INTERNATIONAL COURT OF JUSTICE
DECLARATION OF INTERVENTION UNDER ARTICLE 63
OF DENMARK
16 September 2022
In the case of
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
DECLARATION OF INTERVENTION OF DENMARK
DECLARATION OF INTERVENTION PURSUANT TO ARTICLE 63 OF THE STATUTE OF
THE INTERNATIONAL COURT OF JUSTICE
To the Registrar, International Court of Justice, the undersigned being duly authorized by the
Government of Denmark.
I. On behalf of the government of Denmark, 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
The 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 the 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 011 which the declaranr State considers itself a party to the convention,·
(b) identijication of the particular provisions of the convention the construction ofwhkh it
considers to be in question;
(c) a statemem of the co11structio11 of those provisions for which it contends;
(d) a list of documents in support, which documents shall be <ltfached.
Those mauers are addressed in sequence below, following some preliminary observations.
PRELJMINARY OBSERVATIONS
4. On 26 February 2022, Ukraine instituted proceedings against the Russian Federation in a dispute
concerning the interpretation, application or fulfilment of the Convention on the Prevention and
Punishment of Genocide (the "Genocide Convention").
5. In paras. 4-12 of its Application instituting proceedings, Ukraine contends 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.
6. On substance, Ukraine claims that the use of force by the Russian Federation in or against
Ukraine since 24 February 2022 on the basis of alleged genocide, as well as the recognition that
preceded the military operation, is incompatible with the Convention, quoting Articles 1-111 thereof
(paras. 26-29 of the Application).
7. Following a request for provisional measures from Ukraine, the Court ordered on 16 March 2022
that:
(I) The Russian Federation shall immediately suspend the military operation 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 person which may be subject to its
control or direction, take no steps in furtherance of the military operations referred to in points (I)
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.
As of the date of this Declaration, the Russian Federation has failed to comply with this Court's
Order.
8. On 30 March 2022, as contemplated by Article 63, paragraph I, of the Statute of the Court, the
Registrar duly notified the Government of Denmark as a party to the Genocide Convention that by
Ukraine's application the Genocide Convention "is invoked both as a basis for the Court's
jurisdiction and the substantive basis of the Applicant's claims on the merits". The registrar also
noted that:
"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 commilted a genocide as
defined in Articles lJ and Ill 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 ". 1
9. In Denmark's opinion, the Genocide Convention is of utmost importance to prevent and punish
genocide. Any acts committed with an intent to destroy, in whole or in part, national, ethnical, racial
or religious groups constitute a crime under the Convention. The prohibition against genocide is a
jus cogens norm in international law.2 The Court has recognized that the obligations in the
Convention are owed by any State party to all the other States parties to the Convention in any
given case (obligations erga omnes partes).3 By intervening in this case, Denmark wishes to
reaffirm this collective commitment to upholding the rights and obligations contained in the
Convention, including by supporting the crucial role of the Court and emphasising that international
co-operation is required to prevent, adjudicate on and punish acts of genocide.4
I 0. By this present Declaration, Denmark avails itself of the right to intervene conferred upon it by
Article 63, paragraph 2, of the Statute. This Court has recognized that Article 63 confers a "right" of
1 Letter from the Registrar of the Court of 30 March 2022 - see Annex A.
2 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, p. 43, at p. 111, paras. 161-162.
l Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections, Judgment of22 July 2022, p. 36, para. 107.
4 Convention on the Prevention and Punishment of the Crime of Genocide of 1948, Preamble: "Being convinced that,
in order to liberate mankind from such an odious scourge, international co-operation is required."
2
intervention.s The Court has also underlined that an intervention "is limited to submitting
observations on the construction of the convention in question and does not allow the intervenor,
which does not become a party to the proceedings, to deal with any other aspect of the case before
the Court; and whereas such intervention cannot affect the equality of the Parties to the dispute".6
11. Denmark does not seek to become a party to the Proceedings and accepts that the construction
of the Genocide Convention given by the judgment will be equally binding upon it. Its intervention
will not address issues of application of the Convention.
12. Consistent with the restricted scope for interventions under Article 63 of the Statute, Denmark
will present its interpretation of the relevant Articles of the Genocide Convention in line with
customary rules of interpretation as reflected in Article 31 of the Vienna Convention on the Law of
Treaties.7
13. Denmark notes that Article 63 of the Statute does not make a distinction between provisions in a
Convention, which relate to jurisdictional issues and those, which contain substantive provisions.
Both the wording in Article 63 of the Statute "Whenever the construction of a convention to which
States other than those concerned in the case are parties is in question" and the wording in Article
82 of the Rules of the Court to file a declaration "as soon as possible" confirms that the filing of an
Article 63 declaration is admissible at this stage of the proceedings. Indeed, in both situations,
States may offer their assistance to the Court in the construction of a particular Convention.
Accordingly, interventions on both aspects are allowed.8
14. Denmark wishes to assure the Court that the intervention was filed "as soon as possible and no
later than the date fixed for the opening of the oral proceedings" as stipulated in Article 82 of the
Rules of the Court. It requests to be provided with copies of all pleadings filed by Ukraine and the
Russian Federation, as well as any annexed documents, in accordance with Article 85, paragraph I,
of the Rules of the Court. Denmark further informs the Court that it is willing to assist the Court in
grouping its intervention together with similar interventions from other States for future stages of
the proceedings, if the Court deems this useful in the interest of an expedient administration of
justice.
~ Haya de In Torre (Colombia v. Peru), Judgment, I.CJ. Reports 1951, p. 76; Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Application for Permission to Intervene, Judgment, I.CJ. Reports I 981, p. 13, para. 21.
6 Whaling in the Antarctic (Australia v. Japnn), Dt.'Claration of In1ervention or New Zealand, Order or 6 February 2013,
I.CJ. Reports 2013, p. 3, a1 p. 9. para. 18.
7 Applica1ion of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections. Judgment or 22 July 2022, p. 31, para. &7: "The Court will have recourse to the
rules of customary international law on treaty interpretation as reflected in Articles 31 to 33 of the Vienna Convention
on the Law of Treaties of 23 May 1969"; see also Application of the lnternallonal Convention On the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4 February
2021. p. 24, para. 75 with further references.
8 MN Shaw (ed), Rosenne's Law and Practice of the International Court 1920 2015 (51h ed, Vol III. Brill Nijhoff2016),
p. 1533; H. Thirlway. The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Vol I,
OUP 2013), p. I031: A. Miron/C. Chinkin, "Article 63" in: Zimmermann/Tams/Oellers-Frahm/Tomuschat (eds). The
Statute of the International Court of Justice: A Commentary (3rd ed. OUP 2019), p. 1741, at p. 1763. note 46.
3
BASIS ON WHICH DENMARK IS PARTY TO THE CONVENTION
IS. Denmark signe~ the Convention on 28 September 1949 and deposited its instrument of
ratification on 15 June 1951 in accordance with Article XI, paragraph 2, of the Convention.9
PROVISIONS OF THE CONVENTION IN QUESTION IN THE CASE:
16. At present, Denmark focuses on the construction of Article IX of the Convention on the
jurisdiction of the Court and Articles I, II, III and VIII of the Convention that are relevant for the
merits of the case.
17. If the Court proceeds to examine questions of jurisdiction together with questions of merits,
Denmark will accordingly make observations in relation to the mentioned provisions together.
Having complied with its procedural obligation under Article 82, paragraph I, of the Rules of the
Court to file this declaration "as soon as possible", Denmark reserves its right to supplement the
present declaration and the scope of its observations to the extent that additional matters of
jurisdiction or on the merits arise as the case progresses, or as Denmark becomes aware of them
upon receipt (in accordance with Article 86, paragraph 1, of the Rules) of the pleadings and
documents annexed to them.
JURISDICTION
18. Article IX of the Genocide Convention reads as follows:
"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment
of the present Co11ventio11, including those relating to the relponsibility of a State/or genocide or
for any of the other acrs enumerated in Article Ill, shall be submitted to the lntemational Court of
Justice at the request of any of the parties to the dispute. "
19. Denmark contends that the notion of "dispute" is already well-established in the case law of the
Court. The Court has described the meaning given to the word dispute as "a disagreement on a point
of law or fact, a conflict of legal views or of interests" between parties. 10 In order for a dispute to
exist, "[i]t must be shown that the claim of one party is positively opposed by the other".11 The two
sides must "hold clearly opposite views concerning the question of the performance or nonperformance
of certain international obligations". 12 Moreover, "in case the respondent has failed to
reply to the applicant's claims, it may be inferred from this silence, in certain circumstances, that it
9 United Nations Treaty Collection, Treaty Registration Number !021 , Volume 91 :
https://treaties.un .org/Pages/show ActionDetails.aspx ?obj id-080000028002S40d&clang= en
10Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.1.J., Series A, No. 2, p. I I
11 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preli mi nary Objections, Judgment of 21
December 1962, I.CJ. Reports 1962, p. 319, at p. 328.
12 Application of the International Convention on the Elimina1ion of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.CJ. Reports 2018, p. 406, at p. 414, para. 18;
ICJ, Alleged V1ola1ions of Sovereign Righls and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),
Preliminary Objeccions. Judgment, I.CJ. Reporls 2016, p. 3, alp. 26, para. 50, citing Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase. Advisory Opinion, I.CJ. Reports 1950, p. 74.
4
rejects those claims and that, therefore, a dispute exists". 13 It is also worth noting that the existence
of a dispute cannot be determined by the Court based on one party's unilateral denial of a dispute.14
20. On the interpretation of the other parts of Article IX, namely that the scope of such disputes
must be "relating to the interpretation, application or fulfilment of the present Convention",
Denmark contends that Article IX is a broad jurisdictional clause, allowing the Court to adjudicate
upon disputes concerning the alleged fulfilment by a Contracting Party of its obligations under the
Convention. The inclusion of the word "fulfilment" is "unique as compared with the
compromissory clauses found in other multilateral treaties which provide for submission of the
International Court of such disputes between Contracting Parties as relate to the interpretation or
application of the treaties in question.15
21. There can be a dispute about the interpretation, application or fulfilment of the Convention
when one State alleges that another State has committed genocide. 16 In that scenario, the Court
verifies the factual basis for such allegation: if it is not satisfied that there were any acts of genocide
actually being committed by the respondent State, it may decline its jurisdiction, also prima facie. 17
22. While this scenario of (alleged) responsibility for acts of genocide constitutes an important type
of dispute on the "interpretation, application or fulfilment" of the Convention, it is not the only one.
For example, in The Gambia v. Myanmar (pending), the applicant claimed that the defendant was
not only responsible for prohibited acts under Article III, but that it was also violating its
obligations under the Convention by failing to prevent genocide in violation of Article I; and failing
to punish genocide in violation of Articles I, IV and V.18 In that example, one State alleges that
another State is not honouring its commitment to "prevent" and "punish" genocide, because it
grants impunity to acts of genocide committed on its territory. There can also be disputes about
"non-action" as a violation of the substantive obligations under Article I, IV and V.
23. The ordinary meaning of Article IX makes it clear that there is no need to establish genocidal
acts as a basis for the Court's jurisdiction. The Court has jurisdiction over the question whether
u Application of the Convention on the Prevention and Punishment of 1he Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objeclions, Judgment of22 July 2022, p. 27, para. 71.
•~ See, e.g., Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and 10 Nuclear
Disarmamenl (Marshall Islands v. United Kingdom), Preliminary Objections, Judgmenl, I.CJ. Reporls 2016, p. 833, at
pp. 849-851, paras. 37-43.
•~ Applicalion of 1he Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), Preliminary Objections, Declaration of Judge Oda, I.CJ. Reports 1996 (II), p. 627, para. 5
(emphasis in the original).
16 Application of the Convention on 1he Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, alp. 75, para. 169.
17 Case Concerning Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of2 June 1999, I.CJ.
Reporls 1999, p. 363, at pp. 372,373, paras. 24-31. Later, the ICJ declined its jurisdiction on the ground thal Serbia and
Montenegro did not have access to the Court, at the lime of the institution of the proceedings, under Article 35 of the
S1atutc (see e.g. ICJ, Case Concerning Legality of Use of Force (Serbia and Montenegro v. France), Preliminary
Objections, Judgmenl of 15 December 2004, I.CJ. Reports 2004, p. 595).
18 Application of the Convention on 1he Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar).
5
genocidal acts have been or are being committed or not. t
9 Hence, it also has jurisdiction ratione
mareriae to declare the absence of genocide and the violation of a good faith performance of the
Convention, resulting in an abuse of the law. In particular, the jurisdiction of the Court extends to
disputes concerning the unilateral use of military force to fulfil the obligation of preventing and
punishing alleged genocide.20
24. The context of the phrase "including those relating to the responsibility of a State for genocide
or any of the other acts enumerated in articJe Ill" further confirms this reading. In particular, the
word "including" indicates a broader scope of Article IX of the Convention when compared to
standard compromissory clause. 21 Disputes relating to the responsibility of a State for genocide or
for any of the other acts enumerated in Article HI are therefore only one type of dispute covered by
Article IX, which are "included" in the wider phrase of disputes "relating to the interpretation,
application and fulfilment" of the Convention. 22
25. Hence, the context of the phrase ("relating to") in Article IX confirms that the Court's
jurisdiction goes beyond disputes between States about the responsibility for alleged genocidal acts,
and also covers disputes between States about the absence of genocide and the violation of a good
faith performance of the Convention, resulting in an abuse of the law.
26. Moreover, a dispute relating to the interpretation, application or fulfilment of the Convention
exists despite the absence of a "specific reference" to a Convention or its provisions in public
statements by the parties, as long as those statements "refer to the subject-matter of the treaty with
sufficient clarity to enable the State against which a claim is made to identify that there is, or may
be, a dispute with regard to that subject-matter", 23 Further, acts or omissions may give rise to a
dispute that falls within the ambit of more than one treaty. 24
27. In addition to that, Article IX expressly provides for the Court jurisdiction "at the request of any
of the parties to the dispute" (emphasis added). This language suggests that a State accused of
19 Allegations of Genocide under the Convention on the Prevention and Punishmcnc of the Crime of Genocide (Ukraine
.... Russian Federation), Order of 16 March 2022, p. 10, para. 43; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order of 23 January 2020. I.CJ. Reports 2020. p. 14.
para. 30.
XJ Allegations of Genocide under the Convent10n on the Prevenuon and Punishment of 1he Crime of Genocide (Ukraine
v. Russian Federauon), Order of 16 March 2022, p. 11, para. 45.
" Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Henegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, p. 43, at p. 75, para. 169.
l l See also the Written Observations ofThc Gambia on the Preliminary Objections raised by Myanmar, 20 April 2021,
pp. 28-29, para. 3.22 (0The inclusion of disputes "relating lo the responsibility of a State for genocide" among chose that
can be brought before the Court unmistakably means that responsibility for genocide can be the object of a dispute
brought befon: the Courl by any contracting party").
n Applicatio11 of the Convention on the Prevention and Punishment of 1he Crime a/Genocide (The Gambia v.
Myanmar), Prehminary Objections, Judgment of 22 July 2022, para. 72, citing Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.CJ. Reports 2011, p 70, alp. 85, para. 30.
2~ Alleged Violation of the 1955 treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v.
Unites States of America), Preliminary Objections. Judgment of 3 February 2021, para 56.
6
committing genocide has the same right to submit the dispute to the Court as the State making the
accusation.
28. Finally, the object and purpose of the Convention gives further support to the wide
interpretation of Article IX. The Court recently noted that "[a]II the States parties to the Genocide
Convention [thus] have a common interest to ensure the prevention, suppression and punishment of
genocide, by committing themselves to fulfilling the obligations contained in the Convention".25
Famously, in its 1951 Advisory Opinion, the Court held:26
"The objects of such a convelltion must also be considered. 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 011 the other to confirm and endorse the most
elementary principles of morality. "
29. The Convention's object to protect the most elementary principles of morality also prohibits any
possibility of a State Party to abuse its provisions for other means. It would undermine the
Convention's credibility as a universal instrument to prohibit the most abhorrent crime of genocide
if its authority could be abused by any State Party wilhout a possibility of the victim of such abuse
to turn to the Court. The purpose of the Convention speaks loudly in favour of a reading of Article
IX, according to which disputes relating to the interpretation, application and fulfilment include
disputes about the abuse of the Convention's authority to justify a State's action vis-a-vis another
State party to the Convention.
30. In conclusion, the ordinary meaning of Article IX of the Convention, its context and the object
and purpose of the Convention show that a dispute regarding acts carried out by one State against
another State based on false claims of genocide falls under the notion of "dispute between
Contracting Parties relating to the interpretation, application or fulfilment of the present
Convention" in Article IX. Accordingly, the Court has jurisdiction to declare the absence of
genocide and the violation of a good faith performance of the Convention, resulting in an abuse of
the law.
MERITS
31. Denmark wishes to share with the Court its interpretation of some of the Articles of the
Convention relevant for the merits of the case. Article I of the Convention concerns the duty of the
Contracting Parties to prevent and to punish genocide, whether committed in time of peace or in
time of war. As the Court has already emphasised, Denmark recalls that in fulfilling their duty to
prevent genocide. Contracting Parties must act within the limits permitted by international law.27
21 Application of the Convention on the Prevention and Punishment of1he Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections, Judgment of 22 July 2022, p. 36, para. I 07.
26 Reservations to the Genocide Convention, Advisory Opinion of 28 May 1951, I.CJ. Reports 1951, p. 23.
27 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, p. 43, alp. 221, para. 430; Allegations of
7
Moreover, carrying out the duty under Article I must be done in good faith in accordance with
Article 26 of the Vienna Convention on the Law of Treaties. As the Coun has observed, the
principle of good faith "obliges the Parties to apply [a treaty) in a reasonable way and in such a
manner that its purpose can be realized''.28 Good faith interpretation thus operates as a safeguard
against misuse of the terms and institutions of the Convention.
32. In Denmark's view, the notion of "undertake to prevent" in Article I implies that each State
Pany must assess whether a genocide or a serious risk of genocide exists prior to taking action
pursuant to Article 1.29 The Coun has previously seen this assessment "of critical importance".30
33. Importantly, the UN Human Rights Council called upon all States, "in order to deter future
occurrences of genocide, to cooperate, including through the United Nationals system, in
strengthening appropriate collaboration between existing mechanisms that contribute to the early
detection and prevention of massive, serious and systematic violations of human rights that, if not
halted, could lead to genocide".31
34. The Court has observed that "Article I does not specify the kinds of measures that a Contracting
Party may take to fulfil this obligation. However, the Contracting Parties must implemenl this
obligation in good faith, taking into account other parts of the Convention, in particular Articles
VIII and IX, as well as its Preamble.''12 Under Article VIII of the Convention, States may call upon
the competent organs of the UN to take action under the Charter for the prevention and suppression
of acts of genocide. Both the Security Council and the General Assembly are "competent organs"
who may take collective action. Together with the right to seize the Court under Article IX and the
final recital in the preamble of the Convention, which emphasizes the need for "international co•
operation", all this speaks in favour of a duty to employ multilateral and peaceful means to prevent
genocide first before taking unilateral action as a matter of last resort.
35. This understanding corresponds with Chapter VI of the UN Charter, which contains a general
obligation of States to settle disputes by peaceful means. Denmark emphasizes that all State Parties
are engaged to suppress genocide worldwide for the benefit of mankind, and not in order to protect
their own interests. Actions taken under Article I must be in conformity with the United Nations as
set out in Article 1 of the United Nations Charter. ll
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), Order of 16 March 2022, para. 57.
28 Gabfikovo-Nagymaros Project (Hungary/Slovakia), Judgment. I.CJ. Repor1s 1997, p. 7, at p. 79. pora. 142.
29 Case Concerning Application of the Convention on the Preven1ion and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro}, Judgment, I.CJ. Reports 2007, p. 43, al pp.221-222, paras. 430-431.
30 Case Concerning Application of lhe 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. 43, at pp. 221-222, para. 430.
31 UN Human Righ1s Council, Resolution 43129: Prevention of Genocide (29 June 2020), UN Doc A/HRC/RES/43/29.
para. 1 I.
12 Allegations of Genocide under the Convention on the Prevenlion and Punishment of the Crime of Genocide (Ukraine
v. Russian Federation). Order of 16 March 2022, para. 56.
33 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. 58.
8
36. There is an obligation to carry out a good faith assessment of the existence of genocide or
serious risk of genocide. Where a State has not carried out such an assessment, it cannot invoke the
"undertak[ing] to prevent" genocide in Article I of the Convention as a justification for its conduct.
Thus, a Contracting Party cannot invoke Article I in order to render a lawful conduct that would
otherwise be unlawful under international law, unless it has established that genocide is occurring
or that there is a serious risk of genocide occurring, on an objective basis and pursuant to a good
faith assessment of all relevant evidence from independent sources.
37. The purely "humanitarian and civilizing" purpose of the Convention compels an interpretation
according to which a State may not act to another's detriment on the purported basis of preventing
or a punishing an alleged genocide without having performed due diligence regarding the risk of
such genocide. 34 Such an act would constitute an abuse of the law and a violation of the Genocide
Convention.
38. Further, Article I must be construed in light of other international rules applicable between the
Contracting Parties,35 and cannot be construed as being capable of countenancing certain types of
conduct, including violations of the prohibition of aggression, violation of international
humanitarian law, and crimes against humanity. For the avoidance of doubt, Denmark is of the view
that in construing the Genocide Convention the Court is not called upon to engage in any broader
analysis of the international legality of uses of force in response to, for example, grave humanitarian
crises, including under the doctrine of humanitarian intervention.
39. Turning to the undertaking "to punish" in Article I of the Convention, Denmark contends that
the obligation is limited to punitive measures of a criminal law character directed against
individuals. This is confirmed by Articles IV-VI of the Convention. It follows from this that a State
should use its domestic criminal law or rely on international criminal investigations by cooperating
with an international tribunal the jurisdiction of which it has accepted and which is competent to try
the individuals, or by extraditing individuals accused of genocide for trial in another State in order
to suppress genocide by individual perpetrators ("punishment").36 It is evident that Article I of the
Convention cannot serve as a legal basis for military measures to "punish'' a state or a people,
which is a violation of the most fundamental norms of international law.
40. Article II of the Convention deals with the definition of genocide and Article III lists five modes
of committing genocide, which shall be punishable. Denmark contends that the elements of
genocide are already well-established in the Court's case law. In particular, in order for genocide to
occur, there is a requirement to establish both genocidal action and a (specific) genocidal intent next
to the mental elements present in the acts listed in Article 11.37 The occurrence of civilian casualties
H Reservations to the Genocide Convention, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 23.
H 1969 Vienna Convention on the Law of Treaties, Article 31(3)(c).
36 Genocide Convention, Articles VJ. VII; 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. 43 at pp.
226-227, paras. 442-443.
3
' Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007 (I}, p. 43, al pp. 121-122, paras. I 86-189.
9
during the course of armed conflict is not evidence of genocidal action or genocidal intent, if it is
not designed to destroy a group or part of a group.
41. As mentioned above, Article VIII of the Genocide Convention provides that States Parties may
call upon competent organs of the United Nations to take action under the Charter for the
prevention and suppression of acts of genocide. Both the Security Council and the General
Assembly are "competent organs" who may take collective action. Together with the right to seize
the Court under Article JX of the Convention, the endowment to call upon the competent UN
organs under Article Vlll reflects the Convention's design, which favours collective, institutional
measures to prevent and to suppress acts of genocide. The Court has held that .. Article VIII may be
seen as addressing the prevention and suppression of genocide at the political level rather than as a
matter of legal responsibility". 38
42. Denmark recalls that the prevention and suppression of genocide is not only a domestic matter,
but concerns the international community as a whole. It contends that the proper construction of
Article Vlll requires the said provision to be read in its context, in particular together with Article I
as set out above. The object and purpose of Article VIII is to underline the preference for collective
enforcement over unilateral enforcement. Hence, the legality of any extra-territorial unilateral
preventive measure is contingent on the prior seising of competent United Nations organs pursuant
to Article VIII and the failure of such organs to take action in accordance with the Charter. Any
such unilateral preventive measure must comply with the requirements of Article I as set out above.
DOCUMENTS IN SUPPORT OF THE DECLARATION
43. Denmark submits the following document in support of this Declaration, which document is
attached hereto:
Annex A: Letter from the Registrar of the International Court of Justice to the Ambassador of
Denmark to the Kingdom of the Netherlands dated 30 March 2022.
CONCLUSION
44. On the basis of the information set out above, Denmark avails itself on the right conferred upon
it by Article 63 paragraph 2 of the Statute to intervene as a non-party in the proceedings brought by
Ukraine against the Russian Federation in this case.
45. The government of Denmark has appointed the undersigned as Agent for the purposes with this
Declaration together with Jar) Frijs-Madsen, Ambassador of Denmark to the Kingdom of the
Netherlands, as Co-Agent. The Registrar of the Court may channel all communication through them
at the following address:
lO
The Embassy of Denmark in the Netherlands
Koninginnegracht 30
2514 AB Den Haag
Netherlands
JI
COUR INTERNATIONAU ·• INTEJlNATIO
l)[ IUSTICl OF JUSTICE
AMS. HAAG
···----·· BILAr.. I --·
1 , APR. 2022
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 I, 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 l, 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 I, 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. ln 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 Kingdom of Denmark
to the Kingdom of the Netherlands
Embassy of the Kingdom of Denmark
The Hague
Palais de la Paix, Camegieplein 2
2517 KJ La Haye • Pays-Bas
Telephone . +31 (0) 70 302 23 23- Facsimile: +31 (0) 70 364 99 28
Site Internet: \\'\VW.iCJ •tij.org
Peace Palace, Camegieplein 2
2517 KJ The Hague - Netherlands
.I.
Telephone: +31 (0) 70 302 23 23 • Telefax: +31 (0) 70 364 99 28
Website: wMv.icj-cij.org
COUR INTER.NATIONALE
DE JUSTICE
INTERNATIONAL COURT
OF JUSTICE
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 I, 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 detennine in
this case.
Accept, Excellency, the assurances ofmy highest consideration.
• 2 -
Philippe Gautier
Registrar
\___
Declaration of intervention of Denmark