Written Observations of Greece on the admissibility of its Declaration of Intervention

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 HELLENIC REPUBLIC ON
THE ADMISSIBILITY OF ITS DECLARATION OF INTERVENTION FILED
UNDER ARTICLE 63 OF THE STATUTE OF THE COURT
13 FEBRUARY 2023
Introduction
1. On 30 March 2022, the Registrar of the Court addressed a notification to the States
Parties to the Convention on the Prevention and Punishment of the Crime of Genocide
(hereinafter the "Genocide Convention") pursuant to Article 63, paragraph 1. of the
Statute of the Court, which 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 fo11hwith".
2. On 13 October 2022, the Hellenic Republic filed a Declaration of Jntervention
pursuant to Article 63, paragraph 2, of the Statute of the Court which confers on
every state so notified "the right to intervene in the proceedings".
3. On 15 November 2022, Ukraine, as provided for in Article 83, paragraph I. of the
Rules of the Court, filed in the Registry of the Com1 written observations on the
Hellenic Republic's Declaration of Intervention, pleading that it is admissible. On the
same day, the Russian Federation, acting pursuant to the said provision, filed written
observations on the admissibility of the Declarations of Intervention submitted by ten
states, including the Hellenic Republic, requesting the Court to dismiss the
Declarations concerned on several grounds of inadmissibility or to defer consideration
of admissibility of the Declarations until after the Court has made a decision on the
Russian Federation's preliminary objections'.
4. On 31 January 2023, the Registrar of the Court informed the Hellenic Republic
that:
"In light of the fact that the Russian Federation has filed objections to the
admissibility of your Government's declaration of intervention. the Court.
pursuant to Article 84, paragraph 2, of its Rules. must hear the State seeking to
intervene and the Pa11ies before deciding on the question of admissibility . In
this regard, the Court has decided to do so by means of a written procedure.
To that end, it has fixed 13 February 2023 as the time-limit for your
Government to submit observations in writing on the admissibi lity of its
declaration, and 13 March 2023 as the time-limit for the Parties to submit
observations in writing on the admissibility of that declaration."
5. Therefore, the Hellenic Republic hereby submits its written observations on the
admissibility of its Declaration pursuant to the aforementioned provision of Article
84, paragraph 2, of the Rules of the Court. Within this context. it will address the
1 Allegations of Genocide under the Convention 011 the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federa1ion), The Russian Federation·s Wrinen Observations on
Admissibility of the Declarations of Intervention submitted by Australia, Austria, Denmark, Estonia.
Finland, Greece, Ireland, Luxembourg, Portugal and Spain, dated 15 November 2022.
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objections raised by the Russian Federation only to the extent that they are directly
related to its own Declaration of Intervention.
6. With the present observations, the Hellenic Republic will demonstrate that:
-the Declaration of Intervention conforms with the requirements of the Statute and is
genuine (I);
-the Declaration of Intervention does not affect the principle of the equali ty of the
parties and the requirements of good administration of justice (ll);
-the Hellenic Republic has the right to intervene on Article IX of the Genocide
Convention per se (Ill);
-the Court may decide on admissibility of the intervention before considering the
Russian Federation's preliminary objections (IV);
-the Declaration of Intervention does not contain issues unrelated to the Genocide
Convention (V).
I. The Declaration of Intervention conforms with the requirements of the Statute
and is genuine.
7. The first objection of the Russian Federation is premised on the argument that the
interventions were not genuine, as their real object arguably was, not the construction
of the Genocide Convention, but pursuing a joint case with Ukraine.
8. Jn this respect, however, it should be noted that the broader political context relied
on by the Russian Federation is irrelevant for the purposes of assessing the
admissibility of the Hellenic Republic's Declaration of Intervention, which has a
limited object under the Statute of the Court. As already mentioned above, Article 63
of the Statute confers a right to intervene to every state notified of a case involving the
construction of a convention to which it is a party. It is in exercise of this right that the
Hellenic Republic filed its Declaration oflntervention.
The Court has underlined that, in assessing whether a declaration fa lls under Article
63, "the only point which it is necessa,y to ascertain is whether the object of the
intervention ... is in fact the inte,pretation of the [relevant} Convention in regard to
the question "2 at issue in the dispute. The declaration must also conform to the
conditions of Article 82 of the Rules of the Court, v,1hich provides in paragraph I that
a declaration under Article 63 of the Statute "shall be filed as soon as possible, and
not later than the date fixed for the opening of the oral proceedings". Paragraph 2 of
Article 82 further provides that:
"The declaration shall state the name of an agent. It shall specify the case and
the convention to which it relates and shall contain:
1 Haya de la Torre Case (Colombia/Peru). Judgment of June I 3th. 195 1. I.C.J. Reports !95 I. p. 7 1. at
p. 77. See also Whaling in the Antarctic (Australia v. Japan). Declaration of !111erventio11 of New
Zealand, Order of 6 Februmy 2013, I. C.J. Reports 20 I 3, p. 3. at pp. 5- 6, para. 8.
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(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."
9. The Hellenic Republic's Declaration of Intervention fu lfi lls all the conditions set
out in Article 63 of the Statute and Article 82 of the Rules of the Court. It was
submitted with regard to the proper interpretation of Article IX of the Genocide
Convention, which is in question in the present case, as it is evident both from
Ukraine's application in which it seeks to found the jurisdiction of the Court on
Article IX of the Genocide Convention3 and the Russian Federation·s document of 7
March 2022 communicated to the Court, rejecting Article IX as basis of the Court's
jurisdiction in the present case~. It should be further pointed out that the Declaration
was filed at the earliest reasonably available oppo1tunity, namely after the filing of
Ukraine's Memorial and after the Court having previously rendered its Order on
provisional measures in the case, it states the name of an agent (and a co-agent),
specifies the case and the convention to which it relates, as well as the basis on which
the Hellenic Republic considers itself a party to the Genocide Convention. identities
"particular provisions", i.e. Article IX, of the Genocide Convention it considers to be
in question, and provides a statement regarding the construction of those provisions.
Finally, the Declaration includes a list of the documents in support and attaches those
documents.
I 0. Finally, as regards the expression "genuine intervention", it should be pointed out
that the Court used it in Haya de la Torre5 in order to find out whether the object of
the intervention of Cuba was the interpretation of the Havana Convention (therefore. a
"genuine" intervention) or an attempt to re-litigate another case (therefore, not a
"genuine" intervention). However, contrary to the Russian Federation ·s observation in
paragraph 14, the Court did not seek to establish the "genuine intention .. of Cuba.
Accordingly any purported intentions or motivations underlying a declaration of
intervention are irrelevant.
3 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Application instituting proceedings, filed in the Registry of
the Court on 26 February 2022, paras. 7 and I 2.
• Allegations of Genocide under the Convention on the Prevemion and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Document (with annexes) from the Russian Federation
setting out its position regarding the alleged " lack of jurisdiction•· of the Court in the case, dated 7
March 2022, paras. I 0 et seq.
5 Haya de la Torre Case (Co/0111bia/ Per11), foe. cit.
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II. The Declaration of Intervention does not affect the principle of the equality of
the parties and the requirements of good administration of justice.
l l. The Russian Federation claims that conferring on the Hellenic Republic the status
of intervenor in this particular case would be incompatible with the principle of
equality of the parties and the requirements of good administration of justice.
However, all the relevant argumentation of the Russian Federation is based on the
false premise, that the Hellenic Republic's Declaration of Intervention is not
"genuine" and that its real object is not to present the Hellenic Republic's views on
the construction of the Genocide Convention, but to advocate for one of the parties
against the other as "de facto co-applicant".
12. As it was clearly demonstrated in paragraphs 7-10 above, this claim should be
dismissed. Indeed, it is clear that by filing, fo llowing the relevant notification by the
Registrar of the Court, a Declaration of Intervention under A1ticle 63 of the Court's
Statute in the present case, the Hellenic Republic did not seek to become a party to the
proceedings. Rather, the Hellenic Republic has exercised the right conferred upon it
by Article 63 to intervene as a Party to the Genocide Convention, in order to present
its views on its construction. Given the utmost normative importance of the Genocide
Convention, the Hellenic Republic as a State Patty has an interest of its own in the
proper and uniform interpretation of the Convention as well as in the preservation of
its integrity.
13. The Hellenic Republic does not see -and the Russian Federation fails to sho\-vhow
the exercise of the above right can impair the principle of equality of the parties
and the good administration of justice in this particular case. In this respect. it is to be
noted that the arguments, including the invocation of Articles 31, paragraph 5. of the
Court's Statute and 36 of the Rules of the Court, put forward by the Russian
Federation do not concern cases of intervention under Article 63 of the Court's
Statute and, therefore, should be dismissed as irrelevant. As the Russian Federation
itself contends in its written observations6, the Court made it clear in the case of
Whaling in the Antarctic, when considering the admissibility of New Zealand's
intervention under Article 63, that '"the intervention of New Zealand does not co11fer
upon it the status of party to the proceedings. Australia and New Zealand cannot be
regarded as being 'parties in the same interest· within the meaning of Article 31,
paragraph 5, of the Statute "7 and that an "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 be.fore the Court ·•&_ Therefore,
"such an intervention cannot affect the equality of the Parties to the dispute ••9
_
6 Op. cit., para 40.
7 Whaling in the Antarctic (A ustralia v. Japan), op. cit., para. 2 1.
8 Ibid. , para. 18.
9 Ibid.
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14. Finally, with regard to the allegations made by the Russian Federation in its
written observations 1°, that granting the status of intervenor to the Hellenic Republic
and the other states having filed a declaration of Intervention under Article 63 of the
Statute would lead to procedural inequality to the detriment of the Russian Federation,
as it would impair the equality of arms by unduly overwhelming the latter, and would
create an unmanageable situation both for the Russian Federation and for the Court,
the Hellenic Republic would like to recall that the Court is "the sole guardian of the
principle [of procedural equality of the partie!:i] and the only guarantor of the due
and proper administration o_fjustice "11
. As such, the Court has the power to decide on
the measures it deems appropriate, including in order to ensure the economy of the
process and make it as smooth as possible. Jn this respect, the Hellenic Republic
welcomes the decision of the Court to ask for written submissions of the intervenors
with an identical deadline in order to streamline the process. With the view to help in
the good administration of justice, the Hellenic Republic also reiterates its willingness
to coordinate its further action before the Court with other intervenors. in particular
other EU Member States, to contribute to an effective management of time of the
Court and both parties.
III. The Hellenic Republic has the right to intervene on Article IX of the
Genocide Convention per se.
15. The Russian Federation claims that a State Party to the Genocide Convention
cannot intervene on Article IX thereof per se. However, Article 63 of the Statute does
not make a distinction between provisions in a convention, which relate to
jurisdictional issues and those, which relate to substantive provisions. The wording of
Article 63 is Hunqualified"12 in conferring to States Parties to a convention the right to
intervene in a case where the construction of the abovementioned convention 1s 111
question.
16. That point is further strengthened by the object and purpose of Article 63. States
have a legitimate interest to share with the Court their interpretation, not only of
substantive obligations contained in a convention at stake before the Court, but also
on jurisdictional issues, as the rationale underlying Article 63, i.e. to foster uni form
interpretation of a convention 13, equally applies to both. Moreover, it can be assumed
that the Court would fo llow any decision that it would reach in the present case on the
10 Op. cit. , paras. 48-50.
11 R. Kolb, The International Court of Justice, Hart Publishing, Oxford, 20 13, p. 1125.
12 Dissenting Opinion of Judge Schwebel, attached to Milita,y and Paramilitm:r A ctivi1ies in and
against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention. Order of./
October 1984, I.C.J. Reports 1984, p. 215, at p. 236.
13 R. Kolb, The International Court of Justice. op. cil .. p. 73 1: C. Chinkin, "Anicle 63''. in A.
Zimmermann et al., (eds.), The Statute of the International Court of Justice: A Co111111e111m:v. Oxford
University Press, Oxford, 2012, 2nd ed., p. 1575.
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interpretation of the compromissory clause of the Genocide Convention in potential
subsequent cases involving Article IX thereof. The interpretation that the Court will
give to the said provision concerns all States Parties, as it will have a considerable
bearing on the settlement of disputes under a convention of capital importance.
Hence, all States Parties to the Genocide Convention should have the right to submit
their views on the interpretation of its compromissory clause.
17. Subsequent practice before the Court points into the same direction. So far. the
Court has never dismissed an intervention because it was (entirely or primarily)
directed to interpreting a compromissory clause. Rather, in Milita1y 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 fonnal
requirements under Rule 82, paragraph 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 Oda 1
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• Moreover, Judge Schwebel even found that the fau lts of El
Salvador's initial declaration on jurisdiction had been healed by subsequent letters.
Based on this reading, he was prepared to admit El Salvador's declaration on
jurisdictional matters.
18. In light of the above, there appears to be no reason within the Court's Statute why
an intervention should not be allowed for the purpose of placing an interpretation of a
compromissory clause. On the contrary, an intervention under A11icle 63 may cover
both jurisdictional and substantive aspects, as also confirmed by doctrine15
•
IV. The Court may decide on admissibility of the intervention before considering
the Russian Federation's preliminary objections.
19. The Russian Federation also claims that the Court cannot decide on the
admissibility of the intervention before it has made a decision on the preliminary
objections and that reference to Article IX of the Genocide Convention is of no
assistance for the purposes of intervention at the jurisdictional stage of the
proceedings.
20. As already contended by the Hellenic Republic, Article IX of the Genocide
Convention may form the subject of an intervention under A11icle 63 of the Statute. It
is precisely at the current stage of the proceedings (i.e. before any decision of the
Court on jurisdiction or admissibility of Ukraine's application) that a State Party may
14 Separate Opinion of Judge Oda, attached to MilitGIJ' and Paramilitmy Activities in and against
Nicaragua (Nicaragua v. United States of America), op. cit. , at pp. 220-221.
is A. Miron, C. Chin kin, "Article 63", in A. Zimmemrnnn et al., (eds.), The Statute of the lmernationaf
Court of Justice: A Commentaiy, Oxford University Press, Oxford, 2019. 3'd ed., p. 1763; M.N. Shaw
( ed.), Rosenne 's Law and Practice of the l111ernational Court: 1920-20 I 5, Bri II N ijhoff, Leiden/Boston,
5th ed., 2016, Vol. Ill, para. 364, p. 1533; R. Kolb, The International Court of Justice, op. cit .. pp. 736-
737; H. Thirlway, The Law and Procedure ~( the /mernational Court of Justice: Fifty >'ears of
Jurisprudence, OUP, Oxford, 2013, Vol. I, p. 1031.
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usefully offer its assistance by contributing its construction of the compromissory
clause of the Genocide Convention. Hence, the Declaration of Intervention of the
Hellenic Republic is not premature, as the Russian Federation claims, but filed at the
only stage of the proceedings available to this effect. Otherwise, the Hellenic
Republic would be deprived of the opportunity to share with the other States Parties
and the Court its views on the construction of Article lX.
21. It should be further pointed out that Article 63 of the Statute does not make any
distinction between separate phases before the Court. Rather, the opening word
"whenever" indicates that a State is allowed to intervene in all phases of the
proceedings 1
6
. Moreover, Article 82, paragraph I, second sentence of the Rules 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 an "oral hearing" does not distinguish between
separate phases of the proceedings before the Court; thus, the intervention may be
filed before the oral hearings set for the jurisdictional/admissibility phase or before
the merits phase. In addition, the invitation to file a declaration --as soon as possible"
in that provision confirms that the fi ling of an Article 63 declaration is admissible at
this stage of the proceedings.-This implies that Article 63 is applicable in all phases of
a given case. The above reading of Article 63 is also supported by Judge Scln,vebel
according to whom "intervention in the jurisdictional phase of a proceeding is within
the scope of the right with which States are endowed by the terms of Article 63"17
. In
the same vein, Judge Sir Hersch Lauterpacht considered that intervention under
Article 63 of the Statute "would not only be permissible but was also desirable in
preliminary objection proceedings .. . "18
.
22. As regards the argument of the Russian Federation, according to which, until after
the jurisdictional phase of the proceedings, one cannot assert that interpretation or
construction of Article lX of the Genocide Convention is or is not "in question"
between the parties, this does not apply with regard to the Hellenic Republic's
Declaration of Intervention. As already mentioned above, Ukraine in its Application
sought to found the Court's jurisdiction on Article 36, paragraph I. of the Statute and
on Article IX of the Genocide Convention. The Russian Federation, in its document
of 7 March 2022 communicated to the Cou1t, was of the view that Article IX of the
Genocide Convention did not confer jurisdiction on the Court in this case. Therefore,
it is obvious that the proper construction of the compromissory clause of the Genocide
Convention, i.e. its Article IX, is in question in the case before the Court.
16 Dissenting Opinion of Judge Schwebel, op. cit. , at p. 234.
17 Ibid. , pp. 235-236.
18 M.N. Shaw (ed.), op. cit.; See Separate Opinion of Judge Sir Hersch Lauterpacht. a11ached to the
Case of Certain Norwegian Loans, Judgment of July 6th. /957: I.CJ. Reports 1957. p. 9. at p. 64;
Separate Opinion of Judge Sir Hersch Lauterpacht, attached to lnterhandel Case (interim measures of
protection). Order a/October 24'". /957: I.C J. Reports 1957. p. 105, at p. 120. •
8
23. The Russian Federation in its written observations also seeks to find in the case
law support for its argument that the Court has never allowed interventions at the
preliminary stage of the proceedings in which jurisdiction or admissibility of an
application was challenged. However, the only conclusion that may be drawn from
these cases is that the Court has never rejected as inadmissible an intervention solely
on the ground that it was submitted at the jurisdictional stage of the proceedings. The
case of El Salvador's declaration in Milita1y and Paramilitary Activities. is telling in
this respect. In that case, the Court had actually decided to split the proceedings in
separate phases 19 before examining the admissibility of the subsequent interventions.
In the present case, however, the Coui1 did not order under Article 79, paragraph 1. of
the Rules to separate the proceedings after the fil ing of Russian Federation·s
preliminary objections. Rather, it has allowed Ukraine to address jurisdiction,
admissibility and merits in one memorial. Accordingly, no authority can be drawn
from Military and Paramilita,y Activities for the present case.
24. Moreover, even if the Court had separated the proceedings in the two separate
phases in the present case, nothing in the case law supports a duty of the Court to
refrain from deciding on the admissibility of an intervention during the jurisdictional
phase. In Milita,y and Paramilita,y Aclivilies, the Court's jurisdiction depended on an
understanding of Article 36, paragraphs 2 and 5 of the Statute, and the merits touched
upon questions of the UN Charter and customary international law. El Salvador's
Declaration oflntervention of 15 August 1984 addressed mainly the latter and did not
contain any statement on how it would construe Article 36, paragraphs 2 and 5. of the
Statute. Against that background, the Court dismissed the application ··;n as much as
it relates lo !he current phase of the proceedings "20
. As Judge Singh2 1
, Judges Ruda.
Mosler, Ago, Jennings and De Lacharriere22
, as well as Judge Oda2
•
1 explained. it had
weighed in the Court that El Salvador's declaration was mainly directed to the merits
of the case, but was insufficient with respect to the jurisdictional question before the
Court. This explanation is shared by the doctrine24.
19 MilitOIJ' and Paramilita1y Activities in and against Nicaragua (Nicaragua v. United States of
America), Provisional Measures. Order of 10 May 1984, I.CJ. Reports 198./, p. 169. at p. 187. point
D.
20 Military and Paramilita,y Activities in and against Nicaragua (Nicaragua v. United St(lfes of
America), Declaration of Intervention, Order of 4 October 1984. I.C J. Reports 198./, p. 2 15. at p. 2 16.
21 Separate Opinion of Judge Nagendra Singh, attached to Militmy and Paramilitmy Activities in and
against Nicaragua (Nicaragua v. United States of America). ibid., p. 2 18.
22 Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharriere, attached to
Milita,y and Paramilita1y Activities in and against Nicaragua (Nicaragua v. United States of
America), ibid., p. 219.
23 Separate Opinion of Judge Oda, attached to Milita1J1 and Para111i/i1a,y Activities in and against
Nicaragua (Nicaragua v. United States of America). ibid. , at pp. 220-221.
24 J.-J. Quintana, litigation at the International Court of Justice, Brill Nijhoff, Leiden/Boston. 2015.
pp. 943-944.
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25. Therefore, it appears that the Court rejected El Salvador's declaration as
inadmissible during the jurisdictional phase because and only insofar it did not
contain any construction of Article 36, paragraphs 2 and 5, of the Statute as the
jurisdictional base of the case. The Court did not find that no intervention under
Article 63 of the Statute could ever be admissible during a jurisdictional phase, as the
Russian Federation seems to read into the Court's Order of 4 October 1984.
26. In conclusion, nothing in Article 63 of the Statute or in the Court"s case law
supports the Russian Federation's view that the Court cannot deal with the
admissibility of an intervention before deciding on Russian Federation's preliminary
objections.
V. The Declaration of Intervention does not contain issues unrelated to the
Genocide Convention.
27. In its last argument, the Russian Federation alleges that the Hellenic Republic in
its Declaration of Intervention "addresses the existence of dispute between Ukraine
and the Russian Federation, issues of use of force, good faith in the application of the
[Genocide] Convention and the notion of abuse of law". It also alleges that these
issues do not relate to the construction of the Genocide Convention and contain an
impermissible incursion into the interpretation or appl ication of other rules of
international law that are distinct from the treaty in question and derive from different
sources.
28. However, the above argument is based on a misperception of the Hellenic
Republic's Declaration of Intervention, which only addresses issues related to the
construction of Article IX of the Genocide Convention. In this respect, it should be
pointed out that, according to Article 3 1, paragraph 3, (c), of the Vienna Convention
on the Law of Treaties, representing customary international law25
, the interpretation
of a treaty shall include "any relevant rules of international law applicable in the
relations between the parties." It follows that Article IX of the Genocide Convention
should also be interpreted in light of any relevant rules of international law, including
the principle of good faith.
is Application of the Conve111ion on the Prevention and Punishment of the Crime of Genocide (711e
Gambia v. Myanma,), Judgment of 22 July 2022, p. 31. para. 87: "The Court will have recourse to the
r11/es of customa,y international law on treaty inte1pre1a1io11 as reflected in Articles 3 I to 33 of the
Vienna Convention on the Law o/Treaties o/23 May 1969 "; see also Application of the lllternatio11al
Convention On the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab
Emirates), Prelimina,y Objections. J11dg111ent. I.C J. Reports 2021, p. 71. at p. 95. para. 75 with furth er
references.
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VI. Conclusion
For the reasons set out above the Hellenic Republic is convinced that its Declaration
of Intervention fully complies with the requirements under Article 63 of the Statute
and Article 82 of the Rules. Therefore, the Hellenic Republic respectfully requests the
Court to reject all the objections to the admissibil ity of its Declaration of Intervention
and to decide that the intervention is admissible.
Zinovia Chaido Stavridi, Agent of the Government of the Hellen ic Republic
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