Declaration of intervention of Luxembourg

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
INTERVENTION UNDER ARTICLE 63 OF THE STATUTE
OF THE INTERNATIONAL COURT OF JUSTICE
[Translation]
To the Registrar of the International Court of Justice (hereinafter “the Court”), the undersigned
being duly authorized by the Government of the Grand Duchy of Luxembourg (hereinafter
“Luxembourg”):
1. On behalf of Luxembourg, 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 (hereinafter “the Statute”)
in the case concerning Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation).
2. Article 82, paragraph 2, of the Rules of Court (hereinafter “the Rules”) provides that the
declaration by which a State seeks 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. Luxembourg also intends to set out certain
preliminary observations beforehand.
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 Convention on the Prevention
and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention”)1.
5. In paragraphs 4 to 12 of its Application instituting proceedings2, Ukraine claims that there
is a dispute between it and the Russian Federation within the meaning of Article IX, relating to the
interpretation, application and fulfilment of the Genocide Convention.
6. On the merits, Ukraine asserts, citing Articles I to III of the Genocide Convention, that the
Russian Federation’s use of force in and against Ukraine since 24 February 2022 and its acts of
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 the “Application of Ukraine”).
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recognition based on a false claim of genocide, which preceded the military operation, are
incompatible with the Convention (paragraphs 26 to 29 of the Application).
7. Following a Request for provisional measures submitted by Ukraine, on 16 March 2022 the
Court ordered that:
(1) the Russian Federation shall immediately suspend the military operations that it commenced on
24 February 2022 in the territory of Ukraine;
(2) the Russian Federation shall ensure that any military or irregular armed units which may be
directed or supported by it, as well as any organizations and persons which may be subject to its
control or direction, take no steps in furtherance of the military operations referred to in point (1)
above; and
(3) both Parties shall refrain from any action which might aggravate or extend the dispute before the
Court or make it more difficult to resolve.
8. As of the date of this Declaration, Russia has not complied with the Order; it has intensified
and expanded its military operations in the territory of Ukraine and has thus aggravated the dispute
pending before the Court.
9. On 30 March 2022, pursuant to Article 63, paragraph 1, of the Statute, the Registrar duly
notified the Government of Luxembourg, as a party to the Genocide Convention, that, in Ukraine’s
Application, the Genocide Convention “is invoked both as a basis of the Court’s jurisdiction and as
a 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 this instrument
will be in question in the case.”3
10. Luxembourg considers that the Genocide Convention is of the utmost importance in
preventing genocide and holding its perpetrators accountable for their acts. Any act committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group constitutes a crime
under international law. The prohibition of genocide is recognized as a jus cogens norm in
international law4. The rights and obligations enshrined in the Convention are owed to the
international community as a whole (rights and obligations erga omnes partes)5. The late
Judge Cançado Trindade remarked that, in circumstances such as these, when an international
instrument embodies matters of collective interest, it is for all States parties to contribute to the proper
interpretation of the treaty as a sort of “collective guarantee of the observance of the obligations
3 Letter of 30 Mar. 2022 from the Registrar of the Court; see Ann. A.
4 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. 111, paras. 161-162.
5 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), Preliminary
Objections, Judgment of 22 July 2022, p. 36, para. 107.
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contracted by the States parties”6. Luxembourg considers that intervention in the present case enables
States parties to the Genocide Convention to reaffirm their collective commitment to upholding the
rights and obligations contained therein, in particular by supporting the essential role of the Court.
11. By this Declaration, Luxembourg intends to avail itself of the right of intervention
conferred upon it by Article 63, paragraph 2, of the Statute. The Court has recognized that Article 63
of the Statute confers a “right” of intervention on any State party to a convention whose construction
is in question in a case7. The Court has also stated that 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 [that] such an intervention
cannot affect the equality of the parties to the dispute”8.
12. As a State party to the Genocide Convention, Luxembourg has a direct interest in the
proper interpretation, application and fulfilment of the obligations contained therein. Luxembourg
considers it all the more necessary to avail itself of its right of intervention in the present case given
the particular nature of the Genocide 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”9.
13. In view of the limited scope of intervention under Article 63 of the Statute, Luxembourg
will present its interpretation of the relevant articles of the Genocide Convention in accordance with
the rules of interpretation contained in Article 31 of the Vienna Convention on the Law of Treaties,
which also reflects customary international law10. Article 31, paragraph 1, provides that “[a] treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose”. Thus, together with the
context, the interpretation of a treaty must also take into account the subsequent practice in the
application of the treaty, by which the agreement of the parties regarding its interpretation is
established, as well as any relevant rules of international law applicable in the relations between the
parties. In some circumstances, recourse may also be had to supplementary means of interpretation,
including the travaux préparatoires and the circumstances of the treaty’s conclusion.
14. Luxembourg notes that Article 63 of the Statute makes no distinction between
conventional provisions concerning questions of jurisdiction and those pertaining to questions on the
merits. In the words of Judge Schwebel, “intervention in the jurisdictional phase of a proceeding is
6 Separate opinion of Judge Cançado Trindade, appended 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 (emphasis in
the original).
7 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.
8 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.
9 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
10 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, 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, I.C.J. Reports 2021, p. 24,
para. 75, with further references.
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within the scope of the right with which States are endowed by the terms of Article 63”11. In both
situations, States may offer their assistance to the Court in interpreting a particular convention.
Consequently, interventions relating to both aspects are authorized12, and the wording of Article 82,
paragraph 1, of the Rules, which requires declarations to be filed “as soon as possible, and not later
than the date fixed for the opening of the oral proceedings”, confirms that the filing of a declaration
under Article 63 of the Statute is admissible at this stage of the proceedings.
15. In this Declaration, Luxembourg will focus on the interpretation of Article IX of the
Convention, concerning the jurisdiction of the Court; it will also set out some additional
considerations relevant to the merits of the case, recalling in particular the importance of the principle
of good faith in international relations. Luxembourg does not intend to become a party to the dispute,
and it accepts that the Court’s construction of the Convention will be equally binding upon it.
16. Luxembourg would like to assure the Court that its Declaration has been filed as soon as
reasonably possible, in accordance with Article 82 of the Rules. It asks to be furnished with copies
of all pleadings filed by Ukraine and the Russian Federation, and the documents annexed, in
accordance with Article 86, paragraph 1, of the Rules. Considering that Luxembourg has complied
with the procedural obligation set out in Article 82, paragraph 1, of the Rules to file its Declaration
“as soon as possible”, it reserves the right to amend or supplement this Declaration and the scope of
its observations should additional questions relating to jurisdiction or relevant to the merits of the
case subsequently be raised before the Court, or should they come to the attention of Luxembourg
on receiving the pleadings and documents annexed, in accordance with the aforementioned
Article 86 of the Rules.
17. Finally, Luxembourg hereby informs the Court that it is willing to assist the Court by
grouping its intervention with identical or essentially similar interventions of other Member States
of the European Union that choose to adopt a unified approach for future stages of the proceedings,
should the Court consider such a course of action to be in the interest of the sound administration of
justice.
THE BASIS ON WHICH LUXEMBOURG IS A PARTY TO THE CONVENTION
18. Luxembourg deposited its instrument of accession to the Convention on the Prevention
and Punishment of the Crime of Genocide with the Secretary-General of the United Nations on
7 October 1981, in accordance with Article XI, paragraph 4, of the Convention.
THE PROVISIONS OF THE CONVENTION IN QUESTION IN THE PRESENT CASE:
JURISDICTION
19. 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
11 See the opinion of Judge Schwebel in the case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports
1984, pp. 235-236.
12 See, e.g., M. 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 and C. Chinkin, Article 63, in Zimmermann et al. (eds.), The Statute
of the International Court of Justice: A Commentary, 3rd ed., OUP, 2019, p. 1763, fn. 46.
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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.”
The terms of this article suggest that there is no limitation on the Court’s jurisdiction in situations
where the applicant State accuses the respondent State of violating its obligations under the
Convention. Moreover, Article IX expressly provides for the jurisdiction of the Court “at the request
of any of the parties to the dispute” (emphasis added). The Court has observed that this phrase
“clarifies that only a party to the dispute may bring it before the Court”13. The pertinent limitation is
that the party seising the Court must be a party to the dispute, but there is no restriction as to which
party it must be. It can be “any” party to the dispute.
20. The disputes that may be submitted to the Court under Article IX expressly include “those
relating to the responsibility of a State for genocide or for any of the other acts enumerated in
article III”. Thus, when a dispute exists as to whether a State has engaged in conduct contrary to the
Convention, the State accused of such conduct has the same right to submit the dispute to the Court
as the State making the accusation, and the Court will have jurisdiction to entertain that dispute. In
order to determine whether a dispute before it falls within the scope of Article IX of the Convention,
the Court “cannot limit itself to noting that one of the Parties maintains that the Convention applies,
while the other denies it”14. Accordingly, a State may, in particular, ask the Court to make a
“negative” declaration, finding that another State’s allegations that it is responsible for genocide have
no legal or factual basis.
21. The notion of a “dispute” has also long been established in the jurisprudence of both the
Court and its predecessor, the Permanent Court of International Justice, and Luxembourg supports
the broad interpretation given to this term in public international law, which was very recently
reaffirmed by the Court15. Luxembourg thus approves of the meaning ascribed to term “dispute” by
the Permanent Court of International Justice in 1924, i.e. “a disagreement on a point of law or fact,
a conflict of legal views or of interests” between the parties16.
22. This Court has found that, in order for a dispute to exist, “[i]t must be shown that the claim
of one party is positively opposed by the other”17, and that “[a] dispute between States exists where
they hold clearly opposite views concerning the question of the performance or non-performance of
certain international obligations”18. In addition, “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
13 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. 111.
14 Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 137, para. 38.
15 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.
16 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
17 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J.
Reports 1962, p. 328.
18 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 (II), p. 414, para. 18; Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50, quoting Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74.
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claims and that, therefore, a dispute exists”19. Finally, in the specific context of the Genocide
Convention, the existence of a dispute may be established despite there being no “specific reference”
to the Convention or its provisions in the public statements of the parties, as long as the statements
made by a State 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 subjectmatter”
20.
23. Luxembourg will thus focus on the interpretation of the other parts of Article IX, namely
that the scope of such disputes must “relat[e] to the interpretation, application or fulfilment of the
present Convention”. Luxembourg considers that Article IX is a broad jurisdictional clause, enabling
the Court to rule on disputes concerning a Contracting Party’s alleged fulfilment of its obligations
under the Convention. As noted by Judge Oda, the inclusion of the term “fulfilment” is “unique as
compared with the compromissory clauses found in other multilateral treaties which provide for
submission to the International Court of Justice of such disputes between the Contracting Parties as
relate to the interpretation or application of the treaties in question”21. This inclusion of the term
“fulfilment” attests to the particular emphasis that was placed by the drafters of the Convention on
compliance with the obligation to perform treaties in good faith, which gives practical effect to the
fundamental principle of pacta sunt servanda in public international law.
24. The ordinary meaning of the phrase “relating to the interpretation, application or fulfilment
of the . . . Convention” can be divided into two parts.
25. The first part (“relating to”) establishes a link between the dispute and the Convention.
26. The second part (“interpretation, application or fulfilment of . . . the Convention”)
encompasses a number of different scenarios, especially since Article IX covers all disputes “relating
to the responsibility of a State for genocide”. That there are no exclusions with regard to
responsibility has been confirmed by the Court22. Moreover, it is useful to consult the French text of
the Convention in order to clarify the phrase “for genocide” in the English version, since “en matière
de genocide” can cover both the commission and non-commission of acts of genocide. Finally, the
term “including” suggests the categories of disputes capable of falling within the scope of Article IX
are not exhaustive, thus opening the seising of the Court as largely as possible.
27. There may be a dispute relating to the interpretation, application or fulfilment of the
Convention when one State alleges that another has committed genocide23. In such an event, the
19 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, p. 27, para. 71.
20 Ibid., para. 72.
21 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 (II), declaration of Judge Oda, p. 627,
para. 5 (emphasis in the original).
22 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 (II), p. 616, para. 32.
23 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 (I), p. 75, para. 169.
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Court verifies the factual basis of the allegation; if it is not convinced that acts of genocide have in
fact been committed by the respondent State, it may find that it lacks jurisdiction, even prima facie24.
28. Although situations involving (alleged) responsibility for acts of genocide are an important
category of dispute relating to the “interpretation, application or fulfilment” of the Convention, they
are not the only category. For example, in the (pending) case between The Gambia and Myanmar,
the applicant asserts that the respondent is not only responsible for acts prohibited under Article III,
but that it is also violating its obligations under the Convention by not preventing genocide, in breach
of Article I, and by not punishing genocide, in violation of Articles I, IV and V25. In that instance,
one State is alleging that another State is failing to comply with its undertaking to “prevent” and
“punish” genocide, by allowing acts of genocide to be committed with impunity on its territory.
Hence, disputes can also arise in respect of “non-action”, as a violation of the substantive obligations
provided for in Articles I, IV and V.
29. Accordingly, the ordinary meaning of Article IX clearly indicates that it is not necessary
to establish whether acts of genocide have occurred in order for the Court’s jurisdiction to be
affirmed. On the contrary, the Court has jurisdiction to ascertain whether or not acts of genocide
have been or are being committed26. It follows that the Court also has jurisdiction ratione materiae
to declare that genocide has not occurred, and that there has been a violation of the obligation to
perform the Convention in good faith, resulting in an abuse of rights. In particular, the Court’s
jurisdiction extends to disputes concerning the unilateral use of military force for the stated purpose
of preventing and punishing alleged genocide27.
30. The context of the phrase “relating to” also confirms this reading. As mentioned above,
the unusual use of the term “including” in the intermediary clause suggests that Article IX of the
Convention is broader in scope than a traditional compromissory clause28. Disputes relating to a
State’s responsibility for genocide or any other act listed in Article III are therefore only one type of
dispute covered by Article IX, which is “included” in the broader phrase “disputes . . . relating to the
interpretation, application or fulfilment” of the Convention29.
24 Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), pp. 372-373, paras. 24-31. The Court subsequently found that it was not competent on the grounds that, when the
proceedings were instituted, Serbia and Montenegro did not have access to the Court under Article 35 of the Statute (see
e.g. Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections, Judgment, I.C.J. Reports
2004 (II), p. 595).
25 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, p. 12, para. 24, point (1) (c), (d) and (e).
26 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), Provisional Measures, Order of 23 January 2020,
I.C.J. Reports 2020, p. 14, para. 30.
27 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.
28 See also 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 (I), p. 75. para. 169.
29 See also Written Observations of The Gambia on the Preliminary Objections of Myanmar in the case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
20 Apr. 2021, pp. 18-19, para. 3.22 (“Article IX expressly states that ‘the responsibility of a State for genocide’ can be the
subject-matter of the ‘disputes between the Contracting Parties’ that can be ‘submitted to the International Court of Justice
at the request of any of the parties to the dispute’. 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” (emphasis in the original).).
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31. The context of Article IX thus confirms that the Court’s jurisdiction covers not only
inter-State disputes concerning responsibility for alleged acts of genocide, but also inter-State
disputes concerning the absence of genocide and the violation of a good faith performance of the
Convention, resulting in an abuse of rights.
32. Finally, the object and purpose of the Convention provide additional support for a broad
interpretation of Article IX. In its 1951 Advisory Opinion, the Court stated that:
“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.”30
33. The Court recently reaffirmed these principles, noting 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 themselves to fulfilling the obligations contained in the
Convention”31.
34. The object of the Convention, which is to protect the most elementary principles of
international morality, also precludes any misuse of its provisions by a State party for other purposes.
The credibility of the Convention as a universal instrument aimed at prohibiting the most heinous
crime of genocide would be undermined if a State party could abuse its authority without the victim
of such abuse being able to turn to the Court. The Convention’s object thus clearly supports a reading
of Article IX whereby disputes relating to the interpretation, application or fulfilment of the
Convention include those relating to abuse of the Convention’s authority to justify the action taken
by one State party to the Convention against another.
35. In conclusion, Luxembourg is of the view that it is clear from the ordinary meaning and
context of Article IX of the Convention, and from the object and purpose of the Convention as a
whole, that a dispute relating to acts carried out by one State against another on the basis of false
allegations of genocide falls under the notion of “disputes between the Contracting Parties relating
to the interpretation, application or fulfilment of the present Convention”. Therefore, the Court has
jurisdiction to declare that there has been no genocide and that there has been a violation of a good
faith performance of the Convention, resulting in an abuse of rights.
30 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
31 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, p. 36, para. 107.
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ON THE MERITS
36. Luxembourg also wishes to share with the Court its interpretation of certain provisions of
the Convention that are relevant to the merits of the case.
37. Article 1 of the Genocide Convention reads: “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.”
38. Under this article, all States parties are required to prevent and punish genocide. Given the
jus cogens character of the prohibition of genocide, its prevention and punishment are not domestic
matters but concern the international community as a whole (obligation erga omnes)32. However, as
the Court has previously noted, in carrying out their duty to prevent genocide, the Contracting Parties
must act within the limits permitted by international law33. And like all international treaty
provisions, Article 1 of the Convention must be interpreted and performed in good faith, in
accordance with Article 26 and Article 31, paragraph 1, of the Vienna Convention on the Law of
Treaties, which reflect customary international law. The obligation to perform a treaty in good faith
also derives from the principle of pacta sunt servanda, a fundamental principle of public international
law34.
39. Good faith is indissociable from the treaty whose application or interpretation is being
examined and requires that the integrity of the treaty be respected. The Court has thus observed that
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”35. Good faith interpretation therefore shields against the
misuse of a convention’s terms. As “[o]ne of the basic principles governing the creation and
performance of legal obligations”, good faith is also directly linked to “[t]rust and confidence[,
which] are inherent in international co-operation”36.
40. In Luxembourg’s opinion, the notion of “undertak[ing] to prevent” implies that each State
party must assess the existence of genocide or the serious threat of genocide before taking measures
under Article 137. This assessment must be justified by substantial evidence that is “fully
conclusive”38.
32 Above, para. 10 of the Declaration.
33 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 (I), p. 221, para. 430; 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. 57.
34 See also above, para. 23 of the Declaration.
35 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, pp. 78-79, para. 142.
36 Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para. 46.
37 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. 221-222, paras. 430-431.
38 Ibid., p. 129, para. 209.
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41. As a current member of the United Nations Human Rights Council, Luxembourg would
point out that this intergovernmental body of the United Nations
“[c]alls upon all States, in order to deter future occurrences of genocide, to cooperate,
including through the United Nations system, in strengthening appropriate collaboration
among 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”39.
It may therefore be considered good practice to have recourse to the findings of independent
investigations conducted under the auspices of the United Nations before characterizing a situation
as genocide and taking any other measures under the Convention40.
42. A State that claims to be acting to prevent genocide therefore has a due diligence obligation
to gather substantial and conclusive evidence from independent sources before it takes any other
measures. The Court has affirmed that this notion of due diligence “is of critical importance”, further
noting that “every State may only act within the limits permitted by international law”41. It is
incompatible with the principle of good faith for a State party to the Convention to fulfil its due
diligence obligation in a manner that is abusive. This interpretation of Article 1 is supported by the
travaux préparatoires of the Genocide Convention, which show that during the drafting of the
Convention, the delegates took care to maintain as precise a definition of genocide as possible, so as
to prevent the Convention being used as a “pretext for interference in the internal affairs of States”42.
43. The scope of the “undertak[ing] to prevent” is also made clear by the last paragraph of the
Convention’s preamble, which emphasizes the need for “international co-operation”. Moreover,
pursuant to Article VIII, States can request that the competent organs of the United Nations take
action, while Article IX provides for judicial settlement. All these elements suggest a duty to use first
multilateral and pacific means to prevent genocide, before taking unilateral measures as a last resort.
This reading is also consistent with the general obligation of States under the United Nations Charter
to settle their disputes by peaceful means43.
44. It follows from the obligation to carry out a good faith assessment of the existence of
genocide or the serious risk of genocide that, when a State has failed to carry out such an assessment,
it cannot invoke the “undertak[ing] to prevent” genocide provided for in Article I of the Convention
as justification for its conduct. Thus, a Contracting Party cannot invoke Article I in order to render
lawful conduct that would otherwise be unlawful under international law if it has not established, on
an objective basis and pursuant to a good faith assessment of all relevant evidence from independent
sources, that genocide is occurring or that there is a serious risk of genocide occurring.
39 United Nations Human Rights Council, resolution 43/29: Prevention of genocide (29 June 2020), UN doc.
A/HRC/RES/43/29, para. 11.
40 See e.g. the fact that Gambia relied on the reports of the Independent International Fact-Finding Mission on
Myanmar established by the United Nations Human Rights Council before seising the Court; for more information, see
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, pp. 25-27, paras. 65-69.
41 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. 221, para. 430.
42 See H. Abtahi and P. Webb, The Genocide Convention: The Travaux Préparatoires, Martinus Nijhoff, 2008,
Vol. I, p. 1230.
43 Chapter VII of the Charter also points to the primacy of enforcement measures taken by the United Nations
Security Council, thus encouraging collective measures by the international community.
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45. Luxembourg notes, in particular, that all States parties have undertaken to eliminate
genocide throughout the world for the good of humanity as a whole, and not to protect their own
interests. It would be a denial, to say the least, of the Convention’s “purely humanitarian and
civilizing purpose”, which reflects the “most elementary principles of morality” as well as the “aims
of the United Nations”44, if a State could misuse Article I in order to commit acts of aggression,
violations of international humanitarian law or crimes against humanity under the guise of preventing
genocide. Consequently, when action allegedly aimed at preventing genocide follows false
allegations of genocide, these allegations and any subsequent action cannot under any circumstances
be considered reasonable; indeed they run counter to the object and purposes of the Convention itself.
Any measure taken on the basis of such allegations, as part of a purported application of Article I of
the Convention, can therefore only be considered a serious violation of the obligation to interpret and
apply that provision in good faith.
46. With regard to the undertaking “to punish”, which appears in Article I of the Convention,
Luxembourg considers that this obligation is limited to the individual criminal responsibility of the
perpetrators of the crime of genocide. This is confirmed by Articles IV to VI of the Convention. In
other words, a State should use its domestic criminal law or, in accordance with the principle of
complementarity, rely on investigations by the International Criminal Court (ICC) — which has
jurisdiction over the crime of genocide under Article 5, paragraph 1 (a), of the Rome Statute45 — in
order to punish genocide committed by individual perpetrators, and abstain from taking any other
type of measure, in particular forcible or military measures intended to “punish” a State or a people.
DOCUMENTS IN SUPPORT OF THE DECLARATION
47. The following documents in support of this Declaration are attached hereto:
(A) Letter from the Registrar of the International Court of Justice, dated 30 March 2022, to the
Ambassador of Luxembourg to the Kingdom of the Netherlands;
(B) Luxembourg’s instrument of accession to the Genocide Convention.
CONCLUSION
48. On the basis of the information set out above, Luxembourg avails itself of the right of
intervention conferred upon it by Article 63, paragraph 2, of the Statute, as a party to the Convention
on the Prevention and Punishment of the Crime of Genocide, the construction of which is in question
in the present case brought before the Court by Ukraine against the Russian Federation.
49. The Government of the Grand Duchy of Luxembourg has appointed as Agents:
 Mr. Alain Germeaux, Conseiller de légation adjoint, Director of Legal Affairs, Ministry of
Foreign and European Affairs of the Grand Duchy of Luxembourg; and
 Mr. Jean-Marc Hoscheit, Ambassador of the Grand Duchy of Luxembourg to the Kingdom of
the Netherlands.
44 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
45 Rome Statute of the International Criminal Court, signed in Rome on 17 July 1998, UNTS, Vol. 2187, p. 3
(entered into force on 1 July 2002).
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The Registrar of the Court may send all communications relating to the present case to the following
address:
Embassy of the Grand Duchy of Luxembourg in the Kingdom of the Netherlands
Nassaulaan 8
2514 JS The Hague
Netherlands
Luxembourg, 11 October 2022.
Respectfully,
(Signed) Alain GERMEAUX,
Agent of the Government.
Annex A: Letter from the Registrar of the International Court of Justice, dated 30 March 2022, to
the Ambassador of the Grand Duchy of Luxembourg to the Kingdom of the Netherlands
Annex B: Instrument of accession of the Grand Duchy of Luxembourg to the Convention on the
Prevention and Punishment of the Crime of Genocide
___________