted on 21 April 2016, stated: "Since the illegal annexation of Crimea by the
Russian Federation and the beginning of military aggression in the Luhansk and Donetsk
regions in eastern Ukraine, hundreds of Ukrainian servicemen and civilians have been
reported captured or abducted".
Black Sea and the Sea of Azov); UN Doc. A/RES/76/179 of 16 December 2021 (Situation of human rights in the
temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol, Ukraine).
15 "One needs to emphasise with all might that the occupation of Crimea and aggression in Ukraine is a violation
of standards of international law and runs roughshod over the fundamental values of the United Nations", address
of the President of the Republic of Poland at the 69th Session of the UN General Assembly 25th September 2014,
h ttps:/ /www. president. p 1/president-kom orowsk i/news/president-poland-for-reform-o f-un-security-counci 1,3 8985;
Cf. TLC, Draft conclusions on identification and legal consequences of peremptory norms of general international
law Uus cogens) adopted in 2022, Annex.
16 "We are extremely concerned by the further escalation of aggressive actions in eastern Ukraine. We see a
concerted campaign of violence by Russia and Russian-backed separatists aimed at destabilising Ukraine as a
sovereign state", Wales Summit Declaration issued by the Heads of State and Government participating in the
meeting of the North Atlantic Council in Wales, 5 September 2014, para 24 (available at
https://www.nato.int/cps/en/natohq/official_texts_ 112964.htm, accessed on 22 July 2024).
7
20. The President of the Russian Federation himself said in 2015 that "[w]e've never said there
are no people there [in Donbas] who deal with certain matters, including in the military
area ... ". For the European Court of Human Rights "[t]his statement, in and of itself,
provides sufficient grounds for the inference that there were members of the Russian
military operating inside eastern Ukraine at the relevant time" with respect to whom Russia
has "consistently failed to provide any explanation whatsoever" 17
. In consequence, the
European Court of Human Rights in its decision of 2022 in the case of Ukraine and the
Netherlands v. Russia undoubtedly confirmed that Russia exercised effective control in
eastern Ukraine18, as it did confirm the fact of Russia's exercise of effective control in
Crimea in its 2020 decision on Ukraine v. Russia (re Crimea)19
. In the latter judgment, it
described Russia's conduct in a way which fully conforms to the definition of aggression
under international law.
17 European Court of Human R.ights ("ECtHR"), Decision of the Grand Chamber in the case of Ukraine and the
Netherlands v. Russia, 30 November 2022 (Applications nos. 8019/16, 43800/ 14 and 28525/20), para 588.
18 ECtHR, Decision of the Grand Chamber in the case of Ukraine and the Netherlands v. Russia, 30 November
2022 (Applications nos. 80 I 9/ 16, 43 800/ 14 and 28525/20), para. 695: ,, The vast body of evidence above
demonstrates beyond reasonable doubt that, as a result of Russia's military presence in eastern Ukraine and the
decisive degree of influence and control it enjoyed over the areas under separatist control in eastern Ukraine as a
resu lt of its military, political and economic support to the separatist entities, these areas were, from I I May 2014
and subsequently, under the effective control of the Russian Federation( ... ); para. 697 "( ... ) the finding that the
Russian Federation had effective control over the relevant parts ofDonbass controlled by the subordinate separatist
administrations or separatist armed groups means that the acts and omissions of the separatists are attributable to
the Russian Federation in the same way as the acts and omissions of any subordinate administration engage the
responsibility of the territorial State."
19 ECtHR, Decision of the Grand Chamber in the case of Ukraine v. Russia (re Crimea) of 16 December 2020,
(Applications nos. 20958/14 and 38334/18), para. 335; cf. 328 where the ECtHR referred to ,,specific actions taken
by the Russian military forces with a view to ensuring the control of entry and exit points into Crimea, operations
to block or disable (disann) Ukrainian military forces and the detention of Ukrainian soldiers. The applicant
Government's account remained coherent throughout the proceedings before the Comt, and involved consistent
information regarding the manner, place and time of the alleged events, as well as the military formations of the
respondent State involved. In this connection it is noteworthy that the respondent Government did not submit any
evidence to refute the appl icant Government's account, such as deployment records in relation to the identified
military formations, over which the respondent Government necessarily have exclusive control. Nor did they
provide any convincing arguments that could call into question the credibility of the applicant Govenunent's
version of events and the evidence submitted in support of it."; ECtHR, Grand Chamber ,Judgment in the case of
Ukraine v. Russia (re Crimea) of 25 June 2024, (Applications nos. 20958/14 and 38334/ 18), para. 918.
8
21. These facts must necessarily affect the actions undertaken by Polish authorities as, in
accordance with customary international law, all states are obliged to cooperate to bring to
an end through lawful means the serious breach of the peremptory norm.20
22. The Republic of Poland is aware of the content of the Court's preliminary objection
judgment of 2 February 2024, in which the court decided that submissions made by Ukraine
that the Russian Federation's use of force in and against Ukraine beginning in 24 February
2022 and the Russian Federation's recognition of the independence of the so-called
'Donetsk People's Republic' and 'Luhansk People's Republic' violate Articles I and IV of
the Genocide Convention do not fall within the Convention's provisions. Nevertheless, the
Court needs to consider that false accusations of Ukraine's responsibility for genocide have
been used to justify the continuing aggression since 2014. One of the consequences of this
aggression was an increase in hatred and incitements to violence. To call another state
responsible for genocide is one of the gravest legal accusations, especially in a region
which has already experienced bloodbaths of nations marked for extermination by
totalitarian regimes.
23. During the period 2014-2022, no international organization, including the United Nations
( e.g., the Human Rights Monitoring Mission in Ukraine21 deployed in March 2014) or the
Organization for Security and Co-operation in Europe, whose Special Monitoring Mission
in Ukraine22 was active between March 2014 and March 2022, confirmed or even
suggested that Ukraine might be responsible for genocide. The Republic of Poland is
unaware of any international proceeding initiated by any state, including Russia, to verify
or claim that genocide might have been committed by Ukraine.
20 Article 41 ( I) of ILC, Articles on Responsibility of States for Internationally Wrongful Acts adopted in 200 I;
Conclusion 19 oflLC, Draft conclusions on identification and legal consequences of peremptory nonns of general
international law Uus cogens) adopted in 2022.
21 As of July 2023, the Human Rights Monitoring Mission in Ukraine has released 35 periodic reports, 10 briefing
papers, nine thematic reports and six updates on the human rights situation in Ukraine, all of them providing
partners in Ukraine and beyond with evidence-based findings presented at each session of the Human Rjghts
Council, https://www.ohchr.org/en/countries/ukraine/our-presence (accessed on 22 July 2024).
22 OSCE Special Monitoring Mission to Ukraine, https://www.osce.org/special-monitoring-mission-toukraine/
5 I 3337 (accessed on 22 July 2024).
9
24. Furthermore, while neither Russia nor Ukraine are parties to the Rome Statue of the
International Criminal Court, only Ukraine has submitted two declarations to the Court, on
9 April 2014 and 8 September 2015, pursuant to Article I 2(3) of the Rome Statute. In
accordance with those declarations, the ICC has jurisdiction under the Rome Statute over
alleged crimes occurring on Ukrainian territory after 21 November 2013. It is worth noting
that the ICC's Office of the Prosecutor to this day has made no statement suggesting a
reasonable basis to believe genocide was committed by Ukraine's officials.23 Therefore,
the Republic of Poland was and still is of the opinion that there is no evidence Ukraine
engaged in any genocidal acts in the relevant time period.
Scale and Kind of Support Provided by the Republic of Poland to Ukraine
25. Throughout the 2014-2022 time period scrutinized by the Court in the current proceeding,
the Republic of Poland has given comprehensive and complex support to the Ukrainian
state and its nationals. This support was based on two crucial assumptions: (l) Ukraine is
a victim of Russian aggression; (2) No genocide was committed by Ukraine on its territory.
26. Polish support ranged from the renovation and protection of cultural objects24,
scholarships25, humanitarian and social assistance26 to law enforcement27 and military
cooperation28. The support was directed, among other places, to the Donetsk and Luhansk
23 See e.g. Statement of the Prosecutor Fatou Bensouda on the conclusion of the preliminary examination in the
situation in Ukraine of I J December 2020, available at https://www.icc-cpi.int/news/statement-prosecutor-fatoubensouda-
conclusion-preliminary-examination-sit11ation-ukraine (accessed on 22 July 2024).
24 See, for example, a 2015 programme financed by the Polish Ministry of Culture and National Heritage for the
protection of cultural goods in emergency situations, along with 2014-2022 programmes financed by the same
Ministry on renovation and conservation of dozens of monuments in Ukraine.
25 E.g., the Stanislaw Banach Scholarships financed by the Ministry of Education and Science; the Lane Kirkland
Scholarships financed by the Ministry of Education and Science; and several other scholarship programmes
financed by other Polish government ministries.
26 E.g., the programme fmanced in 20 19-2021 by the Polish Ministry of Foreign Affairs (MFA) through Polish
Humanitarian Action to assess needs and provide high-quality social service centers in Donetsk oblast.
27 See para 29 of the Republic of Poland's Application.
28 See para 28 of the Republic of Poland's Application.
10
Oblasts of Ukraine, where the Republic of Poland provided humanitarian29
, social30
,
medical 31, and psychological32 assistance to victims of hostilities in Eastern Ukraine, in
particular to children from Donbas. The Republic of Poland also launched various
programmes aimed at enhancing the capacity of Ukrainian agencies to react to the crisis33
,
help fight disinfom1ation34, safely educate children35
, and promote entrepreneurship36
among people affected by the war in Eastern Ukraine.
27. In addition to the examples cited above, the Republic of Poland has financially contributed
to UNICEF's Humanitarian Action for Children - Ukraine, the OSCE Special Monitoring
Mission in Ukraine, the UN Human Rights Monitoring Mission in Ukraine, UN OCHA,
UNDP and the International Committee of the Red Cross (ICRC), among others.
29 E.g., the programme financed in 2016-2018 by the Polish MFA through Polish Humanitarian Action to provide
humanitarian and social protection for displaced persons and local communities in Donetsk Oblast.
30 E.g., the programme fmanced in 20 I 8 by the Office of the Polish Prime Minister through Caritas Polska to
extend direct social and psychological support to residents of Donetsk and Lugansk Oblast territories controlled
by Ukraine; the programme financed in 2020 by the Polish MFA on social assistance centres in Eastern Ukraine;
the programme financed in 2020 by the Polish MFA through the "Most Solidarnosci" Foundation to provide social
and medical services in Donetsk Oblast.
31 E.g., the programme financed in 2020 by the Polish MFA to support efforts to combat the Covid-19 pandemic
in Donetsk Oblast; the programme financed in 2018 by the Polish MFA through Caritas Polska to support local
medical clinics in Eastern Ukraine.
32 E.g., the programme financed in 2018 by the Polish MFA to widen access to psychological counseling for
internally displaced persons as well as the programme to improve the quality of the psychological health and
palliative medicine services in Luhansk Oblast; the programme financed in 2018 by the Office of the Polish Prime
Minister through Caritas Polska to provide psychological counseling for residents of Donetsk and Luhansk Oblast
territories controlled by Ukraine; the programme financed in 2017 by the Polish MFA through the Human Doc
Foundation to support an integration centre for displaced persons in Kharkiv.
33 E.g., several programmes financed by the Polish Ministry of Internal Affairs and Administration on improving
the effectiveness and reaction times of Ukrainian emergency services.
34 E.g., the progran1me financed in 20 I 8 by the Polish MF A through the "Edukacja dla Demokracj i" Foundation
on helping Hromadskie Radio become an independent information source for Ukrainians; also, a programme
financed in 2021 by the Polish MFA to support victims of the armed conflict in Donbas, including families of
missing or illegally detained people and former prisoners.
35 E.g., programmes financed in 20 15 and 2021 by the Polish MFA to promote e-learning for students in Don bas.
36 E.g., the programme financed in 2015 by the Polish MFA encouraging innovative forms of employment for
internally displaced mothers; the programme financed in 20 17 by the Polish MF A through Adventist Development
and Relief Agency Polska help displaced persons develop entrepreneurial skills.
11
28. As for military support extended by the Republic of Poland to Ukraine, on 2 December
2016, a General Agreement was signed between the Government of the Republic of Poland
and the Cabinet of Ministers of Ukraine on mutual military cooperation, establishing a legal
basis and framework for cooperation between the two states in the area of defence, as well
as enabling support for Ukraine in the face of Russian aggression.37 Article 12 of the
agreement stipulates that in the event of a state of emergency, natural disaster or martial
law declared in the territory of one or both Parties, the Parties may offer each other
immediate support. This assistance can include gratuitous transfers of armaments, dual-use
items and non-combat assets from the armed forces of the Parties, along with special
advisory and support services, and temporary exchanges of trained and competent military
and civilian personnel to perfom1 predetermined work and services.
29. Furthe1more, the Republic of Poland has provided wide-ranging support to Ukrainian law
enforcement through training, know-how transfers and workshops led by Polish law
enforcement personnel. These activities focused on combating crime, including terrorism,
weapons training and criminology.38
30. In addition, the Polish Police supported the activities of the OSCE special observation
mission, established in 2014 at the request of the Ukrainian government and by a
unanimous decision of all OSCE member countries, including Russia. The OSCE mission
had a civilian character and its representatives served 24 hours a day, unarmed, in all
regions of Ukraine. The mission's basic tasks included monitoring the situation in Ukraine
and objectively reporting their observations to mission authorities.39
31. Finally, in 2014-2015, the Republic of Poland provided humanitarian aid to Ukrainians
internally displaced by Russian aggression.40
37 Monitor Polski, (Official Gazette of the Republic of Poland) of 2019, item no. 50.
38 E.g., the capacity-building programme sponsored in 20 18 by the Polish Ministry of Finance to strengthen
Ukraine's abi lity to combat money laundering and financing often-orism.
39 OSCE Special Monitoring Mission to Ukraine, https://www.osce.org/special-monitoring-mission-toukraine/
5l 3337 (accessed on 22 July 2024).
40 E.g., programmes sponsored by the Polish MF A in 20 14 through Caritas Polska and in 2015 through "Europejski
Dom Spotkan-Fundacja Nowy Staw".
12
The Republic of Poland's Support in the Context of Allegations of Genocide
in the Donetsk and Luhansk Oblasts of Ukraine
32. Russia's President announced on 24 February 2022: "The purpose of this operation is to
protect people who, for eight years now, have been facing humiliation and genocide
perpetrated by the Kiev regime."41
33. In its Provisional Measures Order of 16 March 2022, the Court observed: "[T]he
Investigative Committee of the Russian Federation - an official State organ - has since
2014 instituted criminal proceedings against high-ranking Ukrainian officials regarding the
alleged commission of acts of genocide against the Russian speaking population living in
the above-mentioned regions 'in violation of the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide"'. 42
34. During the oral hearing of 18 September 2023, Russia stated that "Kiev launched in 2014
a full-scale war against Donbass, its policy to brutally quash any dissent, obstruct
journalists and promote hatred against ethnic Russians"43 and that "Kiev imposed a
suffocating blockade on Donbass, robbing their populations of access to water, food,
electricity, medicine and other critical goods, and launched the so-called 'anti-ten-orist
operation', deploying military force against its own population, igniting a civil war".44
35. Furthermore, Russia's baseless statements also directly referred to the Republic of Poland's
engagement in Ukraine. In 2015, President Putin accused the Republic of Poland of
fomenting the so-called "Revolution of Dignity", which took place in February 2014, and
4 1 Russian President Vladimir Putin, Address by the President of the Russian Federation (24 Feb. 2022), p. 8,
available at http://en.kremlin.ru/events/president/news/67843 (accessed on 22 July 2024).
42 ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Request for the indication of provisional measure, Order of 16 March 2022, I.CJ.
Reports 2022, p. 21 1, at p. 221, para. 37.
43 Public sitting held on Monday 18 September 2023, at I O a.m., at the Peace Palace, President Donoghue,
presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment
of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening), Verbatim Record, CR 2023/ 13,
para 8.
44 Ibidem, para I 0.
13
of supposedly helping to prepare armed detachments45 apparently for "a full-scale war
against Don bas". 46 Conversely, shortly after the Revolution, it was Russia that initiated
acts of aggression against Ukraine. In 2016, State Duma Chairman Sergey Naryshkin
suggested that "[t]he foreign ministers of Germany, France and Poland bear their share of
responsibility for what is happening in Ukraine".47 In 2021, the spokeswoman of Russia's
Ministry of Foreign Affairs insinuated that the Republic of Poland also negatively
contributed to the situation in Eastern Ukraine after 2014.48 Dmitry Medvedev, Deputy
Chairman of the Security Council of Russia since 2020, argued that the Republic of Poland
is eternally Russophobic.49 The comments by senior Russian officials indicate that amid
ongoing Russian aggression, the Republic of Poland's fears were not irrationai.50
45 President Vladimir Putin's statement of 15 March 2015: "It was they who helped prepare the nationalists, they
helped prepare the combat units. Preparations were taking place both in western Ukraine and in Poland, and partly
in Lithuania. What did our partners do? They contributed to the coup, that is, they began to act from a position of
strength" https://tass.ru/politika/1829664 (accessed on 22 July 2024).
46 "Kiev launched in 2014 a full-scale war against Don bass, its policy to brutally quash any dissent, obstruct
journalists and promote hatred against ethnic Russians", Public sitting held on Monday 18 September 2023, at I 0
a.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under
the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32
States intervening), Verbatim Record, CR 2023/13, para 8.
47 Interfax, Moscow, 25 November 2014.
48 Statement by Maria Zacharova, 1 April 2021: "I would like to recall the role of Baltic diplomats and state
officials from Poland, Germany and the United States who directly fashioned and implemented the 2014 processes
in Ukraine. Dozens and hundreds of the so-called foreign "specialists" in all fields, including security services and
mercenaries, stayed in Ukraine and were involved in implementing Ukraine's political agenda by posing as the
'Ukrainian public' or 'consultants.' This was interference in a sovereign state's affairs,"
https://mid.ru/ru/foreign_policy/news/1418864/ (accessed on 22 July 2024).
49 HHTepBbJO 3aMeCTHTeJUI llpe.uce.uaTem1 Cosern Ee3orracHOCTH PoccHHCKoii <l>e.uepauHH ,n.A.Me.use.uesa
TeneKoM naHHH, Deutsche Welle, 17 ceHrn6pll 2021 ro.ua, http://www.scrf.gov .ru/news/speeches/3077 /, (accessed
on 22 July 2024).
50 In a speech to the UN Security Council on 23 February 2024, the Republic of Poland's Mi11ister of Foreign
Affairs Radoslaw Sikorski said: "I'm amazed at the tone and the content of the presentation by the Russian
ambassador( ... ) He said we are prisoners of Russophobia. ' Phobia' means irrational fear. Yet, we are being
threatened almost every day by the former president of Russia and Putin's propagandists with nuclear annihilation.
I put it to you that it is not irrational - when Russia threatens us, we trust them." For the full text of Foreign
Minister Sikorski' s speech, see: https:/ /•.vww .gov .pl/web/diplomacy/m inister-radoslaw-sikorski-deliveresspeech-
at-the-un-security-council (accessed on 22 July 2024).
14
36. Each Contracting Party to the Genocide Convention has a duty to prevent the commission
of genocide. This obligation, pursuant to Article 1 of the Genocide Convection, requires
States parties that are aware, or should normally have been aware, of the serious risk that
acts of genocide could have been committed, to employ all means reasonably available to
them to prevent genocide as far as possible.51 Recently, the Court affirmed that obligations
stemming from the Genocide Convention must be taken into account by a State, especially
when transferring arms to parties in an armed conflict.52
37. As the Court has already indicated, various parameters operate when assessing whether a
State has duly discharged its obligation of prevention under the Genocide Convention. In
particular, the Court indicated, among other things, that the nature of this obligation
depends in part on "the geographical distance of the State concerned from the scene of the
events, and on the strength of the political links, as well as links of all other kinds, between
the authorities of that State and the main actors in the events". 53 Taking into account the
fact that the Republic of Poland is Ukraine's immediate neighbour and that since 2014, the
Republic of Poland has provided Ukraine with significant assistance, including
humanitarian aid and support delivered by military, law enforcement and emergency
personnel to Luhansk and Donetsk Oblasts, where the alleged genocide was supposedly
committed, it seems clear that a potential Court judgment on the existence of credible
evidence that Ukraine is responsible for committing genocide would affect the Republic of
Poland's legal interest.
38. As a State can be held responsible for breaching the obligation to prevent genocide or the
obligation not to provide aid or assistance in committing genocide only if genocide was
actually committed,54 the question whether there is a credible evidence that Ukraine is
51 lCJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), .ludgment of26 Februaiy 2007, l.C.J. Reports 2007, p. 43, at pp. 221 -
222, paras. 430-43 I.
52 JCJ, Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory
(Nicaragua v. Germany), Order of30 April 2024, at p. 8, para 24.
53 lCJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment of26 February 2007, I.CJ. Reports 2007, p. 43, at p. 221 , para.
430.
54 ibidem, at pp. 221 -222, para. 431.
15
responsible for committing genocide in violation of the Genocide Convention in the
Donetsk and Luhansk Oblasts of Ukraine is of fundamental importance for the Republic of
Poland's legal interests.
39. Therefore, the Republic of Poland's legal interest is linked with the need to secure a correct
interpretation of the Convention, having in mind its application in the current case. The
Republic of Poland's legal interest may be affected not only by "the dispositif or operative
part of the Court's decision", but also by "the reasons which constitute the necessary steps
to the dispositif'. 55
40. As stated by the Court: "Article 62 requires the interest relied upon by the State seeking to
intervene to be of a legal nature, in the sense that this interest has to be the object of a real
and concrete claim of that State, based on law, as opposed to a claim of a purely political,
economic or strategic nature. But this is not just any kind of interest of a legal nature; it
must in addition be possible for it to be affected, in its content and scope, by the Court's
future decision in the main proceedings."56 As a party to the Genocide Convention, the
Republic of Poland has a legal interest, as do all the other parties to the Convention, in the
Convention's proper application by other states. Mindful of its own obligation to prevent
violation of the Genocide Convention, the Republic of Poland is aware that it cannot
transfer arms or provide other assistance to a State committing genocide. Therefore, an
accusation of genocide addressed towards Ukraine simultaneously affects the Republic of
Poland's legal position as a state providing a wide range of support to Ukraine, including
its Eastern regions, since 2014.
41. Additionally, the Republic of Poland considers its application for permission to intervene
as a means of fulfilling its obligation to prevent and punish genocide by recourse to the
principal judicial organ of the United Nations, i.e. the International Court of Justice.
55 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application by the Philippines
for Permission to Intervene, Judgment of 23 October 200 I, I.CJ. Reports 2001 , p. 575, at p. 596, para. 47.
56 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to
Intervene, Judgment of 4 May 201 l , I.CJ. Reports 2011, p. 420, at p. 434, para. 37.
16
42. Fm1hermore, the Republic of Poland's legal interest lies in the Genocide Convention's
proper interpretation and application in this case, as in the Republic of Poland's opinion,
Russia's false allegations are examples of the Convention's weaponisation.57 Therefore,
the Republic of Poland wishes to raise fundamental questions of international law on behalf
of the international community concerning the scope of the prevention obligation in
relation to false allegations, as the Republic of Poland believes all States would benefit
from the Court pronouncing on this issue. This is exactly the reason Judge Schwebel
indicated as the proper purpose of an intervention.58
Ill. The Republic of Poland's object of intervention
43. The object of the Republic of Poland's intervention, as stipulated by Article 81 of the Rules
of the Court, is to protect the Republic of Poland's legal interest and, as a State with strong
political links and geographical proximity to Ukraine, to inform the Court of its assessment
of whether credible evidence exists that Ukraine is responsible for committing genocide in
violation of the Genocide Convention in the Donetsk and Luhansk Oblasts of Ukraine.
44. Jn particular, the Republic of Poland wishes to indicate that the allegations are false.
IV. The Position of the Republic of Poland in Respect of Jurisdiction
45. The Republic of Poland neither wishes nor seeks to become a party to the case pending
before the Court. As the Republic of Poland intends to intervene as a non-Party in the
proceedings, there is no need to prove a jurisdictional link. 59
57 ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Judgment of 2 February 2024, Joint Dissenting Opinions of Judges Sebutinde
and Robinson, at p. 2, para. 6.
58 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Request for the indication of Provisional Measures, Order of I O May 1984, Dissenting Opinion of Judge Schwebel,
I.CJ . Reports 1984, p. 169, at pp. 195-196; ibidem, Declaration of Intervention of the Republic of El Salvador,
Order of 4 October 1984, Dissenting Opinion of Judge Schwebel, I.CJ. Reports 1984, p. 2 l 5, at p. 235.
59 JCJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica for Pennission to
Intervene, Judgment of 4 May 20 I I, I.CJ. Reports 20 I l , p. 348, at p. 36 l, para. 38.
17
46. Nevertheless, the Republic of Poland wishes to note that it, like Ukraine and Russia, is a
party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,
to which Poland acceded on 14 November 1950. On 16 October 1997, the Government of
the Republic of Poland notified the Secretary-General that it had decided to withdraw its
reservation with regard to Article IX of the Convention, made upon accession.
~ of 4,,<-~:.._
Artur Harazim
Agent of the Government of the Republic of Poland
18