Declaration of intervention of Spain

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DECLARATION OF INTERVENTION OF SPAIN
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 Spain:
1. On behalf of the government of Spain, 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 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. Those 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 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 I-III
thereof (paras. 26-29 of the Application).
7. Following a request for provisional measures from Ukraine, the Court ordered on 16 March
2022 that:
(1) the Russian Federation shall immediately suspend the military operation that it started 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
(1) above; and
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(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.
8. As of date of this Declaration, Russia has failed to comply with the Order, has intensified and
expanded its military operations on the territory of Ukraine and has thus aggravated the dispute
pending before the Court.
9. On 30 March 2022, as contemplated by Article 63, paragraph 1, of the Statute of the Court,
the Registrar duly notified the Government of Spain 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 [Ukraine’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 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”1.
10. It is the understanding of Spain that 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 group constitutes a crime under international law. The
prohibition against genocide is a jus cogens norm in international law2. The rights and obligations
enshrined by the Convention are owed to the international community as a whole (rights and
obligations erga omnes partes)3. In such a situation, when the treaty embodies matters of
collective interest, the late Judge Cançado Trindade called upon all State Parties to contribute
to the proper interpretation of the treaty as sort of a “collective guarantee of the observance of
the obligations contracted by the State parties”.4
11. By this present Declaration, Spain 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 intervention5. 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
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.C.J. Reports 2007, p. 43, at p. 111, paras. 161-162.
3 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. 3 with further references;
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Judgment of 22 July 2022, p. 36, para. 107.
4 Separate Opinion of Judge Cançado Trindade, attached to Whaling in the Antarctic (Australia v. Japan), Declaration
of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, p. 33, para 53.
5Haya de la Torre (Colombia v. 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.
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the case before the Court; and whereas such intervention cannot affect the equality of the
Parties to the dispute”.6
12. Consistent with the restricted scope for interventions under Article 63 of the Statute, Spain
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 Treaties7. It 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 relate to
substantive provisions. According to Judge Schwebel “intervention in the jurisdictional phase of
a proceeding is within the scope of rights with which States are endowed by the terms of Article
63”8. 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 allowed9, and the
wording in Article 82 of the Rules 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.
13. At present, Spain focuses on the construction of Article IX of the Convention on the
jurisdiction of the Court.
14. Spain does not seek to become a party to the Proceedings and accepts that the Genocide
Convention’s construction given by the judgment will be equally binding upon it. Its intervention
will not address issues of application of the Convention.
15. Spain also 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 Russia, as well as any annexed documents, in line with Article 85, paragraph 1, of the Rules
of the Court. It further informs the Court that it is willing to assist the Court in grouping its
intervention together with similar interventions from other EU Member States for future stages
of the proceedings, if the Court deems such a move useful in the interest of an expedient
administration of justice.
6 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013,
I.C.J. Reports 2013, p. 3, at p. 9, para. 18.
7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 31, para. 87: “The Court will have recourse to the rules of customary
international law on treaty interpretation as reflected in Articles 31 to 33 of the Vienna Convention on the Law of
Treaties of 23 May 1969”; see also Application of the International Convention On the Elimination of All Forms of
Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4 February 2021, p. 24,
para. 75 with further references.
8 See Opinion of Judge Schwebel in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) (Declaration of Intervention of El Salvador), Order of 4 October 1984, I.C.J. Reports 1984, p. 223,
at pp. 235-236.
9 MN Shaw (ed), Rosenne’s Law and Practice of the International Court 1920-2015 (5th ed, Vol III, Brill Nijhoff 2016),
p. 1533; H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Vol I,
OUP 2013), p. 1031; A. Miron/C. Chinkin, “Article 63” in: Zimmermann/Tams/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.
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BASIS ON WHICH SPAIN IS PARTY TO THE CONVENTION
16. Spain acceded to the Convention and deposited its instrument of accession in accordance
with Article XI, paragraph 4, of the Convention on 13 September 1968.
PROVISIONS OF THE CONVENTION IN QUESTION IN THE CASE:
JURISDICTION
17. Article IX of the Genocide 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.”
18. Spain contends that the notion of “dispute” is already well-established in the case law of the
Court and supports the current interpretation. Accordingly, it concurs with 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 non-performance 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 rejects those claims and that,
therefore, a dispute exists”13.
19. Spain hence concentrates 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”. It 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. As Judge Oda noted, the inclusion of the word “fulfilment” is
“unique as compared with the compromissory clauses found in other multilateral treaties which
10 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
11 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21
December 1962, I.C.J. Reports 1962, p. 319, at p. 328.
12 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United
Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018, p. 406, at p. 414, para. 18; ICJ, Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 3, at p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74.
13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 27, para. 71.
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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”14.
20. The ordinary meaning of the phrase “relating to the interpretation, application or fulfilment
of the Convention” may be divided in two sub-categories.
21. The first point (“relating to”) establishes a link between the dispute and the Convention.
22. The second point (“interpretation, application or fulfilment of the Convention”)
encompasses many different scenarios. As Professor Kolb has observed, Article IX of the
Convention is “a model of clarity and simplicity, opening the seizing of the Court as largely as
possible”15.
23. There can be a dispute about the interpretation, application or fulfilment of the Convention
when one State alleges that another State has committed genocide16. 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 facie17.
24. 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 V18. 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. Therefore,
there can also be disputes about “non-action” as a violation of the substantive obligations under
Article I, IV and V.
14 Application of the 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.C.J. Reports 1996 (II), p.
627, para. 5 (emphasis in the original).
15 R. Kolb, “The Compromissory Clause of the Convention”, in: Paola Gaeta (ed), The UN Genocide Convention: A
Commentary, (OUP 2009), p. 420.
16 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 p. 75, para. 169.
17 Case Concerning Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999, p. 363, at pp. 372-373, paras. 24-31. Later, the ICJ declined its jurisdiction on the ground that Serbia
and Montenegro did not have access to the Court, at the time of the institution of the proceedings, under Article 35
of the Statute (see e.g. ICJ, Case Concerning Legality of Use of Force (Serbia and Montenegro v. France), Preliminary
Objections, Judgment of 15 December 2004, I.C.J. Reports 2004, p. 595).
18 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 12, para. 24, Points (1) (c), d) and (e).
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25. Therefore, the ordinary meaning of Article IX makes it clear that there is no need to establish
genocidal acts as a basis to affirm the Court’s jurisdiction. Rather, the Court has jurisdiction over
the question whether genocidal acts have been or are being committed or not.19 Hence, it also
has jurisdiction ratione materiae 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 for
the stated purpose of preventing and punishing alleged genocide20.
26. The context of the phrase (“relating to …”) further confirms this reading. In particular, the
unusual feature of the words “including” in the intermediate sentence indicates a broader scope
of Article IX of the Convention when compared to standard compromissory clause21. Disputes
relating to the responsibility of a State for genocide or for any of the other acts enumerated in
Article III 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
Convention22. Moreover, Article IX expressly provides for ICJ jurisdiction “at the request of any
of the parties to the dispute” (emphasis added). This language suggests that a State accused of
committing genocide has the same right to submit the dispute to the Court as the State making
the accusation. In particular, such a State may seek a “negative” declaration from the Court that
the allegations from another State that it was responsible for genocide are without legal and
factual foundation.
27. 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, but 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.
28. Finally, the object and purpose gives further support to the wide interpretation of Article IX.
The Court noted that “[a]ll the States parties to the Genocide Convention [thus] have a common
interest to ensure the prevention, suppression and punishment of genocide, by committing
19 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, 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.C.J.
Reports 2020, p. 14, para. 30.
20 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, p. 11, para. 45;
21 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.C.J. Reports 2007, p. 43, at p. 75, para. 169.
22 See also the Written Observations of The Gambia on the Preliminary Objections raised by Myanmar, 20 April 2021,
pp. 28-29, para. 3.22 (“The inclusion of disputes “relating to the responsibility of a State for genocide” among those
that can be brought before the Court unmistakably means that responsibility for genocide can be the object of a
dispute brought before the Court by any contracting party”).
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themselves to fulfilling the obligations contained in the Convention”23. Famously, in its 1951
Advisory Opinion, the Court held24:
“The objects of such a convention 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 on the other to confirm
and endorse the most elementary principles of morality. In such a convention the contracting
States 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. Consequently, in a convention of this type one cannot speak of individual
advantages or disadvantages to States, or of the maintenance of a perfect contractual balance
between rights and duties. The high ideals which inspired the Convention provide, by virtue of
the common will of the parties, the foundation and measure of all its provisions.”
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 outlaw the most abhorrent crime of
genocide if its authority could be abused by any State Party without a possibility of the victim of
such abuse to turn to the Court. The purpose of the Convention hence 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-à-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 entire 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”. 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. In particular, the jurisdiction of the Court extends to disputes concerning the unilateral use
of military force for the stated purpose of preventing and punishing alleged genocide.
23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 36, para. 107.
24 Reservations to the Genocide Convention, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 23.
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DOCUMENTS IN SUPPORT OF THE DECLARATION
31. The following is a list of the documents in support of this Declaration, which documents are
attached hereto
(a) Letter from the Registrar of the International Court of Justice to the Ambassador of Spain to
the Kingdom of the Netherlands (30 March 2022);
(b) Instrument of accession by the Government of Spain to the Genocide Convention.
(c) Spain´s withdrawal of Reservation to article IX.
CONCLUSION
32. On the basis of the information set out above, Spain 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.
33. The government of Spain has appointed the undersigned as Agent(s) for the purposes with
this Declaration (Mr. Santiago Ripol Carulla and Ambassador María Consuelo Femenía
Guardiola). The Registrar of the Court may channel all communication through them at the
following address:
Embassy of Spain to the Kingdom of the Netherlands.
Lange Voorhout, 50.-2514 EG, The Hague
Respectfully,
Santiago Ripol Carulla, Agent of the Government of Spain
Annex A: Letter from the Registrar of the International Court of Justice to the Ambassador of
Spain to the Kingdom of the Netherlands (30 March 2022);
Annex B: Instrument of Accession by the Government of Spain to the Genocide Convention.
Annex C: Spain´s withdrawal of Reservation to article IX.