Joint declaration of intervention of Canada and the Netherlands

Before the
International Court of Justice
Joint Declaration of Intervention
Pursuant to Article 63 of the Statute of the Court
By the Governments of Canada and the Kingdom of the Netherlands
Filed in the Registry of the Court
In the case of
Allegations of Genocide under the Convention on the Prevention and Punishment of the
Crime of Genocide (Ukraine v. Russian Federation)
JOINT DECLARATION OF INTERVENTION UNDER ARTICLE 63 OF THE STATUTE OF THE COURT
OF THE GOVERNMENTS OF CANADA AND THE KINGDOM OF THE NETHERLANDS
To the Registrar of the International Court of Justice, the undersigned being duly authorized by the
Governments of Canada and the Kingdom of the Netherlands:
1. on behalf of the Governments of Canada and the Kingdom of the Netherlands, we have the
honour to submit to the Court a Joint Declaration of Intervention pursuant to the right to intervene
set out in Article 63, paragraph 2, of the Statute of the Court, in the case concerning Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine
v. Russian Federation).
2. Article 82, paragraph 2, of the Rules of 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
(“Russia”) concerning a dispute relating to the interpretation, application and fulfilment of the
Convention on the Prevention and Punishment of the Crime of Genocide’ (hereinafter: Genocide
Convention).2 The Application instituting proceedings was accompanied by a request to the Court
for the indication of provisional measures. The Court issued an Order indicating provisional
measures on 16 March 2022.
5. According to its application instituting proceedings, Ukraine contends that:
[The] Russian Federation has falsely claimed that acts of genocide have occurred in the
Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called “Donetsk
People’s Republic” and “Luhansk People’s Republic,” and then declared and implemented a
“special military operation” against Ukraine with the express purpose of preventing and
punishing purported acts of genocide that have no basis in fact. On the basis of this false
1 Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, United
Nations, Treaty Series, vol. 78, P. 277. Entry into force on 12 January 1951.
2 Application instituting proceedings, filed in the Registry of the Court on February 26, 2022, Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation).
allegation, Russia is now engaged in a military invasion of Ukraine involving grave and
widespread violations of the human rights of the Ukrainian people.3
6. Ukraine therefore brought its Application “to establish that Russia has no lawful basis to take
action in and against Ukraine for the purpose of preventing and punishing any purported genocide.’4
Ukraine contends that “Russia’s actions erode the core obligation of Article I of the Convention,
undermine its object and purpose, and diminish the solemn nature of the Contracting Parties’ pledge
to prevent and punish genocide”.5
7. On March 30, 2022, pursuant to Article 63, paragraph 1, of the Statute of the Court, the
Registrar notified Canada and the Kingdom of the Netherlands, as Contracting Parties to the
Genocide Convention, that by Ukraine’s application the Genocide Convention “is invoked both as a
basis for the Court’s jurisdiction and as a substantive basis of [Ukraine’s] claims on the merits”6.
Specifically, the Registrar 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 Article II 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.”7
8. On October 31, 2022, the Registrar informed the Contracting Parties to the Convention that
“taking into account the number of declarations pursuant to Article 63 of the Statute of the Court
that have been filed in this case, the Court considers that the interest of the sound administration of
justice and procedural efficiency would be advanced if any State that intends to avail itself of the
right of intervention conferred on it by Article 63 would file its declaration not later than Thursday
15 December 2022.”
9. By this Joint Declaration, Canada and the Netherlands accordingly avail themselves of the
right to intervene in the dispute between Ukraine and Russia under Article 63, paragraph 2, of the
Statute of the Court, as Contracting Parties to the Genocide Convention, addressing relevant
preliminary and substantive elements at the same time.
10. The Court has recognized that Article 63 confers a right of intervention,9 where the State
seeking to intervene confines its intervention to “the point of interpretation which is in issue in the
proceedings, and does not extend to general intervention in the case”.’° The Court has also held that
Ibid. para 2.
Ibid, para 3.
Ibid, para 28.
6 Letters of 30 March 2022 from the Registrar ofthe Court to the Ambassador of Canada to the Netherlands
and to the Minister of Foreign Affairs of the Kingdom of the Netherlands respectively.
Ibid.
8 Letter of 31 October 2022 from the Registrar of the Court to the Contracting Parties of the Genocide
Convention.
Haya dela Torre (Colombia v. Peru), Judgment, Ci. Reports 1951, p. 76; Continental Shelf (Tunisia/Libyan
Arabiamahiriya),ApplicationforPermission to Intervene,Judgment, Ci. Reports 1981, p. 13, para 21;
Whaling in theAntarctic (Australia v. Japan), Declaration of Intervention of NewZealand, Order of 6 February
2013, Ci. Reports 2013, p.3, para 7.
10 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I .C.J.
Reports 1981, p. 15, para. 26.
“in accordance with the terms of Article 63 of the Statute, the limited object of the intervention is to
allow a third State not party to the proceedings, but party to a convention whose construction is in
question in those proceedings, to present to the Court its observations on the construction of that
convention.”1’
11. Furthermore, bearing in mind the jus cogens character of the prohibition of genocide, and
the erga omnes partes nature of the obligations under the Genocide Convention, all Contracting
Parties have a common interest in the accomplishment of the high purposes of the Genocide
Convention. In its Order on provisional measures in The Gambia v. Myanmar case, the Court made
the following statement relative to the interests of all parties to the Genocide Convention:
The Court recalls that in its Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, it observed that ‘[un 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.’ . . . In view of their shared values, all the States parties to the
Genocide Convention have a common interest to ensure that acts of genocide are prevented
and that, if they occur, their authors do not enjoy impunity. That common interest implies
that the obligations in question are owed by any State party to all the other States parties to
the Convention.12
12. It is in this limited context, as Contracting Parties to the Genocide Convention, that Canada
and the Netherlands put forward a Joint Declaration of Intervention. Given their common interest in
the accomplishment of the high purposes of the Convention, as well as their consequent interest in
its construction, Canada and the Netherlands have decided to intervene in this case in order to place
their interpretation of the relevant provisions of the Convention before the Court.
13. Canada and the Netherlands do not seek to become a party to the proceedings and accept
that, by availing themselves of the right to intervene under Article 63 of the Statute, the
construction given to the Genocide Convention by the judgment in this case will be equally binding
upon them as it is to the parties to the proceedings.
14. Canada and the Netherlands wish to intervene and present their interpretation of Articles IX
and I of the Genocide Convention. With respect to the jurisdiction of the Court, in their view, Article
IX grants jurisdiction to the Court to make a declaration of a Contracting Party’s compliance with its
obligations under the Genocide Convention, irrespective of whether it is the applicant State or the
respondent State, provided that this is a matter in dispute between the parties to the case. With
respect to the construction of Article I, the intervention will argue that the duty to prevent genocide
entails a due diligence obligation to assess whether there is a genocide or a serious risk of genocide
before taking further action in fulfilment of Article I. The duty to prevent should be interpreted in
light of the definition of genocide in Article II, as well as Article VIII, which encourages Contracting
Parties to act collectively to prevent genocide. As for the duty to punish outlined in Article I, it must
be read together with Articles IV to VII of the Genocide Convention, and thus be interpreted as an
Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, Ci. Reports 2013, p. 3, para 7.
12 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, para 41.
obligation to prosecute individuals. Article I does not allow a Contracting Party to punish another
Contracting Party for a genocide or an alleged genocide.
I. The Case and Convention to which this Declaration Relates
15. This Joint Declaration relates to the case concerning Allegations of Genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide, instituted by Ukraine on
February 26, 2022 against Russia. That case concerns the interpretation, application and fulfilment
of the Genocide Convention.
16. As Contracting Parties to the Genocide Convention, Canada and the Netherlands have an
interest in the construction of this Convention resulting from the case brought by Ukraine. Canada
and the Netherlands are accordingly exercising their right to intervene in these proceedings
pursuant to Article 63 of the Statute. The intervention is directed to the question of construction of
the Genocide Convention arising in this case.
II. The Basis on which Canada and the Netherlands are Contracting Parties to the
Genocide Convention
17. Canada and the Netherlands are Contracting Parties to this Convention. In accordance with
Article Xl of the Genocide Convention, Canada signed this Convention on 28 November 1949 and
deposited its instrument of ratification on 3 September 1952. The Netherlands deposited its
instrument of accession to the Genocide Convention in accordance with Article Xl of the Convention
on 20 June 1966. The Genocide Convention entered into force for Canada and the Netherlands on
the 90th day following the deposit of their instruments of ratification and accession. Based on this,
Canada and the Netherlands were Contracting Parties to this Convention at the time the present
proceedings were instituted.
Ill. The Provisions of the Genocide Convention in Question in the Present Dispute
18. Ukraine seeks to found the jurisdiction of the Court on Article 36, paragraph 1, of the Statute
of the Court and on Article IX of the Genocide Convention. Specifically, Ukraine contends that a
dispute exists between it and Russia relating to the interpretation, application or fulfilment of the
Genocide Convention.
19. The proper construction of Article IX of the Genocide Convention is therefore in question in
the case and is directly relevant to the resolution of the dispute placed before the Court by Ukraine’s
Application. Article IX provides:
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 Ill, shall be submitted to the
International Court of Justice at the request of any of the parties to the dispute.
20. There is no limitation in Article 63 of the Statute of the Court or Article 82 of the Rules of the
Court that would prevent Canada and the Netherlands from exercising their right to intervene on the
construction of provisions of the Genocide Convention pertaining to issues of jurisdiction in addition
to issues pertaining to the merits.
21. In its Application, Ukraine contends that “the duty to prevent and punish genocide
enshrined in Article I of the Convention necessarily implies that this duty must be performed in good
faith and not abused, and that one Contracting Party may not subject another Contracting Party to
unlawful action, including armed attack, especially when it is based on a wholly unsubstantiated
claim of preventing and punishing genocide.”13 Ukraine thus argues that “Russia’s actions erode the
core obligation of Article I of the Convention, undermine its object and purpose, and diminish the
solemn nature of the Contracting Parties’ pledge to prevent and punish genocide”.’4
22. In light of the above, the proper construction of Article I of the Genocide Convention is also
in question in the case and is directly relevant to the resolution of the dispute placed before the
Court by Ukraine’s Application. Article I provides:
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.
23. As further detailed below, the duty to prevent and punish genocide, as outlined in Article I,
must be interpreted in light of Articles II and IV-VllI of the Genocide Convention.
IV. Construction of the Provisions for which Canada and the Netherlands contend
24. Canada and the Netherlands have based their interpretation of the Genocide Convention on
the general rules of interpretation, as reflected in Articles 31 and 32 of the Vienna Convention on
the Law of Treaties (hereinafter: VCLT).’5 Article 31(1) of the VCLT provides as the basic rule of
interpretation 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”. Pursuant to Article 31(3) of the VCLT, such interpretation must take account of the
subsequent practice of the parties to the treaty, and pursuant to Article 32 of the VCLT, may also be
confirmed by reference to supplementary means of interpretation.
25. In accordance with Article 31(3) of the VCLT, Canada and the Netherlands will support their
interpretation by other relevant rules of international law applicable between the parties to the
dispute. Canada and the Netherlands will rely on customary international law, the Charter of the
United Nations16 (hereinafter: the UN Charter), the Rome Statute of the International Criminal
Court’7 and the Draft Articles on the Responsibility of States for Internationally Wrongful Acts’8 in
the context of the interpretation of the Genocide Convention. Canada and the Netherlands will also
refer to the case law of international courts and tribunals as subsidiary means in the interpretation
of the Genocide Convention, pursuant to Article 38(1)(d) of the Statute of the Court.
‘ Application instituting proceedings, filed in the Registry of the Court on February 26, 2022, Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), para 27.
14 Ibid, para 28.
15 Vienna Convention on the Law of Treaties (Vienna, 1969), UNTS v. 1155, p. 331.
16 Charter of the United N ations, (San Francisco, 1945), 1 UNTS XVI.
‘ Rome Statute of the International Criminal Court (Rome, 1998) UNTS 2187.
18 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001, Yearbook of the ILC
2001, Vol. II Part Two.
ARTICLE IX OF THE GENOCIDE CONVENTION
26. Article IX confers jurisdiction to the Court over “disputes between the Contracting Parties
relating to the interpretation, application or fulfilment of the present Convention”. There is nothing
in Article IX that limits the Court’s jurisdiction to cases where it is the applicant State accusing the
respondent State of breaching its obligations under the Genocide Convention.
27. First, the term “dispute” is sufficiently broad to encompass a disagreement over the
lawfulness of the conduct of an applicant State; it is not limited to the conduct of the respondent
State. The term “dispute” as used in Article IX should be interpreted consistently with the wide
meaning given to that term generally in international law.19 It is well established that a dispute exists
when there is “a disagreement on a point of law or fact, a conflict of legal views or interests”0
between parties, provided that they hold views which are opposed to each other. It is not necessary
that a respondent State has expressly opposed the claims of the applicant State.2’ Furthermore, a
dispute under the Genocide Convention may exist despite the absence of a specific reference to the
Genocide Convention in public statements by the parties, provided that 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.”2’
28. Second, Article IX of the Genocide Convention expressly states that disputes shall be
referred to the Court “at the request of any of the parties to the dispute” (emphasis added). This
confirms that, where there is a dispute concerning whether a State has engaged in conduct contrary
to the Genocide Convention, the State accused of such conduct has the same right to submit the
dispute to the Court as the State that has made the accusation, and the Court has jurisdiction over
that dispute. 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.
29. Finally, the inclusion of the word “fulfilment” in Article IX, in addition to the more common
formulation of “interpretation and application” usually found in compromissory clauses, supports a
broad interpretation of this provision. Specifically, Article IX confers jurisdiction over a dispute as to
whether a Contracting Party’s conduct can properly be said to be in “fulfilment” of the Genocide
Convention. It encompasses disputes about the scope and content of the provisions of the Genocide
Convention and actions taken (or not taken) by the Contracting Parties in respect to those
obligations, including the duty to prevent and punish genocide outlined in Article I.
30. In light of the above, Article IX grants jurisdiction to the Court to make a declaration of a
Contracting Party’s compliance with its obligations under the Genocide Convention, irrespective of
whether it is the applicant State or the respondent State, provided that this is a matter in dispute
between the parties to the case.
‘ 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, para 63.
20 Mavrommatis Palestine Concessions, Judgment No 2, 1924, P.C.I.J., Series A, No.2, p. 11.
21 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, para 71.
22 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, para 72.
ARTICLE I OF THE GENOCIDE CONVENTION
31. An essential first step before taking action in fulfilment of Article us the assessment of
whether there is a genocide or a serious risk of genocide. The notion of due diligence articulated by
the Court in relation to a State’s obligation to take measures to prevent genocide applies equally
when assessing whether there is a genocide or a serious risk thereof. This assessment should be
based on all available information, in particular from independent and credible sources, and should
be guided by the definition of genocide, as outlined in Article II of the Genocide Convention. Indeed,
any Contracting Party that purports to prevent genocide must establish an objective basis for its
assessment that genocide has occurred or is about to occur. Whether acts amount to genocide or a
serious risk thereof so as to trigger the application of Article I, is not simply a matter of a State’s
subjective interpretation; the acts at issue must fit within the definition of genocide in Article II.
32. Pursuant to Article II of the Genocide Convention, the commission of genocide relies on both
genocidal action and genocidal intent.23 Specifically, Article II provides that genocide may only occur
if the genocidal act is committed “with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such”. This genocidal intent is “the essential characteristic of genocide,
which distinguishes it from other serious crimes.”24 As for what constitutes a genocidal act, Article II
provides the following list: (i) killing members of the group; (ii) causing serious bodily or mental harm
to members of the group; (iii) deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part; (iv) imposing measures intended to prevent
births within the group; and (v) forcibly transferring children of the group to another group.
Duty to Prevent
33. Under Article I, Contracting Parties have confirmed that genocide is a crime under
international law “which they undertake to prevent and to punish”. While Article I does not specify
what kind of measures a Contracting Party may take to fulfil this obligation, it is well established that
in discharging its obligations under a treaty, a Contracting Party must act in good faith.25 In
discharging its duty to prevent genocide under the Genocide Convention, a Contracting Party must
also take into account other parts of the Convention,26 and act within the limits permitted by
international law.27
34. In Bosnia v. Serbia, this Court considered the meaning and scope of some of the substantive
obligations stipulated by the Genocide Convention, including the duty to prevent genocide set forth
in Article I. The Court stated that “the obligation [to prevent] is one of conduct and not result, in the
sense that a State cannot be under an obligation to succeed, whatever the circumstances, in
preventing the commission of genocide: the obligation of State parties is rather to employ all means
23 Ibid., para 186-187.
24 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgement, ID Reports 2015, p. 3, para 13 2.
25 Article 26 of the VCLT provides that “Every treaty in force is binding upon the parties to it and must be
performed bythem ingoodfaith.”
26Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of the Court of 16 March 2022 on the Request for the Indication of
Provisional Measures, para 56.
27 of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbian and Montenegro), Judgement, ID Reports 2007, p. 43, para 430.
reasonably available to them so as to prevent genocide as far as possible.”28 The Court added that
“the notion of ‘due diligence’, which calls for an assessment in concreto, is of critical importance”2°
and emphasized that “a State’s obligation to prevent, and the corresponding duty to act, arise at the
instant that the State learns of, or should normally have learned of, the existence of a serious risk
that genocide will be committed.”3° As mentioned above, this notion of due diligence equally applies
to the assessment of whether there is a genocide or a serious risk thereof.
35. Furthermore, Article I should be interpreted in light of Article VIII, which provides that a
State “may call upon the competent organs of the United Nations to take such action under the
Charter of the United Nations as they consider appropriate for the prevention and suppression of
acts of genocide”. While Article VIII does not exhaust a Contracting Party’s duty to prevent
genocide,31 it encourages Contracting Parties to act collectively to prevent and suppress genocide
through the mechanisms of the United Nations. The preamble of the Genocide Convention further
emphasizes multilateral cooperation by stressing that international cooperation is required “in order
to liberate mankind from [the] odious scourge” of genocide. Contracting Parties may also submit a
dispute relating to the interpretation, application or fulfilment of the Convention to the Court,
pursuant to Article IX of the Convention.
36. Article VIII thus supports an interpretation that a Contracting Party should act, where
appropriate, through recourse to multilateral mechanisms, when taking action to prevent genocide,
including when carrying out an assessment of whether genocide is occurring or at serious risk of
occurring. This could include, for example, relying on independent investigations conducted under
UN auspices.
37. Article VIII is also relevant to the analysis of what conduct may or may not be justified by the
duty to prevent genocide. This analysis should be guided by the spirit and aims of the United
Nations, as set out in Article 1 of the UN Charter,32 which states that the purposes of the United
Nations are, inter alia:
[tb maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring about by peaceful means, and
in conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace.
28 Ibid., para 430.
29 Ibid., para 430.
° Ibid., para 431.
31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbian and Montenegro), Judgement, ICJ Repo rts 2007, p. 43, para 427.
32 Allegations of Genocide under the Convention on the Prevention ondPunishmentof the Crime of Genocide
(Ukraine v. Russian Federation), Order of the Court of 16 March 2022 on the Request for the Indication of
Provisional Measures, para 58. Furthermore, Article 103 of the UN Charter provides that “in the event of a
conflict between the obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligations under the present Charter shall
prevail.”
The analysis of what conduct may or may not be justified by the duty to prevent genocide should
also be guided by a consideration of what conduct is legally permissible under general international
law and the UN Charter, whether acting alone or collectively.
38. In light of the above, the duty to prevent genocide entails a due diligence obligation to
assess whether there is a genocide or a serious risk of genocide before taking further action in
fulfilment of Article I. This assessment should be based on all available information, in particular
from independent and credible sources, and guided by the definition of genocide in Article II of the
Genocide Convention. Contracting Parties are encouraged to act collectively to prevent genocide, in
accordance with the spirit and aims of the United Nations. They must also ensure that any actions
taken to prevent genocide are in compliance with the UN Charter and other international legal
obligations.
Duty to Punish
39. The duty to punish outlined in Article I must be read with Articles IV to VII of the Genocide
Convention, and thus interpreted as an obligation to investigate and prosecute persons accused of
genocide, and to punish persons found to be guilty of genocide. Specifically, Articles IV to VII state:
Article IV
Persons committing genocide or any of the other acts enumerated in article III shall be
punished, whether they are constitutionally responsible rulers, public officials or private
individuals.
Article V
The Contracting Parties undertake to enact, in accordance with their respective Constitutions,
the necessary legislation to give effect to the provisions of the present Convention, and, in
particular, to provide effective penalties for persons guilty of genocide or any of the other acts
enumerated in article Ill.
Article VI
Persons charged with genocide or any of the other acts enumerated in article III shall be tried
by a competent tribunal of the State in the territory of which the act was committed, or by
such international penal tribunal as may have jurisdiction with respect to those Contracting
Parties which shall have accepted its jurisdiction.
Article VII
Genocide and the other acts enumerated in article Ill shall not be considered as political
crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in accordance
with their laws and treaties in force.
40. Pursuant to these provisions, a Contracting Party discharges its obligation to punish
genocide by prosecuting persons subject to criminal jurisdiction within its own criminal courts; by
cooperating with competent international tribunals when it has accepted their jurisdiction; and by
extraditing persons accused of genocide for trial in other States, as relevant.
41. In light of the above, the duty to punish outlined in Article I relates to punitive measures of a
criminal law character directed against persons capable of being found criminally responsible; it
cannot serve as justification for actions aimed at punishing another Contracting Party for a genocide
or alleged genocide. In this regard, Article IX of the Genocide Convention outlines a system of
dispute resolution between Contracting Parties by providing that disputes relating to the
interpretation, application or fulfillment of the Convention shall be submitted to the Court.
V. Documents in Support of the Joint Declaration
42. The following is a list of the documents in support of this Joint Declaration, which
documents are attached hereto:
(a) Letter of 30 March 2022 from the Registrar of the International Court of Justice to the
Ambassador of Canada to the Kingdom of the Netherlands;
(b) Letter of 30 March 2022 from the Registrar of the International Court of Justice to the
Minister of Foreign Affairs of the Kingdom of the Netherlands;
(c) Instrument of ratification by the Government of Canada of the Genocide Convention;
(d) Instrument of ratification by the Government of the Kingdom of the Netherlands to the
Genocide Convention.
VI. Conclusion
43. On the basis of the information set out above, Canada and the Netherlands avail themselves
of the right conferred upon them by Article 63, paragraph 2, of the Statute to intervene as nonparties
in the proceedings brought by Ukraine against Russia in this case. Canada and the
Netherlands reserve their rights to supplement or amend this Joint Declaration, and any associated
Written Observations submitted with respect to it, as they consider necessary in response to any
developments in the proceedings.
44. The Government of Canada has appointed the undersigned as Agent for the purposes of the
present Joint Declaration. Ms. Carolyn Knobel, Director General and Deputy Legal Adviser, Global
Affairs Canada, is Deputy Agent. It is requested that all communications in this case be sent to the
following address:
Embassy of Canada
Sophialaan 7, The Hague
The Netherlands
45. The Government of the Kingdom of the Netherlands has appointed the undersigned as
Agent for the purposes of the present Joint Declaration. Ms. Mireille Hector, Deputy Legal Adviser,
Ministry of Foreign Affairs of the Kingdom of the Netherlands, is Co-Agent. It is requested that all
communications in this case be sent to the following address:
Ministry of Foreign Affairs of the Kingdom of the Netherlands
International Law Division
Rijnstraat 8
2515XP The Hague
The Netherlands
Respectfully,
Alan H. Kessel
Assistant Deputy Minister and Legal Adviser,
Agent of the Government of Canada
Global Affairs Canada
RenéJ.M. Lefeber
Legal Adviser
Agent of the Government of the Kingdom of
the Netherlands
ANNEX A: Letter of 30 March 2022 from the Registrar of the International Court of Justice to the
Ambassador of Canada to the Kingdom of the Netherlands
ANNEX B: Letter of 30 March 2022 from the Registrar of the International Court of Justice to the
Minister of Foreign Affairs of the Kingdom of the Netherlands
ANNEX C: Instrument of ratification by the Government of Canada of the Genocide Convention
ANNEX D: Instrument of ratification by the Government of the Netherlands of the Genocide
Convention
CERTIFICATION
I certify that the documents attached by way of Annexes to this Declaration are true copies of the
originals thereof.
Alan H. Kessel
Agent of the Government of Canada
René J.M. Lefeber
Agent of the Government of the Kingdom of
the Netherlands
COURiT1RNAHONALi I\TiINAti\i COURT
DI 1051 WI OF JU liii
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 fded in the Registry of the Court an Application
Instituting proceedings against the Republic of the Russian Federation in the case concerning
Aiic,gations of Genocide under the Convention on th Prevcntinn_ni Punishment of the Crime of
J)c!ci kraine v. Russian Federatiq) A copy of the Application was appended to that letter.
The text of the Application is also available on the website of the Court (wv.icj-cij.org).
Article 63. paragraph 1. of the Statute of the ( ‘ourt provides that:
I wjhenever the construction of a convention to which States other than those concerned
in the case are parties is in question, the Registrar shall notif. all such States forthwith”.
Further, under Article 43. paragraph I, of the Rules of Court:
“Vhcne er the construction of a cons ention to which States other than those
concerned in the case are parties may be in question within the meaning of Article 63,
paragraph 1, of the Statute, the Court shall consider what directions shall be given to the
Registrar in the matter.”
On the instructions of the Court. given in accordance with the said provision of the Rules of
Court. I have the honour to notify your Government of the following.
In the above-mentioned Application, the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide (hereina6er the “Genocide Convention”) is invoked both as a basis of the
Court’s jurisdiction and as a substantive basis of the Applicant’s claims on the merits. In particular,
the Applicant seeks to found the Court’s jurisdiction on the compromissory clause contained in
Article IX ofthe Genocide Cons ention, asks the C’ourt to declare that it has not committed a genocide
as defined in Articles II and Ill of the Convention, and raises questions concerning the scope of the
duty to present and punish genocide under Article I of the Convention, It therefore appears that the
construction of this instrument ill be in question in the case.
II . I.. t It e Ai ii hassador of Can ada
to the Kingdom of the Netherlands
F niha’s\ u ( ‘anada
‘[‘he I lacuc
i de Ia iii , ( .irnceiepleiii 2 (V.a P itace, ( .lrIlcpicpIel ii 2
2517 Ki ite i.(i 2517 Ki iiie iiiiie - \iherl.m,ts
leleptione * 31(1)171111(22323 . i ,isinuid 3i ))(I1 WI I) ,‘ fipiion i31 (i(7(i 1(122123 .TeIeia 3t (0)703649925
Site inicnici a a a Icj—c,J org ‘** ‘Wtic a Wa’ - I .If
[OUR INTA1)I1
DI J1TICi
\TlrIoNAi COuRT
01 jUSTICE
‘our countr’ IS included in the list of parties to the ( enocide Convention. The present letter
should accordinolv he regarded as the notitication contemplated by Article 63. paragraph I, of the
Statute. I would add that this notitication in no s av prejudges any question ofthe possible application
of Article 63. paragraph 2. of the Statute, which the Court may later be called upon to determine in
this case.
Accept. Excellency, the assurances of my highest consideration.
Philippe Gautier
Registrar
: k
((U R I\tERTIOtF ‘ IxYFk\Ti\L (OURI
I
Dl IUSIICt (<I UTlCt
156413 Le3Omars2O22
J’ai Vhonncur de me rCfCrer a ma Iettre(n’ 156253) en date do 2 mars 2022. par Iaquellej’ai
porte a Ia connaissanco de ‘.otre (iouvernement quo I’ijkraine a, Ic 26 férier 2022, déposé au Greff’e
do Ia (our intornationalo do Justice unc requete introduisant tine instance contre Ia Fédération de
Rus%ie n I Itlairl. riI’ui i a d(s lli jonsçnoiidiiu tjtri&Ia conention pour Ia preention
i.t Idi IonduirImLd._iinoiidijiramii Fidirition di Russie) Une copie de Ia requete était
jointe i cette lettre. Le toxic do adite rcquCte est égalernent disponible sur le site Internet de Ia Cour
-c .org).
Fe paragraphe I do I ‘article 63 du Statut de Ia (our dispose que
<<[I}orsquil s’aglt do ‘interpretation d’une convention a laquelle ont participë d’autres
Fiats quo es parties en huge. Ic (ireffler los avertit sans déIan.
Fe paragraphe I do ‘article 43 du RCglcment de Ia Cour precise en oue que
[Ijorsque l’intcrprCiation d’une convention a laquelle out participé d’autres Etats que
les parties en huge pout étre en cause au sens de I’article 63, paragraphe 1, du Statut, Ia
Cour examine queues instructions donner au (ireftier en Ia matière.
Sur los instructions do a Cour, qui m’ont etC données conformément a cette dernière
disposition. j’ai l’honneur de notitier a ‘otre Gouvernement cc qui suit.
Dans Ia requCte susrnentionnée. ha convention de 1948 pour Ia prevention et Ia repression du
crime de genocide (ci-aprCs Ia convention sur Ic genocide>>) est invoquée a Ia fois comme base de
competence de Ia (‘our et a l’appui des demandes de l’Ukraine au fond. Plus précisCment, celle-ci
entend Ibnder ha competence de ha (‘our sur Ia clause compromissoire figurant a l’article IX de Ia
convention. prie Ia (‘our de declarer qu’elIe no commet pas de genocide, tel que défini aux articles II
et Ill do Ia consention. et souhCe des questions sur Ia portée de l’ohligation de prévenir et de punir
Ic genocide consacrCc a I’article premier do Ia convention. II semble, des lors, que I’interprétation de
cette cons ention pourrait Ctre en cause en h’atTaire,
Son Excel hence l’Arnhassadeur do (‘anada
aupre du Royaume (Ic’, Pays-Bas
Auth id do ( in id
[ i II is I
Piiiis <Ic Ia i’m, C<rnc>iepIein 2 ikacc iaticc, Caiiieicpictn 2
2517 Ki I < Ii.<c i’ays-llas 2517 Ki Th Hju. Nhcrlcmds
1 èiphin>c II (01 70 302 2323 - FacimiIé +31 (01 70 1 1<) 28 ic’iephnc 3I (0) 70 .U12 2323 . TeIefa’ 31(0) 70 3M 2
Silc Inicitic) <<‘<<< .j-cij oig \< <bilc; <sn<ijc)org
j
I.
COUR INTIRNATIONAI F
DL )USTICF
INTL RNATIONAL COURT
OF JUSTICE
Votre pays figure sur Ia iste des parties a Ia convention sur Ic genocide. Aussi Ia présente Iettre
doit—elle être regardée conime constituant Ia notification prévue au paragraphe I de I’article 63 du
Statut. J’ajouie que cette notification ne prëjuee aucune question concemant I’application éventuelle
du paragraphe 2 de I’article 63 do Statut stir laquelle Ia (our pourrait par Ia suite être appelée a se
prononcer en I’espèce.
Veuillet agréer. Ixcellence. les assurances de ma três haute consideration.
Le Greffler de Ia Cour,
Philippe Gautier
COUR INTERNATIONALE INTERNATIONAL COURT
DE JUSTICE OF JUSTICE
156413 30 March 2022
I have the honour to refer to my letter (No. 156253) dated 2 March 2022 informing your
Government that, on 26 February 2022, Ukraine filed in the Registry of the Court an Application
instituting proceedings against the Republic of the Russian Federation in the case concerning
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation). A copy of the Application was appended to that letter.
The text of the Application is also available on the website of the Court (www.icj-cij.org).
Article 63, paragraph 1, of the Statute of the Court provides that:
[w]henever the construction of a convention to which States other than those concerned
in the case are parties is in question, the Registrar shall notify all such States forthwith”.
Further, under Article 43, paragraph 1, of the Rules of Court:
“Whenever the construction of a convention to which States other than those
concerned in the case are parties may be in question within the meaning of Article 63,
paragraph 1, of the Statute, the Court shall consider what directions shall be given to the
Registrar in the matter.”
On the instructions of the Court, given in accordance with the said provision of the Rules of
Court, I have the honour to notif’ your Government of the following.
In the above-mentioned Application, the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide (hereinafter the “Genocide Convention”) is invoked both as a basis of the
Court’s jurisdiction and as a substantive basis of the Applicant’s claims on the merits. In particular,
the Applicant seeks to found the Court’s jurisdiction on the compromissory clause contained in
Article IX of the Genocide Convention, asks the Court to declare that it has not committed a genocide
as defined in Articles II and III of the Convention, and raises questions concerning the scope of the
duty to prevent and punish genocide under Article I of the Convention. It therefore appears that the
construction of this instnirnent will be in question in the case.
.1.
H.E. the Minister for Foreign Affairs
of the Kingdom of the Netherlands
Ministry of Foreign Affairs of the Netherlands
The Hague
Palais de Ia Paix, Camegieplein 2 Peace Palace, Carnegieplein 2
2517 Ki La Haye - Pays-Bas 2517 KJ The Hague - Netherlands
Téléphone : +31(0)70302 23 23 - Facsimile : +31(0)70 364 9928 Telephone: +31(0)70 30223 23 - Telefax: +31(0)70 364 99 28
Site Internet: www.icj_cij.org Website: www.icj-cijorg
COUR INTERNA11ONALE
DE JUSTICE
INTERNA11ONAL 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 1, of the
Statute. I would add that this notification in no way prejudges any question of the possible application
of Article 63, paragraph 2, of the Statute, which the Court may later be called upon to determine in
this case.
Accept, Excellency, the assurances of my highest consideration.
Philippe Gautier
Registrar
-2-
COUR INTERNATIONALI
DF JUSTICE
INTERNATIONAL COURT
OF JUSTICE
156413 Le 30 mars 2022
J’ai l’honneur de me référer a ma lettre (n° 156253) en date du 2 mars 2022, par laquellej’ai
porte a Ia connaissance de votre Gouvernement que l’Ukraine a, le 26 février 2022, déposé au Greffe
de la Cour internationale de Justice une requête introduisant une instance contre Ia Fédération de
Russie en l’affaire relative a des Allegations de genocide au titre de Ia convention pour Ia prevention
et Ia repression du crime de genocide (Ukraine c. Fédération de Russie). Une copie de Ia requête était
jointe a cette lettre. Le texte de ladite requëte est egalement disponible sur le site Internet de Ia Cour
(www.icj-cij.org).
Le paragraphe 1 de l’article 63 du Statut de Ia Cour dispose que
<<[lorsqu’il s’agit de l’interprétation d’une convention a laquelle ont participé d’autres
Etats que les parties en litige, le Greffier les avertit sans délai>>.
Le paragraphe 1 de l’article 43 du Règlement de la Cour precise en outre que
<‘[l]orsque I’interprétation d’une convention i laqueLle ont participé d’autres Etats que
les parties en litige peut être en cause au sens de l’article 63, paragraphe I, du Statut, Ia
Cour examine quelles instructions donner au Greffier en la matiôre>>.
Sur les instruétions de Ia Cour, qui m’ont été données conformément a cette dernière
disposition,j’ai l’honneur de notifier a votre Gouvernement ce qui suit.
Dans Ia requête susmentionnée, la convention de 1948 pour la prevention et Ia repression du
crime de genocide (ci-après la <<convention sur le genocide>>) est invoquée a Ia fois comme base de
competence de Ia Cour et a l’appui des demandes de l’Ukraine au fond. Plus précisément, celle-ci
entend fonder Ia competence de Ia Cour sur Ia clause compromissoire figurant a I’article IX de la
convention, prie la Cour de declarer qu’elle ne commet pas de genocide, tel que défini aux articles II
et III de Ia convention, et soulève des questions sur la portée de l’obligation de prévenir et de punir
le genocide consacrée a l’article premier de Ia convention. II sembie, des lors, que I’interprétation de
cette convention pourrait étre en cause en I’affaire.
Son Excellence
Monsieur le Ministre des affaires étrangères des Pays-Bas
Ministêre des affaires étrangères des Pays-Bas
La Haye
.1.
Palais de Ia Paix, Carnegieplein 2
2517 Ki La Haye - Pays-Bas
TéLéphone : +31(0) 70 302 23 23 - Facsimile +31(0) 70 364 99 28
Site Internet: Www.icj-cij org
Peace Palace, Carnegieplein 2
2517 KJ The Hague - Netherlands
Telephone: +31(0) 70 302 23 23 - Telefax: +31(0) 70 364 99 28
Website: www.icj.cij.org
COUR INTERNATIONALE
DE JUSTICE
INTERNATIONAL COURT
OF JUSTICE
Votre pays figure sur Ia liste des parties a Ia convention sur le genocide. Aussi la présente lettre
doit-elle être regardee comme constituant la notification prévue au paragraphe 1 de l’article 63 du
Statut. J’ajoute que cette notification ne préjuge aucune question concernant l’application éventuelle
du paragraphe 2 de l’article 63 du Statut sur laquelle Ia Cour pourrait par la suite être appelée a se
prononcer en I’espèce.
Veuillez agréer, Excellence, les assurances de ma très haute consideration.
Le Greffier de la Cour,
Philippe Gautier
-2-
F
O.S
£XTrRNAL AFP’AIRS
CHDA
I., LESTEB EOWTES PEaRSON,
retary of Stata for xt l ‘fairs in
tfle Government 01 Can Ci&. do 1.4rchy ear :ify
t he Government f Cenao. iii., the
onv otion on the Prevnttor and IrIGent
of je Crime of (ai wiicI C LIVPfl ion
wa oper r iiature ce ,
anc tich “e i d by duly nuthorized
repreaL ativ;.s the Goverrunent of
Canmda on Novembcr 28, ]9+9.
2s 2’
.
;
);
I
bi
I
3
3
4
Nous JULIANA par
la grace de Dieu, Reine des Pays-Bas,
Princesse d’Orange-Nassau, etc., etc., etc.
A tons ceux qui les présentes
verront, Salut!
Ayant vu et exam me Ia Convention pour Ia
prevention et la repression du crime de genocide,
Convention ouverte a Ia signature le 9 décembre 1948
et dont les textes anglais et francais suivent:
Approuvons pal- les présentes pour le Royaume
en Europe, e Surmarn cc les Antilles Néerlandaiscs,
dans touces les dispositions qui y sont contenues, Ia
Convention reproduile ci-dessus, l)ciarons y adherer
et Promectons queue sera inviolablernent ohservée.
En foi de quoi. Nous avons donnC les presences,
signèes de Notre main et avons ordonnC qu’elles
fussent revCtues de Notre sceau Royal.
DonnC Soestdijk, Ic treizièrne jour du mois de
mai de Ian de race mit neuf cent solxarltesix.
I
F,)
3