Arlietu ministrija
Ministry of Foreign Affairs of the Republic of Latvia
K.
Valdemra iela 3, RTga, LV-1395, Latvia, phone+ 371 67016201, fax+ 371 67828 I 21, [email protected],www.mfa.gov.lv
Riga, 26 July 2024
Mr. Philippe Gautier
Registrar of the International Court of Justice
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
Email: [email protected]
[email protected]
Your Excellency,
I have the honour to refer to your letter of 18 June 2024 to the Government of
the Republic of Latvia with reference to the case concerning Allegations of Genocide
under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation).
I note that you stated that
States which sought to intervene at the preliminary objections stage and at the
merits stage are invited to indicate, by 2 August 2024, whether they maintain
their declarations of intervention. If deemed necessary, they may adjust by
the same date their declarations of intervention in light of the Judgment of 2
February 2024.
Latvia confirms that it has sought to intervene under Article 63 of the Statute
of the International Court of Justice at the preliminary objections stage and at the
merits stage, as stated in its Declaration of Intervention of 21 July 2022', Written
Observation on the admissibility of its Declaration of Intervention of 13 February
1
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation) (Declaration of Intervention of Latvia of 21 July 2022)
<https://www.icj-cij.org/sites/default/files/case-related/182/ 182-20220719-WRI-0 1-00-EN.pdf>
[ 15]
(Latvia wishes to intervene in order to make submissions on construction of the Genocide Convention
on issues relating to merits as well as jurisdiction"), Section E(iii) (Provisions of the Genocide
Convention in question regarding merits of the claim"), [35]-[37]
2
2023,
and oral proceedings of 20 September 2023.
3
I have the honour to infonn you that Latvia indicates that it maintains its
declaration of intervention at the merits stage, as adjusted by the Annex to this letter.
In addition, four electronic versions in word and pdf formats of the adjusted
declaration will be sent electronically as requested.
Please find enclosed the letter for Appointment of Agent and Co-Agent for the
Republic of Latvia before the International Court of Justice concerning the case
Allegations of Genocide
under the Convention on the Prevention and Punishment of
the Crime of Genocide (Ukraine v. Russian Federation).
Please accept, Excellency, the assurances of my highest consideration.
Respectfully,
Sanita P~KALE,
Agent of the Republic of Latvia
2
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation) (Written Observations of Latvia on admissibility of its
Declaration of Intervention of 13 February 2023) <https://www.icj-cij.org/sites/default/files/case
related/182/182-20230213-wri-18-00-en.pdf> [2 I], [26](ii) (In view of the foregoing, Latvia
respectfully requests the Court: ... (e) to declare the Declaration admissible as to the merits phase of
the proceedings.").
3
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation: 32 States intervening) CR 2023/15 81 [15] (Paparinskis)
(this concludes the submissions of Latvia at the present stage of the proceedings) ( emphasis added).
2
Annex
1. Latvia maintains the position expressed in its Declaration of Intervention of 21
July 2022 (Declaration") on construction of the Convention on the Prevention
and Punishment of the Crime of Genocide ("Genocide Convention") at the
merits stage of the case of the International Court of Justice ("Court")
concerning Allegations of Genocide under the Convention on the Prevention
and Punishment of the Crime of Genocide (Ukraine
v. Russian Federation)
("Proceedings").
4
2. More particularly, Latvia stated in the Declaration that it considered that
Articles I, II, III, and VIII of the Genocide Convention were in question at the
merits stage of the Proceedings.
5
Latvia maintains this position, adjusted in light
of Court's Judgment of 2 February 2024 in the Proceedings in the manner set
out below.
3. As it did in the preliminary objections phase,
Latvia will submit detailed
observations on the subject-matter of its intervention under Article 63 of the
Statute of the Court at the merits stage in the written and (unless the Court
decides otherwise) oral proceedings, once furnished with copies of the
pleadings.
6
7
Latvia notes the Court's recent confirmation that there is no
requirement in the Statute or the Rules of Court for a State intervening under
Article 63 of the Statute to show in its declaration that the interpretive points
raised are in dispute in the proceedings between the parties or to present a
proposition for a construction of the convention in question with a particular
standard of specificity.
8
4. Latvia adjusts the Declaration by adding a new Section G, to be inserted after
the current paragraph 55 of the Declaration (with footnotes in the inserted
paragraphs renumbered accordingly, and paragraphs 56-58 of the Declaration
renumbered as respectively paragraphs 61-63):
I
"G. Latvia's Proposed Construction of The Provisions of the Genocide
Convention on the Merits
56. Latvia contends for the construction of the relevant provisions of the
Genocide Convention adopted by the Court in its judgments on the merits in
Application of the Convention on the Prevention and Punishment of the Crime
4
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation) (Declaration of Intervention of Latvia of 21 July 2022)
<https:/ /www.icj-cij.org/sites/default/files/case-related/ 182/182-20220719-WRI-0I-00-EN.pdf>.
5
Ibid [35].
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation: 32 States intervening) (Written observations of Latvia on
the subject-matter of its intervention, 5 July 2023) <https://www.icj-cij.org/sites/default/ files/case
related/ l 82/182-20230705-wri-03-00-en.pdf>; Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v.
Russian Federation: 32 States
intervening) CR 2023/15 76-81.
7
Article 86 of the Rules of Court.
8
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar) (Declarations of Intervention, Order of 3 July 2024) [2024] ICJ Rep
<https://www.icj-cij.org/sites/default/files/case-related/ 178/ 178-20240703-ord-0 1-00-en. pdf> [3 5].
3
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro/ and
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Croatia v.
Serbia)."
(i)
Article II of the Genocide Convention
57. Concerning Article II of the Genocide Convention, Latvia contends that,
According to that Article, genocide contains two constituent elements:
the physical element, namely the act perpetrated or actus reus, and the
mental element, or mens rea. Although analytically distinct, the two
elements are linked. The determination of actus reus can require an
inquiry into intent. In addition, the characterization of the acts and their
mutual relationship can contribute to an inference of intent.
11
58. Concerning the mens rea of genocide under Article II of the Genocide
Convention, Latvia contends that
The "intent to destroy, in whole or in part, a national, ethnical, racial or
religious group as such" is the essential characteristic of genocide,
which distinguishes it from other serious crimes. It is regarded as a
dolus specialis, that is to say a specific intent, which, in order for
genocide to be established, must be present in addition to the intent
required for each of the individual acts involved ... .2
"causing serious ... mental hann to members of the group" within the
meaning of Article II (b), even if it does not directly concern the
physical or biological destruction of members of the group, must be
regarded as encompassing only acts carried out with the intent of
achieving the physical or biological destruction of the group, in whole
or in part.''
Since it is the group, in whole or in part, which is the object of the
" Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro) [2007] ICJ Rep 43 Chapters IV, VII, and VIII.
" Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia) [2015] ICJ Rep 3 Chapter III.
"Ibid [130]
Ibid [132]. See also Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and
Montenegro) (n 3) [187] (Article II [of the Genocide Convention] requires a further mental element. It
requires the establishment of the 'intent to destroy, in whole or in
part, ... [the protected] group, as
such'. It is not enough to establish, for instance in terms of paragraph (a), that deliberate unlawful
killings of members of the group have occurred. The additional intent must also be established, and is
defined very precisely. It is often referred to as a special or specific intent or do/us specia!is ... It is not
enough that the members of the group are targeted because they belong to that group, that is because
the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II
must be done with intent to destroy the group as such in whole or in part. The words 'as such'
emphasize that intent to destroy the protected group.").
'Application of the Genocide Convention (Croatia v. Serbia) (n 4) [136].
4
genocidal intent, ... it is difficult to establish such intent on the basis of
isolated acts .... in the absence of direct proof, there must be evidence
of acts on a scale that establishes an intent not only to target certain
individuals because of their membership to a particular group, but also
to destroy the group itself in whole or in part.
14
to state that, "for a pattern of conduct to be accepted as evidence of ...
existence [ of genocidal intent], it [must] be such that it could only
point to the existence of such intent" amounts to saying that, in order to
infer the existence of dolus specialis from a pattern of conduct, it is
necessary and sufficient that this is the only inference that could
reasonably be drawn from the acts in question.
15
59. Concerning the actus reus of genocide under Article II of the Genocide
Convention, Latvia contends that
The acts listed in Article II of the Convention constitute the actus reus
of genocide. Such acts are proscribed in the context of genocide
inasmuch as they are directed against the members of the protected
group and reflect the intent to destroy that group in whole or in part ....
such acts cannot be taken in isolation, but must be assessed in the
context of the prevention and punishment of genocide, which is the
object of the Convention.
16
"
(ii) Articles I, III and VIII of the Genocide Convention
60.As stated in paragraph 56, Latvia contends for the construction adopted by the
Court in its judgments on the merits on the Genocide Convention. In
particular, Latvia maintains the construction of Article I in conjunction with
the other provisions of the Genocide Convention as contended for in Section
F(ii) of the Declaration, to the extent that it is relevant for the merits stage of
the Proceedings".
'Ibid
[139].
·Ibid
[148].
1bid
[149].
5
INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
ADJUSTED DECLARATION OF THE REPUBLIC OF LATVIA
26 JULY 2024
2
A. INTERVENTION PURSUANT TO ARTICLE 63, PARAGRAPH 2, OF THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE
To the Registrar of the International Court of Justice (“the Court”), the undersigned being duly
authorized by the Government of the Republic of Latvia (“Latvia”):
1. On behalf of Latvia, I have the honour to submit to the Court a Declaration of
Intervention (“the Declaration”) pursuant to the right to intervene set out in Article 63,
paragraph 2, of the Statute of the Court (“the Statute”), in the case concerning Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (“the Proceedings”).
2. Article 82, paragraph 2, of the Rules of Court provides that a declaration of a State’s
desire to avail itself of the right conferred upon it by Article 63, paragraph 2, of the Statute:
“[S]hall specify the case and convention to which it relates and shall contain:
(a) particulars of the basis on which the declarant State considers itself a party to
the convention;
(b)
identification of the particular provisions of the convention the construction of
which it considers to be in question;
(c) a statement of the construction of those provisions for which it contends;
(d) a list of documents in support, which documents shall be attached.”
3. Following preliminary observations on its interest in the case and its right to intervene
in the Proceedings, Latvia will address these requirements in sequence.
3
B. PRELIMINARY OBSERVATIONS
4. Latvia will first introduce the Proceedings and then address its intervention under
Article 63 of the Statute. Finally, it will consider the right to intervene on jurisdictional issues.
(i) Proceedings by Ukraine against the Russian Federation
5. On 26 February 2022, Ukraine instituted the Proceedings against the Russian
Federation (“Russia”) by submitting an application (“Ukraine’s Application”)
concerning a
dispute between Ukraine and Russia relating to the interpretation, application, and fulfilment
of the Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide
Convention” or “the Convention”).
1
6.
2
In Ukraine’s Application, it contended that:
“2. … [T]he Russian Federation has falsely claimed that acts of genocide have occurred
in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the socalled
‘Donetsk
People’s
Republic’
and
‘Luhansk
People’s
Republic,’
and
then
declared
and
implemented a ‘special military operation’ against Ukraine with the express
purpose of preventing and punishing purported acts of genocide that have no basis in
fact. On the basis of this false allegation, Russia is now engaged in a military invasion
of Ukraine involving grave and widespread violations of the human rights of the
Ukrainian people.
3. Ukraine emphatically denies that any such genocide has occurred and brings this
Application to establish that Russia has no lawful basis to take action in and against
Ukraine for the purpose of preventing and punishing any purported genocide.”
3
7.
In Section V of Ukraine’s Application, Ukraine requested that the Court:
“a. Adjudge and declare that, contrary to what the Russian Federation claims, no acts
of genocide, as defined by Article III of the Genocide Convention, have been committed
in the Luhansk and Donetsk oblasts of Ukraine.
b. Adjudge and declare that the Russian Federation cannot lawfully take any action
under the Genocide Convention in or against Ukraine aimed at preventing or punishing
an alleged genocide, on the basis of its false claims of genocide in the Luhansk and
Donetsk oblasts of Ukraine.
c. 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 22
1
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (Application instituting Proceedings of 26 February 2022) <https://www.icjcij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf>
[1]. All URLs accessed on the date of
submission of the Declaration.
2
Ibid [2]; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948,
entered into force 12 January 1951) 78 UNTS 277.
3
Ukraine’s Application (n 1) [2]-[3].
4
February 2022 is based on a false claim of genocide and therefore has no basis in the
Genocide Convention.
d. Adjudge and declare that the ‘special military operation’ declared and carried out by
the Russian Federation on and after 24 February 2022 is based on a false claim of
genocide and therefore has no basis in the Genocide Convention.
e. Require that the Russian Federation provide assurances and guarantees of nonrepetition
that
it
will
not
take
any
unlawful
measures
in
and
against
Ukraine,
including
the
use
of
force,
on
the
basis
of
its
false
claim
of
genocide.
f. Order full reparation for all damage caused by the Russian Federation as a
consequence of any actions taken on the basis of Russia’s false claim of genocide.”
8. Also on 26 February, Ukraine filed a request for provisional measures of protection
with the Court in accordance with Article 41 of the Statute, together with Articles 73–75 of the
Rules of Court (“Ukraine’s Request for Provisional Measures”).
4
On 16 March 2022, the Court
granted Ukraine’s request (“the Order”), ordering that:
5
“(1) The Russian Federation shall immediately suspend the military operations that it
commenced on 24 February 2022 in 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 persons which may
be subject to its control or direction, take no steps in furtherance of the military
operations referred to in point (1) 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.”
9. As of the date of this Declaration, Russia has failed to comply with the Order.
6
(ii) Latvia’s intervention under Article 63 of the Statute
10. On 30 March 2022, the Registrar notified Latvia, as a Party to the Genocide Convention,
as contemplated by Article 63, paragraph 1, of the Statute (“Registrar’s Letter”), that by
Ukraine’s Application the Genocide Convention “is invoked both as a basis of the Court’s
jurisdiction and the substantive basis of [Ukraine’s] claims on the merits”. The Registrar also
noted that:
7
4
Ibid [30].
5
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 Measures of 26 February 2022)
<https://www.icj-cij.org/public/files/case-related/182/182-20220227-WRI-01-00-EN.pdf>.
6
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (Order of 16 March 2022) <https://www.icj-cij.org/public/files/caserelated/182/182-20220316-ORD-01-00-EN.pdf>.
7
‘Joint Statement of support for Ukraine’s application before the International Court of Justice against Russia’
(13 July 2022) <https://www.gov.uk/government/news/joint-statement-of-support-for-ukraines-applicationbefore-the-international-court-of-justice-against-russia>.
5
“[Ukraine] seeks to found the Court’s jurisdiction on the compromissory clause
contained in Article IX of the Genocide Convention, asks the Court to declare that it
has not committed a genocide as defined in Articles II and III of the Convention, and
raises questions concerning the scope of the duty to prevent and punish genocide under
Article I of the Convention. It therefore appears that the construction of [the Genocide
Convention] will be in question in this case.”
11. By this Declaration, Latvia avails itself of the right conferred on it by Article 63 of the
Statute.
8
9
The purpose of this right “is to allow a third State not party to the proceedings, but
party to a convention whose construction is in question in those proceedings, to present to the
Court its observations on the construction of that convention”.
The status of intervener will
be ipso facto conferred on a declarant State “when the declaration concerned falls within the
provisions of Article 63”.
10
Therefore, “the Court must ensure that such is the case before
accepting a declaration of intervention as admissible”.
11
However, under Article 63 the Court
“is not required to ascertain whether the State which is the author of that declaration has ‘an
interest of a legal nature’ which ‘may be affected by the decision [of the Court]’ in the main
proceedings”.
12
12. Latvia will present its views to the Court on issues of construction of the Genocide
Convention in question, consistently with the statements of the Court quoted above concerning
the scope of the right to intervention set out in Article 63, paragraph 2, of the Statute. Latvia
does not seek to become a party to the Proceedings by exercising that right, but does accept
that the Genocide Convention’s “construction given by the judgment will be equally binding
upon it”. Latvia’s intervention will be limited to issues of construction (interpretation), and will
not address application.
13. Article 82, paragraph 1, of the Rules of Court provides that a declaration of a State
seeking to intervene under Article 63 of the Statute shall be “filed as soon as possible, and not
later than the date fixed for the opening of the oral proceedings”. In accordance with that
requirement, Latvia has filed this Declaration at the earliest opportunity reasonably available
to it, well in advance of the oral proceedings, having informed the Court of its intention to
intervene by the letter dated 6 April 2022.
13
14. Latvia is mindful of the Court’s longstanding commitment to the administration of
justice, conscious of its duty to assist the Court, and desires to participate effectively in the
Proceedings. Should the Court confirm its right to intervene, Latvia requests that it be provided
with copies of all pleadings filed by Ukraine and Russia in these Proceedings as well as any
documents annexed thereto, as contemplated by Article 85, paragraph 1, of the Rules of Court.
14
8
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (Letter from the Registrar of the Court to the Ambassador of Latvia to The
Netherlands of 30 March 2022).
9
Haya de la Torre (Colombia v. Peru) [1951] ICJ Rep 71, 76; also Whaling in the Antarctic (Australia v. Japan)
(Declaration of Intervention of New Zealand, Order of 6 February 2013) [2013] ICJ Rep 3 [7] (with further
references).
10
Whaling (n 9) [7].
11
Ibid [8].
12
Ibid [8].
13
Ibid [7].
14
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (Letter from the Minister of Foreign Affairs of Latvia to the Registrar of the
Court of 6 April 2022).
6
(iii) Latvia’s right of intervention on jurisdictional issues
15. Latvia wishes to intervene in order to make submissions on construction of the
Genocide Convention on issues relating to merits as well as jurisdiction. In this sub-section,
Latvia will explain why an intervention under Article 63 on issues relating to jurisdiction is, in
principle, just as admissible as an intervention on issues relating to the merits.
16. First, Article 63, paragraph 1, of the Statute requires that “the construction of a
convention to which states other than those in the case are parties is in question”. This language
draws no distinction between the provisions of the convention on which the jurisdiction of the
Court might be founded, and the provisions relevant to the claim on the merits.
17. Secondly, the Court routinely engages in construction of treaty provisions when
assessing its jurisdiction, which includes both jurisdictional provisions (such as Article IX of
the Genocide Convention in the Proceedings) and, as required, substantive provisions.
It
would be odd to introduce a distinction that would exclude such important issues of
interpretation from the scope of Article 63 of the Statute, particularly in the absence of any
textual basis.
15
18. Thirdly, the suggested interpretation also appears consistent with the Court’s practice
of notifying States party to a convention that Article 63, paragraph 1, of the Statute is
potentially engaged prior to the Court conclusively determining its jurisdiction (via instructions
given to the Registrar under Article 43, paragraph 1, of the Rules of Court). For example, in
the present case, the Registrar’s Letter stated that “the Applicant seeks to found the Court’s
jurisdiction on the compromissory clause contained in Article IX of the Genocide Convention
… and raises questions concerning the scope of the duty to prevent genocide under Article I of
the Convention”. In response, Latvia has addressed the construction of jurisdictional issues
raised by Articles IX and I in this Declaration.
19. Fourthly, the Order, read together with the declarations and separate opinion attached
thereto, revealed lack of uniformity on the important question of the Court’s prima facie
jurisdiction over the Proceedings.
16
Latvia’s proposed intervention on the construction of
Articles IX and I of the Genocide Convention could therefore assist the Court in determining
its jurisdiction.
17
15
See, in the last five years, Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (Preliminary
Objections) [2017] ICJ Rep 3 [121]-[133]; Immunities and Criminal Proceedings (Equatorial Guinea v. France)
(Preliminary Objections) [2018] ICJ Rep 292 [42]-[47]; Certain Iranian Assets (Islamic Republic of Iran v. United
States of America) (Preliminary Objections) [2019] ICJ Rep 7 [45]-[46], [57]-[58], [62]-[65], [70], [78]-[79], [90][92];
Application
of
the
International
Convention
for
the
Suppression
of
the
Financing
of
Terrorism
and
of
the
International
Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian
Federation) (Preliminary Objections) [2019] ICJ Rep 558 [33]–[37]; Arbitral Award of 3 October 1899 (Guyana
v. Venezuela) (Jurisdiction of the Court) [2020] ICJ Rep 455 [61]-[101]; Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates)
(Preliminary Objections) [2021] ICJ Rep <https://www.icj-cij.org/public/files/case-related/172/172-20210204JUD-01-00-EN.pdf>
[74]-[105].
16
ed, Vol III, Brill Nijhoff
2016) 1533 (“such an interpretation as a generality does violence to the specific terms of Article 63 of the Statute”).
MN Shaw (ed), Rosenne’s Law and Practice of the International Court 1920-2015 (5
th
17
Order (n 6) [34]–[47]; ibid Declaration of Vice-President Gevorgian <https://www.icj-cij.org/public/files/caserelated/182/182-20220316-ORD-01-01-EN.pdf>
[2]–[10];
ibid
Declaration
of
Judge
Bennouna
<https://www.icjcij.org/public/files/case-related/182/182-20220316-ORD-01-02-EN.pdf>
[2]-[11];
ibid
Declaration
of
Judge
Xue
<https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-03-EN.pdf>
[2].
7
20. Latvia’s interpretation of Article 63 of the Statute is in line with the Court’s practice,
including in its decision to refuse El Salvador’s application to intervene under Article 63,
paragraph 1, of the Statute in the jurisdictional phase of the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
First, neither the Court nor Judges writing individually in that case suggested that Article 63
could not, in principle, apply to jurisdictional issues. The only explicit discussion of the issue
is found in Judge Schwebel’s extended argument that “intervention in the jurisdictional phase
of a proceeding is within the scope of the right with which States are endowed by the terms of
Article 63.”
18
19
Secondly, a key element that led to
the rejection of El Salvador’s declaration of intervention in that case was that the Court and
Judges perceived it as primarily or even exclusively directed at the merits of the case.
Similar views are held by leading scholars.
20
Conversely, in the Proceedings, Latvia wishes to intervene on matters that concern the Court’s
jurisdiction under Articles IX and I of the Genocide Convention. To the extent it is on foot with
the Proceedings, therefore, the Court’s prior practice supports the admissibility of properly
framed Article 63 interventions on issues of jurisdiction.
21
C. CASE AND CONVENTION TO WHICH THIS DECLARATION RELATES
21. This Declaration relates to the Proceedings, which concern the interpretation,
application, and fulfilment of the Genocide Convention.
22. As a Party to the Genocide Convention, Latvia has a direct interest in the construction
that might be placed upon that treaty in the Court’s decision in the Proceedings. For that reason,
Latvia is exercising its right to intervene conferred by Article 63, paragraph 2, of the Statute.
Latvia’s intervention is directed at the construction of the Genocide Convention that is in
question in the Proceedings, in particular Articles I, II, III, VIII, and IX of the Convention. To
18
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
(Declaration of Intervention, Order of 4 October 1984) [1984] ICJ Rep 215.
19
Ibid Dissenting Opinion of Judge Schwebel 223, 235-236.
20
H Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Vol I,
OUP 2013) 1031; A Miron and C Chinkin, ‘Article 63’ in A Zimmermann, CJ Tams, K Oellers-Frahm, and C
Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3
edn, OUP 2019) 1741 [46]
(“There appears to be no reason within the Statute, or its travaux préparatoires why intervention should not be
allowed for the purpose of challenging the Court’s jurisdiction or the admissibility of the case. In fact, several
arguments plead in favour of the possibility for a third State to make a request to intervene at the phase of
jurisdiction and admissibility, at least under Article 63. The wording of Article 63 is unqualified in asserting
‘[w]henever the construction of a convention … is in question’ which implies that it is applicable in all phases of
the case. Article 63 does not differentiate between types of treaty provisions, or types of treaty. The purpose of
Article 63 is to allow parties to a multilateral convention to put their construction of the convention to the Court
in proceedings to which they are not parties.”) (footnotes omitted).
rd
21
Nicaragua Intervention (n 18) [2] (“the Declaration of Intervention of the Republic of El Salvador, which relates
to the present phase of the proceedings, addresses itself also in effect to matters, including the construction of
conventions, which presuppose that the Court has jurisdiction”); ibid Separate Opinion of Judge Singh 218, 218
(“It has been explained in paragraph 2 of the Court’s Order that El Salvador’s Declaration in effect appears directed
to the merits of the case - an observation with which I do agree and which has also weighed with the Court.”)
(emphasis in the original); Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière
219 [3] (“we have not been able to find, in El Salvador's written communications to the Court, the necessary
identification of such particular provision or provisions which it considers to be in question in the jurisdictional
phase”); Separate Opinion of Judge Oda 220 [2] (“Declaration of Intervention … appeared mainly directed to the
merits of the case”).
8
the extent that any other provisions of the Genocide Convention are specifically put in question
in these Proceedings, Latvia reserves the right to supplement this Declaration.
D. BASIS ON WHICH LATVIA IS A PARTY TO THE GENOCIDE CONVENTION
23. On 14 April 1992, Latvia deposited its instrument of accession to the Genocide
Convention with the Secretary-General of the United Nations in accordance with Article XI of
the Convention. Upon that instrument becoming effective on 13 July 1992, Latvia became a
Contracting Party of the Genocide Convention in accordance with Article XIII of the
Convention.
E. PROVISIONS OF THE GENOCIDE CONVENTION IN QUESTION IN THE PROCEEDINGS
24. The provisions of the Genocide Convention which are in question in the Proceedings
are Articles I, II, III, VIII, and IX of the Convention. Latvia will first set out the text of the
provisions in question and then explain which provisions are in question regarding the
jurisdiction of the Court. Finally, it will address provisions in question regarding merits of the
claim.
(i) Text of the provisions of the Genocide Convention in question
25. Article I:
“The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake
to prevent and to punish”.
26. Article II:
“In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
27. Article III:
“The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.”
9
28. Article VIII:
“Any Contracting Party may call upon the competent organs of the United
Nations to take such action under the Charter of the United Nations as they
consider appropriate for the prevention and suppression of acts of genocide or
any of the other acts enumerated in article III.”
29. Article IX:
“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those relating to
the responsibility of a State for genocide or for any of the other acts enumerated
in article III, shall be submitted to the International Court of Justice at the request
of any of the parties to the dispute.”
(ii) Provisions of the Genocide Convention in question regarding jurisdiction of the Court
30.
In its Application, Ukraine submits that:
“There is a dispute between Ukraine and the Russian Federation within the
meaning of Article IX relating to the interpretation, application or fulfilment of
the Genocide Convention. […] [A]s Ukraine and Russia hold opposite views on
whether genocide has been committed in Ukraine, and whether Article I of the
Convention provides a basis for Russia to use military force against Ukraine to
‘prevent and to punish’ this alleged genocide.”
22
31. First, Article IX of the Convention is in question since “the Applicant seeks to found
the Court’s jurisdiction on the compromissory clause contained in” that provision.
23
A range of
views have been expressed regarding the important point of construction of the scope of the
Court’s jurisdiction under Article IX (i.e. whether the dispute concerns the “interpretation,
application or fulfilment” of the Genocide Convention) in the Order,
24
by Judges writing
individually,
25
and the Parties.
26
On the important point of construction of whether Article IX
encompasses non-violation complaints, views have been expressed by the Court,
27
Judges
writing individually,
28
and Ukraine.
29
32. Secondly, Article I of the Convention is in question since “the Applicant … raises
questions concerning the scope of the duty to prevent and punish genocide under Article I of
22
Ukraine’s Application (n 1) [7], [11].
23
Registrar’s Letter (n 8).
24
Order (n 6) [48].
25
Allegations of Genocide Declaration of Vice-President Gevorgian (n 17) [9]; Allegations of Genocide
Declaration of Judge Xue (n 17) [9]; Order (n 6) Separate Opinion of Judge Robinson <https://www.icjcij.org/public/files/case-related/182/182-20220316-ORD-01-04-EN.pdf>
[30].
26
Cf. Ukraine’s Application (n 1) [6]-[7]; Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation) (Document (with annexes) from the
Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case of
7 March 2022) <https://www.icj-cij.org/en/case/182/jurisdiction-admissibility> (“Russia’s Letter”) [7]-[11], [21].
27
Order (n 6) [48].
28
Allegations of Genocide Declaration of Vice-President Gevorgian (n 17) [8]; by implication Allegations of
Genocide Declaration of Judge Bennouna (n 17) [2].
29
Ukraine’s Application (n 1) [30(a)].
10
the Convention”.
Views have been expressed regarding the important point of construction
of whether Article I of the Genocide Convention includes a prohibition against making abusive
allegations of genocide, by the Court,
30
33. Thirdly, Article I (in conjunction with Articles VIII and IX) is also in question with
respect to whether it authorizes unilateral use of force for the purpose of preventing or
punishing an alleged genocide, and a variety of views have been expressed by the Court,
31
Judges writing individually,
32
and the Parties.
33
Judges writing individually,
34
34. Thus, the proper construction of Articles IX, I, and VIII of the Genocide Convention is
in question in the Proceedings.
(iii) Provisions of the Genocide Convention in question regarding merits of the claim
35. Articles I, II, III, and VIII of the Genocide Convention are in question in the
Proceedings, and have been expressly relied upon by Ukraine as the basis of its claims.
35
and Ukraine.
36
36. First, Article I is in question in evaluating the claim regarding the veracity of Russia’s
allegations that Ukraine has committed genocide.
37
Views have been expressed by the Parties
regarding the construction of the obligation not to abusively allege genocide.
38
Construction of
Article I in conjunction with Articles II and III is also likely to be in question in determining
the scope and content of the concept of genocide.
39
37. Secondly, Article I in conjunction with Article VIII is in question in evaluating
Ukraine’s claim regarding Russia’s unlawful unilateral use of force as a means for prevention
and punishment of the crime of genocide. Views on this matter have been expressed by the
Court
40
41
F. LATVIA’S PROPOSED CONSTRUCTION OF THE PROVISIONS OF THE GENOCIDE
and the Parties regarding the construction of the scope and content of this obligation.
42
CONVENTION IN QUESTION
38. Latvia will first introduce the proposed construction of Article IX of the Genocide
Convention as covering non-violation complaints, then address the proposed construction of
Article I in conjunction with other provisions as prohibiting abusive allegations of genocide. It
30
Registrar’s Letter (n 8).
31
Order (n 6) [45].
32
Allegations of Genocide Declaration of Judge Bennouna (n 17) [5].
33
Cf. Ukraine’s Application (n 1) [8]-[9], [24]; Russia’s Letter (n 26) [11].
34
Order (n 6) [45].
35
Allegations of Genocide Declaration of Vice-President Gevorgian (n 17) [5]; Allegations of Genocide
Declaration of Judge Bennouna (n 17) [11]; Allegations of Genocide Declaration of Judge Xue (n 17) [2].
36
Ukraine’s Application (n 1) [9].
37
Ibid [26(a)–(c)].
38
Order (n 6) [37]-[42].
39
Cf. Ukraine’s Application (n 1) [27], [28]; Russia’s Letter (n 26) [20]-[21].
40
Ukraine’s Application (n 1) [26].
41
Order (n 6) [56].
42
Cf. Ukraine’s Application (n 1) [27], [28]; Russia’s Letter (n 26) [11].
11
will then continue to explain its proposed construction of Article I in conjunction with other
provisions as not authorizing otherwise unlawful unilateral use of force as a means for
prevention and punishment of the crime of genocide, and conclude by summarizing the
proposed construction. Latvia’s proposed construction of the provisions of the Genocide
Convention relates to jurisdiction of the Court as well as to the merits of the claim.
39. Latvia will rely upon the principles of treaty interpretation expressed in the Vienna
Convention on the Law of Treaties (“Vienna Convention”) since, even if it is not applicable as
a treaty in the Proceedings, “it is well established that Articles 31 and 32 of the Vienna
Convention reflect rules of customary international law”.
(i) Article IX of the Genocide Convention covers non-violation complaints
40. Latvia contends that Article IX of the Genocide Convention is formulated in broad
terms and covers claims that have been described as “non-violation complaints”.
43
Latvia will
make two points concerning the construction of Article IX: (1) Article IX is formulated in broad
terms; (2) Article IX covers non-violation complaints.
44
41. First, Article IX of the Genocide Convention is formulated in broad terms. There is a
twofold difference between Article IX and the standard dispute settlement provision commonly
relied upon in the judicial practice of the Court that grant jurisdiction over interpretation and
application of the relevant treaties.
Article IX “add[s] the word ‘fulfilment’ to the provision
conferring on the Court jurisdiction over disputes as to the ‘interpretation and application’ of
the Convention”.
45
Article IX also has “[t]he unusual feature [of] the phrase ‘including those
[disputes] relating to responsibility of a State for genocide or any of the other acts enumerated
in Article III’”, which has been applied by the Court in supporting a broad construction of the
Convention.
46
42. Secondly, the broad formulation of Article IX of the Genocide Convention covers nonviolation
complaints.
The
jurisdiction
granted
to
the
Court
by
Article
IX
includes
disputes
in
which
a
State
alleges
that
another
State
has
committed
genocide.
47
It also includes disputes in
which a State, having been subjected to allegations of genocide by another State, brings a case
against the latter State, seeking a “negative” declaration from the Court that these allegations
are without legal and factual foundation. Such a claim plainly raises questions of
“interpretation, application or fulfilment of the present Convention, including those relating to
the responsibility of a State”. It would also enable the Court to perform an important function
in confirming the (non-)compliance by a State with its obligations.
48
43. Non-violation complaints are known in the Court’s practice. For example, in the case
concerning Rights of Nationals of the United States of America in Morocco (France v. United
States of America), France commenced proceedings before the Court seeking a declaration that
43
Application of the ICERD (n 15) [75].
44
Allegations of Genocide Declaration of Vice-President Gevorgian (n 17) [8].
45
See Immunities and Criminal Proceedings (n 15) [44]-[45]; Certain Iranian Assets (n 15) [29]; Application of
ICSFT and of ICERD (n 15) [34]; Application of the ICERD (n 15) [72].
46
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) [2007] ICJ Rep 43 [168].
47
Ibid [169].
48
Ibid.
12
the license control system in question “is in conformity with the economic system which is
applicable to Morocco, according to the conventions which bind France and the United
States”.
49
The Court unanimously rejected France’s submission on the merits but there was no
suggestion by either the Court or Judges writing individually (or indeed the United States) that
the non-violation framing of the claim was legally problematic.
Another important
consideration is that the Court engaged in the same type of analysis of interpretation and
application of treaties as in other cases considered under standard dispute settlement provisions,
in line with the construction contended for above.
50
44. The result of Latvia’s construction of Article IX of the Genocide Convention is that
where a State has accused another State of genocide such that a dispute has arisen, the Court
will have jurisdiction over any claim by the latter State seeking a declaration that the former
State’s accusations are without legal and factual foundation.
(ii) Article I of the Genocide Convention prohibits abusive allegations of genocide
45. Latvia contends that no Party to the Genocide Convention should be permitted to make
abusive allegations of genocide. Such allegations risk undermining the character of genocide
as a crime of exceptional gravity and the stigma that attaches to it as an affront to the “most
elementary principles of morality”.
This would be contrary to the object and purpose of the
Convention. Latvia will make three points concerning the construction of Article I: (1) Article
I obligations shall be performed and interpreted in good faith; (2) a unilateral and unfounded
determination that a situation constitutes genocide is abusive and contrary to the letter and the
spirit of the Convention; (3) the Convention provides guidance concerning the means by which
the Parties may act lawfully to prevent and punish genocide.
51
46. First, Article I obligations must be performed and interpreted “in a reasonable way and
in such a manner that [the Convention’s] purpose can be realized”.
It would be unreasonable
to allow a Contracting Party to make abusive allegations of genocide and to distort the terms
of the Convention. Indeed, this would be contrary to the basic moral and humanitarian
objectives that the Convention seeks to protect. Good faith interpretation thus operates as a
safeguard against misuse of the terms and institutions of the Convention. As “[o]ne of the basic
principles governing the creation and performance of legal obligations”, good faith is also
directly linked to the “[t]rust and confidence [that] are inherent in international co-operation”.
52
This is particularly important in the context of the Convention, given that it is an instrument in
relation to which the Contracting Parties “do not have any interests of their own; they merely
have, one and all, a common interest, namely the accomplishment of those high purposes which
are the raison d’être of the convention”.
53
47. Secondly, a unilateral and unfounded allegation that a situation constitutes genocide is
abusive and contrary to the letter and the spirit of the Convention. Genocide requires proof of
54
49
Rights of Nationals of the United States of America in Morocco (France v. United States of America) [1952]
ICJ Rep 176, 182.
50
Ibid 182-184.
51
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion)
[1951] ICJ Rep 15, 23.
52
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 [142].
53
Nuclear Tests (Australia v. France) [1974] ICJ Rep 253 [46].
54
Reservations to the Genocide Convention (n 51) 23.
13
specific intent (dolus specialis): “intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such”.
As noted by the Court, “claims against a State involving
charges of exceptional gravity must be proved by evidence that is fully conclusive … The Court
requires that it be fully convinced that allegations made in the proceedings, that the crime of
genocide or the other acts enumerated in Article III have been committed, have been clearly
established”.
55
Given the nature of these obligations and the standard of proof attached to
genocide, Contracting Parties to the Genocide Convention often rely on the results of
independent investigations
56
and regional
cooperation mechanisms before qualifying a situation as genocide and taking any further action
pursuant to Article I.
57
and information exchanged through international
58
The best practices for implementation of the Convention prioritise
cooperation through existing and further-enhanced international mechanisms.
59
48. Thirdly, the Convention provides guidance concerning the lawful means by which the
Contracting Parties may prevent and punish genocide. The proper construction of Article I in
this respect requires consideration of other parts of the Convention, including “Articles VIII
and IX, as well as its Preamble”,
60
and Article VI.
- A Contracting Party may discharge its obligation to punish alleged perpetrators of
genocide by having recourse to domestic or international penal tribunals.
61
For
example, the International Criminal Court (‘ICC’) is well equipped to investigate,
prosecute, and punish the crime of genocide. States Parties to the Rome Statute of the
ICC may refer situations in which genocide or other acts enumerated in Article III are
alleged to have been committed to the attention of the ICC Prosecutor.
62
Even if they
are not parties to the Rome Statute, they may recognize its competence over specific
crimes, including genocide, alleged to have occurred in their own territory.
63
- A Contracting Party with reason to believe that genocide or other acts enumerated in
Article III have occurred or that there is a risk that such acts may occur, may call upon
the competent United Nations organs to undertake necessary enforcement actions.
64
Article VIII of the Convention sets out a basic framework of cooperation within which
the obligations to prevent and to punish may be performed and provides a reference
65
55
Genocide Convention (n 2) Article II.
56
Application of the Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (n 46) [209]; also Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) [2015] ICJ
Rep 3 [178].
57
For example, the unilateral determination by the United States of alleged genocide in Darfur was based on the
findings of the Darfur Atrocities Documentation Project (DADP), an investigation conducted by independent
experts, see the declaration before the Senate Foreign Relations Committee by Colin Powell, ‘The Crisis in Darfur’
(9 September 2004), <https://2001-2009.state.gov/secretary/former/powell/remarks/36042.htm>.
58
For example, The Gambia communicated its allegations to Myanmar prior to commencing proceedings before
the Court and relied inter alia on the reports of the Independent International Fact-Finding Mission on Myanmar,
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar) (Provisional Measures, Order of 23 January 2020) [2020] ICJ Rep 3 [28].
59
‘Report of the Secretary-General: Advancing Atrocity Prevention: Work of the Office on Genocide Prevention
and the Responsibility to Prevent’ (3 May 2021) UN Doc A/75/863–S/2021/424 [21]-[27].
60
UN Human Rights Council, ‘Resolution 43/29: Prevention of Genocide’ (29 June 2020) UN Doc
A/HRC/RES/43/29 [10]-[11].
61
Order (n 6) [56].
62
Genocide Convention (n 2) Article VI.
63
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 3 Article 14(1).
64
Ibid Article 12(3).
65
Genocide Convention (n 2) Article VIII.
14
point for the actions that States Parties should resort to in the discharge of those
obligations. If Article I were to be interpreted in a way that permits a Contracting Party
to make an abusive unilateral characterisation of a situation as genocide and act upon
it, Article VIII would be redundant (effet utile). This would be contrary to “the wellestablished
principle
in
treaty
interpretation
that
words
ought
to
be
given
appropriate
effect”.
66
- As discussed in the previous sub-section, a Contracting Party may submit to the Court
a dispute under Article IX “relating to the interpretation, application or fulfilment of the
present Convention, including those relating to the responsibility of a State for genocide
or for any other acts enumerated in article III”.
Given the breadth of this provision
and the fact that it “does not exclude any form of State responsibility”, Article IX
extends to any dispute relating to the performance or non-performance of Convention
obligations, including under Article I.
67
The Court is well placed to make
determinations as to the occurrence of genocide or other acts enumerated in Article III
and has the power to order provisional measures. Accordingly, a Contracting Party
which knows or has reason to suspect that genocide or other acts set out in Article III
have occurred or are about to occur may institute judicial proceedings against the
alleged perpetrator. Importantly, beyond the usual requirement of the dispute there are
no procedural preconditions in the Genocide Convention, such as the obligation to
negotiate or the obligation to resort first to other means of dispute settlement.
Considerations of effet utile, similar to those noted earlier in respect of Article VIII, also
apply when interpreting Article I in light of Article IX.
68
49. The means for the prevention and punishment of genocide described above are
consistent with “the spirit and aims of the United Nations” and the need for “international cooperation”,
two
elements
that
are
expressly
reflected
in
the
Preamble
of
the
Convention.
The
construction contended for is also confirmed by the travaux préparatoires of the Convention.
69
Conversely, it would be inconsistent with the rationale of the Convention to allow a Contracting
Party to make abusive allegations of genocide and employ means to prevent and to punish it
that are not themselves in accordance with the aims and purposes of the United Nations.
70
66
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia
v. Russian Federation) (Preliminary Objections) [2011] ICJ Rep 70 [133]; also Territorial Dispute (Libyan Arab
Jamahiriya/Chad) [1994] ICJ Rep 6 [51] (with further references).
67
Genocide Convention (n 2) Article IX.
68
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595 [32].
69
Genocide Convention (n 2) Preamble.
70
See UN Economic and Social Council, ‘Prevention and Punishment of Genocide: Comments by Governments
on the Draft Convention Prepared by the Secretariat’ (30 January 1948) UN Doc E/623 (statement by Venezuela);
UN Economic and Social Council, Ad Hoc Committee on Genocide, ‘Summary Record of the Seventh Meeting
held on 12 April 1948’ (20 April 1948) UN Doc E/AC.25/SR.7 (statement by Poland); Official Records of the
Third Session of the General Assembly, Sixth Committee, Summary Records of Meetings (21 September-10
December 1948), in particular UN Doc A/C.6/SR.96 (statement by the Union of Soviet Socialist Republics); UN
Doc A/C.6/SR.98 (statement by the Union of Soviet Socialist Republics); UN Doc A/C.6/SR.109 (statement by
the United States of America); UN Doc A/C.6/SR.109 (statement by Uruguay).
15
(iii) The Genocide Convention does not authorize otherwise unlawful unilateral use of force
as a means for prevention and punishment of genocide
50. Latvia contends that the Genocide Convention does not authorize otherwise unlawful
unilateral use of force as a means for prevention and punishment of genocide. Latvia will make
four points: (1) the Convention does not authorize use of force that would otherwise be
unlawful under applicable international law; (2) the means of fulfilling the obligation to prevent
and punish genocide not provided for in the Convention cannot include the unlawful use of
force; (3) the Convention prohibits the otherwise unlawful unilateral use of force as a means
for prevention and punishment of genocide; (4) the content of the rule prohibiting unlawful
unilateral use of force as a means of prevention and punishment of genocide is to be determined
by taking into account other relevant rules of international law.
51. First, the Convention does not authorize a use of force that would otherwise be unlawful
under applicable international law. The Genocide Convention contains no explicit authorization
of use of force. Indeed, no authorizing provision of the Genocide Convention refers to the use
of force. This textual silence stands in contrast with the detailed provisions employed when the
Convention does authorize particular conduct by the Parties; for example regarding trial of
persons charged with genocide,
Nor is a rule dispensing with such an important principle of international law as the prohibition
of unlawful use of force tacitly provided for in the Convention.
71
their extradition,
72
and submission of disputes to the Court.
73
The Court has stated that
“every State may only act within the limits permitted by international law” in discharging its
duty to prevent genocide under the Convention,
74
which is accepted to signify that the
Convention does not authorize an otherwise unlawful use of force.
75
Latvia agrees with the
point made in the Order that “it is doubtful that the Convention, in light of its object and
purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State
for the purpose of preventing or punishing an alleged genocide.”
76
52. Secondly, any means of fulfilling the obligation to prevent and punish genocide not
provided for in the Convention cannot include a use of force that would otherwise be unlawful
under applicable international law.
77
The Court notes in the Order that “Article I does not
specify the kinds of measures that a Contracting State may take to fulfil this obligation”,
78
and
79
71
Genocide Convention (n 2) Article VI.
72
Ibid Article VII.
73
Ibid Article IX.
74
Elettronica Sicula SpA (ELSI) (United States of America v. Italy) [1989] ICJ Rep 15 [50]; Oil Platforms (Islamic
Republic of Iran v. United States of America) [2003] ICJ Rep [41].
75
Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (n 46) [430];
Order (n 6) [57].
76
CJ Tams, L Berster, and B Schiffbauer (eds), Convention on the Prevention and Punishment of the Crime of
Genocide: A Commentary (Beck/Hart/Nomos 2014) 51; A de Hoogh, ‘Jus Cogens and the Use of Armed Force’
in M Weller (ed), The Oxford Handbook on the Use of Force in International Law (OUP 2015) 1161, 1185
(“absence of a justification for the use of armed force laid down in the Genocide Convention”); R O’Keefe,
International Criminal Law (OUP 2015) 344-5; G Mettraux, International Crimes: Law and Practice (Volume I:
Genocide, OUP 2019) 96 (“the duty to prevent [genocide] does not purport to provide an exception to … the
general principles regulating the lawful use force”).
77
Order (n 6) [59].
78
If the obligation is breached, States may rely on applicable customary secondary rules to implement State
responsibility, Application of the Genocide Convention Order (The Gambia v. Myanmar) (n 58) [41]; International
Law Commission, ‘Articles on responsibility of States for internationally wrongful acts’ Yearbook of the
International Law Commission 2001: Volume II Part 2 UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2) 26 Articles
48, 54. These rules do not authorize otherwise unlawful use of force either, ibid Article 50(1)(a).
79
Order (n 6) [56].
16
further identifies the engagement with the competent organs of the United Nations
and
submission of disputes to the Court as measures authorized to prevent and punish the
genocide.
80
81
The Court also refers to “other means … such as bilateral engagement or exchanges
within a regional organization”.
In Latvia’s view, these rules of the Charter of the United
Nations on peaceful means for the settlement of international disputes are legally relevant to
the construction of the Convention by way of Article 31, paragraph 3, sub-paragraph (c), of the
Vienna Convention.
82
The principles of effectiveness and good faith in treaty interpretation
require that the (for its time) innovatory and far-reaching regime of measures set out in the
Convention and the Charter cannot be supplemented by unlawful use of force.
83
53. Thirdly, the Convention prohibits an otherwise unlawful use of force as a means for
prevention and punishment of genocide. The balance struck between the means for prevention
and punishment of genocide in the Convention, demonstrated above, is consistent with a
positive prohibition of those other means not in conformity with the spirit and aims of the
United Nations Charter (such as “the suppression of acts of aggression or other breaches of the
peace”).
84
This construction is supported by the ordinary meaning of Article I (“genocide … is
a crime under international law which they undertake to prevent and to punish”), which
interpreted in good faith entails the prohibition of “the supreme international crime”
as a
means for implementing the Convention.
85
It is further supported by interpretation of
“measures that a Contracting State may take to fulfil this obligation” in Article I
86
consistently
with the relevant rules of international law on the use of force
87
Consequently, the Court’s jurisdiction under Article IX of the Convention extends, where
appropriate, to the determination of whether action alleged to be taken as a means for
prevention and punishment of the crime of genocide was or was not unlawful use of force.
88
of jus cogens character.
89
54. Fourthly, the content of the prohibition of unlawful use of force as a means of
prevention and punishment of genocide is to be determined by taking into account other
relevant rules of international law. Consistently with Article 31, paragraph 3, sub-paragraph
(c), of the Vienna Convention, the determination of whether action alleged to be taken as a
means for prevention and punishment of genocide was or was not unlawful use of force is to
be carried out by reference to international law applicable to this question, that is to say, the
provisions of the Charter of the United Nations and customary international law on the use of
force.
90
91
which
Latvia regards as correct.
Latvia’s proposed construction is in line with the approach taken in the Order,
92
80
Genocide Convention (n 2) Article VIII.
81
Ibid Article IX.
82
Order (n 6) [57].
83
Ibid [58]; Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS
XVI Articles 1, 33(1).
84
Order (n 6) [58].
85
‘Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30
September and 1 October 1946 (Reproduced)’ (1947) 41 AJIL 172, 186.
86
Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (n 46) [163].
87
Order (n 6) [56].
88
Oil Platforms (n 74) [41]-[42].
89
2022 ILC Draft conclusions on identification and legal consequences of peremptory norms of general
international law (jus cogens) <https://legal.un.org/docs/?symbol=A/CN.4/L.967> Draft conclusion 20, Draft
annex (a).
90
To paraphrase the Court in Oil Platforms (n 74) [42].
91
To again paraphrase the Court in ibid.
92
Order (n 6) [58].
17
(iv) Summary of Latvia’s construction of the Genocide Convention
55. Latvia will make three broad points of construction. First, Article IX of the Genocide
Convention is formulated in broad terms to include the “fulfilment” of obligations under the
Convention and covers complaints of non-violation. Secondly, Article I of the Genocide
Convention, interpreted in conjunction with other parts of the Convention, including Articles
VIII and IX and the Preamble, prohibits abusive allegations of genocide. Thirdly, Article I of
the Genocide Convention, interpreted in conjunction with other provisions of the Convention,
does not authorize otherwise unlawful use of force as a means for prevention and punishment
of genocide.
G. LATVIA’S PROPOSED CONSTRUCTION OF THE PROVISIONS OF THE GENOCIDE
CONVENTION ON THE MERITS
56. Latvia contends for the construction of the relevant provisions of the Genocide
Convention adopted by the Court in its judgments on the merits in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro)
and Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia).
93
(i) Article II of the Genocide Convention
57. Concerning Article II of the Genocide Convention, Latvia contends that,
According to that Article, genocide contains two constituent elements: the
physical element, namely the act perpetrated or actus reus, and the mental
element, or mens rea. Although analytically distinct, the two elements are
linked. The determination of actus reus can require an inquiry into intent. In
addition, the characterization of the acts and their mutual relationship can
contribute to an inference of intent.
94
58. Concerning the mens rea of genocide under Article II of the Genocide Convention,
Latvia contends that
The “intent to destroy, in whole or in part, a national, ethnical, racial or religious
group as such” is the essential characteristic of genocide, which distinguishes it
from other serious crimes. It is regarded as a dolus specialis, that is to say a
specific intent, which, in order for genocide to be established, must be present
in addition to the intent required for each of the individual acts involved … .
95
96
93
Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (n 46) Chapters
IV, VII, and VIII.
94
Application of the Genocide Convention (Croatia v. Serbia) (n 56) Chapter III.
95
Ibid [130].
96
Ibid [132]. See also Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and
Montenegro) (n 46) [187] (“Article II [of the Genocide Convention] requires a further mental element. It requires
the establishment of the ‘intent to destroy, in whole or in part, . . . [the protected] group, as such’. It is not enough
to establish, for instance in terms of paragraph (a), that deliberate unlawful killings of members of the group have
occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a
special or specific intent or dolus specialis ... It is not enough that the members of the group are targeted because
18
…
“causing serious . . . mental harm to members of the group” within the meaning
of Article II (b), even if it does not directly concern the physical or biological
destruction of members of the group, must be regarded as encompassing only
acts carried out with the intent of achieving the physical or biological
destruction of the group, in whole or in part.
…
Since it is the group, in whole or in part, which is the object of the genocidal
intent, … it is difficult to establish such intent on the basis of isolated acts. …
in the absence of direct proof, there must be evidence of acts on a scale that
establishes an intent not only to target certain individuals because of their
membership to a particular group, but also to destroy the group itself in whole
or in part.
97
98
…
to state that, “for a pattern of conduct to be accepted as evidence of . . . existence
[of genocidal intent], it [must] be such that it could only point to the existence
of such intent” amounts to saying that, in order to infer the existence of dolus
specialis from a pattern of conduct, it is necessary and sufficient that this is the
only inference that could reasonably be drawn from the acts in question.
59. Concerning the actus reus of genocide under Article II of the Genocide Convention,
Latvia contends that
The acts listed in Article II of the Convention constitute the actus reus of
genocide. Such acts are proscribed in the context of genocide inasmuch as they
are directed against the members of the protected group and reflect the intent to
destroy that group in whole or in part. … such acts cannot be taken in isolation,
but must be assessed in the context of the prevention and punishment of
genocide, which is the object of the Convention.
99
100
(ii) Articles I, III and VIII of the Genocide Convention
60. As stated in paragraph 56, Latvia contends for the construction adopted by the Court in
its judgments on the merits on the Genocide Convention. In particular, Latvia maintains the
construction of Article I in conjunction with the other provisions of the Genocide Convention
as contended for in Section F(ii) of the Declaration, to the extent that it is relevant for the merits
stage of the Proceedings.
they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required.
The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words
‘as such’ emphasize that intent to destroy the protected group.”).
97
Application of the Genocide Convention (Croatia v. Serbia) (n 56) [136].
98
Ibid [139].
99
Ibid [148].
100
Ibid [149].
19
H. DOCUMENTS IN SUPPORT OF THE DECLARATION
61. The following is a list of documents in support of this Declaration, which documents
are attached hereto:
(a) Letter from the Registrar of the International Court of Justice to the States
parties to the Genocide Convention (except Ukraine and the Russian Federation) (30
March 2022).
(b) Letter from the Ambassador of Latvia to the Kingdom of the Netherlands to the
Registrar of the International Court of Justice (6 April 2022).
(c)
Instrument of accession by the Government of Latvia to the Convention on the
Prevention and Punishment of the Crime of Genocide (24 March 1992) and Depositary
notification on the accession by Latvia (4 June 1992).
(d) Accompanying letter from the Agent of the Republic of Latvia indicating that
the original declaration of intervention is adjusted (26 July 2024).
I. CONCLUSION
62. On the basis of the information set out above, Latvia avails itself of the right conferred
upon it by Article 63, paragraph 2, of the Statute to intervene in Proceedings.
63. Latvia has appointed the undersigned as Agent for the purposes of the Adjusted
Declaration, together with H.E. Solvita Āboltiņa, Ambassador Extraordinary and
Plenipotentiary of the Republic of Latvia to the Kingdom of the Netherlands, as Co-Agent. It
is requested that all communications in this case be sent to the following address:
Embassy of Latvia
Koninginnegracht 27,
2514 AB, The Hague,
The Netherlands.
Respectfully,
(Signed) Sanita PĒKALE,
Agent of the Republic of Latvia
_______
20
Annex A
LETTER FROM THE REGISTRAR OF THE INTERNATIONAL COURT OF JUSTICE TO THE
AMBASSADOR OF LATVIA TO THE NETHERLANDS
30 March 2022.
I have the honour to refer to my letter (No. 156253) dated 2 March 2022 informing your
Government that, on 26 February 2022, Ukraine filed in the Registry of the Court an
Application instituting proceedings against the Republic of the Russian Federation in the case
concerning Allegations of Genocide under the Convention on the Prevention and Punishment
of the Crime of Genocide (Ukraine v. Russian Federation). A copy of the Application was
appended to that letter. The text of the Application is also available on the website of the Court
(www.icj-cij.org).
Article 63, paragraph 1, of the Statute of the Court provides that:
[w]henever the construction of a convention to which States other than those concerned in
the case are parties is in question, the Registrar shall notify all such States forthwith”.
Further, under Article 43, paragraph 1, of the Rules of Court:
“Whenever the construction of a convention to which States other than those concerned
in the case are parties may be in question within the meaning of Article 63, paragraph 1, of the
Statute, the Court shall consider what directions shall be given to the Registrar in the matter."
On the instructions of the Court, given in accordance with the said provision of the Rules of
Court, I have the honour to notify your Government of the following.
In the above-mentioned Application, the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide (hereinafter the “Genocide Convention”) is invoked both
as a basis of the Court's jurisdiction and as a substantive basis of the Applicant's claims on the
merits. In particular, the Applicant seeks to found the Court's jurisdiction on the compromissory
clause contained in Article IX of the Genocide Convention, asks the Court to declare that it has
not committed a genocide as defined in Articles II and III of the Convention, and raises
questions concerning the scope of the duty to prevent and punish genocide under Article I of
the Convention. It therefore appears that the construction of this instrument will be in question
in the case.
Your country is included in the list of parties to the Genocide Convention. The present letter
should accordingly be regarded as the notification contemplated by Article 63, paragraph 1, of
the Statute. I would add that this notification in no way prejudges any question of the possible
application of Article 63, paragraph 2, of the Statute, which the Court may later be called upon
to determine in this case.
Accept, Excellency, the assurances of my highest consideration.
(Signed) Philippe GAUTIER,
Registrar
21
Annex B
LETTER FROM THE AMBASSADOR OF LATVIA TO THE NETHERLANDS TO THE REGISTRAR OF THE
INTERNATIONAL COURT OF JUSTICE
6 April 2022.
I have the honour to refer to your letters no. 156253 of 2 March 2022 and no. 156413 of
30 March 2022 informing the Government of the Republic of Latvia of the proceedings
instituted by Ukraine against the Russian Federation on 26 February 2022 concerning ‘a dispute
relating to the interpretation, application and fulfilment of the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide’ (the ‘Convention’) and the request of
Ukraine pursuant to Article 41 of the Statute of the Court for the indication of provisional
measures in this case.
I note that Ukraine claims that
“the Russian Federation’s declaration and implementation of measures in or against
Ukraine in the form of a “special military operation” declared on 24 February 2022 on
the basis of alleged genocide, as well as the recognition that preceded the military
operation, is incompatible with the Convention and violates Ukraine’s right to be free
from unlawful actions, including military attack, based on a claim of preventing and
punishing genocide that is wholly unsubstantiated.”
1
I also note that the Court’s order on the request for the indication of provisional measures
of 16 March 2022 relies upon Articles I, II, III, VIII, and IX of the Convention for the purpose
of assessing the existence of prima facie jurisdiction and the plausibility of rights asserted by
Ukraine.
2
It follows that the construction of the Convention may be in question in the case.
I have the honour to inform you that the Government of the Republic of Latvia, as a State
party to the Convention, has a direct interest in the construction thereof and intends to exercise
its right to intervene in the abovementioned case under Article 63, paragraph 2, of the Statute
of the Court.
Please accept, Excellency, the assurances of my highest consideration.
Yours sincerely,
(Signed) Aiga LIEPIŅA,
Ambassador.
1
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v Russia) (Application instituting proceedings) https://www.icj-cij.org/public/files/caserelated/182/182-20220227-APP-01-00-EN.pdf
[26].
2
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v Russia) [2022] ICJ Rep https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-0100-EN.pdf
[26],
[27],
[28],
[45],
[48],
[56]-[58].
22
Annex C
INSTRUMENT OF ACCESSION BY THE GOVERNMENT OF LATVIA
TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
Riga, 24 March 1992.
Your Excellency,
The Minister of Foreign Affairs of the Republic of Latvia presents his compliments to the
Secretary-General of the United Nations and has the honour to enclose a declaration by the
Supreme council of the Republic of Latvia adopted on 4 May 1990, titled “On the Accession of
the Republic of Latvia to International Instruments Relating to Human Rights”. The document
declares Latvia’s accession to the following international instruments:
/../
12. December 9, 1948 Convention on the Prevention and Punishment of the Crime of Genocide
in conformity with Article 11.
/../
The provisions of the above mentioned conventions will be observed in their entirety.
(Signed) Jānis JURKĀNS,
Minister.
DEPOSITARY NOTIFICATION
4 June 1992.
CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS
ON 9 DECEMBER 1948
ACCESSION BY LATVIA
The Secretary-General of the United Nations, acting in his capacity as depositary,
communicates the following:
On 14 April 1992, the instrument of accession by the Government of Latvia to the
above-mentioned Convention was deposited with the Secretary General.
In accordance with its article XIII, the Convention will enter into force for Latvia on
the ninetieth day after the date of deposit of the instrument, i.e., on 13 July 1993.
Adjusted declaration of intervention of Latvia