' .
INTERNATIONAL COURT OF JUSTICE
SWEDEN'S WRITTEN OBSERVATIONS ON
THE ADMISSIBILITY OF ITS DECLARATION
OF INTERVENTION
filed in the Regisuy of the Court
on 13 Febiuary 2023
in the case of
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
COUR INTERNATIONALE DE JUSTICE
OBSERVATIONS ECRITES DE LA SUEDE SUR
LA RECEV ABILITE DE SA DECLARATION
D'INTERVENTION
enregistree au Grcffe de la Cour
le 13 f evrier 2023
clans le cas de
ALLEGATIONS DE GENOCIDE AU TITRE DE LA CONVENTION POUR
LA PREVENTION ET LA REPRESSION DU CRIME DE GENOCIDE
(UKRAINE c. FEDERATION DE RUSSIE)
I. LETTER FROM THE AMBASSADOR OF THE IGNGDOM OF SWEDEN TO
THE IGNGDOM OF THE NETHERLANDS TO THE REGISTRAR OF THE
INTERNATIONAL COURT OF JUSTICE
The Hague, 13 February 2023
Referring to the Cour t's letter, dated 31 January 2023 and signed by the Registrar, I have the
honour to attach my Government's Observations in Reply to the Written Observations, filed
in the Regisuy of the Court by the Russian Federation on 17 October 2022, questioning the
admissibility of the Declaration of Intervention filed by Sweden in the present case on
9 September 2022.
I also attach an instrument sign ed by the Minister for Foreign Affairs appointing a new Agent
of Sweden for the purposes of intervention in these proceedings. I certify that the signatures
on the Observations in Reply are those of the newly appointed .Agent, Ambassador Eli.nor
Hammarskjold, and the previously appointed Co-Agent, Deputy Director Daniel Gillgren.
Finally, I have the further honour to advise that the address for se1-vice, to which all
communications in this matter should be sent, remains that of this Embassy.
Yours sincerely,
J ohannes Oljelund
Ambassador of the Kingdom of Sweden to the Kingdom of the Netherlands
2 (7)
II. APPOINTMENT OF NEW AGENT
Stockholm, 10 Febma1y 2023
For the purposes of intervention pursuant to Article 63 of the Statute of the Court in the
present case before the International Court of Justice, Allegations of Genocide under the
Convention on Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), I hereby appoint Elinor Hammarskjold, Director-General for Legal Affairs,
Ministiy for Foreign Affairs, as new Agent for Sweden replacing Carl Magnus Nesser in that
position. Daniel Gillgren, Deputy Director at the Department for International Law, Human
Rights and Treaty Law within said Ministry, remains the Co-Agent for Sweden.
Tobias Billstrom
Minister for Foreign Affairs
3 (7)
III. OBSERVATIONS IN REPLY TO THE RUSSIAN OBSERVATIONS
I. INTRODUCTION
1. On behalf of the Government of Sweden, and following your letter n°158473 of
31 January 2023, we have the honour to submit to the Court these Observations in Reply to
the Written Observations, .filed in the Registry of the Court by the Russian Federation on
17 October 2022 ("the Russian Observations"), questioning the admissibility of the
Declaration of Intervention filed by Sweden on 9 September 2022 ("the Declaration"), in the
present case concerning .Allegations of Genocide under the Convention on Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation).
2. The Declaration was filed by the Government of Sweden, availing itself of the right
conferred upon it by Article 63, paragraph 2, of the Statute of the Court ("the Statute"), to
intervene in the proceedings that are ongoing in the above-mentioned case ("the
Proceedings"). According to that provision, every State notified by the Registrar in
accordance with Article 63, paragraph 1, of the Statute has the right to intervene in the
proceedings to which the notification refers. The Registrar shall notify State Parties to a
convention the construction of which is in question in a case between other States, in order
for the notified States to have the opportunity to share their views on the issue of
construction before the judgment of the Court is given in that particular case.
3. As shown by the documents annexed to its Declaration, Sweden has been duly notified of
the Proceedings as a State Party to the Genocide Convention ("the Convention"). As will be
demonstrated below, it has also complied with Article 82 of the Rules of Court ("the Rules"),
stipulating the requirements for a State invoking Article 63 of the Statute as the legal basis for
its intervention.
II. THE SWEDISH INTERVENTION IS ADMISSIBLE
4. From Article 82, paragraph 1, of the Rules it is clear that a State relying upon Article 63 of
the Statute as a basis for intervention as soon as possible shall file a declaration to that effect,
signed in the manner provided for in Article 38, paragraph 3, of the Rules. The declaration
shall state the name of an agent, specify the case and the convention to which it relates and
contain those further elements specified in Article 82, paragraph 2, of the Rules, all of which
Sweden has already accounted for in some detail in its Declaration.1
5. As Article 63, paragraph 2, of the Statute indicates, every Party to the Convention so
notified by the Registrar has a .right to intervene in the Proceedings. In line with Article 82,
paragraph 2, of the Rules, this right may be exercised in the present case if the following
objective criteria are fulfilled:
1 The specific requirements of Article 82, paragraph 2, or the Rule~ are presented in lhc Oeclarallon, In Section I, para. 2, at p. 4.
4 (7)
(a) the declarant State must show that it has become a Party_ to the Convention;
(b) the State must in its declaration of intervention identify the particular provisions of
the Convention the construction of which it considers to be in question;
(c) the declaration must contain a statement of the construction of these provisions of
the Convention; and
(d) the declaration must also contain a list of documents in support, which documents
shall be attached to it.
6. In the Declaration submitted by Sweden, the case and convention to which it relates is
clearly stated.2 The Declaration also reveals particulars of the basis on which Sweden
considers itself a Party to the Convention. 3 It furthermore not only identifies the particular
provisions of the Convention, the constmcti.on of which Sweden considers to be in question
in the case, but also contains a statement of the constmction of those provisions for which it
contends, namely Articles I-III and VIII-IX.4 A list of documents in support of the
Declaration is provided as well, and the documents themselves are attached to it.5
7. In the Declaration, signed and delivered to the Court in the proper manner, the name of
the Gove1nment's Agent and Co-Agent is stated.6 As described in it, the Declaration was
filed by these Agents at the earliest opportunity reasonably open to them and the
Government they represent, well in advance of the still future oral stage of the Proceedings.7
Sweden notes that the Court itself has not raised any question regarding its admissibility,
either when acknowledging receipt of the Declaration or at any later point in time.
8. Against this backdrop, the Government of Sweden submits that the criteria in Article 82,
paragraphs 1 and 2, of the Rules, stipulating the requirements to be fulfilled by a State seeking
to exercise its right of intervention under Article 63, paragraph 2, of the Statute, have all been
met by Sweden in the present case. Nothing in the Russian Observations prompts a different
assessment. The fact that an intc1vening State puts forward positions that are in line with
those of one of the Parties to the case, for example, does nol in itself constitute grounds for
inadmissibility.
9. There is furthermore no obstacle to a State referring to bodies of international law other
than the Convention, in order for it to advance its consttuction of those provisions of the
2 Declaration, Secuon IV, paras. 17- 18, at p. 7- 8.
• Declaration. Section V, para. 19, at p. 6.
• Declaration, Sections VI-VII, paras. 20-54, at p. 8- 17.
1 Declaration, Section VIII, para. 55, at. p. 17-18, and Annex, A and B.
1 Declaration, Section IX, para. 58, at p. 18.
7 Declaration, Section 111, para. 15, at. p 7.
5 (7)
Convention for which it contends in its inte1vention.8 Moreover, the underlying political
motivation of a State causing it lo submit a declaration of intervention to the Court is not
relevant to the issue of admissibility. There is thus no subjective test of the genuine intentions
of the intervenor that needs to be performed. 9
10. As long as each intervenor meets the objective criteria applicable to it, there is no upper
limit to the number of interventions that the Court can admit in a single case. The ,issertion
by the Russian Federation that the Court historically has admitted only one intervenor per
case is misleading. To the best knowledge of Sweden, the Court has never refused a
declaration of intervention because it had already allowed the intervention of another State.
For the Cow:t to declare an intervention inadmissible because another State had already
intervened would be arbitrary and discriminatOLy.
11. As the Court is well aware, there are no circumstances under which intervention under
Article 63 of the Statute can entail the intervenor becoming a Party to the proceedings in its
own right. Therefore, in principle, such an intervention cannot affect the equality of the
Parties to the dispute, since the role of the intervenor is limited to submitting observations on
the construction of those provisions of a convention that is in question in a case.10
12. As Sweden has al.ready elaborated upon in its Declaration, States are furthermore not
prohibited from making inte1ventions during the preliminary stage of these Proceedings.
There is nothing that bars either Sweden or the other intervenors from addressing
jurisdictional matters and the Court may choose to decide on admissibility of the
interventions before considering Russia's preliminary objections.11
13. Sweden therefore invites the Court to declare the Swedish intervention admissible, and
reiterates its request to be provided with copies of all pleadings filed by the Parties, as well as
any annexed documents, in line with Article 86, paragraph 1, of the Rules.
III. CONCLUSION
14. To conclude, the Government of Sweden, having appointed the undersigned as Agents
for the purposes of intervention in the Proceedings, still avails itself of the right conferred
upon it by Article 63, paragraph 2, of the Statute to intervene as a non-party in this case
against the Russian Pedcration brought to the Court by Ukraine. No valid arguments have
been presented, in the Russian Observations or otherwise, giving the Court reason to declare
the Swedish intervention inadmissible. In fact, and on the contrary, no such reason exists.
• On the contrary, such technique is not only permissible under international law, but also necessary. According to Article 31 of the
Vienna Convenllon on the Law of Treaties, the Interpretation of a treaty shall Include "any relevant ruins of international law
applicable In tho relations between the parties•. Such operation does not, in other words, transcend the boundaries of Article 63 of
the Statute, but stays within the requirement of constructing the Convention at Issue in nne with accepted rules of treaty
interpretation.
° Compare what is slated In the Russian Observations, Part II, Section A, p. 9-20.
10 See Russian Observations, Part 11, Section B, p. 20-26.
11 Russian Observations, Part II, SecUon C, p. 27-33.
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15. As Agents of the Swedish Government, we wish to inform the Court that we are able and
willing to assist the Court in grouping our intervention with similar interventions from other
States for the upcoming stages of the Proceedings, should the Court deem such a move
useful in the interest of good and expedient administration of justice.
16. For reasons of clarity, we would also like to underline that Sweden maintains all its
statements in the Declatati.on, signed by the former Agent, and the submissions contained
therein.
17. We remain at the Court's disposal and kindly asks that it continue to channel all
communication through us at the following address:
Embassy of Sweden
Postbus 85601
2508 CH Den Haag
Respectfully,
Elinor Hammarskjold
Agent of the Swedish Government
~
Co-Agent of the Swedis Government
7 (7)
Written Observations of Sweden on the admissibility of its Declaration of Intervention