Declaration of intervention of France

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION
ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
INTERVENTION UNDER ARTICLE 63 OF THE STATUTE
OF THE INTERNATIONAL COURT OF JUSTICE
12 September 2022
[Translation by the Registry]
INTERVENTION UNDER ARTICLE 63 OF THE STATUTE
OF THE INTERNATIONAL COURT OF JUSTICE
To the Registrar of the International Court of Justice, the undersigned being duly authorized
by the French Government:
1. On behalf of the French Republic, I have the honour to submit to the Court a Declaration of
intervention pursuant to Article 63, paragraph 2, of the Statute of the Court in the case concerning
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation).
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 of intervention conferred upon it by Article 63 of the Statute shall specify
the case and the 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 the documents in support, which documents shall be attached.”
3. These matters are addressed in sequence below, following some preliminary observations.
PRELIMINARY OBSERVATIONS
4. On 26 February 2022, Ukraine instituted proceedings against the Russian Federation in a
dispute relating to the interpretation, application and fulfilment of the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide1 (the “Genocide Convention” or
“Convention”)2.
5. In its Application instituting proceedings, Ukraine seeks 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. The Court delivered its Order indicating provisional measures on 16 March
2022.
6. Pursuant to Article 63, paragraph 1, of the Statute of the Court, the Registrar notified the
French Government, as a party to the Convention, that Ukraine
1 Convention on the Prevention and Punishment of the Crime of Genocide, signed in Paris on 9 Dec. 1948,
United Nations, Treaty Series (UNTS), Vol. 78, p. 277 (entered into force on 12 Jan. 1951).
2 Application instituting proceedings filed in the Registry of the Court on 26 Feb. 2022 in the case concerning
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v.
Russian Federation) (hereinafter, “Application of Ukraine”).
3 Application of Ukraine, para. 3.
- 2 -
“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.”
7. The present Declaration by France is based on Article 63, paragraph 2, of the Statute. That
article confers a “right” of intervention on any State party to a convention whose construction is in
question in pending proceedings4.
8. As a party to the Genocide Convention, France finds it necessary to avail itself of its right
of intervention in the present case, not least on account of the particular nature of the
1948 Convention, in which “the contracting States do not have any interests of their own [and]
merely have, one and all, a common interest, namely, the accomplishment of those high purposes
which are the raison d’être of the convention”5, as the Court noted in its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.
9. In that same Opinion, the Court went on to state that “[t]he high ideals which inspired the
Convention provide, by virtue of the common will of the parties, the foundation and measure of all
its provisions”6. That consideration justifies France’s desire to exercise its right of intervention.
10. According to the Court’s jurisprudence, intervention under Article 63 of the Statute “is
limited to submitting observations on the construction of the convention in question”7, and a State
intending to avail itself of that right “does not become a party to the proceedings”8. In accordance
with the scope of the intervention as defined by the Court, France will present its views only on the
provisions of the Convention whose construction appears to be in question in the present case.
11. Moreover, any State wishing to avail itself of the right of intervention conferred upon it by
Article 63 of the Statute shall, under the terms of Article 82, paragraph 1, of the Rules of Court, file
its declaration “as soon as possible, and not later than the date fixed for the opening of the oral
proceedings”. Hence, France is filing the present Declaration with the Registry of the Court today.
4 Haya de la Torre (Colombia/Peru), Judgment, I.C.J. Reports 1951, p. 76; Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 13, para. 21; Whaling in the
Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013,
p. 5, para. 7.
5 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23; 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, I.C.J. Reports 2020, p. 17, para. 41; see also
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Preliminary Objections, Judgment of 22 July 2022, para. 107.
6 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
7 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.C.J. Reports 2013, p. 9, para. 18.
8 Ibid.
- 3 -
CASE AND CONVENTION CONCERNED
12. The present Declaration relates to the case concerning Allegations of Genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), which the Ukrainian Government brought against Russia on 26 February 2022. The
case concerns the interpretation, application and fulfilment of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide9.
FRANCE IS A PARTY TO THE CONVENTION
13. France signed the Convention on 11 December 1948, in accordance with the first
paragraph of Article XI. On 14 October 1950, in accordance with the second paragraph of Article XI
of the Convention, it deposited its instrument of ratification with the Secretary-General of the
United Nations, in his capacity as depositary. It has filed no declarations or reservations thereto.
PROVISIONS OF THE CONVENTION IN QUESTION IN THE CASE
14. The Application instituting proceedings filed by Ukraine states 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”10.
15. In its Application, Ukraine refers successively to Articles IX11, I12, VIII13, II14 and III15 of
the Convention. In addition to the citations in extenso of Articles I, II and III16, reference is made to
the Convention in these terms:
“9. Ukraine emphatically denies that any such genocide has occurred, and that
the Russian Federation has any lawful basis to take action in and against Ukraine for the
purpose of preventing and punishing genocide under Article I of the Convention. The
unlawfulness of Russia’s actions is further confirmed by Article VIII of the Convention.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11. A dispute has therefore arisen relating to the interpretation and application of
the Genocide Convention, as Ukraine and Russia hold opposite views on whether
genocide has been committed in Ukraine, and whether Article I of the Convention
9 Convention on the Prevention and Punishment of the Crime of Genocide, signed in Paris on 9 Dec. 1948, UNTS,
Vol. 78, p. 277 (entered into force on 12 Jan. 1951).
10 Application of Ukraine, para. 7.
11 Ibid., paras. 5-7 and 12.
12 Ibid., paras. 9, 11 and 26-28.
13 Ibid., para. 9.
14 Ibid., paras. 24 and 26.
15 Ibid., para. 26.
16 Ibid.
- 4 -
provides a basis for Russia to use military force against Ukraine to ‘prevent and to
punish’ this alleged genocide.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27. The duty to prevent and punish genocide enshrined in Article I of the
Convention necessarily implies that this duty must be performed in good faith and not
abused . . .
28. Russia’s actions erode the core obligation of Article I of the Convention,
undermine its object and purpose, and diminish the solemn nature of the Contracting
Parties’ pledge to prevent and punish genocide.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30. Ukraine respectfully requests the Court to:
(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.”
16. Moreover, in its Order of 16 March 2022, the Court observes that Ukraine “states that the
Russian Federation has acted inconsistently with its obligations and duties, as set out in Articles I
and IV of the Convention” 17.
17. The construction of the Convention  and in particular Articles I, II, III, IV, VIII and IX
thereof  is therefore in question; it is also of direct relevance for the purposes of settling the dispute
brought before the Court by Ukraine by means of its Application.
18. The Articles in question read as follows:
“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.
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;
17 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, paras. 52-53.
- 5 -
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
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.
Article IV
Persons committing genocide or any of the other acts enumerated in article III
shall be punished, whether they are constitutionally responsible rulers, public officials
or private individuals.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
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.”
CONSTRUCTION OF THE PROVISIONS IN QUESTION
FOR WHICH FRANCE CONTENDS
19. France will interpret the Convention by relying on the customary rules of treaty
interpretation, as reflected in Articles 31 to 33 of the 1969 Vienna Convention on the Law of
Treaties18.
18 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I),
p. 48, para. 83; LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 502, para. 101; Oil
Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports
1996 (II), p. 812, para. 23; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21-22,
para. 41; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, p. 70, para. 48.
- 6 -
20. For the purposes of interpreting the provisions of the Genocide Convention that are in
question here, France will first recall the importance of the principle of good faith, which both
governs the obligation to perform treaties, codified in Article 26 of the Vienna Convention on the
Law of Treaties, and forms the starting-point of the general rule of treaty interpretation set out in
Article 31 thereof. It will then explain its interpretation of Article IX of the Genocide Convention,
which founds the jurisdiction of the Court to hear the dispute brought before it, before presenting its
interpretation of Articles I, II, III, IV and VIII.
Good faith
21. The existence of an obligation to perform the Convention in good faith is established by
the principle of pacta sunt servanda, which is a fundamental principle of public international law.
Although of customary origin, the obligation to perform a treaty in good faith is necessarily
incorporated within it, and must be taken into account in any dispute concerning the interpretation or
application of a treaty. Like the rules of interpretation and the rules of the law on responsibility, the
obligation of good faith forms an integral part of the treaty whose application or interpretation is
being examined19. Good faith implies that the integrity of the Convention is respected. In its
Judgment of 25 September 1997 in the case concerning the Gabčíkovo-Nagymaros Project, the Court
describes the legal effect of good faith on the performance of any treaty as follows:
“Article 26 combines two elements, which are of equal importance. It provides
that ‘Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.’ This latter element, in the Court’s view, implies that, in this case,
it is the purpose of the Treaty, and the intentions of the parties in concluding it, which
should prevail over its literal application. The principle of good faith obliges the Parties
to apply it in a reasonable way and in such a manner that its purpose can be realized.”20
22. As a “well-established principle of international law”21, the principle of good faith thus
requires a text to be interpreted “in the light of its object and purpose”22. That precludes, for example,
any improper or slanted interpretation. The parties are required to “co-operate in good faith to
promote [its] objectives and purposes”23.
23. Hence, the construction of the Genocide Convention for the purpose of its application may
only be undertaken having regard to its “special”24 object and purpose. The latter were defined by
the Court in 1951:
“The origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as ‘a crime under international law’ involving
a denial of the right of existence of entire human groups, a denial which shocks the
19 On interpretation and responsibility, see Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 105, para. 149.
20 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, pp. 78-79, para. 142.
21 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 296, para. 38; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 268, para. 46.
22 Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties.
23 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports
1980, p. 96, para. 49.
24 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
- 7 -
conscience of mankind and results in great losses to humanity, and which is contrary to
moral law and to the spirit and aims of the United Nations . . . The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed
difficult to imagine a convention that might have this dual character to a greater degree,
since its object on the one hand is to safeguard the very existence of certain human
groups and on the other to confirm and endorse the most elementary principles of
morality.”25
24. By its intervention, France wishes to stress the crucial importance of the principle of good
faith in the range of contexts in which it is applicable. In accordance with the provisions of the Vienna
Convention on the Law of Treaties, good faith governs both the interpretation and the application
and fulfilment of the 1948 Convention26.
Article IX
25. Article IX of the Convention reads as follows:
“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.”
26. This article is a compromissory clause founding the Court’s jurisdiction for all
“[d]isputes . . . relating to the interpretation, application or fulfilment of the present Convention”.
The term “dispute” must be understood here as “a disagreement on a point of law or fact, a conflict
of legal views or of interests between two persons”27. As the Court has observed, for a dispute to
exist, “[t]he two sides must hold clearly opposite views concerning the question of the performance
or non-performance of certain international obligations”28.
27. According to the very terms of Article IX, the dispute can relate just as well to a question
of interpretation of the Convention as to a question of the application or fulfilment thereof.
Consequently, a dispute relating to the interpretation, that is to the meaning, of any one of the articles
of the Convention, including Article IX itself, is capable of falling within the scope of the clause. In
its Judgment of 11 July 1996 on the preliminary objections in the case between Bosnia-Herzegovina
and Yugoslavia, which concerned the jurisdictional basis provided by the Convention, the Court
noted that the Parties not only differed regarding its application, but also “with respect to the meaning
and legal scope of several of [its] provisions, including Article IX”29. It concluded that a dispute
25 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
26 E.g. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 64, para. 138.
27 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections, Judgment of 22 July 2022, para. 63.
29 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 616, para. 33.
- 8 -
existed, as confirmed in its 2007 Judgment on the merits30. A dispute between two parties pertaining
to one of the categories of dispute capable of falling within the scope of Article IX therefore falls
under the jurisdiction of the Court.
28. The interpretation of Article IX must then make it possible to determine which categories
of dispute are capable of being submitted to the Court. The only limit set by the wording is the
reference to the interpretation, application or fulfilment of the Convention. That signifies that the
dispute may relate to any right or obligation borne by the parties to the Convention itself. This idea
also appears in the Court’s jurisprudence. In its Judgment of 3 February 2015 in the case between
Croatia and Serbia, the Court held that its jurisdiction, based on Article IX of the Convention, was
“confined to obligations arising under the Convention itself”31. According to the Court, for its
jurisdiction to be established on the basis of Article IX, the dispute must “relat[e] to the
interpretation, application or fulfilment of the . . . Convention” or “concern obligations under the
Convention itself”32.
29. Hence, it would appear that the dispute, as provided for in Article IX, must relate to, or
concern, an obligation arising under the Convention.
30. Moreover, the drafting of Article IX differs in some respects from that of traditional clauses
for settling disputes between States parties to a treaty33. Such clauses normally refer to disputes
relating to “the interpretation and application” of the convention in question. Here, the term
“fulfilment” has been added, attesting to a particular concern for obligations resulting from the
principle of pacta sunt servanda, including the obligation to perform treaties in good faith34. A
dispute relating to an interpretation or application of the Convention which was incompatible with
good faith would therefore fall within the scope of Article IX.
31. As regards responsibility, that is to say in the case of wrongful acts attributable to a State
party, the Court has already had occasion to observe that Article IX “does not exclude any form of
State responsibility”35. That statement is perfectly consistent with the wording of Article IX, which
not only contains no exclusion, but even stresses the fact that it includes all disputes “relating to the
responsibility of a State for genocide”. The French version of the text is to be taken into consideration
here, since the expression “en matière de génocide” is sufficiently broad to encompass both the
commission and the non-commission of acts of genocide. Furthermore, the word “including”
suggests that other categories of dispute may fall within the scope of Article IX.
32. Nor do the terms of Article IX imply that there is any restriction on the configuration of
the dispute. In particular, the wording does not require the applicant State to necessarily be the one
alleging the existence of a genocidal act attributable to another State party, whose responsibility it
30 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 107, para. 152. It concerned whether a dispute
relating to responsibility for committing an act of genocide fell within the scope of Article IX.
31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015, p. 47, para. 88.
32 Ibid., p. 48, para. 89 (emphasis added).
33 See ibid., p. 114, para. 168.
34 See above.
35 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 616, para. 32.
- 9 -
seeks to engage. The phrase “at the request of any of the parties to the dispute” does not in any way
prejudge which of the parties to the dispute before the Court is the applicant and which is the
respondent.
Article I
33. Article I of the Convention reads as follows:
“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.”
34. The Court has had occasion to recall that “the norm prohibiting genocide was assuredly a
peremptory norm of international law”36 and that “Article I . . . impose[s] distinct obligations over
and above those imposed by other Articles of the Convention. In particular, the Contracting Parties
have a direct obligation to prevent genocide.”37 That includes “taking into account the established
purpose of the Convention, [that] the effect of Article I is to prohibit States from themselves
committing genocide”38.
35. Article I of the Convention thus contains a general obligation to “prevent” and “punish”
genocide, without specifying the content of that obligation. As the Court recalled in its Order on
provisional measures in the present case,
“Article I does not specify the kinds of measures that a Contracting Party may
take to fulfil this obligation. However, the Contracting Parties must implement this
obligation in good faith, taking into account other parts of the Convention, in particular
Articles VIII and IX, as well as its Preamble.”39
36. Several provisions of the Convention, including Articles IV, V, VI and VII, can be linked
with the obligation to punish. As for prevention, that is expressly mentioned in Article VIII40. Other
articles may also be regarded as contributing to it, in particular Articles V and VI, since punitive
measures also have “a deterrent and therefore a preventive effect or purpose”41.
37. The content of the obligation to prevent has hitherto been specified for disputes in which
the applicant was invoking the respondent’s responsibility for acts of genocide or failure to prevent
or punish such acts. In that context, the Court has identified a twofold obligation on States parties,
considering that “the ban on genocide and the other acts listed in Article III, including complicity,
places States under a negative obligation, the obligation not to commit the prohibited acts, while the
36 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 111, para. 161.
37 Ibid., p. 113, para. 165.
38 Ibid., p. 113, para. 166.
39 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, para. 56.
40 See paras. 44 et seq. below.
41 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, I.C.J. Reports 2020, p. 20, para. 51.
- 10 -
duty to prevent places States under positive obligations, to do their best to ensure that such acts do
not occur”42.
38. In its 2007 Judgment, the Court construed two aspects of the obligation to prevent. On the
one hand, it identified the event triggering that obligation, considering that the “obligation to prevent,
and the corresponding duty to act, arise at the instant that the State learns of, or should normally have
learned of, the existence of a serious risk that genocide will be committed”43. On the other, it noted
that “a State can be held responsible for breaching the obligation to prevent genocide only if genocide
was actually committed”44. If neither genocide nor acts which constitute genocide are carried out,
“violation of the obligation to prevent [does not occur]”45. Consequently, the obligation to prevent
only arises, and the measures adopted for that purpose can only be implemented by States parties, if
they learn of “the existence of a serious risk that genocide will be committed”, evidence of which
must be supplied by those making the allegation. If there is no genocide, or more precisely no serious
risk that genocide will be committed, no measure can legitimately be taken by a State party under
the Convention.
Articles II and III
39. Articles II and III of the Convention define the crime of genocide as follows:
“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.
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
42 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 223, para. 432.
43 Ibid., p. 222, para. 431.
44 Ibid.
45 Ibid.
- 11 -
(d) Attempt to commit genocide;
(e) Complicity in genocide.”
40. These articles define the intentions and acts which constitute a crime of genocide. As
provided for by Article 31 of the Vienna Convention on the Law of Treaties, subsequent practice in
the application of a convention by the States parties may contribute to its interpretation. France
intends to submit information to the Court on how the Convention is implemented in its legal system.
It will thus be able to provide the Court, if necessary, with details of the national provisions
implementing these articles of the Convention, and of the relevant practice and jurisprudence of the
French courts.
Article IV
41. Under the terms of Article IV of the Convention:
“Persons committing genocide or any of the other acts enumerated in article III
shall be punished, whether they are constitutionally responsible rulers, public officials
or private individuals.”
42. Article IV of the Convention requires the States parties to take the necessary measures to
punish the perpetrators of genocide or any of the other acts listed in Article III. Since it also serves
as a deterrent, this obligation to punish contributes to the prevention sought by the Convention. In
terms of punishment, it thus provides for judicial proceedings against individuals said to have
committed such acts. In this regard, no provision in the Convention contemplates action by a State
that might resemble a collective punishment.
43. France also intends to submit information to the Court regarding the measures adopted in
its legal order to give effect to this obligation. If necessary, it will be able to provide details of the
national legislation relating thereto, and of the jurisprudence of its courts.
Article VIII
44. Article VIII reads as follows:
“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.”
45. This provision contributes to achieving the objective of the Convention, as formulated in
its Preamble: “to liberate mankind from such an odious scourge, international co-operation is
required”. The fulfilment of the Convention in good faith involves international co-operation.
Consequently, recourse to the organs of the United Nations, as the institutionalized mechanism for
international co-operation, enables the States parties to perform the treaty in good faith.
- 12 -
46. By virtue of the collective action underpinning it, Article VIII is a special means of
performing both the obligation to prevent and the obligation to punish acts of genocide, which have
been recognized as two separate obligations46. The relationship between Article VIII and the
obligation to prevent is a distinctive one, however; while the obligation to punish is addressed in
several provisions of the Convention, the obligation to prevent is referred to only in Articles I
and VIII.
47. As regards the obligation to prevent and “the capacity to influence effectively the action
of persons likely to commit, or already committing, genocide”, the Court has pointed out that “the
combined efforts of several States . . . might have achieved the result — averting the commission of
genocide — which the efforts of only one State were insufficient to produce”47. In its Order of
16 March 2022, it once again emphasizes the collective dimension of the obligation to prevent by
making direct reference to Articles VIII and IX, as well as to the Preamble to the Convention48.
Consequently, the implementation in good faith of the obligation to prevent49 demands that
co-operation, in particular within the organs of the United Nations, and the peaceful settlement of
disputes be given precedence over unilateral actions of any kind.
DOCUMENTS IN SUPPORT OF THE DECLARATION
48. List of documents provided in support of the Declaration and attached hereto:
Annex 1: Letter from the Registrar of the International Court of Justice to the Ambassador of the
French Republic to the Kingdom of the Netherlands dated 30 March 2022.
Annex 2: Instrument of ratification by the French Republic of the Convention on the Prevention
and Punishment of the Crime of Genocide.
CONCLUSION
49. In the light of the foregoing, France avails itself of its right of intervention under Article 63,
paragraph 2, of the Statute, as a party to the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide, the construction of which is in question in the case brought before the Court
by Ukraine against the Russian Federation.
50. The French Republic has designated the undersigned as Agent of the French Republic for
the purposes of the present Declaration. It has also appointed Ms Sandrine Barbier, Deputy Director
of the Directorate of Legal Affairs at the Ministry of Europe and Foreign Affairs, as Co-Agent.
46 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, pp. 219-220, para. 427.
47 Ibid., p. 221, para. 430.
48 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, para. 56.
49 Ibid.
- 13 -
51. The French Republic requests that all communications concerning this case be transmitted
to the following address:
Embassy of the French Republic in the Netherlands,
Anna Paulownastraat 76,
2518 BJ The Hague, Netherlands.
Respectfully,
(Signed) François ALABRUNE,
Legal Advisor,
Director of Legal Affairs
at the Ministry of Europe and Foreign Affairs
of the French Republic.
___________
ANNEX 1
LETTER FROM THE REGISTRAR OF THE INTERNATIONAL COURT OF JUSTICE
TO THE AMBASSADOR OF THE FRENCH REPUBLIC TO THE KINGDOM
OF THE NETHERLANDS DATED 30 MARCH 2022
Peace Palace, Carnegieplein 2
2517 KJ The Hague - Netherlands
Telephone: +31 (0) 70 302 23 23 - Telefax: +31 (0) 70 364 99 28
Website: www.icj-cij.org
Palais de la Paix, Carnegieplein 2
2517 KJ La Haye - Pays-Bas
Téléphone : +31 (0) 70 302 23 23 - Facsimilé : +31 (0) 70 364 99 28
Site Internet : www.icj-cij.org
156413 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.
./.
H.E. the Ambassador
of the French Republic
to the Kingdom of the Netherlands
Embassy of the French Republic
The Hague
- 2 -
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.
Philippe Gautier
Registrar
ANNEX 2
INSTRUMENT OF RATIFICATION BY THE FRENCH REPUBLIC OF THE CONVENTION
ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
UNITED NATIONS WEB NATIONS UNIES , /
NEW YORK
CABIC ADDRCII • UNATIONS NCWYORK- AOHIBBC T*LCB«A»MiailK
C.K.177.1950.TREATIES 19 October 1950
i
CONVENTION OF 9 DECEMBER 19U8 ON THE PREVENTION AND
PUNISHMENT OF THE CBIME OF GENOCHE
JSHTKY INTO FORCE
Sir, N/^
I am directed by the Secretary-General tpTwfer* to Article
XIII of the Convention on the Prevention and Pwishmant of the Crime
of Genocide, vhlch provides In Its first Wd second paragraphs that:
"On the day vhen the first twenty Instruments of
ratification or accession nave)>een deposited, the
Secretary-General shall dravTJp a proces-verbal and
transmit a copy of it tp each Member of the United
Nations and to each of the non-member States contemplated
In article XI.
The present-Convention shall come into force on
the ninetieth day following the date of deposit of the
twentieth instrunent of ratification or accession."
On 1U October >9§Q» the following States deposited with the
Secretary-General tHeJjxlnstruments of ratification or accession
^°
to the Convention: \
UNITED NATIONS NATIONS UNIES
- 2 -
Cambodia
Costa Rica
France
Haiti
Republic of Korea
Accession
Accession
Ratification
Ratification
Accession
On that date the conditions specified in the first paragraph of
Article XIII having "been fulfilled, the Secretary-<S4neral drev up
the required Proces-Verbal, a copy of vhlch is encloeaa herevlth.
In accordance vith the provisions of the^secona. paragraph of
Article XIII, the Convention will then enter fhfco force on 12
January 1951. \_)
Up to lU October 1950, the following States have submitted to
the Secretary-General their instrument? of ratification or accession
to the eaid Convention: •
RATIFICATIONS \ ACCESSIONS
Australia -A ^ 21 July
Ecuador
XI Salvador
Ethiopia
France
Guatemala
Haiti
Iceland
Israel
Liberia
Norway
Panama
o
ly ^ 199*0f* Bulgaria
ember 19^9 (vith reservations
regarding Articles
IX and XII)
Cambodia
Ceylon
Costa Rica
Eashimite Kingdom
of the Jordan
Korea
Monaco
Saudi-Arab la
ptember 1950
July 19^9
llAOctober 1950
xi^/January 1950
Ik October 1950
29 August 19U9
9 March 1950
9 June 1950
22 July 19U9
11 January 1950
1950
Ik October 1950
12 October 1950
1U October 1950
3 April 1950
lU October 1950
30 March 1950
13 July 1950
UNITED NATIONS NATIONS UNIES
- 3 -
Philippines 7 July 1950 Turkey
(vlth reservations Viet-Nam
regarding Articles
IV, VI, VII and EC)
Yugoslavia 29 August 1950
31 July 1950
11 August 1950
I have the honour to be, ~> i'
•^ I
AssistaiftkJiecretary -General
_ Legal Department o
A
ROCKS-VERBAL ESTABLISHING THE DEPOSIT
OF TWENTY INSTRUMENTS OF RATIFICATION
OR ACCESSION TO THE CONTENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME
OF GENOCIDE
PHOCES-VERBAL CONSTATANT LE DEPOT DE
VINGT INSTRUMENTS DE RATIFICATION OU
D«ADHESION A LA CONVENTION POUR LA
PREVENTION ET LA REPRESSION DU CRIME
DE GENOCIDE
CONSIDERING that article XIII, paragraphs
one and two, of the Convention on
the Prevention and Punishment of the Crime
of Genocide provides that:
•On the day when the first twenty
instruments of ratification or
accession have been deposited, the
Secretary-General shall draw up a
proces-verbal and transmit a copy
of it to each Member of the United
Nations and to each of the nonmember
States contemplated in
article XI.
The present Convention shall come
into force on the ninetieth day
following the. date of deposit of
the twentieth instrument of ratification
or accession."
CONSIDERING that the condition specified
in paragraph one has, on this day,
been fulfilled;
THEREFORE, the Secretary-General has
drawn up this Proces-Verbal in the English
and French languages.
CONSIDERANT que 1*article XIII, de 1ft
Convention pour la prevention et la rlpression
du crime de genocide stipule, dans sea
paragraphes un et deux, que:
"Des le jour ou les vingt premiers
instruments de ratification ou
d*adhesion auront &£ diposis, le
Secretaire general en dressera
proces-verbal. II transmettra
copie de ce proces-verbal a tous
les Etats Membres des Nations
Unies et aux non-membres visis
par I1article XI.
La presente Convention entrera en
vigueur le quatre-vingt-dixieme
jour qui sulvra la date du depdt
du vingtieme instrument de ratification
ou d1adhesion."
CONSIDERANT que la condition prevue
au paragraphe premier a, ce jour, <t<
realise*;
EN CONSEQUENCE, le Secretaire general
a dressS le present Proces-Verbal en langue
anglaise et en langue franc, aise.
Done at Lake Success, New York, this 14th day of October 1950
Fait a Lake Success, New York, le 1A oetobre 1950
For the Secretary-General:
Pour le Secretaire general: y-t.h^l
Assistant Secretary-General
Legal Department
Secretaire general adjoint
D6partement juridique
FILE MO.I
UNITED NATIONS ^fpf NATIONS UNIES
NEW YORK
UNATIONS NEWYDRK •
C.N.177.1950.TREATIES.CORRIGENDUM
^ <T and has the honour to refer to his let-teiiNo. C.N. 177.1950.TREATIES
of 19 October 1950 relating to the entrj»-fnto force of the Convention
of 9 December 1948 on the Prevention \nd Punishment of the Crime of
Genocide.
••
Owing to a typographical error in the list of ratifications and
accessions to the Convention, that portion of the list which reads:
RATIFICATIONS
Australia \ • 8 July 1950
should be changed to) read:
rerrgUm,
3.
Australia \ 8 July 1949
1 November 1950