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 THE GOVERNMENT OF FINLAND ON
THE ADMISSIBILITY OF FINLAND'S DECLARATION OF
INTERVENTION
13 FEBRUARY 2023
WRITTEN OBSERVATIONS OF THE GOVERNMENT OF FINLAND ON THE
ADMISSIBILITY OF FINLAND'S DECLARATION OF INTERVENTION
INTRODUCTION
1. The following observations are submitted in response to the letter from the Registrar dated 31
January 2023 regarding the modalities for submitting observations in writing on the
admissibility of Finland's Declaration of Intervention 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. Finland has taken due note of the Written Observations submitted by the applicant, Ukraine,
on 15 November 2022 and the respondent, the Russian Federation, also on 15 November 2022.
Finland notes that whereas the applicant considers that Finland's Declaration of Intervention
is admissible, the respondent requests the Court to dismiss the Declaration as inadmissible.
Alternatively, the respondent requests that the Declaration be dismissed as inadmissible
inasmuch as it relates to the jurisdictional phase of the proceedings, or that the consideration
of its admissibility be deferred until after the Court has made a decision on the preliminary
objections of the Russian Federation.
3. The Written Observations of the Russian Federation were presented as a single document
addressing the admissibility of the Declarations of Intervention filed by Australia, Austria,
Denmark, Estonia, Finland, Greece, Ireland, Luxembourg, Portugal and Spain. While Finland
provides below its views regarding the admissibility of its Declaration of Intervention, it takes
into account the Written Observations of the Russian Federation inasmuch as they seem to
pertain to its Declaration.
4. The Russian Federation seeks to challenge the admissibility of Finland's Declaration of
Intervention by claiming
(a) that the intervention is not genuine, meaning that its real object is not the
construction of the Genocide Convention, but rather pursuing a joint case with
Ukraine;
(b) that the intervention would be incompatible with the principle of equality of
the parties and the requirements of good administration of justice;
1
(c) that the Court cannot, in any event, decide on the admissibility of Finland's
Declaration before it has decided on the preliminary objections of the Russian
Federation;
( d) that the Declaration addresses matters that presuppose that the Court has
jurisdiction and/or that Ukraine's Application is admissible;
( e) that the Declaration should be declared inadmissible because it seeks to
address issues unrelated to the construction of the Genocide Convention and that
Finland cannot intervene on Article IX of the Convention per se;
(f) that the Declaration seeks to address issues unrelated to the construction of
the Genocide Convention, and that allowing interventions on such matters at this
stage would prejudge the question of the Court's jurisdiction ratione materiae.1
5. In what follows, Finland refutes each of the objections raised by the Russian Federation to the
admissibility of Finland's Declaration of Intervention.
Part I (in response to claims under 'a') will establish that Finland's Declaration of
Intervention complies with the requirements of Article 63 of the Statute of the Court
and Article 82 of the Rules of the Court and is admissible.
Part II (in response to claims under 'b') will show that Finland's intervention has no
bearing on the equality of arms principle.
Part III (in response to claims under 'c') will demonstrate that the Court may decide
on the admissibility of Finland's Declaration of Intervention before considering the
preliminary objections of the Russian Federation.
Part IV (in response to claims under 'd') will show that the intervention may relate
to the jurisdiction of the Court.
Part V (in response to claims under 'e') will establish that Finland's intervention is
pertinent to the construction of the Genocide Convention.
In conclusion, Finland requests that its Declaration of Intervention under Article 63
of the Statute be declared admissible.
1 The Russian Federation's Written Observations on Admissibility of the Declarations of Intervention Submitted by
Australia, Austria, Denmark, Estonia, Finland, Greece, Ireland, Luxembourg, Portugal and Spain, 15 October 2022,
para. 9.
2
6. Finland wishes to point out at the outset that its right to intervene under Article 63 of the Statute
of the Court is not dependent on the consent of the parties to the case. As the Court has
confirmed in the context of Article 62 in Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras) case, its competence with regard to intervention does not derive from the
consent of the parties to the case but from their consent to the Court's exercise of its powers
under its Statute.2
I. FINLAND'S INTERVENTION COMPLIES WITH REQUIREMENTS AND IS ADMISSIBLE
7. Finland further recalls that an intervention in accordance with Article 63 of the Court's Statute
is an incidental proceeding that constitutes the exercise of a right, as the Court has confirmed. 3
At the same time, "such right to intervene exists only when the declaration concerned falls
within the provisions of Article 63".4
8. Finland notes that this right is only subject to the conditions set out in the Statute and Rules of
the Court.5 Finland further notes in this regard that its Declaration is in complete compliance
with Article 63 of the Statute of the Court and the formal requirements under Article 82 of the
Rules of the Court.
9. Finland's Declaration was accompanied by the relevant documents concerning its status as a
State Party to the 1948 Convention of the Prevention and Punishment of the Crime of Genocide
and the nomination of its Agent and Co-Agent.6 In its Declaration, Finland underlined that it
does not seek to become a party to the proceedings and confirmed that, in accordance with
Article 63, paragraph 2, of the Statute of the Court, "by availing itself of its right to intervene,
Finland accepts that the construction given by the judgment in the case will be equally binding
upon it". 7 Finland further clarified that it seeks to intervene regarding the interpretation of
certain provisions of the Genocide Convention, which are in issue in the proceedings. The
provisions in question are identified in the Declaration8, which also contains a statement
2 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.CJ.
Reports 1990, para. 96. See also J. Merrils, E. de Brabandere, Merrills' International Dispute Settelement (7th ed.
Cambridge University Press 2022), p. 214.
3 Haya de la Torre Case, Judgment ofJune 13th, 1951, I.C.J. Reports 1951, p. 76; Territorial and Maritime Dispute
(Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment, I.CJ. Reports 2011, para.
36. See also Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, I.CJ. Reports 2013, para. 8.
4 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.CJ. Reports 2013, para. 8.
5 Ibid. , para. 18.
6 Declaration of Intervention, submitted by Finland on 21 September 2022, annex I (Letter from the Registrar of the
International Court of Justice to the States Parties to the Genocide Convention, 30 March 2022) and annex II
(Instrument of Accession by the Government of Finland to the Genocide Convention, 26 January 1960)).
7 Ibid., para. 15.
8 Ibid., para. 13.
3
concerning their construction.9 Finally, the Declaration was filed as soon as possible and well
before the opening of the oral proceedings. Finland therefore considers that its Declaration of
Intervention fulfills the requirements set forth in Article 63 of the Statute and Article 82 of the
Rules of the Court.
10. The Russian Federation claims that "the interventions are not genuine: their real object is not
the construction of the Convention but pursuing a joint case with Ukraine". 1° Finland rejects
this claim and reminds that the Genocide Convention is a legal instrument of fundamental
importance for the international community as a whole, both regarding individual criminal
responsibility and State responsibility. As a State Party to the Genocide Convention, Finland
has a direct interest in ensuring the proper interpretation of the provisions of the Convention.11
Intervention under Article 63 has been rightly described as "a form of intervention to protect
an interest of a legal nature, not which may be affected by the decision in the case but in the
more limited sense that it may be affected by the interpretation given by the Court to the
multilateral treaty in question."12
11. Finland wishes to point out that Article 63 has a limited objective allowing the intervening
State to convey to the Court its views concerning the proper construction of the relevant
provision or provisions of the multilateral treaty in question.
12. In Haya de la Torre Case, to which the Russian Federation refers in its Written Observations,
the Court concluded that Cuba's Declaration of Intervention as originally submitted did not
satisfy the conditions of a genuine intervention. Such a conclusion was justified given that the
written submissions of Cuba were "almost entirely" devoted to a discussion of questions which
the Court had already decided in its earlier Judgment "with the authority of res judicata" .13
The reasons for deeming Cuba's submission as not qualifying for a genuine intervention are in
no way relevant to the question of the admissibility of Finland's Declaration.
13. Intervention under Article 63 does not make of the intervening State a party to the dispute.
Reference can in this regard be made to the Court's statement in Whaling in the Antarctic that
"it must make clear[ ... ] that, since the intervention of New Zealand does not confer upon it
the status of party to the proceedings, Australia and New Zealand cannot be regarded as being
9 Ibid., paras. 18-24, 25-26 and 27-32.
10 The Russian Federation's Written Observations on Admissibility of the Declarations of Intervention Submitted by
Australia, Austria, Denmark, Estonia, Finland, Greece, Ireland, Luxembourg, Portugal and Spain, 15 October 2022,
para. 1
11 On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the Whaling in the
Antarctic (Australia v. Japan). Relying on Article 63, paragraph 2, of the Statute, it contended that, as a party to the
ICRW, it had a direct interest in the construction that might be placed upon the Convention by the Court in its decision
in the proceedings. See Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of the Government
of New Zealand, 20 November 2012, para 13.
12 S. Rosenne, Intervention in the International Court of Justice (Dordrecht, Boston, London, Martinus Nijhoff
Publishers 1993), p. 73.
13 Haya de la Torre Case, Judgment of June lJlll, 1951, I.C. J. Reports 1951, p. 77.
4
'parties in the same interest' within the meaning of Article 31 , paragraph 5, of the Statute." 14
Similarly, "in an intervention under Article 63 - which is a form of non-party intervention - the
intervener influences the future judgment by arguing for a certain interpretation of a
multilateral convention that is applicable to the dispute between the original parties."15
14. As far as the question of "siding with" Ukraine is concerned, Finland recalls that the question
of support to one or the other party does not form part of the conditions for admissibility of a
declaration of intervention set forth in Article 63 of the Statute and Article 82 of the Rules of
the Court.
15. It is similarly difficult to find support in the Court's jurisprudence to the contention that the
political motivations of a State seeking to intervene would be relevant to the admissibility of
that State's declaration of intervention. On the contrary: In several cases in which a State has
intervened or sought to intervene in support of one of the parties to the dispute, the Court has
not regarded such support as a relevant aspect regarding the admissibility of the declaration of
intervention. 16 In S.S. Wimbledon, the Permanent Court of International Justice did not see an
obstacle for Poland intervening in support of the Applicant States. 17 The understanding that a
State seeking intervention may "take sides" is furthermore consistent with the explanation
given by the Chairman of the Drafting Committee of the Advisory Committee of Jurists
regarding the purpose of Article 63 of the Statute of the Permanent Court of International
Justice. 18
II. FINLAND'S INTERVENTION HAS NO BEARING ON THE EQUALITY OF ARMS PRINCIPLE
16. The Russian Federation also argues that admitting Finland's Declaration of Intervention
would be incompatible with the principle of equality of the parties and good administration
of justice. Finland rejects this claim and contends that its Declaration of Intervention has no
bearing on the equality of the parties to the proceedings. In the Whaling in the Antarctic case,
Japan raised the issue of equality of the parties, regarding which the Court stated that:
14 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.CJ. Reports 2013, para. 21.
15 Z. Crespi Reghizzi, "The objects and effects of non-party intervention before the International Court of Justice" in
Leiden Journal of International Law 2022, 35(1), p. 168.
16 In the two Nuclear Tests cases, Fiji sought to intervene in support of Australia and New Zealand, respectively. See
Nuclear Tests (Australia v. France), Application to Intervene, Order of 12 July 1973, I.CJ. Reports 1973, p. 320;
Nuclear Tests (New Zealandv. France), Application to Intervene, Order of 12 July 1973, I.CJ. Reports 1973, p. 324.
In the Whaling in the Antarctic case, Japan drew attention to the Joint Media Release of Australia and New Zealand
Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of6 February 2013,
I.CJ. Reports 2013, para. 17.
17 Case of the SS Wimbledon,judgment of 17 August 1923, P.C.I.J. Series A Nr. 1, p. 12.
18 Advisory Committee of Jurists, P.C.IJ, Proces-Verbaux of the Proceedings of the Committee, June 16 - July 24,
1920 (Van Langenhuysen Brothers, 1920), p. 745-746. Available at https://www.icj-cij.org/public/files/perrnanentcourt-
of-international-justice/serie DID proceedings of committee annexes 16june 24july 1920.pdf (accessed on
1 February 2023).
5
" ... intervention under Article 63 of the Statute 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". 19
17. The fact that several declarations of intervention have been filed in this case cannot, in
Finland's view, in any way affect Finland's right to intervene as a State Party to the Genocide
Convention under Article 63 of the Statute of the Court. Finland is nevertheless willing to
coordinate the next procedural steps with the other States having filed such a declaration, if the
Court deems this useful in the interest of the expedient administration of justice.
Ill. THE COURT MAY DECIDE ON THE ADMISSIBILITY OF FINLAND'S INTERVENTION
BEFORE CONSIDERING THE PRELIMINARY OBJECTIONS OF THE RUSSIAN FEDERATION
18. According to the Russian Federation, the Court cannot decide on the admissibility of Finland's
Declaration of Intervention before it considers the preliminary objections of the Russian
Federation. Finland wishes to point out that no such requirement is contained in Article 63 of
the Statute or Article 82 of the Rules of the Court. Article 63 makes no distinction between
separate procedural phases before the Court. Rather, the opening word "whenever" indicates
that a State is allowed to intervene in all phases of the proceedings20. Moreover, Article 82(1),
second sentence of the Rules of the Court sets out only an outer time limit, i.e. a duty to
intervene no later than the date fixed for the oral hearing. Again, the mention of the "oral
hearing" does not distinguish between separate phases before the Court. In addition, the
invitation to file a declaration "as soon as possible" in that provision confirms that the filing
of an Article 63 declaration is admissible at this stage of the proceedings.
19. The Russian Federation also claims that "the long-standing practice of the Court militates
against admitting declarations of intervention prior to the resolution of preliminary objections."
Finland finds this claim unconvincing in light of the examples referred to in paragraphs 53 and
54 of the Written Observations of the Russian Federation. Of the three cases mentioned in
paragraph 53, Nuclear Tests and Nuclear Tests (Request for Examination) concerned Article
62 of the Statute, which, unlike Article 63, does not confer a right to intervene. As far as the
third case, Military and Paramilitary Activities, is concerned, it should be noted that El
Salvador's Declaration of Intervention was considered inadmissible at the jurisdictional phase
as it only addressed provisions that were relevant at the merits phase. The three cases
mentioned in paragraph 54 (Haya de la Torre Case, Whaling in the Antarctic and Wimbledon),
on their part, do not seem to contribute to a practice regarding the sequence of intervention and
19 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.CJ. Reports 2013, para. 18. •
20 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Intervention
of El Salvador, Dissenting Opinion of Judge Schwebel, I.CJ. Reports 1984, pp. 234-236.
6
preliminary objections, given that the question did not arise, either because there was no
separate stage for preliminary objections or because there were no preliminary objections at
all.
20. Thus nothing in Article 63 of the Statute or in the Court's case law supports the view held by
the Russian Federation that the Court could not decide on the admissibility of a Declaration of
Intervention before considering Russia's preliminary objections.
21. Finland is therefore of the view that the Court may decide on the admissibility of Finland's
Declaration of Intervention before deciding on its jurisdiction in the case and on the
admissibility of Ukraine's claims. This is all the more important as Finland's Declaration of
Intervention concerns the construction of the very Article that forms the basis of the Court's
jurisdiction in the case.
IV. THE INTERVENTION MAY RELATE TO THE JURISDICTION OF THE COURT
22. The Russian Federation claims that Finland's Declaration of Intervention addresses matters
which presuppose that the Court has jurisdiction and/or that Ukraine's application is
admissible. The Russian Federation maintains that the Court should not allow Finland to
intervene on questions of jurisdiction, as this would "presuppose" that the Court has
jurisdiction. In Finland's view, this line of reasoning cannot be supported with reference to
Article 63 of the Statute of the Court or to the practice of the Court.
23. According to Article 63(1) of the Statute of the Court, a State party may intervene on the
"construction of a convention". This wording refers to a convention in its entirety, including a
compromissory clause where it is part of the convention. Accordingly, nothing in that provision
suggests that a State could not present its views on the construction of Article IX of the
Genocide Convention to the Court.
24. The practice of the Court confirms this reading. So far, the Court has never dismissed an
intervention because it was (entirely or primarily) directed to interpreting a compromissory
clause. Rather, in Military and Paramilitary Activities, El Salvador's attempt to influence the
jurisdictional question before the Court was unsuccessful because the declaration had not
complied with the formal requirements under Rule 82(2)(b) and (c) for the great majority in
the Court. Had it done so, it would have been of interest to the Court, as expressly confirmed
by Judge Oda21 .
21 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Intervention
of El Salvador, Separate Opinion of Judge Oda, I.CJ. Reports 1984, p. 221.
7
V. FINLAND'S INTERVENTION IS PERTINENT TO THE CONSTRUCTION OF THE GENOCIDE
CONVENTION
25. The Russian Federation argues that Finland's Declaration seeks to address issues unrelated to
the construction of the Convention, the admission of which would prejudge questions relating
to the Court's jurisdiction ratione materiae, such as "good faith", "notions of territorial
integrity and use of force", and "whether there is evidence that genocide has been committed
or may be committed in Ukraine".22
26. Finland's Declaration refers to good faith performance of international obligations as part of
general international law, including by quoting the Court's observation that the principle
"obliges the parties to apply [ a treaty] in a reasonable way and in such a manner that its purpose
can be realized.23 Article 2(2) of the Charter of the United Nations contains a general
obligation: "All Members [ ... ] shall fulfil in good faith the obligations assumed by them in
accordance with the present Charter." It is obvious that the principle of good faith is also
relevant to the construction of the Genocide Convention in accordance with established
principles of treaty interpretation. Finland would like to recall in this respect the Vienna
Convention on the Law of Treaties, according to which 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 light of its object and purpose. 24 It is equally obvious that "[i]n discharging their
obligation to prevent genocide, the Contracting parties must act within the limits permitted by
international law". 25
27. As far as the obligation under Article 2(4) of the Charter of the United Nations is concerned,
Finland's intervention mentions it in the context of the interpretation of Article 1 of the
Genocide Convention and when commenting, in general terms, on the extent of the jurisdiction
of the Court. In both instances, Finland's arguments are relevant to the construction of the
provisions of the Genocide Convention, which shall take into account "any relevant rules of
international law applicable between the parties".26
22 The Russian Federation 's Written Observations on Admissibility of the Declarations of Intervention Submitted by
Australia, Austria, Denmark, Estonia, Finland, Greece, Ireland, Luxembourg, Portugal and Spain, 15 October 2022,
para. 106(e).
23 Gabcikovo-Nagtmaros Project (Hungary/Slovakia), Judgment, I.CJ. Reports 1997, para. 142.
24 See Article 26 ('Pacta sunt servanda') and Article 31 (General rule of interpretation). See also ILC, Draft Articles
on the Law a/Treaties, art. 27, paragraph 12 of the commentary: "Paragraph 1 [of Article 31] contains three separate
principles. The first-interpretation in good faith-flows directly from the rule pacta sunt servanda. The second
principle is the very essence of the textual approach: the parties are to be presumed to have that intention which appears
from the ordinary meaning of the terms used by them. The third principle is one both of common sense and good faith;
the ordinary meaning of a term is not to be determined in the abstract but in the context of the treaty and in the light
of its object and purpose. These principles have repeatedly been affirmed by the Court."
25 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, para. 430; Allegations of Genocide under the Convention
on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,
Order of 16 March 2022, para. 57.
26 Vienna Convention on the Law of Treaties, Art. 31(3)(c).
8
28. Finally, the claim that Finland's intervention would refer to "whether there is evidence that
genocide has been committed or may be committed in Ukraine" is completely without basis.
The Declaration merely comments, in general terms, on the obligations of a State Party to the
Genocide Convention under Article 1 of the Convention, in an attempt to assist the Court in
the construction of the Article. The facts of the case have not been argued in Finland's
Declaration of Intervention.
VI. CONCLUSIONS
29. For the reasons set out above, Finland respectfully requests the Court
(a) to reject all the objections to the admissibility of its Declaration of Intervention raised by
the Russian Federation in its Written Observations.
(b) to declare that Finland's Intervention under Article 63 of the Statute of the Court is
admissible.
Respectfully,
/, / .. --· </,:_, .. -···-·~
/y
Kaija Suvanto
Agent of Finland
/l
Tarja Umgstrom
Co-Agent of Finland
9
Written Observations of Finland on the admissibility of its Declaration of Intervention