Written observations of Malta on the subject-matter of its intervention

INTERNATIONAL COURT OF JUSTICE
Written Observations of
MALTA
3 July 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)
2 117
I. INTRODUCTION
1. On the 24 November 2022, the Republic of Malta submitted its Declaration oflntervention
and on 5 June 2023, the International Court of Justice ("the Court") decided that the
declarations of intervention under Article 63 of the Statute of the Court ("the Statute")
submitted by, among others, Malta ("Order on Admissibility of the Declarations of
Intervention") in the case concerning Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)
("the Proceedings") were admissible1. The Court fixed 5 July 2023 as the time limit for the
filing of the written observations referred to in Article 86, paragraph 1, of the Rules of the
Court ("the Rules")2.
2. Malta's intervention under Article 63 of the Statute involves the exercise of a right by a
State party to a convention the construction of which is in question before the Court3. As
determined by the Court in the Order on Admissibility of the Declarations of Intervention,
the construction of Article IX and of other provisions of the Convention on the Prevention
and Punishment of the Crime of Genocide ("Genocide Convention")4 concerning the
Court's jurisdiction ratione materiae is in question at the present stage of the Proceedings5.
In accordance with the Order on Admissibility of the Declarations of Intervention, the
written observations will solely concern the construction of Article IX and other provisions
of the Genocide Convention that are relevant for the determination of the Court's
jurisdiction ratione materiae in the Proceedings6. References to other rules and principles
of international law outside the Genocide Convention in the written observations will only
concern the construction of the Convention's provisions, in accordance with the customary
rule of interpretation reflected in Article 31, paragraph 3 (c), of the Vienna Convention on
the Law of Treaties ("Vienna Convention") 7. Malta will not address other matters, such as
the dispute between the Parties, the evidence, the facts or the application of the Genocide
Convention in the present case8
.
3. Upon the Court's invitation to coordinate with other intervening States, Malta has agreed
the substance of its position with Belgium, Luxembourg, Ireland, Sweden, Denmark,
Finland, Estonia and Croatia. Part II of the present written observation is therefore identical
to the corresponding parts of the written observations of these interveners. However, in
1 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (Order of 5 June 2023) https://www.icj-cij.org/sites/default/files/caserelated/
J 81 ii 82-20230605-ORD-0 1-00-EN.odf, paras 99 and I 02(1 ).
2 Ibid, para. 102(3).
3 Ibid, para. 26.
4 Convention on the Prevention and Punishment of the Crime of Genocide ( adopted 9 December 1948, entered
into force 12 January 1951) 78 UNTS 277.
5 Order on Admissibility of the Declarations of Intervention (n 1), p. 26.
6 Ibid, para. 99.
7 Ibid, para. 84.
8 Ibid, para. 84.
3 I I 7
order to be able to meet the strict deadline set by the Court and for logistical reasons, Malta
files the joint content separately in its national capacity.
In addition, Malta submits, in Part IV, complementary observations in connection with the
significance of the link between a textual interpretation of the word "fulfilment" and the
inherent nature of jus cogens norms.
II. CONSTRUCTION OF ARTICLE IX AND OTHER PROVISIONS OF THE
GENOCIDE CONVENTION RELEVANT FOR JURISDICTION RAT/ONE
MATERIAE
4. In its order of 16th March 2022 indicating provisional measures, the Court affirmed its
jurisdictionprimafacie on the basis of Article IX of the Genocide Convention9.
5. Malta wishes to make four observations on the construction of the Genocide Convention at
the present stage of the proceedings.
6. First, applying the rules of treaty interpretation (Article 31 to 33 of the Vienna Convention
that reflect rules of customary international law10
), it is important to recali the broad scope
of Article IX of the Genocide Convention, which includes disputes about the "fulfilment"
of obligations under the Convention.
7. Second, Article IX of the Genocide Convention applies to disputes about abusive
allegations of genocide under the Genocide Convention.
8. Third, Article IX of the Genocide Convention applies to disputes about unlawful action as
a means for prevention and punishment of genocide under the Genocide Convention.
9. Fourth, any party to the dispute may seize the Court under Article IX, including the party
which is the victim of an abusive allegation of genocide or any unlawful action as a means
for prevention and punishment of genocide.
A. Article IX of the Genocide Convention is formulated in broad terms and covers
disputes about the "fulfilment" of the Convention
I 0. Article IX of the Genocide Convention reads as follows:
"Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the responsibility of a
State for genocide or for any of the other acts enumerated in Article IIL shall be submitted
to the International Court of Justice at the request of any of the parties to the dispute."
9 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, paras. 28-49.
10 Arbitral Award of 3 October 1899 (Guyana v. Venezuela) [2023] ICJ Judgment of 6 April 2023 https://www.icjcij.
org/sites/default/files/case-related/171 /171-20230406-JUD-O 1-00-EN.pdt: para. 87.
4117
11 . Malta contends that the notion of "dispute" is already well-established in the case law of
the Court. It concurs with the meaning given to the word dispute as "a disagreement on a
point of law or fact, a conflict of legal views or of interests" between parties 11
. In order for
a dispute to exist, "[i]t must be shown that the claim of one party is positively opposed by
the other"12. The two sides must "hold clearly opposite views concerning the question of
the performance or non-performance of certain international obligations"13
. Moreover, "in
case the respondent has failed to reply to the applicant's claims, it may be inferred from
this silence, in certain circumstances, that it rejects those claims and that, therefore, a
dispute exists"14
.
12. In that respect, the document communicated by the Russian Federation to the Court on 7
March 2022 seems to construe the notion of a dispute unduly narrowly by insisting that
Article IX cannot be used to establish jurisdiction of the Court for disputes relating to the
use of force or issues of self-defence under general international law15
. However, it follows
from the constant jurisprudence of the Court, that certain facts or omissions may give rise
to a dispute that fall within the ambit of more than one treaty16
. Hence, a parallel dispute
arising out of the same facts about the use of force between two States does not create an
obstacle to the jurisdiction of the Court under Article IX of the Genocide Convention,
provided that its other conditions are fulfilled.
13. In particular, such dispute must be "relating to the interpretation, application or fulfilment
of the present Convention". Malta contends that Article IX is a broad jurisdictional clause,
allowing the Court to adjudicate upon disputes concerning the fulfilment by a Contracting
Party of its obligations under the Convention. The inclusion of the word "fulfilment" is
"unique as compared with the compromissory clauses found in other multilateral treaties
which provide for submission of the International Court of such disputes between
Contracting Parties as relate to the interpretation or application of the treaties in question"17.
11 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
12 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21
December 1962, I.CJ. Reports 1962, p. 319, at p. 328.
13 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018, p. 406, at p. 414,
para. 18; ICJ, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3, at p. 26, para. 50, citing Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.CJ. Reports 1950, p.
74.
14 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, p. 27, para. 71.
15 Document of the Russian Federation of 7 March 2022, https://www.icj-cij.org/sites/default/files/caserelatedil
82/182-20220805-WRI-0l-00-EN.pdf [8-15].
16 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment of3 February 2021, para. 56.
17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Preliminary Objections, Declaration of Judge Oda, I.CJ. Reports 1996
(II), p. 627, para. 5 ( emphasis in the original).
5 117
14. The ordinary meaning of the phrase "relating to the interpretation, application or fulfilment
of the Convention" may be divided in three sub-categories.
15. The first point ("relating to") establishes a link between the dispute and the Convention.
16. The second point ("interpretation, application or fulfilment of the Convention")
encompasses three terms. While interpretation is typically understood as the process of
'explaining the meaning' of a legal norm, 'application' is the 'action of putting something
into operation' in a given case18
. The term 'fulfilment' partially overlaps with the latter,
and it may be understood to refer to an application that 'meets the requirements' of a
norm 1
9
. Nevertheless, the addition of the term 'fulfilment' supports a broad interpretation
of Article IX20
. It appears that 'by inserting all the three alternative terms, the drafters had
sought to 'give a coverage as exhaustive as possible to the compromissory clause' and to
'close down all possible loopholes'21 .
17. The third point ("of the Convention") makes clear that the compromissory clause refers
back to all the provisions of the Convention. In other words, Article IX does not create
further substantive rights or obligations for the parties; the substantive legal norms that are
subject to the Court's jurisdiction must be found elsewhere in the Convention. At the same
time, the renvoi relates to the entire life of the Convention, including breaches thereo:f'22.
18. For example, there can be a dispute about the interpretation, application or fulfilment of the
Convention when one State alleges that another State has committed genocide23 . In that
scenario, the Court verifies the factual basis for such allegation: if it is not satisfied that
there were any acts of genocide actually being committed by the respondent State, it may
decline its jurisdiction24
.
18 C. Tams, Article IX, note 45, in: Tams/Gerster/Schiffbauer, Convention on the Prevention and Punishment of
Genocide, A Commentary (Beck 2014).
19 C. Tams (n 18), Article IX, note 45.
20 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Joint Declaration of Intervention of the Governments of Canada and the
Kingdom of the Netherlands of7 December 2022, para. 29.
21 C. Tams (note 18), Article IX, note 45; R. Kolb, Scope RationeMateriae, in: Paola Gaeta (ed), The UN Genocide
Convention: A Commentary, (OUP 2009), p. 451.
22 R. Kolb, Scope Ratione Materiae (note 21), p. 453 with an account of the case law.
23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, p. 43, at p. 75, para. 169.
24 Case Concerning Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of2 June 1999,
I.CJ. Reports 1999, p. 363, at pp. 372-373, paras. 24-31. Later, the JCJ declined its jurisdiction on the ground that
Serbia and Montenegro did not have access to the Court, at the time of the institution of the proceedings, under
Article 35 of the Statute (see e.g. ICJ, Case Concerning Legality of Use of Force (Serbia and Montenegro v.
France), Preliminary Objections, Judgment of 15 December 2004, I.C.J. Reports 2004, p. 595).
19. While this scenario of ( alleged) responsibility for acts of genocide constitutes an important
type of dispute about the "interpretation, application or fulfilment" of the Convention, it is
not the only one. In the case Bosnia and Herzegovina v. Yugoslavia, the applicant alleged
several violations of the Convention by the respondent, including a failure to prevent and
punish genocide under Article 125
, and the Court affirmed its jurisdiction ratione materiae26.
In the case The Gambia v. Myanmar (pending), the applicant claims that the respondent not
only bears responsibility for prohibited acts under Article III, but also for violations of its
obligations under the Convention by failing to prevent genocide in violation of Article I;
and failing to punish genocide in violation of Articles I, IV and V27
. In these examples, one
State alleges that another State is not honouring its commitment to "prevent" and "punish"
genocide, because it grants impunity to acts of genocide committed on its territory.
Therefore, there can also be disputes about "non-action" as a violation of the substantive
obligations under Article I, IV and V.
20. The ordinary meaning of Article IX makes it clear that there is no need to establish
genocidal acts as a basis to affirm the Court's jurisdiction. Rather, the Court has jurisdiction
over the question whether genocidal acts have been or are being committed or not2 8.
21. The context of the phrase ("relating to ... ") further confirms this reading. In particular, the
unusual feature of the words "including" in the intermediate sentence indicates a broader
scope of Article IX of the Convention when compared to a standard compromissory
clause29. Disputes relating to the responsibility of a State for genocide or for any of the
other acts enumerated in Article III are therefore only one type of dispute covered by Article
IX, which are "included" in the wider phrase of disputes "relating to the interpretation,
application and fulfilment" of the Convention30
.
22. Hence, the context of the phrase ("relating to") in Article IX confirms that the Court's
jurisdiction goes beyond disputes between States about the responsibility for alleged
genocidal acts, but also covers disputes between States about the absence of genocide and
the about the performance of treaty obligations by one or more State parties. In other words:
25 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, I.CJ. Reports 1996, p. 595, at p.
614, para. 28 and p. 603, para. 4.
26 Ibid, pp. 615-617, paras. 30-33.
27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, p. 12, para. 24, Points (1) (c), d) and (e).
28 A !legations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, p. 10, para. 43; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order of23 January 2020, I.C.J.
Reports 2020, p. 14, para. 30.
29 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 75, para. 169.
30 See also the Written Observations of The Gambia on the Preliminary Objections raised by Myanmar, 20 April
2021, pp. 28-29, para. 3.22 ("The inclusion of disputes "relating to the responsibility of a State for genocide"
among those that can be brought before the Court unmistakably means that responsibility for genocide can be the
object of a dispute brought before the Court by any contracting party").
7 117
"With a view to the question of positive fulfilment, the court has jurisdiction over the
question whether a Contracting Party ( ... )has not violated its obligation to prevent and
punish genocide. In a negative way, the Court can also adjudicate whether a Contracting
Party has failed to fulfil these obligation"31
.
23. Finally, the object and purpose of the Convention gives further support to the wide
interpretation of Article IX. The Court noted that "[a]ll the States parties to the Genocide
Convention [thus] have a common interest to ensure the prevention, suppression and
punishment of genocide, by committing themselves to fulfilling the obligations contained
in the Convention"32
. The erga omnes nature of the obligations under the Convention also
underpins the paramount significance of the text for the international community as a
whole, entrusting the International Court of Justice in 1948 with a particularly important
mission to enforce it in the interest of all States.
24. Famously, in its 1951 Advisory Opinion, the Court held33
:
"The objects of such a convention must also be considered. The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult
to imagine a convention that might have this dual character to a greater degree, since its
object on the one hand is to safeguard the very existence of certain human groups and
on the other to c01ifirm and endorse the most elementary principles of morality. In such
a convention the contracting States do not have any interests of their own; they merely
have, one and all, a common interest, namely, the accomplishment of those high purposes
which are the raison d'etre of the convention. Consequently, in a convention of this type
one cannot speak of individual advantages or disadvantages to States, or of the
maintenance of a perfect contractual balance between rights and duties. The high ideals
which inspired the Convention provide, by virtue of the common will of the parties, the
foundation and measure of all its provisions. "
25. The Convention's object to protect the "most elementary principles of morality" also
requires that a State Party does not to abuse its provisions for other means. It also strongly
supports a reading of Article IX, according to which disputes relating to the interpretation,
application and fulfilment include disputes about the abuse of the Convention's substantive
provisions to justify a State's action vis-a-vis another State party to the Convention. Such
abuse can take two forms: abusive allegations and/or or abusive action, which will now be
examined in the next two sections, being Sections B and C.
31 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Declaration oflntervention of the Principality of Liechtenstein of 15 December
2022, para. 20.
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 36, para. 107.
33 Reservations to the Genocide Convention, Advisory Opinion of28 May 1951, I.C.J. Reports 1951, p. 23 .
8 117
B. Article IX of the Genocide Convention Applies to Disputes About Abusive
Allegations of Genocide
26. Malta now wishes to turn to one of the scenarios of a dispute under Article IX more
precisely, namely the abusive allegation of one State that another State has committed
genocide.
27. In doing so, it has carefully reviewed the question of whether the Convention enables a
State to seize the Court of a dispute concerning allegations of genocide made by another
State.34
28. Malta contends that Article IX of the Genocide Convention applies also to disputes relating
to abusive allegations of genocide, as they raise the question of compliance with Article I
of the Genocide Convention, which provides context for the construction of Article IX.
Article I of the Genocide Convention reads:
The Contracting Parties confirm that genocide, whether committed in time of peace or
in time of war, is a crime under international law which they undertake to prevent and
to punish.
29. According to Article I of the Genocide Convention, all States Parties are obliged to prevent
and punish genocide. As the Court already emphasised, in fulfilling their duty to prevent
genocide, Contracting Parties must act within the limits permitted by international law35.
Moreover, carrying out the duty under Article I must be done in good faith (Article 26 of
the Vienna Convention on the Law of Treaties and general international law36). As the
Court has observed, the principle of good faith "obliges the Parties to apply [a treaty] in a
reasonable way and in such a manner that its purpose can be realized"37. Good faith
interpretation thus operates as a safeguard against misuse of the Genocide Convention. As
"one of the basic principles governing the creation and performance of legal obligations",
good faith is also directly linked to the "trust and confidence [that] are inherent in
international co-operation"38.
34 For a discussion of this question, see e.g. Order on Provisional Measures (n 9), Declaration of Judge Bennouna,
https://www.icj-cij.org/sites/default/files/case-related/l 8?/182-20220316-ORD-0 1-02-EN.pdf, para. 2.
35 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment, I.C.J. Reports 2007, p. 43, at p. 221, para. 430;
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, para. 57.
36 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.CJ.
Reports 1998, p. 275, 296, para. 38: "The Court observes that the principle of good faith is a well-established
principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations; it is
also embodied in Article 26 of the Vienna Convention on the Law of Treaties of23 May 1969."
37 Gabcikovo-Nagyrnaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p. 79, para. 142.
38 Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 7, at p. 142.
30. In Malta's view, the notion of "undertake to prevent" implies that each State Party must
assess whether a genocide or a serious risk of genocide exist prior to taking action pursuant
to Article 139. Such an assessment must be based on substantial evidence.40
31 . Importantly, the UN Human Rights Council called upon a11 States, "in order to deter future
occurrences of genocide, to cooperate, including through the United Nations system, in
strengthening appropriate collaboration between existing mechanisms that contribute to the
early detection and prevention of massive, serious and systematic violations of human
rights that, if not halted, could lead to genocide".41
32. It constitutes good practice to rely on the results of independent investigations under UN
auspices42 before qualifying a situation as genocide.
33. Moreover, the Genocide Convention provides guidance concerning the lawful means by
which the Contracting Parties may prevent and punish genocide. While "Article I does not
specify the kinds of measures that a Contracting Party may take to fulfil this obligation",43
"the Contracting Parties must implement this obligation in good faith, taking into account
other parts of the Convention, in particular Articles VIII and IX, as well as its Preamble".44
Rather than making an abusive allegation of genocide against another State without having
discharged its due diligence obligations, a State may seize the United Nations' political or
judicial organs45.
34. It follows that an abusive allegation by one State against another State runs contrary to the
former State's obligations to apply Article I of the Genocide Convention in good faith and
distort the terms of the Genocide Convention. Accordingly, Article IX also covers such
disputes.
C. Article IX of the Genocide Convention Applies to Disputes About Unlawful Action
as Means for Prevention and Punishment of Genocide
35. Another important scenario of a dispute under Article IX of the Convention concerns
disputes about otherwise unlawful action as a means for the prevention and punishment of
39 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, p. 43, at pp. 221-222, paras.
430-431.
4° Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007, p. 43, at p. 90, para. 209.
41 UN Human Rights Council, Resolution 43/29: Prevention of Genocide (29 June 2020), UN Doc
A/HRC/RES/43/29, para. 11.
42 See for example the reliance of The Gambia on the reports of the Independent International Fact-Finding
Mission on Myanmar established by the UN Human Rights Council before bringing a case to the Court; for details
see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, at pp. 25-27, paras. 65-69.
43 Order on Provisional Measures (n 26), para. 56.
44 Ibid.
45 Order on Provisional Measures (n 26) Separate Opinion of Judge Robinson, para. 30.
10 I l 7
genocide. As described in the previous section, the correct construction of Article I is that
a State is under a due diligence obligation to gather evidence from independent sources
before making any allegation of genocide against another State.
36. In the same vein, a State may not take unlawful action based on such abusive allegations.
37. Rather, the scope of the "undertaking to prevent" should be read in light of the final recital
in the preamble, which emphasizes the need for "international co-operation". Referring to
the preamble is an accepted method of treaty interpretation, as stressed by the Court for
example in the Whaling case46
. Moreover, under Article VIII States may call upon the
competent organs of the UN to take action, and Article IX provides for judicial settlement.
All this speaks in favour of a duty under the Convention to employ multilateral and peaceful
means to prevent genocide. Such reading is in accordance with Chapter VI of the UN
Charter on the peaceful settlement of disputes, the continuance of which is likely to
endanger the maintenance of international peace and security. Article IX also gives effect
to the parties' pre-existing obligations under Article 2(3) of the UN Charter and customary
international law to settle all their disputes peacefully47. Malta emphasizes that all State
Parties shall be engaged in preventing and punishing genocide worldwide for the benefit of
humankind, and not in order to protect their own interests.
38. It follows from the obligation to carry out a good faith assessment of the existence of
genocide or serious risk of genocide that, where a State has not carried out such an
assessment, it cannot invoke the "undertak[ing] to prevent" genocide in Article I of the
Convention as a justification for its conduct. This includes conduct which involves the
threat or use of force, as underlined by the Court in the case Oil Platforms48 .
39. A State may not claim to enforce international law by violating international law. As the
Court explained in the Bosnian Genocide case, already referred to in para. 29 above, "it is
clear that every State may only act within the limits permitted by international law."49 In
other words, Article I of the Genocide Convention imposes an obligation of State Parties
"not only to act to prevent genocide, but to act within the limits permitted by international
law to prevent genocide"50.
46 See e.g. Australia v. Japan (New Zealand intervening), Judgment, I.C.J. Reports 2014, p. 226, at p. 215, para.
56 (referring to the preamble of the International Convention on the Regulation of Whaling to discern its object
and purpose).
47 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Declaration oflntervention of New Zealand of28 July 2022, para. 25.
48 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J.
Reports 1996, pp. 811-812, para. 21. See also Allegations of Genocide under the Convention on the Prevention
and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Declaration of Intervention of
Australia of 30 September 2022, para. 41.
49 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 221, para. 430.
50 Order on Provisional Measures (n 9), Separate Opinion of Judge Robinson, para. 27.
I I I 17
40. In conclusion, the jurisdiction of the Court extends to disputes concerning unlawful action
for the stated purpose of preventing and punishing alleged genocide51
.
D. Any party to the dispute may seize the Court under Article IX of the Genocide
Convention
41. Finally, Malta wishes to comment on the view according to which a State cannot invoke
the compromissory clause under Article IX of the Convention "only to have the Court
confirm its own compliance"52
.
42. As noted in Section B, the concepts of "dispute" and "fulfilment" in Article IX are
sufficiently broad to allow the Court to issue a declaration that the applicant State bears no
responsibility for a breach under the Genocide Convention, as alleged by another State.
Moreover, the plain wording of Article IX confirms that "any of the parties" to the dispute
may seize the Court. Thus, where there is a dispute concerning whether a State
has engaged in conduct contrary to the Genocide Convention, the State accused of such
conduct has the same right to submit the dispute to the Court as the State that has made the
accusation with the effect that the Court will have jurisdiction over that dispute53 .
43. In addition, the already mentioned erg a omnes partes character of the Genocide Convention
speaks against a narrowly construed opportunity to seeking the ''judicial protection before
the Court". On the contrary, such an interpretation would risk precluding a victim State
from seeking relief from the Court in the face of abuses of the Convention. This would
undermine the Convention's credibility and efficiency as a universal instrument for the
prevention of genocide, as well as the role of the Court as a critical avenue for redress
against abuses of the law.
44. More generally, nothing prevents a requesting State from invoking the compromissory
clause of a given Convention to ask the Court for a negative declaration that it has not
breached its international obligations under the Convention in question. For example, in
the Lockerbie case, Libya had requested several Court findings that it had complied with
Articles 5, 6 and 7 of the of the 1971 Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation on the basis of Article 14 of the Convention54.
The United States objected and argued that none of the provisions quoted by the applicant
concerned obligations binding upon it as respondent55. The Court rejected the preliminary
51Order on Provisional Measures (n 9), p. 11, para. 45;
52 Order on Provisional Measures (n 9), Declaration of Vice-President Gevorgian para. 8.
53 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Declaration of Intervention of the United Kingdom of 1 August 2022, para. 34;
Declaration of Intervention of Australia of 30 September 2022, paras. 35-36; Declaration of Intervention of
Norway of 10 November 2022, para. 21.
54 Questions of Interpretation and Application of the 1971 Montreal Convention arisingfrom the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v United States of America), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 115, at p. 123, para. 25.
55 Ibid, p. 124, para. 26
12 111
objection. It held that there was a specific dispute before it on the interpretation and
application of Article 7 - read in conjunction with Article 1, Article 5, Article 6, and Article
8 of the Montreal Convention-, which fell to be decided by the Court on the basis of Article
1456. The Court thus assumed jurisdiction over the applicant's request that it had not
violated the Montreal Convention.
45. Moreover, Malta notes that it may not even be necessary for the Court to enter into a
discussion, on whether Article IX also covers "non-violation complaints". In its
application, Ukraine respectfully requests the Court to:
"(a) Acijudge and declare that, contrary to what the Russian Federation claims, no acts
of genocide, as defined in by Article III of the Genocide Convention have been committed
in the Luhansk and Donetsk oblasts of Ukraine ".
(b) Adjudge and declare that the Russian Federation cannot lawfully take any
action under the Genocide Convention in or against Ukraine aimed at
preventing or punishing an alleged genocide, on the basis of its false claims of
genocide in the Luhansk and Donetsk oblasts of Ukraine.
(c) Adjudge and declare that the Russian Federation's recognition of the
independence of the so-called 'Donetsk People's Republic' and 'Luhansk
People's Republic' on 22 February 2022 is based on a false claim of genocide
and therefore has no basis in the Genocide Convention.
(d) Acijudge and declare that the 'special military operation' declared and
carried out by the Russian Federation on and after 24 February 2022 is based
on a false claim of genocide and therefore has no basis in the Genocide
Convention.
(e) Require that the Russian Federation provide assurances and guarantees of
non-repetition that it will not take any unlawful measures in and against
Ukraine, including the use of force, on the basis of its false claim of genocide.
(I) Order full reparation for all damage caused by the Russian Federation as a
consequence of any actions taken on the basis of Russia's false claim of
genocide."
46. While it is for the Court to clarify the precise meaning of the requests, none of the reliefs
sought expressly mention the question of "compliance" of Ukraine with the Genocide
Convention. In particular, point (a) could also be understood as a request to the Court to
declare that Russia's allegation that genocide had been taken place in the o blasts of Donetsk
and Luhansk were abusive. Under such reading, the jurisdiction of the Court would have
to be ascertained in line with the interpretation of Article IX of the Genocide Convention
advanced in Section C above.
56 Ibid, p. 127, para. 28.
III. SYNTHESIS OF THE MAIN ARGUMENTS POSTULATED IN PART II.
47. Malta puts forward four observations on the construction of the Genocide Convention.
First, Article IX thereof is formulated in broad terms to include disputes about the fulfilment
of obligations under the Genocide Convention. Second, it applies to disputes relating to
abusive allegations of genocide under the Genocide Convention. Third, it also applies to
disputes about otherwise unlawful action as a means for prevention and punishment of
genocide under the Genocide Convention. Fourth, any party to the dispute may seize the
Court under Article IX, including the party who is the victim of an abusive allegation or
unlawful action as a means for prevention and punishment of genocide.
48. Irrespective of any textual interpretation thereof, 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 abusive
claims of genocide falls under the notion of "dispute between Contracting Parties relating
to the interpretation, application or fulfilment of the present Convention". Accordingly, the
Court has jurisdiction to declare the absence of genocide and the violation of a good faith
performance of the Genocide Convention. Moreover, the jurisdiction of the Court extends
to disputes concerning unlawful action for the stated purpose of preventing and punishing
alleged genocide. The fact that this case deals directly with genocide leads Malta to its next
argument, postulated in Part IV here below.
IV. THE NEXUS BETWEEN A TEXTUAL INTERPRETATION OF THE WORD
"FULFILMENT" AND THE INHERENT NATURE OF JUS COGENS NORMS.
49. At the outset of its additional argument, Malta wishes to recall that:
"In its Article 36, the ICJ Statute envisages three main forms of expressing consent: by
virtue of a special agreement ( compromis ); by way of a unilateral declaration recognising
the jurisdiction of the Court (so-called 'optional clause declarations'); and through a
treaty clause envisaging the submission of disputes to the Court (so-called
'compromissory clauses'). Article IX belongs to the third category; it is one of the many
compromissory clauses establishing (as Article 36 para. 1 of the ICJ Statute puts it) 'the
jurisdiction of the Court [over] ... all matters specially provided for in ... treaties and
conventions in force.' Article 36 para. 1 of the ICJ Statute thus may be seen as an
'enabling clause' allowing States to rely on the Court as an agency of dispute
resolution - and of course; it equally permits them to make the exercise of that
jurisdiction subject to specific conditions. Article IX makes use of that enabling clause
and also clarifies the scope of the Court's jurisdiction by describing the types of disputes
that can be brought before the Court, viz. those concerning the 'interpretation, application
or fulfilment of the . . . [Genocide] Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in Article
III.' As will be shown below, compared to other compromissory clauses, it is a fairly
14 ! 17
straight-forward jurisdictional clause that does not make that jurisdiction subject
to further, special conditions."57 (emphasis added)
50. Compromissory clauses in treaties habitually make use of the terms "interpretation" and
"application". The Genocide Convention deliberately inserts another word in its
compromissory clause, namely the word "fulfilment". The gist, import, and added value of
this word must not be underestimated and is not coincidental. 58
51. The word "fulfilment" denotes a more holistic approach towards the very same application
of the Convention since it mirrors the general tenet of effet utile. It construes the
Convention in a homogenous manner in order to ensure that each and every provision
thereof is not dealt with in isolation. This reasoning is embraced both by a literal (textual)
interpretation of the Convention and a logical (purposive) interpretation of the Convention.
52. The insertion of the word "fulfilment" needs to be assessed in the light of general principles
of international law which constitute a source of international law under Article 38 (1) ( c)
of the Statute of the International Court of Justice. Mention must be made of two important
legal maxims which shed a light on the relevance and significance of the word 'fulfilment'
in the context of the Convention, namely, ubi lex voluit dixit, and ubi noluit tacuit. The
travaux preparatoires manifest that "the word 'fulfilment' referred to the compliance or
non-compliance of a party with the provisions of the Convention. The word 'fulfilment'
therefore had a much wider meaning than the word 'application' 59. The travaux
preparatoires reveal, in particular, "that the word 'application' included the study of
circumstances in which the convention should or should not apply, while the word
'fulfilment' referred to the compliance or non-compliance of a party with the provisions of
the Convention."60 The elasticity of the word 'fulfilment' is unmasked not only when
compared to the word 'application', but also when compared to the word 'interpretation'.
The latter term, 'interpretation', describes "the process of establishing the true meaning of
a treaty",61 whereas 'fulfilment' describes the extent to which the true meaning, scope and
spirit of the treaty are executed, implemented, enforced and complied with by its signatories
thereto.
57 C. J. Tams, 'Article IX' in C.J. Tams/L. Berster/B.Schiffbauer (eds.), Convention on the Prevention and
Punishment of the Crime of Genocide: A Commentary (Verlag C.H. Beck oHG, Hart Publishing and Nomos
Verlagsgesellschaft mBH 2014), pp. 303-304.
58 Vide also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Declaration of Judge Oda, I.C.J. Reports
1996 (II), p. 627, para. 5 (emphasis in the original).
59 Official records of the Third Session of the General Assembly, part L Legal Questions, Sixth Committee,
Summary Records of Meetings 21 September- JO December 1948, p. 437.
60 Official records of the Third Session of the General Assembly, part L Legal Questions, Sixth Committee,
Summary Records of Meetings 21 September - 10 December 1948, p. 43 7, cited in R. Kolb, "The Scope Ratione
Materiae of the Compulsory Jurisdiction of the ICJ", in P. Gaeta (ed), The UN Genocide Convention: A
Commentary, (OUP 2009), p. 452.
61 0. Dorr, "Article 31: General rule of interpretation", in 0. Dorr and K. Schmalenbach, Vienna Convention on
the Law of Treaties: A Commentary, (Springer 2012), p. 522.
15 ) 17
53. In Malta's view, the emphasis on "compliance" within the concept of "fulfilment"
induces and proiects the interpretation of Article IX of the Genocide Convention on
the rudimentary nature of the underlying legal provisions, in particular on the fact that
the prohibition of genocide enjoys the status ofjus cogens.
54. The hierarchical supremacy of such prohibition over other norms of international law
entails that this Honourable Court, entrusted to ensure the application, interpretation, and
fulfilment of treaties in good faith, in terms of Article 36(1) of the Statute of the
International Court of Justice, may adopt a more teleological approach in analysing the
basis (grounding) of its own jurisdiction. This would be consonant with the assertion that
"the fact of the matter is that in respect of its own procedures, and indeed of its own powers,
the Court is free to develop the law."62 On the same vein, "the power of courts to determine
their own jurisdiction is seen as inherent: and it is recognised in Article 36 para. 6 of the
ICJ Statute,"63 which establishes the Kompetenz-Kompetenz of the Court. To this effect,
"the fact that tribunals have considered the making of such rulings to be within their
jurisdiction suggests that tribunals should uphold their jurisdiction over claims seeking a
declaration that some treaty provision is applicable."64 In other words, any doubt as to the
existence or otherwise of its jurisdiction should be quelled to allow this Honourable Court
to exercise jurisdiction accordingly, particularly in view of the "cardinal importance ofjus
cogens for the international legal order."65 To put it differently, the rejection of jurisdiction
in this case could undermine the special status attached to ius cogens norms within the
international legal order, as enshrined in Article 53 of the Vienna Convention on the Law
of Treaties.
55. It follows that compromissory clauses which refer to provisions of ajus cogens nature, such
as Article IX of the Genocide Convention, should not be interpreted restrictively. 66
62 H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence, Volume
II, (OUP 2013), p. 1736.
63 Nottebohm case (preliminary objections), ICJ Reports 1953, 111, 119, cited in C. J. Tams, 'Article IX' in CJ.
Tams/L. Berster/B.Schiflbauer (eds.), Convention on the Prevention and Punishment of the Crime of Genocide:
A Commentary (Verlag C.H. Beck oHG, Hart Publishing and Nomos Verlagsgesellschaft rnBH 2014), p. 305.
64 C. Harris, Incidental Determinations by International Courts and Tribunals: Subject-Matter Jurisdiction and
Applicable Law in Proceedings Under Compromissory Clauses, Ph.D. thesis, (Sydney Law School, University of
Sydney 2022), p. 56.
65 M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, 'Article 53', (Martinus
Nijhoff Publishers 2009), p. 678.
66 J. I. Charney, Compromissory Clauses and the Jurisdiction of the International Court of Justice, American
Journal oflnternational Law, Vol. 81, No. 4, (American Society oflntemational Law 1987), p. 870.
16 I 17
56. Moreover, the undisputed customary international law status of the prohibition of
genocide should be taken into account when interpreting Article IX of the Convention.
This status did not develop only recently. On the contrary, ' ... the prohibition of state
genocide existed at customary international law at the time of the conclusion of the
Genocide Convention. ' 67 In fact, it has been stated, that:
"Therefore, under the Genocide Convention, as it is with The Gambia v. Myanmar case,
the jurisdictional link is found in Article IX of the Convention. With regard to the
prohibition of genocide under general international law, as it has been argued, it would
be possible to bring a dispute before the ICJ provided that the involved States are bound
by a jurisdictional link broad enough so as to include disputes arising from customary
international law." 68
57. In substantiation of the same, the International Court of Justice can take into account
"international customary law in order to determine the precise scope of a treaty that it was
asked to interpret and apply on the basis of a compromissory clause."69 The unique nature
of the compromissory clause within the Genocide Convention, 70 coupled with its customary
law status and the hierarchical superiority of its juxtaposition within the parameters of the
relative corpus Juris, being public international law, makes "it easier to bring a state before
the ICJ to investigate potential breaches of the Genocide Convention than war crimes or
crimes against humanity. "71
67 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
[1951] ICJ Rep 15, 23, cited in K. N. Trapp, Holding States Responsible for Terrorism before the International
Court of Justice, Journal oflnternational Dispute Settlement, Vol. 3, No. 2, (OUP 2012), p. 290.
68 R. F. Corrales, In the Pursuit of High Purposes: The International Court of Justice, Obligations Erga Omnes
and the Prohibition of Genocide, Law and Practice of International Courts and Tribunals, Vol 22, (Koninklijke
Brill, Leiden, 2023), p. 89.
69 E. Cannizzaro and B. Bonafe, Fragmenting International Law through Compromissory clauses? Some remarks
on the decision of the ICJ in the Oil Platforms case, European Journal oflntemational Law, Vol 16, Issue number
3, (OUP 2005), p. 493.
70 This has been aptly described as 'an increasingly rare example of a straightforward compromissory clause'
(emphasis added) by C. J. Tams, 'Article IX' in CJ. Tams/L. Berster/B.Schiffbauer (eds.), Convention on the
Prevention and Punishment of the Crime of Genocide: A Commentary (Verlag C.H. Beck oHG, Hart Publishing
and Nomos Verlagsgesellschaft mBH 2014), p. 315.
71 C. J. Tams, 'Article IX' in C.J. Tams/L. Berster/B.Schiffbauer (eds.), Convention on the Prevention and
Punishment of the Crime of Genocide: A Commentary (Verlag C.H. Beck oHG, Hart Publishing and Nomos
Verlagsgesellschaft mBH 2014), p. 295.
17 I 17
V. SYNTHESIS OF THE MAIN ARGUMENTS POSTULATED IN PART IV.
58. In a nutshell, Malta argues that the interpretation of Article IX of the Genocide Convention
should reflect the peremptory character of the prohibition of genocide, which is also rooted
in general international law. Given that disputes about the "fulfilment" of the Genocide
Convention raise questions of "compliance" with other norms of the Convention, the
interpretation of Article IX should take into account the }us cogens status attached to the
norms deriving from the Genocide Convention itself. Therefore, in so far as 'fulfilment'
refers to compliance, which hinges on the norm to be complied with, and inevitably also
on the inherent nature of this norm, the peremptory dimension of the norm prohibiting
genocide is certainly relevant for the purposes of the interpretation of the Genocide
Convention itself.
VI. CONCLUSION.
59. Malta submits the present written observations for the kind attention and learned
consideration of this Honourable Court.
Respectfully,
Christopher Soler
STATE ADVOCATE
AGENT OF THE GOVERNMENT OF MALTA