INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
WRITTEN OBSERVATIONS OF UKRAINE ON THE
DECLARATION OF INTERVENTION OF THE KINGDOM OF SWEDEN
17 October 2022
1. On 9 September 2022, the Kingdom of Sweden ("Sweden") filed a Declaration
of Intervention (the "Declaration") pursuant to Article 63 of the Statute of the Court. On the
same day, the Registrar of the Court, acting in accordance with Article 83 of the Rules of Court,
forwarded a certified copy of the Declaration to the Agent of Ukraine and informed him that
the Court had fixed 17 October 2022 as the time-limit within which the Governments of
Ukraine and the Russian Federation may furnish their written observations on the
Declaration.
2 . The Government of Ukraine provides its observations regarding Sweden's
Declaration of Intervention below. In the view of the Government of Ukraine, the Declaration
of Sweden fulfills the requirements of Article 63 of the Statute and Article 82 of the Rules of
the Court and is, accordingly, admissible.
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3. Article 63 confers a "right to intervene in the proceedings" to a State notified of
a case involving the construction of a convention to which the State is a party. In assessing
whether a declaration falls under Article 63, "the only point which it is necessary to ascertain
is whether the object of the intervention . .. is in fact the interpretation of the [relevant]
Convention in regard to the question" at issue in the dispute. 1 The declaration must also satisfy
the conditions set forth in Article 82 of the Rules of the Court. As Article 63 of the Statute
provides for intervention as of right, 2 where a State seeking to intervene has met the conditions
1 Haya de la Torre Case, Judgment of 13 June, J.C.J. Reports 1951, p. 77. See also Whaling in the
Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.C.J. Reports 2013, pp. 5-6, para. 8.
2 Statute of the International Court of Justice, Article 63(2). See also Haya de la Torre Case,
Judgment of 13 June, J.C.J. Reports 1951, p. 76; Continental Shelj(Tunisia/LibyanArab Jamahiriya)
Application to Intervene, Judgment, I.C.J. Reports 1981, p. 13, para. 21; Territorial and Maritime
Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports
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provided under Article 63 of the Statute and Article 82 of the Rules, the declaration is deemed
admissible.3
4. The Declaration of Sweden satisfies al1 the necessary requirements. The
instant case puts in question the construction of the Genocide Convention. Sweden is a party
to the Genocide Convention and thus has a right to intervene under Article 63. Based on the
text of the Declaration of Sweden, which identifies Sweden's interpretation of specific
provisions of the Genocide Convention, namely Articles I, II, III, VIII and IX, the Declaration's
object is the interpretation of the Genocide Convention.
5. Article 82(1) provides that declarations under Article 63 "shall be filed as soon
as possible, and not later than the date fixed for the opening of the oral proceedings. In
exceptional circumstances a declaration submitted at a later stage may however be admitted."
Article 82(2) provides further requirements:
2. The declaration shall state the name of an agent. It 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.
6. All of these requirements are met. Sweden has filed its Declaration well before
the opening of oral proceedings, which have not been set. Sweden has also appointed an
2011,p.433,para.35.
3 See Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand,
Order of 6 February 2013, I.C.J. Reports 2013, pp. 5-6, paras. 7-8.
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agent, 4 and the Declaration notes the basis on which Sweden considers itself a party to the
Genocide Convention,s identifies "particular provisions" of the Genocide Convention it
considers to be in question, and provides a statement regarding the "construction of those
provisions."6 Finally, the Declaration includes "a list of the documents in support and attaches
those documents."? Accordingly, all of the requirements of Article 82 are met and the
Declaration is admissible.
7. Russia's filing of preliminary objections on 3 October 2022 does not have an
effect on the admissibility of Sweden's intervention. As stated in the Declaration, Sweden
wishes to avail itself of its right to intervene with respect to the construction of several
provisions of the Genocide Convention, including those relevant to the merits of this case
(Articles I, II, III, and VIII) and to the Court's jurisdiction (Article IX). 8 Russia's preliminary
objections place at issue the interpretation of several articles of the Convention. Russia takes
the position that, in addition to Article IX, the Court should "carry out, at this stage, a proper
interpretation of the provisions invoked by Ukraine (Articles I and IV of the Convention) to
determine the obligations contained therein and the scope of the Court's jurisdiction ratione
materiae. "9 Without prejudice to Ukraine's ultimate position as to whether the interpretation
of these provisions should take place at the preliminary objections or merits phase of these
4 Declaration of Intervention Under Article 63 of Sweden, Allega tions of Genocide Under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukra ine v. Russia), 9
September 2022, p. 3.
s Id. para. 19.
6 Id. paras. 20-54.
7 Id. para. 55.
s Id. paras. 22-54.
9 Preliminary Objections of the Russian Federation, Allegations of Genocide Under the Convention on
the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia), filed 3 October 2022,
para. 163.
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proceedings, Sweden has the right under Article 63 of the Statute to intervene with respect to
the interpretation of any provision of the Convention that is at issue, including any provision
that the Court is asked to interpret during the preliminary objections phase of the case. 10
8. Moreover, as the Court did not decide under Article 79 of the Rules that
questions concerning its jurisdiction or the admissibility of the application shall be determined
separately, and Ukraine accordingly filed a Memorial addressing both the Court's jurisdiction
and the merits, it was appropriate for Sweden to submit a Declaration of Intervention
addressing its interpretation of provisions of the Genocide Convention relevant to both
jurisdiction and the merits in this case. 11
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9. For the reasons set forth above, it is the view of the Government of Ukraine that
the Declaration of Intervention filed by Sweden under Article 63 of the Statute of the Court is
admissible.
IO See Hugh Thirlway, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF J USTICE: FIFTY YEARS
OF JURISPRUDENCE, VOLUME I (2013), p. 1031 ("If for example a case is brought on the basis of the
compromissory clause in a multilateral convention, the interpretation of that clause may be of interest
to all the other States parties (or at least those of them who have not made a reservation to the clause).
It would therefore seem that there is no reason why intervention under Article 63 should not be
possible to argue a question of jurisdiction or admissibility, if that question involves the interpretation
of a multilateral treaty." (internal citations omitted)); ROSENNE's LAW AND PRACTICE OF THE
INTERNATIONAL COURT: 1920-2017, VOLUME III PROCEDURE (Malcolm N. Shaw QC ed., 5th ed. 2016),
p. 1533 ("If the dispute over jurisdiction relates to the interpretation of a multilateral treaty which
contains a corn promissory clause or any other provision including another instrument intrinsically
linked to that treaty, it is not self-evident why any other party to that treaty cannot intervene under
Article 63 in any phase of the proceedings: close examination of the legislative history of that
provision in 1920 and of the initial Rules of Court of 1922 strongly indicates that this was precisely the
intention behind that provision." (internal citation omitted)).
11 Cf Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (Declaration of Interventfon of El Salvador), Order of 4 October 1984, I.C.J. Reports 1984,
p. 216 (finding inadmissible El Salvador's declaration, which addressed merits as well as jurisdictional
issues, where the Court had ordered a separate jurisdictional phase of proceedings and Nicaragua had
filed a Memorial limited to jurisdiction and admissibility).
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Mr. Anton Korynevych
Agent of Ukraine
17 October 2022
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Written Observations of Ukraine on the Declaration of Intervention filed by Sweden