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

INTERNATIONAL COURT OF JUSTICE
WRITTEN OBSERVATIONS OF THE GOVERNMENT
OF ITALY ON THE ADMISSIBILITY OF THE
ITALIAN DECLARATION OF INTERVENTION
filed in the Registry of the Court on 13 February 2023
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
COUR INTERNATIONALE DE IDSTICE
OBSERVATIONS ECRITES DU GOUVERNEMENT
DE L'ITALIE SUR LA RECEVABILITE DE LA
DECLARATION D'INTERVENTION ITALIENNE
enregistrees au Greffe de la Cour le 13 fevrier 2023
ALLEGATIONS DE GENOCIDE AU TITRE DE LA CONVENTION POUR LA
PREVENTION ET LA REPRESSION DU CRIME DE GENOCIDE
(UKRAINE C. FEDERATION DE RUSSIE)
TABLE OF CONTENTS
I. Introduction .......................................................................................................................... 3
II. Italy's intervention complies with the requirements of Article 63 of the Statute
and is "genuine'' ... ,. .............................................................................................................. 4
Ill. Italy's intervention does not impair the equality of arms principle"" ............ '"""'"··· ..... 8
IV. Italy is entitled to intervene under Article 63 of the Statute at the jurisdictional
stage ....................................................................................................................................... 9
A. Article 63 of the Statute does not exclude the admissibility of a Declaration of
intervention at the jurisdictional stage ......................................................................... 10
B. Italy is intervening on the construction of provisions relevant to the jurisdictional
phase ............................................................................................................................. 13
C. In any case, the Italian intervention does not presuppose the existence of a dispute
prior to the determination by the Court.. ...................................................................... 14
V. Italy's arguments are relevant to the construction of the Genocide Convention ......... 15
VI. Conclusions ......................................................................................................................... 16
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WRITTEN OBSERVATIONS ON THE ADMISSIBILITY OF THE DECLARATION OF
JNTERVENTION OF THE GOVERNMENT OF ITALY
I. INTRODUCTION
1. The present observations are submitted in accordance with the letter of the Registrar dated
31 January 2023, in light of the Russian Federation's Written Observations on the admissibility
of the Declaration of Intervention ofltaly, filed on 17 October 2022 (hereafter: "Russian Written
Observations"), and of the Written Observations of Ukraine on the Declaration ofintervention of
Italy, of the same date.
2. In the present Written Observations, Italy will confine itself to reacting to the Russian
Written Observations, without repeating or elaborating upon the arguments put forward in its
Declaration of Intervention.
3. In its Written Observations, the Russian Federation has challenged the admissibility of
the Declarations oflntervention of a number of States, including Italy, on the following grounds:
(a) ... the interventions are not genuine: their real object is not the construction of
the relevant provisions of the Genocide Convention, as required by Article 63 of
the Statute, but rather pursuing a joint case alongside with Ukraine as de facto coapplicants
rather than non-parties.
(b) ... the participation of the Declarants in these proceedings would result in a
serious impairment of the principle of equality of the parties to the detriment of
the Russian Federation and would be incompatible with the requirements of good
administration of justice.
( c) . . . the Court cannot, m any event, decide on the admissibility of the
Declarations before it has made a decision on the Preliminary Objections, and that
the Declarations address matters that presuppose that the Court has jurisdiction
and/or that Ukraine's Application is admissible.
( d) . . . the Declarations should be equally declared inadmissible because the
Declarants seek to address issues unrelated to the "construction" of the Genocide
Convention, such as the interpretation and application of other rules of
international law and several questions of fact, which is incompatible with the
3
limited object of Article 63. Furthermore, allowing the Declarants to intervene on
such matters at this stage would prejudge the question of the Court's jurisdiction
ratione materiae. 1
4. The Russian Federation has refened to the Declaration of intervention of the Government
ofltaly (hereafter: "Italian Declaration") exclusively in objections (a), ( c) and ( d). Since objection
(b) is also tangential to the admissibility ofitaly's intervention, Italy will also address objection
(b).
5. Italy's Written Observations are divided in four parts, alongside this introductory section
and the concluding remarks summarising Italy's position. First, Italy will recall the requirements
for intervention under A1iicle 63 of the Statute of the International Court of Justice and A1iicle
82, paragraph 2, of the Rules of the Comi, in order to address the Russian Federation's objection
concerning the "genuine nature" of its intervention (Part II - Italy's intervention complies with
the requirements of Article 63 of the Statute and is "genuine"); second, Italy will briefly
address the alleged impairment on the equality of arms allegedly caused by multiple interventions
(Part ill - Italy's intervention does not impair the equality of arms principle); third, Italy
will demonstrate the admissibility of its intervention at the jurisdictional stage, with a view to
reacting to objection ( c) (Part IV - Italy is entitled to intervene under Article 63 of the Statute
at the jurisdictional stage); last, Italy will refute the alleged "unrelated" nature of the arguments
put forward in its Declaration with respect to the construction of the Convention on the Prevention
and Punishment of Genocide (hereinafter: "Genocide Convention") (Part V -Italy's arguments
are relevant to the construction of the Genocide Convention).
II. ITALY'S INTERVENTION COMPLIES WITH THE REQUIREMENTS OF ARTICLE 63 OF THE
STATUTE AND IS "GENUINE"
6. The Russian Federation's first objection to Italy's intervention is that the latter would not
be genuine, i.e. not related to the subject-matter of the pending dispute. The Russian Federation
1 The Russian Federation's Written observations on admissibility of the Declarations of intervention
submitted by France, Germany, Italy, Latvia, Lithuania, New Zealand, Poland, Romania, Sweden, the
United Kingdom and the United States, 17 October 2022, para 9 (hereafter: "Russian Written
Observations").
4
refers to the Haya de la Torre case,2 arguing that for an intervention to be admissible, the Party
should be recognised to have a "genuine intention" to address the construction of the Convention
in question.3
7. The Russian Federation's argument concerning Italy's intentions seems to imply an
allegation of abuse of right, challenging Italy's good faith in the exercise of its right under Aiiicle
63 of the Statute. Yet, "il est un principe general de droit bien etabli selon lequel la mauvaise foi
ne se presume pas".4
8. As it will be demonstrated below, Italy's Declaration is in full compliance with the letter
and rationale of A1iicle 63 of the Statute, and in any case intentions are not relevant for the
admissibility of a Declaration under A1iicle 63.
9. The Comi has clearly stated that the intervention under A1iicle 63 of the Statute is only
subject to the conditions of the Statute and Rules of the Comi, as verified by the Comi itself.5
Such conditions are: (a) that the State willing to intervene is a Paiiy to the convention in question;
(b) that the Declaration of Intervention addresses the construction of the convention in question;
and ( c) that the Declaration complies with the formal requirements under Aiiicle 82 of the Rules
of the Comi.6
10. Italy has plainly complied with requirements under Article 63 of the Statute and Article
82 of the Rules of the Court. Since the point is fully addressed in the Italian Declaration, Italy will
not here repeat those arguments. Suffice to recall that Italy has (a) filed its Declaration long before
the opening of the oral proceedings; (b) declared that it has been a Paiiy to the Genocide
Convention since 4 June 1952;7 (c) identified the provisions of the Genocide Convention the
construction of which Italy considers to be in question in the instant case;8 ( d) provided a
2 Haya de la Torre Case, Judgment ofJune 13th, 1951: I.C.J. Reports 1951, p. 71, pp. 76-77.
3 Russian Written Observations, para 14.
4 Ajfaire du lac Lanoux (Espagne, France) (1957) XII UNRIAA 281,305.
5 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, I.CJ. Reports 2013, p. 3, para 8.
6 A Miron, C Chinkin, 'Article 63 ', in A Zimmermann et al (eds), The Statute of the International Court of
Justice: A Commentmy (3rd edn; OUP 2019) 1741, 1752 ff.
7 Declaration of intervention of the Government of Italy, 15 September 2022, para 18 (hereafter: "Italian
Declaration").
8 Ibidem, paras 20-24.
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statement of construction of said provisions;9 and ( e) provided a list of documents in support and
annexing them to its Declaration.10
11. The Court's case law on Aiiicle 63 confirms that there are no fmiher conditions pertaining
to the admissibility of the intervention apaii from those referred to above. 11
12. In the first case where the predecessor of Aiiicle 63 of the Statute, namely Article 63 of
the Statute of the Permanent Comi of International Justice, was invoked, the Comi allowed the
intervention of Poland expressing that "[i]t will szif.fice for the Court to note that in this case the
interpretation of certain clauses of the Treaty of Versailles is involved in the suit and that the
Polish Republic is one of the States which are parties to this treaty". 12
13. In the Haya de la Torre case, the Comi expressed that "the only point which it is necessary
to asce1iain is whether the object of the intervention of the Govermnent of Cuba is in fact the
interpretation of the Havana Convention", 13 that is whether the Declaration concerned itself with
the interpretation of the convention under dispute. The scope of Cuba's intervention was curtailed
by the Court due to the fact that it addressed a number of points ah-eady decided by the Court and
did not refer to the interpretation of the Havana Convention.
14. In the Whaling case, the Court declared New Zealand's Declaration admissible because
it "met the requirements set out in Article 82 of the Rules of Comi; whereas its Declaration of
Intervention falls within the provisions of A1iicle 63 of the Statute".14 The Comi never referred
to New Zealand's intentions.
15. The Russian Federation refers to a number of elements m order to challenge the
"genuineness" of Italy's intentions, namely:
9 Ibidem, paras 26-52.
10 Ibidem, para 54 and annexes.
11 Supra, para 9.
12 S.S. Wimbledon, Judgment of28 June 1923 (Question oflntervention by Poland), PCIJ, Series A, No. 1,
p.11,p. 13.
13 Haya de la Torre (fn 2), p. 77.
14 Whaling (fn 5), para 19.
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a. The Joint statements dated 20 May and 13 July 2022;15
b. The fact that States willing to intervene have referred to the fact that "they possess
a legal interest in light of the erg a omnes character of the obligations under the Convention"; 16
and
c. The alleged inconsistency between the position expressed by Italy in the course
of the present proceedings with respect to stands taken in the past.17
16. Such elements rather prove the contrary. As confirmed by the International Law
Commission18 and by the Court case law on Declarations under A1iicle 36 of the Statute, a
unilateral act "must be interpreted as it stands, having regard to the words actually used". 19
17. Aside from statements which fall within the political discretion of States, the Joint
statement dated 13 July 2022 precisely shows the pursuit ofltaly's intervention:
It is in the interest of all States Parties to the Genocide Convention, and more
broadly of the international community as a whole, that the Convention not be
misused or abused. That is why the signatories of the present declaration which
are Parties to the Genocide Convention intend to intervene in these proceedings.
In light of the serious questions raised in this case, and in view of the far-reaching
consequences of the judgment that the Court will render, it is important that the
States Parties to this Convention be able to share with the International Court of
Justice their interpretation of some of its essential provisions.20
15 Russian Written Observations, paras 15-16.
16 Ibidem, para 23.
17 Ibidem, para 27.
18 'Unilateral acts of States' (2006-II-2) YbILC 159, 165 para 3.
19 Anglo-Iranian Oil Co. case (Jurisdiction), Judgment of July 22nd, 1952: I.C.J. Reports 1952, p. 93, p.
105
20 'Joint statement on supporting Ukraine in its proceeding at the International Court of Justice', 13 July
2022, available at https:/ /ec.europa.eu/commission/presscomer/detail/en/statement_ 22 4509; emphasis
added.
7
18. In its Declaration of Intervention, Italy clarified that its aim is "assisting the Court in
construing such provisions of the Convention which are in question in this case in the pursuit of
a common interest of each and all its Paiiies".21
19. Italy specified that the erga omnes nature of obligations under the Genocide Convention
justifies an interest of all Paiiies in its cotTect interpretation.22
20. Finally, the Russian allegation that Italy has taken a different position in other proceedings
is irrelevant for the purposes of the admissibility of its Declaration in the present case.
21. The words "actually used"23 in the Italian Declaration confirm that Italy's intention is that
of assisting the Comi in its interpretative activity, in order to avoid that the Convention be misused
or abused. This is fully in line with the rationale of A1iicle 63 of the Statute, which recognises the
right of States which are Paiiies to a Convention, but not to a dispute, to act as "guardians" of the
Convention.
22. Without prejudice to the above, no intentions other than that to contribute to the
appropriate interpretation of a given convention are material to the letter and purpose of Aiiicle
63 of the Statute.
23. Accordingly, Italy respectfully requests the Comi to reject the first objection to the
admissibility of its intervention raised by the Russian Federation.
III. ITALY'S INTERVENTION DOES NOT IMPAIR THE EQUALITY OF ARJVISPRINCIPLE
24. In its second objection, the Russian Federation alleges an impairment of the equality of
arms principle flowing from multiple interventions under Article 63 of the Statute in the present
case.
21 Italian Declaration, para 16.
22 Ibidem, para 14.
23 Anglo-Iranian Oil Co. case (fu 16), p. 105.
8
25. Italy is fully aware that the equality of the anns is a fundamental principle of international
adjudication, flowing from the principle of good administration of justice and from the obligation
to peacefully settle international disputes.24
26. However, such principle is to be balanced with Italy's right, as a Party to the Genocide
Convention, to intervene in the proceedings pursuant to A1iicle 63 of the Statute.
27. Italy considers that it is for the Comito consider carrying out any balancing exercise, in
accordance with the proper administration of justice.
28. In any case, Italy wishes to recall the Court's position on the point at issue in the Whaling
case, according to which "an intervention [under Article 63] cannot affect the equality of the
Paiiies to the dispute".25
29. In light of the above, Italy respectfully requests the Court to reject the second objection
to the admissibility of its intervention raised by the Russian Federation.
N. lTAL Y IS ENTITLED TO INTERVENE UNDER ARTICLE 63 OF THE STATUTE AT THE
JURISDICTIONAL STAGE
30. The Russian Federation objects to the intervention ofltaly also on the ground that there
is no precedent on admission of intervention at the jurisdictional stage.26
31. The Russian Federation argues that Italy is precluded from intervening when jurisdiction
has not yet been asce1iained. The Russian Federation argues that Italy presupposes the existence
of a dispute between the Pmiies and that the Court has jurisdiction to ente1iain such dispute.27
32. This objection does not pe1iain to the admissibility of the Declaration under Article 63 of
the Statute and should therefore be rejected. As it will be demonstrated below, A1iicle 63 does not
24 Judgments of the Administrative Tribunal of the ILG upon complaints made against the UNESCO,
Advisory Opinion of October 23rd, 1956: I.C.J. Reports 1956, p. 77, p. 86; Questions relating to the Seizure
and Detention of Certain Documents and Data (Timor-Leste v. Australia), Provisional Measures, Order of
3 March 2014, I.C.J. Reports 2014, p. 147, para 27.
25 Whaling (fn 5) para 18.
26 Russian Written Observations, par. 50.
27 Russian Written Observations, para 81.
9
bar a State from intervening at the jurisdictional stage (Section A); the Italian Declaration of
intervention pertains to the construction of provisions which are relevant for the assessment of
the jurisdiction of the Court (Section B); and, in any case, Italy does not address issues that
presuppose the existence of a dispute (Section C).
A. ARTICLE 63 OF THE STATUTE DOES NOT EXCLUDE THE ADMISSIBILITY OF A DECLARATION
OF INTERVENTION AT THE JURISDICTIONAL STAGE
33. As Italy highlighted in its Declaration ofintervention, "Article 63 of the Statute does not
make a distinction between provisions of a Convention concerning jurisdictional issues and those
which pe1iain to the merits".28
34. Lacking textual arguments based on the Statute or the Rules of the Comi, the Russian
Federation seeks to base its assertion on the Comi's case law, with special regard to the Military
and Paramilitary Activities, the Nuclear Tests and the Nuclear Test (Request for Examination)
cases. Of these three cases, only the first one is relevant to this proceeding.
3 5. In the Nuclear Tests and Nuclear Tests (Request for Examination) cases, as the Russian
Federation itself recognises, the intervening States acted under Aliicle 62 of the Statute, rather
than under Aliicle 63. Yet the two situations cannot be equated - if only because Article 63
confers a right to intervene, differently from A1iicle 62.
36. In any case, neither in the Nuclear Tests, nor 111 the Nuclear Tests (Request for
Examination) case, applications for intervention were rejected due to an alleged inadmissibility
at the jmisdictional stage.
37. In Nuclear Tests, the Court defened the consideration of the Application to intervene by
Fiji "until it has pronounced upon the questions to which the pleadings mentioned in its Order
dated 22 June 1973 are to be addressed".29 As corroborated by the very same author quoted by
28 Italian Declaration, para 23.
29 Nuclear Tests (Australia v. France), Application to Intervene, Order of12 July 1973, I.C.J. Reports 1973,
p. 320, p. 321.
10
the Russian Federation, the inadmissibility of such intervention was due to the fact that it
"pe1iained entirely to the merit",30 with no bearing on jurisdictional issues.
38. In Nuclear Tests (Request for Examination), the Comi dismissed the Application for
permission to intervene by Australia and the Applications for Permission to Intervene and
Declarations of Intervention submitted by Samoa, Solomon Islands, the Marshall Islands and the
Federated States of Micronesia because it found that the conditions for the request had not been
met.31 The fact that applications had been filed at the jurisdictional phase was not considered
relevant by the Comt The Court simply noted that, since the main proceedings had been removed
from the Comi' s list, there was no point in addressing interventions.
39. The only precedent mentioned by the Russian Federation which might be relevant to the
present proceedings is the Military and Paramilitary Activities case. Here, however, the Russian
Written Observations contain a misleading reading of the decision of the Comi on intervention.
40. In that case, the Court considered El Salvador Declaration oflntervention inadmissible
because, within the jurisdictional phase, the Declaring State did not address provisions peiiaining
to the jurisdiction of the Court, but only to the merits.32
41. The Court's approach was further clarified by the numerous separate opinions attached to
the Court's Order. Judge Singh expressed that the Declaration was "in effect ... directed to the
merits of the case"33 . Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharriere
highlighted that they "ha[ d] not been able to find, in El Salvador's written communications to the
Court, the necessaiy identification of such paiiicular provision or provisions which it considers to
be in question in the jurisdictional phase of the case";34 Judge Oda stressed that the Declai·ation
30 J Sztucki, 'Intervention under Article 63 of the Statute in the Phase of Preliminary Proceedings: The
"Salvadoran Incident" (1985) 79 AHL 1005, 1012.
31 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court S Judgment
o/20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, p. 288, paras
65-67.
32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration ofintervention, Order of 4 October 1984, I.C.J. Reports 1984, p. 215, paras 1-2.
33 Militmy and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration ofintervention, Order of 4 October 1984 (Separate Opinion of Judge Nagendra Singh), I.C.J.
Reports 1984, p. 218.
34 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration ofintervention, Order of 4 October 1984 (Separate Opinion of Judges Ruda, Mosler, Ago, Sir
11
"appeared mainly directed to the merits of the case, was vague and did not appear to satisfy the
requirements of Article 82, paragraph 2(b) and ( c ), of the Rules of Comi for an intervention at the
present stage";35 last, Judge Schwebel, while stressing that nothing in Article 63 prevents an
intervention at the jurisdictional stage,36 agreed with the majority of the Bench that El Salvador's
Declaration "did not adequately meet the specifications set forth in Article 82, paragraph 2, of the
Rules of Court".37
42. Having regard to the opinions referred to by the Russian Federation at paragraph 52 of its
Written Observations, they are to be considered against the background of the above-mentioned
Order. Judge Lachs' statement that "there was no adequate reason to grant El Salvador the right
of intervention at the jurisdictional stage"38 referred to the fact that El Salvador Declaration only
referred to issues relevant to the merits. The same consideration applies to Judges Ni and SetteCamara
Opinions.
43. The above reading of the case law on the admissibility of declarations of intervention at
the jurisdictional phase is corroborated by authoritative legal scholarship:
[S]everal arguments plead in favour of the possibility for a third State to make a
request to intervene at the phase of jurisdiction and admissibility, at least under
Article 63. The wording of Article 63 is unqualified in asserting '[w]henever the
construction of a convention ... is in question' which implies that it is applicable
in all phases of the case. Article 63 does not differentiate between types of treaty
provisions, or types of treaty. The purpose of Article 63 is to allow parties to a
multilateral convention to put their construction of the convention to the Court in
proceedings to which they are not parties.39
Robert Jennings and de Lacharriere), p. 219, para 3.
35 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration oflntervention, Order of 4 October 1984 (Separate Opinion of Judge Oda), p. 220, para. 2.
36 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration oflntervention, Order of 4 October 1984 (Dissenting Opinion of Judge Schwebel), p. 223, pp.
235-236.
37 Ibidem, p. 224.
38 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment (Separate Opinion by Judge Lachs), I.C.J. Reports 1986, p. 158, p. 171.
39 Miron, Chinkin (fu 6) 1763; footnotes omitted.
12
B. ITALY IS INTERVENING ON THE CONSTRUCTION OF PRO VISIONS RELEVANT TO THE
JURISDICTIONAL PHASE
44. Having regard to the Russian Federation's arguments set out in paragraph 69, Italy
stresses that its intervention addresses the construction of provisions which are relevant for the
assessment of the jurisdiction of the Court
45. It is self-evident that the Italian Declaration addresses prominently the construction of the
compromissory clause contained in Article IX of the Genocide Convention.40 While Italy's
arguments are drafted in abstract terms, they are meant to assist the Court in the interpretation of
Article IX in the jurisdictional phase of the present case.
46. Reference to the construction of substantive provisions of the Genocide Convention, with
special regard to Articles I-III,41 is made also for the purpose of interpretation of Article IX,
namely in relation to the assessment of the Court's jurisdiction ratione materiae. This is all the
more relevant since the Russian Federation has filed Preliminaiy objections to the jurisdiction of
the Comi.
47. It emerges from the Russian Federation's letter to the Court dated 7 March 2022,42 that
the scope of application of A1iicle IX has been called into question with respect to certain
substantive provisions of the Convention.43
48. This is confirmed by a passage of the Russian Federation's Preliminary Objections quoted
verbatim by Ukraine in its Written Observations:
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
40 Italian Declaration, paras 26-41.
41 Ibidem, para 42-52.
42 Document (with annexes) fi·om the Russian Federation setting out its position regarding the alleged "lack
of jurisdiction" of the Court in the case, 7 March 2022, available at https://www.icjcij.
org/en/case/182/other-documents; see also Russian Written Observations, para 91.
43 Ibidem, paras 7-11.
13
materiae". 44
49. In light of the above, Italy respectfully requests the Court to reject the third objection to
the admissibility of its intervention raised by the Russian Federation.
C. JN ANY CASE, THE ITALIAN INTERVENTION DOES NOT PRESUPPOSE THE EXISTENCE OF A
DISPUTE PRIOR TO THE DETERMINATION BY THE COURT
50. Without prejudice to the above arguments, Italy rejects the Russian Federation's
allegation according to which the Italian Declaration presupposes the existence of a dispute
between Ukraine and the Russian Federation.
51. The Russian Federation refers to the following passage of the Italian Declaration:
Italy contends that the ordinary meaning of Article IX of the Convention, its
context and the object and purpose of the entire Convention show that a dispute
regarding acts carried out by one State against another State based on claims of
genocide which the latter State deems unsubstantiated falls under the notion of
"dispute between Contracting Parties relating to the interpretation, application or
fulfilment of the presentConvention".45
52. This quote plainly disproves the allegation and shows that Italy's arguments were simply
put in abstract terms, relying on a general reading of Article IX of the Genocide Convention.
53. Italy has nowhere expressed in the Declaration its own position concerning the existence
of a dispute between Ukraine and the Russian Federation, nor it has expressed its opinion on the
jurisdiction of the Court in the instant case.
54. Italy is well aware that it is not up to an intervening State under Article 63 to focus on
such issues of facts, next to the law, given that it "does not seek to become a party in the
Proceedings brought by Ukraine against the Russian Federation in this case".46
44 Written Observations of Ukraine on the Declaration of Intervention of Italy, 17 October 2022, para 7
(hereafter: "Ukrainian Written Observations"; quoting from Preliminary Objections of the Russian
Federation, 3 October 2022, para 163.
45 Italian Declaration, para 41, quoted in Russian Written Observations, para 8l(c).
46 Italian Declaration, para 17.
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55. Accordingly, Italy respectfully requests the Court to reject the third objection to the
admissibility of its intervention raised by the Russian Federation.
V. ITALY'S ARGUMENTS ARE RELEVANT TO THE CONSTRUCTION OF THE GENOCIDE
CONVENTION
56. The fourth objection raised by the Russian Federation is based on allegations that the
Italian Declaration contains references to issues unrelated to the construction of the Genocide
Convention's provisions. 47
57. With special regard to the Italian Declaration, the Russian Federation refers to the fact
that
Italy refers to questions relating to the existence of a dispute between the Russian
Federation and Ukraine; good faith in the application of the Convention and the
doctrine of abuse of rights; whether evidence that genocide has occurred or may
occur in Ukraine exists; and issues relating to the use of force.48
58. The Russian Federation tries to represent the Italian Declaration as one addressing issues
of fact, as a Party to the proceedings would do. On the contrary, Italy's Declaration is drafted in
terms addressing the construction of the Genocide Convention, taking into consideration the legal
issues which are relevant to the case, without any reference to the relevant facts and evidence
relating thereto.
59. In so doing, Italy has followed the customary rules on treaty interpretation,49 including
the principles of good faith and systemic integration.
60. This explains Italy's reference to the case law on the notion of "dispute" in paragraph 28
of its Declaration, as necessary for the construction of the tenn "disputes" contained in Article IX
of the Genocide Convention.
47 Russian Written Objections, para 85, referring to the Italian Declaration, paras 28, 31-34, 41 and 45-47.
48 Ibidem, para 85(c).
49 Italian Declaration, para 25.
15
61 .. The same applies to reference to the customary prohibition of the use of force (paragraph
41 of the Italian Declaration), as necessary for the assessment of the scope of A!iicle IX of the
Genocide Convention, i.e. of the Comi' s jurisdiction over conducts contemplated by substantive
provisions of the Convention in combination with ancillary rules of customary international law.
62. Therefore, reference to rules and principles apparently outside the Convention has been
made by the Italian Declaration exclusively to assist the Court in the construction of the
Convention's material provisions. Therefore, Italy has acted within the boundaries set by A!iicle
63 of the Statute, and thus respectfully requests the Comito reject the fomih and last objection to
the admissibility of its intervention raised by the Russian Federation.
VI. CONCLUSIONS
63. For the above reasons, Italy respectfully requests that all the objections to the
admissibility of its intervention raised by the Russian Federation are rejected and that the
Declaration of Intervention under A1iicle 63 of the Statute of the Government ofltaly is declared
admissible.
Respectfully,
Co-Agent of the Government ofltaly
16