INTERNATIONAL COURT OF JUSTICE
WRITTEN OBSERVATIONS OF THE CZECH REPUBLIC
ON THE ADMISSIBILITY OF THE DECLARATION OF INTERVENTION OF THE
CZECH REPUBLIC
of 13 February 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)
I. Introduction, compliance with the requirements of Article 63 of the Statute of the
International Court of Justice
1. With reference to the letter of the Registar of the International Court of Justice (hereinafter
as the "Registrar") No. 157778 of 16 December 2022, transmitting copies of the Written
Observations of Ukraine of 16 December 2022 and the Written Observations of the Russian
Federation of 16 December 2022 on the admissibility of the Declaration of Intervention of
the Czech Republic of 21 October 2022 in the case of Allegations of Genocide under
the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter as
the "Declaration of Intervention"), and the Registar's letters No. 158449 of 31 January 2023,
fixing 13 February 2023 as the time-limit for the Government of the Czech Republic to submit
observations in reaction to objections of the Russian Federation to the admissibility of
the Declaration of Intervention, the Government of the Czech Republic provides its following
observations on the admissibility of its Declaration of Intervention.
2. According to Article 63 of the Statute of the International Court of Justice (hereinafter as the
"Statute"), every state notified by the Registrar, when the construction of a convention to which
states other than those concerned in the case are parties is in question, "has the right to intervene
in the proceedings". The Czech Republic, as one of the Contracting Parties to
the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter as
the "Genocide Convention"), received the notification by the Registar, contemplated by Article
63, paragraph 1 of the Statute, on 30 March 2022, which gave rise to the right of the Czech
Republic to intervene in the present case under Article 63, paragraph 2 of the Statute, if
the specified conditions for the admissibility of such intervention are met.
3. Further, Article 82 of the Rules of Court provides, that a State which desires to avail itself of
the right of intervention conferred upon it by Article 63 of the Statute shall file a declaration to
that effect, and sets forth conditions as regards the timing, form and content of such declaration
of intervention. The Declaration of Intervention of the Czech Republic meets all conditions set
forth in this Article: The Czech Republic filed its Declaration oflntervention before the opening
of the oral proceedings; specified the details of being a Contracting Party to the Genocide
Convention; identified particular provisions of the Genocide Convention the construction of
which it considers to be in question; provided a statement of the construction of those
provisions; and provided a list of documents in support its Declaration of Internvetion and
annexed them to it.
4. Therefore, the Declaration of Intervention of the Government of the Czech Republic under
Article 63 of the Statute is submitted in the use of the right conferred by Article 63 ofthe Statute,
and meets all the the conditions set forth in Article 82 of the Rules of Court.1
II. The object of the Declaration of Intervention is the construction of the Convention
5. In its Written Observations on Admissibility of the Decarations of Intervention submitted by
Croatia and the Czech Republic, the Russian Federation first argues that the Declaration of
Intervention of the Czech Republic is not genuine, since its real object is not the construction
of the Genocide Convention, but pursuing a joint case with Ukraine.2
6. The Czech Republic submits that the motive underlying the decision to file the Declaration
of Intervention is irrelevant for the exercise of the right to intervene in the proceedings under
Article 63 of the Statute. The Czech Republic cannot legally pursue a joint case with Ukraine,
since it does not advocate side-by-side with Ukraine as "de-facto co-applicant" in
the proceedings. It filed the Declaration of Intervention on the basis of its status as one of
the Contracting Parties to the Genocide Convention, and the Declaration of Intervention is
limited to submitting observations on the construction of the Genocide Convention. The real
interest of the Czech Republic lies indeed in the construction of the Genocide Convention,
which protects the fundamental values of the international community as a whole, as will be
commented on below.
III. Maintaining the principle of equality of the Parties before the Court
1 Whaling in the Antarctic (Australia v. Japan), Declaration oflntervention of New Zealand, Order of 6 February
2013, I.CJ. Reports 2013, pp. 5-6, para. 8.
2 The Russian Federation's Written Observations of 16 December 2022 on Admissibility of the Decarations of
Intervention submitted by Croatia and the Czech Republic, paras 11-30.
7. The Russian Federation further argues that conferring on the Declarants the status of
interveners would seriously impair the principle of equality of the Parties before
the International Court of Justice (hereinafter as the "Court") and be contrary to
the requirements of good administration of justice.3
8. In this regard, the Czech Republic would like to point to the jurispridence of the Court
according to which the proper interventions under Article 63 of the Statute are limited to
submitting observations on the construction of the convention in question and are not allowed
to deal with any other aspect of the case before the Court. When these conditions and limitations
are met, Article 63 of the Statute confers a right of intervention on the interevening State.4
The Court confirmed that such interventions cannot affect the equality of the Parties to
the dispute.5
9. At the same time, the Czech Republic, being aware of the administrative burden associated
with these proceedings before the Court, expressed its willingness to coordinate its further
action before the Court with other interveners, in order to contribute to an effective management
of time of the Court and both Parties. 6
IV. The admissibility of the Declaration of Intervention at the jurisdictional phase of
proceedings before the Court
10. In its Written Observations, the Russian Federation further contests the admissibility of
intervention at the jurisdictional phase of proceedings before the Court, i.e. in a stage of
the proceedings in which the jurisdiction of the Court or the admissibility of an application are
challenged on the basis of the preliminary objections by the other party to the proceedings.7 In
this regard, the Russian Federation objects to the Declaration of Intervention of the Czech
Republic also on the alleged ground that the Declaration of Intervention addresses in effect
3 Russian Federation's Written Observations, paras. 31-48.
4 Whaling in the Antarctic, Order of 6 February 2013 (fn. 1 ), p. 5., para. 2.
5 Whaling in the Antarctic, Order of6 February 2013 (fn. 1), p. 10, para. 18 and para 7.
6 Declaration of Intervention, para. 16.
7 Russian Federation's Written Observations, paras. 49-68.
matters which presuppose that the Court has jurisdiction in this case and that Ukraine's
application is admissible. 8
11. The Government of the Czech Republic, in its Declaration of Intervention, contended that
the general wording of Article 63 of the Statute implies that it is applicable in all phases of
the proceedings in a given case, both at the jurisdictional stage and the stage of the dispute on
the merits, and it still adheres to this interpretation of Article 63 of the Statute.9 The conclusion
that it is possible for a third state to make a request to intervene under Article 63 of the Statute
at the phase of the proceedings concerning the issues of jurisdiction and admissibility, is also
supported by authoritative legal scholarship. 10
12. Further, contrary to the allegations in the Written Observations of the Russian Federation, 11
the Declaration of Intervention concerns only the interpretation of Article IX as
the jurisdictional clause of the Genocide Convention. Thus, the Declaration oflntervention does
not presuppose in effect that the Court has jurisdiction in this case, or, in other words, it does
not address itself "in effect to matters ... which presuppose that the Court has jurisdiction to
entertain the dispute" between Ukraine and the Russian Federation, as pronounced by
the Court in its Order on the Declaration of Intervention of the Republic El Salvador in the case
of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America). 12 Also, the Declaration of Intervention does not prejudice any possible conclusion
by the Court on the responsiblity for a violation of the Convention, i.e. conclusion on the merits
of the case. It appears that, in the case of Military and Paramilitary Activities in and against
Nicaragua, the Court rejected El Salvador's declaration as inadmissible during the
jurisdictional phase because and only insofar as the declaration did not contain any construction
of the jurisdictional basis of the case. Therefore, the Government of the Czech Republic submits
that the conclusions by the Court in Military and Paramilitary Activities in and against
Nicaragua concerning the admissibility of El Salvador's intervention, referred to in the Russian
Federation's Written Observations, 13 are not applicable in this case.
8 Russian Federation's Written Observations, paras. 69-80.
9 Declaration oflntervention, para. 22.
10 A Miron, C Chinkin, 'Article 63 ', in A Zimmermann et al (eds), The Statute of the International Court of Justice:
A Commentary (3rd edn; OUP 2019), p. I 763.
11 Russian Federation's Written Observations, paras. 77-79.
12 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration oflntervention, order of4 October 1984, I.CJ. Reports 1984, p. 215.
13 Russian Federation's Written Observations, paras. 49, 51, 62 and 68.
13. On the basis of these observations, the Government of the Czech Republic submits that
under Article 63 of the Statute, a Contracting Party has the right to intervene also at the
jurisdictional phase of the proceedings before the Court, when the construction of
a convention's jurisdictional clauses are concerned. Therefore, the Government of the Czech
Republic contends that the filing of a Declaration of Intervention of the Czech Republic
pursuant to Article 63 is admissible at this stage of the proceedings before the Court.
V. Admissibility of the Declaration of Intervention in respect of Article IX of the Genocide
Convention as a compromissory clause
14. In its further objection to the admissibility of the Declaration oflntervention, the Russian
Federation argues that an intervention cannot relate to Article IX of
the Genocide Convention as a compromissory clause per se, since such clause cannot be the
object of a legal claim stemming from a dispute on its interpretation. 14
15. The admissibility of the intervention (and the respective declaration of intervention) in
relation to a compromissory clause is related to the issue of the admissibility of the (declaration
of) intervention in the jurisdictional phase of the proceedings, which was dealt with in the
previous paragraphs. In this regard, the Government of the Czech Republic submits that, in
the jurisdictional phase of proceedings, when the issue of existence of a dispute and its scope
is addressed on the basis of preliminary objections by a party to proceedings, compromissory
clause is the object of a legal claim stemming from a dispute on its interpretation.
16. As regards the text of Article 63 of the Statute, it does not contain any such limitation of
the admissibility of the intervention, that is, it does not exclude interventions in respect of
compromissory clauses of conventions in question in a given case. Article IX of the Genocide
Convention as a compromissory clause is an integral part of the Genocide Convention and is
an indespensable provision for the fulfilment of the object and purpose of the Genocide
Convention. Thus, disputes concerning the interpretation of Article IX of the Genocide
Convention clearly fall within the scope of cases, in which "the construction of
14 Russian Federation's Written Observations, paras. 81-97.
a convention to which states other than those concerned in the case are parties is in question",
as provided for by Article 63 of the Statute.15
17. In addition, in this particular case, the interpretation of the compromissory clause is of
paramount importance for the international community, despite its "merely" jurisdictional
character. The Court already found and confirmed that the prohibition against genocide is a ius
cogens norm of international law and that the provisions of the Genocide Convention impose
obligations erga omnes. Thus, all States Parties to the Genocide Convention have a common
interest in proper interpretation, application and fulfilment of the provisions of the Genocide
Convention. The Czech Republic decided to exercise its right to intervene in the proceedings
under Article 63 of the Statute in order to support the Court in upholding the integrity of
the Genocide Convention, namely its Article IX on the peaceful settlement of disputes. This
Article is a broad jurisdictional clause, allowing the Court to adjudicate upon disputes between
Contracting States relating to all aspects of interpretation, application or fulfilment by
a Contracting Party of its obligations under the Convention.
18. The Government of the Czech Republic, in its Declaration of Intervention, stated that
Article IX of the Genocide Convention reflects and specifies fundamental and universal
normative international law principle of peaceful settlement of disputes, enshrined in
the Charter of the United Nations, for the purposes of the Genocide Convention. It also
highlighted that whenever a Contracting Party believes that another Contracting Party acts in
violation of any provision of the Genocide Convention, the only remedial action available, on
a bilateral basis, to the former Contracting Party under the Genocide Convention would be
the initiation of the dispute relating to the interpretation, application or fulfilment of
the Genocide Convention under Article IX of the Genocide Convention.
19. Theferore, the Czech Republic focused in its Declaration oflntervention on the construction
of Article IX ofthe Genocide Convention and argued that disputes concerning allegations by a
Contracting Party whether another Contracting Party has engaged in conduct contrary to the
Genocide Convention or not, where that applicant has requested the Court to make a finding
that it has not committed such acts, fall within the scope of Article IX of the Genocide
Convention asa dispute "relating to the interpretation, application or fulfilment of the present
15 For similar opinions in the legal scholarship see Hugh Thirlway, The Law and procedure of the International
COurt of Justice: Fifty Years of Jurisprudence, Volume I (2013), p. I 031.
Convention". The Government of the Czech Republic submits that such construction of Article
IX of the Genocide Convention also contributes to the fulfillment of common interest of
the international community in resolving international disputes by peaceful means, in
accordance with Article 33 of the Charter of the United Nations. Such construction of Article
IX of the Genocide Convention also supports good faith performance of the Genocide
Convention, including the obligation of the peaceful settlement of disputes, reflected in Article
IX of the Genocide Convention, and has a preventive effect in respect of possible other, illegal
courses of action and abuses of the Genocide Convention's authority to justify a Contracting
Party's action vis-a-vis another Contracting Party outside the framework of the Genocide
Convention. 16
20. Accordingly, the Czech Republic submits that the Declaration of Intervention relating to
Article IX of the Genocide Convention as a compromissory clause is admissibile.
VI. Other issues related to the construction of Article IX of the Genocide Convention
21. The Russian Federation also objects that the Declaration oflntervention allegedly addresses
issues (such as the the existence or otherwise of a dispute between Ukraine and the Russian
Federation, allegations of genocide, the application of the principle of good faith in the
performance of the Convention, the notion of abuse of rights, or the use of force), which are
allegedly unrelated to the construction of the Convention and the admission of which would
prejudge questions relating to the Court's jurisdiction ratione materiae. 17
22. The Government of the Czech Republic contends that the issues addressed in its Declaration
of Intervention are relevant for the contextual construction of Article IX of the Genocide
Convention at the jurisdictional phase of the present proceedings. Such a construction is
necessary for the purpose of the assessment of the Court's jurisdiction under Article IX of
the Genocide Convention over conduct contemplated by substantive provisions of
the Convention.
16 Declaration of Intervention, paras. 29-31 .
17 The Russian Federation's Written Observations, paras. 98 - 108.
23. The contextual interpretation of Article IX of the Genocide Convention, in accordance with
Article 31 of the Vienna Convention on the Law of Treaties, and consideration of all issues
relevant for such interpretation of compromissory clause need to be performed at the
jurisdictional phase of the proceedings before the Court. Therefore, referring to these issues in
the Declaration of Intervention, as already observed above, in no way means that
the Declaration of Intervention prejudges questions relating to the Court's jurisdiction ratione
materiae, or address matters which presuppose that the Court has jurisdiction in this case.
24. In light of the above, the Czech Republic sumbits that the issues, referred to in the Russian
Federation's Written Observations as unrelated to the construction of the Convention, are in
fact intrinsically related to and highly relevant for the construction of Article IX of the Genocide
Convention.
VII. Conclusion
25. For the above reasons, the Czech Republic submits that its Declaration oflntervention under
Article 63 of the Statute is admissible, and that it is admissible in relation to the jurisdictional
phase of the proceedings in which the jurisdiction of the Court or the admissibility of an
application are considered.
Respectfully,
Emil Ruffer
Director of the International Law Department
Ministry of Foreign Affairs of the Czech Republic
Agent of the Government of the Czech Republic
Written Observations of Czechia on the admissibility of its Declaration of Intervention