INTERNATIONAL COURT OF JUSTJCE
WRITTEN OBSERVATIONS
ON ARTICLE IX AND OTHER PROVISIONS OF THE
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
RELEVANT FOR THE DETERMINATION OF THE
JURISDICTION OF THE COURT
(Artjcle 86, paragraph 1, of the Rules of Court)
OF THE GOVERNMENT OF ITALY
28 June 2023
ALLEGATJONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTJON
AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
COUR INTERNATIONALE DE JUSTICE
OBSERVATIONS ECRITES
SUR L' ARTICLE IX ET D' AUTRES DISPOSITIONS
DE LA CONVENTION POUR LA PREVENTION ET
LA REPRESSION DU CRIME DE GENOCIDE
PERTINENTES AUX FINS DE LA DETERMINATION
DE LA COMPETENCE DE LA COUR
(Article 86, paragraphe 1, du RegJement de la Cour)
DU GOUVERNEMENT DE L'ITALIE
28 juin 2023
ALLEGATIONS DE GENOCIDE AU TITRE DE LA CONVENTION POUR LA
PREVENTION ET LA REPRESSION DU CRIME DE GENOCIDE
(UKRAINE C. FEDERATION DE RUSSI£)
Table of Contents
Introduction ........................................................ ...................................................... , ............................. .. .... 3
I. Principles of treaty interpretation ................. .... ... .................................................................................... 4
11. Provisions of the Convention in question in the case .............................................................................. 7
A. Article IX .... ....................................................................................... , ...... , ... , ................................. ... 7
I. The notion of"dispute" ................................................................................................................ 8
2. The notion of " interpretation, application or fulfilment" ............................................................. 9
3. The notion of "the present Convention" .................................................................................... 12
4. The notion of"any Party" .......................................................................................................... 13
5. Conclusion ................................................................................................................................. 15
B. Other provisions of the Conventions relevant for assessing the jurisdiction of the Court.. ............ I 5
Ill. Conclusion ................... ................. .............................. ............. ................... ..... ... .................................. 20
2
)N·1 RODUCI ION
1. On 15 September 2022, ltaly filed a Declaration 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) pursuant to Article 63, paragraph 2, of the Statute of
the Court.
2. The present Written Observations are submitted to the Court based on its Order of 5 June
2023 ("the Order'') in which the Court decided that the Declaration of Intervention filed by Italy
is admissible, amongst others. The Court also fixed 5 July 2023 as the time-limit for the filing of
the Written Observations, in accordance with Article 86, paragraph I, of the Rules of Court.
3. The present Written Observations illustrate Italy's views, as requested by the Court, on
[T]he construction of Article IX and other provisions of the Convention on the
Prevention and Punishment of the Crime of Genocide that are relevant for the
determination of the j uri sdiction of the Court. 1
4. As outlined in Italy's Declaration of Intervention2 and specified in its Written
Observations on the admissibility of its intervention ("Written Observations on admissibility''),
Italy deems that reference to the substantive provisions of the Convention, with special regard to
Artic les I-Ill, is necessary for the proper construction of Article IX in any given case.3
5. ln its Declaration of Intervention, Italy summarised its position on the construction of
Articles J-lll of the Convention as follows:
For the reasons explained above, Italy contends that:
1 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide, ( Ukraine v. Russian Federation), Order, 5 June 2023, para. I 02(1) ("Order").
2 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 Government of Italy, 15
September 2022, paras. 42-52 ("Italian Declaration of Intervention").
3 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide, (Ukraine v. Russian Federation), Written Observations of the Government of Italy on the
Admissibility of the Italian Declaration of intervention, 13 February 2023, para. 46 ("Italy's Written
Observations on Admissibility").
3
a. Article IX of the Genocide Convention is formulated so as to address issues
concerning the abuse of the terms of the Convent ion and complaints of nonviolation.
b. Article I of the Genocide Convention, interpreted in conjunction with Article
11 and 111, requires Contracting Parties to substantiate their c laim of a breach
of the Convention by way of "fully conclus ive" evidence before adopting
measures aimed at preventing or punishing acts of genocide.4
6. The present Written Observations further support a.nd elaborate the above construction in
three parts. First, few preliminary observations are made on the basic principles of treaty
interpretation (Part I - Principles of interpretation). Second, based on the application of such
principles, Italy's construction of the relevant provisions of the Convention is provided (Part n
- Provisions of the Convention in question in the case). Last, Italy provides some concluding
remarks (Part Ill - Conclusion).
I. PRINCIPLES OF TREATY INTERPRE"J A'I ION
7. The interpretation of the Convention is governed by the general principles of treaty
interpretation codified in Articles 31 and 32 of the 1969 Vienna Convention on the Law of
Treaties ("VCL T'").5
8. Article 31 provides that "[a] treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose" .6 The context includes the text of the treaty as a whole,
including its preamble and any annexes.7
9. Under the same provision, together with the context, the interpretation of a treaty should
also consider "any relevant rules of international law applicable in the relations between the parties".
Such rules include, inter alia, the customary rules on the law of State responsibility.
4 Italian Declaration of Intervention, para. 53.
5 Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991 , p. 53, para. 48.
6 YCL T, Article 3 1.
7 YCLT, Article 31(2).
4
I 0. As to the "object and purpose'' of a treaty, it usually emerges from a consideration of
the aims of the treaty as may be reflected, for example, in its preamble.8 Having specific regard
to the Genocide Convention, the Court, in one of its first advisory opinions, assessed its object
and purpose as follows:
The Convention was manifestly adopted for a purely humanitarian and c ivilizing
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 confirm and endorse
the most elementary principles of morality.9
11. The Court has later emphasized in any case it was requested to adjudicate on the Genocide
Convention that "the most elementary princip les of morality" are an integral part of the object
and purpose of such treaty.10 The Parties to the present dispute, too, have both referred to the
above passage with approval. 11
12. Accordingly, and in line with general international law as codified in Article 31 YCL T,
Italy deems that any provision of the Convention has to be interpreted on the basis of the
"elementary principles of morality" which are at the basis of the Convention.
13. In light of the above principles of treaty interpretation as applied by the Court in
relation to the Convention as a whole, when interpreting Article IX of the Convention, the
ordinary meaning of its wording is to be considered in the context of the Convention as a
8 See, inter alia, Certain Iranian Assets (Islamic Republic of Iran v United States of America), Judgment,
30 March 2023, para. 214.
9 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.CJ. Reports 1951, p. 23.
10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, p. 4, para. 161 ; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment,
l.C.J. Reports 2015, p. 3, para. 87; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (The Gambia v. Myanmar), Judgment, 22 July 2022, para. 113.
11 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide, (Ukraine v. Russian Federation), Preliminary objections submitted by the Russian Federation, 1
October 2022, paras. 186-187 ("Russia's Preliminary objections"); Allegations of Genocide Under the
Convention on the Prevention and Punishment of the Crime of Genocide, (Ukraine v. Russian Federation ),
Written statement of observations and submissions on the Preliminary objections of the Russian Federation
submitted by Ukraine, 3 February 2023, para. 115 ("Ukraine's Written statement of observations").
5
whole, including the substantive provisions defining the act of genocide and in light of the
object and purpose of the Convention.
14. At the same time, in treaty interpretation, due consideration is also to be given to the
paramount importance of the principle of good faith, which, as highlighted by the Court, is
"one of the basic principles governing the creation and performance of legal obligations". 12
15. The fact that good faith may not be a self-standing ground for a claim, but requires to be
linked to a specific treaty provi sion, implies that an interpretation or application of a given
provision in contrast with good faith amounts to a breach of that provision.
16. This is particularly relevant in the case of the Genocide Convention, whose purpose, as
alluded above, 13 is essential "to confirm and endorse the most elementary principles of morality"
and to civilize the international society. 14
17. As observed by the Court, the principle of good faith requires States "to apply [a treaty]
in a reasonable way and in such a manner that its purpose can be realized". 15 Good faith
interpretation and application of international obligations is essential to building "trust and
confidence [that] are inherent in international co-operation".16
18. Consequently, good faith is a bulwark against the abusive interpretation of any given
convention.17 As observed in the 1986 Award in the Filleting within the Gulf of St Lawrence case
between Canada and France:
12 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, l.C.J. Reports 1988, p. 69, p. I 05, para. 94, quoting Nuclear Tests (New Zealand v. France).
Judgment, 1.C.J. Reports 1974, p. 457, p. 473, para. 49. Also, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment.
1.C.J. Reports 1984, p. 392, p. 418, para. 60: land and Maritime Boundary between Cameroon and Nigeria.
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 275, p. 297, para. 39; Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Judgment, l.C.J. Reports 2010, p. 14, p. 67. para. 145.
13 Above, para. 10.
14 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23.
15 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p. 79, para.
142.
16 Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 7, at p. 142.
17 Robert Kolb, la bonnefoi en droit international public (PUF 2000) 439-442.
6
le principe de bonne foi qui, selon !'article 26 de la Convention de Vienne sur le
droit des traites, preside necessairement a !' execution des traites, commeformam
une garunrie suffisante conrre tout risque d 'exercice abusifde ses droits.18
19. Based on the above, Italy contends that an interpretation of a provision of the Convention
which is in contrast with good faith, or which is relied upon with a view to justifying an abuse of
right constitutes in and of itself a breach of the Convention, and a dispute about it squarely falls
within the scope of Article IX.
11. PROVISIONS Of THE CONVENTION IN QUESTION IN 1 HE CASE
20. Pursuant to the Order of the Court dated 5 June 2023, this Section provides Italy·s
construction of Article LX and other provisions of the Genocide Convention that are relevant for
the determination of the jurisdiction of the Court.19 First, Italy will address the construction of
Article IX in general terms (Sub-section A); secondly, it will deal with the construction of
Articles 1-111 in terms exclusively relevant, at this stage, for the proper interpretation of Article
IX, thus, necessary for the determination of the jurisdiction of the Court (Section B).
A. ARTICLE IX
21. Article IX of the Genocide Convention provides 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 111, shall be
submitted to the lntemational Court of Justice at the request of any of the parties to
the dispute.
18 Dispute concerning Filleting within the Gulf of St. Lawrence between Canada and France (2006) XJX
UNRlAA 225, para. 27; emphasis added.
19 Order, para. I 02( I).
7
22. As observed by the Court, the wording of Article IX, with special regard to its reference
to disputes on the "interpretation, application or fulfilment" of the Convention, is " unique as
compared with the compromissory clauses found in other multilateral treaties".20
23. lndeed, by "addling] the word 'fulfilment' to the ' interpretation and application ' of the
Convention", such clause clearly widens the scope of potential disputes upon which the Court
may have jurisdiction under this compromissory clause.21
24. While Italy is well aware that it is not for a State intervening under Article 63 of the
Statute to provide arguments and factual elements supporting the existence of a given dispute, it
submits that it is appropriate for it to provide general arguments bearing on the interpretation of
the provisions under consideration.
25. With regard to Article lX, Italy will address four discrete portions of this provis ion.
Namely the notion of "dispute" (Subsection 1), the notion of "interpretation, application or
fulfilment" (Subsection 2), the notion of "the present Convention" (Subsection 3) and the notion
of"any Party" (Subsection 4). It will then provide a summary conclus ion on the interpretation of
Article IX (Subsection 5).
1. The notion of ''dispute ··
26. It is established under consistent international case law that a dispute is "a disagreement
on a point of law or fact, a conflict of legal views or of interests" between parties.22 Accordingly,
in order to prove the existence of a dispute as a jurisdictional requirement, " [i]t must be shown
that the claim of one party is positively opposed by the other"23 and that the disputing parties
20 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 (ll), p. 627, para. 5.
21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, p. 43, para. 168.
22 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C. 1.J., Series A, No. 2, p. 11.
23 South West Africa {Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment
of 21 December 1962, J.C.J. Reports 1962, p. 3 I 9, at 328.
8
"hold clearly opposite views concerning the question of the performance or non-performance of
certain international obligations".24
27. Jt is also established by the Court and generally recognised that a dispute may arise even
if a State does not invoke a specific treaty or its provisions in terms contested by another State. It
is sufficient that the Respondent is aware of the fact that the Applicant alleges that its conduct is
in breach of international obligations.25
28. Jtaly contends that Article IX confers jurisdictional competence to the Court on any
situation in which Parties to the Genocide Convention hold clearly opposite views on a point of
law or fact which bear on the "interpretation, application or fulfilment" of the Convention, even
had the Applicant not explicitly referred to any given provision of the Convention.
2. The notion of "interpretation, application or .fulfilment"
29. The definition of the word "interpretation" is clear, and it refers to "[t]he process of
determining the true meaning of a written document"26 or "determining the meaning of a rule".27
In the authoritative words of a former Judge and President of the Court, Sir Arnold McNair, the
aim of treaty interpretation is that of "giving effect to the expressed intention of the parties, that
is, their intention as expressed in the words used by them in the light of the surrounding
circumstances".28 This understanding of the interpretive function in international law is regulated,
as indicated above, by Articles 31 and 32 VCLT.29
24 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Qatar v. United Arab Emirate!)), Provisional Measures, Order of23 July 2018, I.CJ. Reports 2018, p. 406,
para. 18; ICJ, Alleged Violations a/Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua
v. Colombia), Preliminary Objections, Judgment, I.CJ. Reports 2016, p. 3, para. 50, citing Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.CJ. Reports
1950, p. 74
25 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 391, at pp. 428-429, para. 83; Application
of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, l.C.J. Reports 2011 , p. 70, para. 30.
26 Jonathan Law, A Dictionary of law (OUP 2018) "interpretation" entry.
27 Case concerning the Factory at Chorzow (Jurisdiction), Dissenting Opinion of Judge Ehrilich, PCIJ
Reports Series A No 9 (I 927), p. 39.
28 Arnold D McNair, The law a/Treaties (OUP 1961) 365.
29 Above, paras. 7-12.
9
30. The tenn "application" is well defined, too. As observed by Judge Ehrilich, "application
is the action of bringing about the consequences which, according to a rule, should fo llow a fact".
The Permanent Court of International Justice further held that a dispute on the application of a
given provision
include[s] not only those relating to the question whether the application of a
particular clause has or has not been correct, but also those bearing upon the
applicability of these articles. that is to say, upon any act or omission creating a
situation contrary to the said articles.30
3 1. Lastly on this point, the ordinary meaning of the word "fulfilment" in Article IX can well
be considered to correspond to '<the meeting of a requirement, condition, or need" or "the
performance of a duty or role as required, pledged, or expected".31 As it is apparent, the scope of
the meaning of the term "fulfilment" is wider than that of the word "application".
32. This is supported by the travaux of the Convention. In particular, the Indian delegate in
his endorsement of the joint proposal put forward by the Belgian and UK delegations to add the
term "fulfilment" to the " interpretation and application" formula, 32 observed 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.
The word "fulfilment'· therefore had a much wider meaning.33
33. On the basis of this understanding, the proposal to delete the word "fulfilment" in Article
IX was put to vote and rejected,34 thus, showing the prevailing intent of the negotiating States
3° Case concerning the Factory at Chorzow (Jurisdiction), Judgment of26 July 1927, PCIJ Reports Series
A No 9 ( 1927), pp. 20-2 1.
31 Angus Stevenson, Oxford Dictionary of English (3 rd edn; OUP 2015) ''fulfilment entry". See also
Christian Tams, ' Article IX' in Tams, Berster, Schiffbauer (eds), Convention on Prevention and
Punishment of the Crime of Genocide: A Commenta,y (Hart-Nomos 2014) 293, at 313, para. 45).
32 UN Doc. A/C.6/SR.103, reproduced in Hirad Abtahi, Philippa Webb (eds). The Genocide Convention.
The Travaux. Preparatoires, Volume 2 (Brill-Nijhoff2008) 1759, p. 1765.
33 /bid., p.1771.
34 UN Doc. UN Doc. A/C.6/SR. l 03, reproduced in Abtahi, Webb (fn 32) 1775, p. 1784.
10
towards the extensive approach to the jurisdiction of the Court under Article JX of the Convention.
As stressed in the legal literature
the reason for inserting all the three alternative terms, as does the Genocide
Convention, was to give a coverage as exhaustive as possible to the
compromissory clause. The aim was thus to close down all possible loopholes
weakening the jurisdictional reach of the Court. The purpose pursued in 1948 was
to grant the Court a jurisdiction as wide as possible in the life of the Convention,
forestalling all the potential subtle arguments denying jurisdiction on account of
an insufficient link with that Convention.35
34. The especially broad approach to jurisdiction under Article IX is further confirmed by the
wording of its second part, according to which the notion of dispute concerning interpretation,
application or fulfilment "includ[es] those relating to the responsibility of a State for genocide or
for any of the other acts enumerated in Article 111". As highlighted by the Court,
[t]he unusual feature of Article JX is the phrase "including those [disputes]
relating to the responsibility of a State for genocide or any of the other acts
enumerated in Article Ill". The word " including" tends to confirm that disputes
relating to the responsibility of Contracting Parties for genocide, and the other
acts enumerated in Article Ill to which it refers, are comprised within a broader
group of disputes relating to the interpretation, application or fulfilment of the
Convent ion. 36
3 5. Accordingly, Italy considers that the proper construction of Article IX confers jurisdiction
on the Court over any situation in which Parties to the Convention hold clearly opposite views on
the actual meaning of its provisions, or on the legal consequences of conduct relevant to the
obligations of the Convention, also in the light of other rules of international law.
35 Robert Kolb, 'The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ' in P Gaeta (eds),
The UN Genocide Convention: a commentary (OUP 2009) 442, 453.
36 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, para. 169; emphasis added.
I I
3. The notion of "the present Convention ••
36. Italy is well aware that the Court has already expressed in its case law that its jurisdiction
under Article IX of the Genocide Convention is "confined to obligations arising under the
Convention itselr'.37 Ln particular, Italy acknowledges that Article JX cannot be construed as
attributing jurisdiction to the Court with regard to breaches of rules of international law different
from those laid down in the Convention, with special regard to human rights and humanitarian
law.38
37. However, Italy recalls that the Court has emphasised that Contracting Parties must act
within the limits imposed by international law in fulfilling their obligations under the Genocide
Convention.39 This flows, inter a/ia, from the general rule of interpretation according to which,
under VCLT Article 3 1(3)(c) of the VCLT, a treaty is to be interpreted taking into account, next
to its context, "any relevant rules of international law applicable in the relations between the
parties".
38. To that purpose, having special regard to the Genocide Convention, the Court has stressed
that " [t]he acts undertaken by the Contracting Parties 'to prevent and to punish' genocide must be
in conformity with the spirit and aims of the United Nations".40
39. On the same score, and for the purposes of the instant dispute, the Court's has also
observed that
The statements made by the State organs and senior officials of the Parties indicate
a di vergence of views as to whether certain acts allegedly committed by Ukraine
in the Luhansk and Donetsk regions amount to genocide in violation of its
37 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 3, para. 88.
38 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, paras.
147- 148.
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, 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 ("Provisional measures
order").
40 Provisional measures order, para. 58.
12
obligations under the Genocide Convention, as well as whether the use of force
by the Russian Federation for the stared purpose of preventing and punishing
alleged genocide is a measure that can be taken in f ulfilment of the obligation to
prevent and punish genocide contained in Article 1 of the Convention.41
40. In the light of the above, Italy contends that - in line with the interpretation of any
international treaty and, all the more so, of the Convention under consideration, given its ergo
omnes nature - the proper interpretation of Article IX must fully conform to the principle of
interpretation in good faith.
41. Under such terms, Article IX unquestionably confers on the Court jurisdiction over a
dispute concerning conduct carried out by one State Party against another State Party allegedly
based on the Convention, given that the conduct in question were grounded on claims of genocide
which the latter State argues that were unsubstantiated.
42. Based on the case law of the Court, Italy is of the view that that disputed conduct with
respect to which the Court has jurisdictional competence to interpret the Convention may include
unilateral conduct allegedly in breach of the basic principles of the Charter of the United Nations
for the stated purpose of preventing and punishing alleged genocide.
4. The notion of ''any Party"
43. Article IX provides that the Court may be seised "at the request of any of the parties to
the dispute" (emphasis added). Such language is broad, and attributes locus standi to the widest
possible range of States Parties. As the Court stressed in its judgment on preliminary objections
in Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(The Gambia v. Myanmar):
the terms of Article IX providing that disputes are to be submitted to the Court "at
the request of any of the parties to the dispute", as opposed to any of the
Contracting Parties, do not limit the category of Contracting Parties entitled to
bring claims for alleged breaches of obligations erga omnes partes under the
Convention. This phrase clarifies that only a party to the dispute may bring it
41 Provisional measures order, para. 45; emphasis added.
13
before the Court, but it does not indicate that such a dispute may only arise
between a State party allegedly violating the Convention and a State "special ly
affected" by such an alleged violation [ .. .]. It fo llows that any State party to the
Genocide Convention may invoke the responsibility of another State party,
including through the institution of proceedings before the Court, with a view to
determining the al leged fai lure to comply with its obligations erga omnes partes
under the Convention and to bringing that failure to an end.42
44. Given the broad reference to "any of the parties to the dispute" and in the light of the
special nature of the object and purpose of the Convention in combination with principle of good
faith, Italy contends, as anticipated in its Declaration,43 that the proper interpretation of Article IX
attributes to the JCJ jurisdiction also on cases concerning disputes relating to " reverse compliance
claims" or "non-vio lation c laims". That is to say that Article IX affords legal standing to States
parties which have been accused by another State party of having committed breaches of the
Convention, thus, allowing it to claim that it has not committed such breaches with a view to
attain judicial ascertainment to that effect by the princ ipal judicial organ of the UN.
45. The admissibility of standing for filing reverse compliance claims finds support in the
case law of the Court. ln the Rights of Nationals of the United States of America in Morocco case
between France and the United States, where the applicant asked the Court to declare that its
conduct was in "conformity with the economic system which is applicable to Morocco, according
to the conventions which bind France and the United States",44 the Court did not object to the
framing of the claim as a non-violation one, and not even the defendant did.45 In the same vein,
in the Lockerbie case, the Court found that it had j urisdiction over the Libyan Application
claiming that it had fully complied with its obligations under the Montreal Convention.46
42 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia
v. Myanmar) , Judgment of22 July 2022, paras. 111-112.
43 Italian Declaration of Intervention, para. 38.
44 Case concerning rights of nationals of the United States of America in Morocco, Judgment of August
27th, 1952: l.C.J. Reports 1952, p. 176, at p. 182.
45 Ibid., pp. 182-184.
46 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Jncidenl at Lockerbie (Libyan Arab .Jamahiriya v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 115, paras. 12 and 53.
14
46. Jn the light of the above, it is apparent that the proper construction of Article IX of the
Convention affords the Court jurisdiction to entertain claims on the conformity of the claimant's
conduct with the Convention, when such conformity is contested by the defendant State.
47. A different construction of the term "any party" in Article IX of the Convention might
encourage States Parties to the Convention to try to justify conduct in breach of international law
on the basis of abusive allegations of genocide, without the accused Party having the possibility
to counter such allegations before the Court.
5. Conclusion
48. On the basis of the above, Italy contends that a disagreement between a Party to the
Convention objecting to the allegations by another Party which argues that the former is
responsible for acts of genocide, or for breach of the obligation to prevent or punish acts of
genocide, squarely falls within the scope of the term " dispute on the interpretation, application or
fulfilment" under Article IX of the Convention.
B. OTHER PROVISIONS OF THE CONVJ:.NTI0NS RELEVANT FOR ASSESSING TH£ JURISDICTION OF
THE COURT
49. For a dispute to fall within the scope of Article IX of the Convention, the clearly opposite
views of the parties must inevitably concern issues of compliance with another rule, or other rules,
of the Convention, having substantive nature, as anticipated above,47 and in line with the case law
of the Court.
50. Suffice to recall that in the Legality of the Use of Force decision on the request for
provisional measures, the Court highlighted that its task was to
ascertain whether the breaches of the Convention alleged by Yugoslavia are
capable of falling within the provisions of that instrument and whether, as a
47 Above, paras. 36-42.
15
consequence, the dispute is one which the Court has jurisdiction ratione materiae
to entertain purs uant to Article I X.48
51. For the purpose of properly interpreting the jurisdiction of the Court according to Article
IX, Italy contends that the interpretation of Articles 1-111 is also relevant in the instant case, insofar
as they represent the main provisions on whose interpretation, application or fulfilment Ukraine
and the Russian Federation ho ld opposite views.
52. As emphasized by Judge Higgins in her separate opinion in the 1996 Judgment on
Preliminary Objection in the Oil Platforms case, the only way for the Court to ascertain whether
the disputed facts of a case fall within the scope of a given convention and, thus, whether it can
entertain its jurisdiction ratione materiae over them, is "to accept pro term the facts as alleged
[ ... ] to be true".49 Further on in the proceedings over the same case, commenting with approval
the Judgment on preliminary objections, Judge Higgins added that the test to assess whether a
given issue comes within the jurisdiction of the Court consists of the ascertainment
whether the facts as claimed by the applicant might give to a violation of a
specified provision (whether the facts are in fact correct. whether they do
constitute a violation, and if there is a defence, are then al I matters for the
merits). 50
53. Against the above considerations, Italy will now submit its interpretation of Articles I-ILi
to the limited extent necessary to show that conduct of the kind now before the Court falls within
their scope, thus, within the jurisdiction of the Court under Article IX of the Convention. Italy,
thus, reserves the right to elaborate fu11her its interpretation of Articles l-lll in and of themselves
at the merits stage, if necessary.
54. Article 1-1 ll of the Convention read as follows:
Article I
48 legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June J 999, l.C.J.
Reports 1999, p. 124, para. 38.
49 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment,
Separate Opinion of Judge Higgins, I.C.J. Reports 1996, p. 847, para. 32.
so Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of I O March
1998, Separate opinion by Judge Higgins, I.C.J. Reports 1998, p. 217, at 219.
16
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.
Article II
In the present Convention, genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions oflife calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article Ill
The fo llowing acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
55. The main obligation under Article I of the Genocide Convention is that of preventing and
punish ing genocide. As observed by the Court in relation to the Convention in the Bosnia v Serbia
J udgment, "the obligation to prevent is one of conduct not of result in the sense that a state cannot
be under an obligation to succeed" .51 That is to say that the obligation of prevention in question
is of a due diligence nature, to the effect that States will incur responsibility only if they
"manifestly failed to take all measures to prevent that were within its power".52
51 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, para.
430.
52 Ibid.
17
56. Italy wishes to recall that the Court has importantly observed that the interpretation and
application of the obligation of prevention in question "must be in conformity with the spirit and
aims of the United Nations".53
57. Turning to the obligation " to punish" under Article I of the Convention, Italy contends
that the obligation in question is limited to punitive measures of a criminal law character directed
against individuals, thereby excluding other type of measures, in particular forcible or military
measures to " punish" a State or a people. Jn line with the case law of the Court54 and the views of
publicists,55 this interpretation is confirmed by a contextual reading of Article I together with
Articles IV-VI of the Convention, as well as by a systemic construction of the Genocide
Convention and the Charter of the United Nations.
58. According to the case law of the Court, the due diligence obligation to prevent genocide
implies that each State Party must assess whether a genocide or a serio us risk of genocide exists
prior to taking action pursuant to Article I of the Convention.56
59. Having regard to Article ll, it is apparent from the ordinary meaning of its wording that
in order to qualify as "genocide'' a given conduct, or a series of conducts, such conducts must
correspond with one listed in that article and are characterised by "genocidal intent". Namely "the
intent to destroy, in whole or in part, a national, ethnical, racial or religious group" .57
60. Genocidal intent is the characterising element of genocide which distinguishes it from
other human rights violations. Accordingly and in line with the Court's case law, ltaly contends
that the notion of genocide may be interpreted as applicable to the occurrence of civilian casualties
53 Provisional measures order, para. 58.
54 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, paras.
439-450.
55 Christian Tams, ' Article I' in Tams, Berster, Schiftbauer (fn 3 I) 33, 43-45-
56 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, paras.
430-43 J.
57 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007 ([), p. 43,
at pp. 121-122, paras. 186-I 89.
18
in a situation of international and non-international armed conflict, only if genocidal intent is
proven.58
61. Given that an allegation of genocide constitutes a "charge of exceptional gravity", as
stressed by the Court,59 it requires a standard of proof characterized by "a high level of certainty
appropriate to the seriousness of the allegation".60 Such a high standard of proof is usually referred
to in the case law of the Court as evidence being "fully conclusive",61 such conclusiveness
applying to evidence ofthe occurrence of conducts of the kind listed under Article JI or Ill ofthe
Convention, or of a serious risk thereof, as well as to the genocidal intent.
62. Furthermore, having special regard to the genocidal intent, again in the 2007 Bosnia v
Serbia Judgment, the Court has stressed that
[t]he do/us specialis, the specific intent to destroy the group in whole or in part,
has to be convincingly shown by reference to particular circumstances, un less a
general plan to that end can be convincingly demonstrated to exist; and for a
pattern of conduct to be accepted as evidence of its existence, it would have to be
such that it could only point to the existence of such intent.62
63. In 20 15, the Court has reverted to the requirement in point in Croatia v Serbia by
observing that
58 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.CJ. Reports 2015, p. 3, paras. 472-475.
59 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, para. 209; Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). Judgment,
I.C.J. Reports 20 15, p. 3, para. 178.
6° 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, para.
2 10.
61 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, p. 43, para.
209.
62 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. para.
373.
19
in order to infer the existence of do/us specialis from a pattern of conduct. it is
necessary and s ufficient that this is the only inference that could reasonably be
drawn from the acts in question.63
64. Italy contends that the general principle of good faith governs the assessment, in fully
conclusive tenns, not only of the occurrence of acts of genocide, or risk thereof, but also the
allegation that a State is internationally responsible for an act of genocide. as defined under Article
11 of the Convention, or for any act listed under Article Ill. Conduct to the contrary would amount
to an abusive interpretation of the Convention, with special regard to Articles 1-IJJ, over which
the Court has jurisdiction under Article IX, when their •'interpretation, application or fulfilment"
are disputed.
Ill. CONCLUSION
65. The Genocide Convention represents a major attempt at preventing that the atrocities of
the Second World War would repeat themselves. In the words of the ICJ:
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 confirm 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.64
63 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia) , Judgment, I.C.J. Reports 2015, p. 3, para. 148.
64 Reservations to the Genocide Convention, Advisory Opinion of28 May 1951 , I.CJ. Reports 1951, p. 23.
20
66. As such, all States have an interest in the proper construction of the Convention, including
to the effect that no interpretation be allowed according lo which its provisions would lend
themselves to abusive reliance on right and duties stemming therefrom in order to justify actions
in contrast with international law.
67. Such a proper construction may be achieved by applying principles of interpretation as
codified in the VCLT, including the general principle of good faith which requires parties to a
treaty to interpret and apply it "in a reasonable way and in such a manner that its purpose can
be real ised"65.
68. Good faith, which is instrumental to building trust among States, is all the more of
importance for interpreting and applying the Genocide Convention, which is a peculiar agreement
in respect to which Parties 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".66
69. In line with its Declaration of Intervention, Italy maintains that good faith interpretation
of any treaty provisions which bestows rights and duties upon its contracting parties requires that
a State acquire and show evidence that a breach of treaty is at least likely to have occurred before
invoking the international responsibility of another contracting State and, especially, before taking
otherwise consequential unilateral conduct.
70. Accordingly, Italy contends that under a proper construction of the compromissory clause
contained in Article IX, the Court is conferred jurisdictional competence to entertain a case
between two Contracting Parties having opposite views concerning allegations of genocide, relied
upon by one of them in taking action of the kind provided for in Article I of the Convention, which
are deemed unsubstantiated by another Contracting Party. Italy considers that such circumstances
clearly amount to a "dispute on the interpretation, application or fulfilment" of the Convention as
envisaged by Article IX.
65 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, I.CJ. Reports
1997, p. 7, para. 142.
60 Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15, at p. 23.
21
71. In light of the wording of Article IX and of the case law of the Court, Italy also considers
that the possibility of triggering the jurisdictional clause under Article IX is not limited to the
State especially affected by alleged acts of genocide, or to any other State not directly injured by
an action of genocide. Italy submits that also the Contracting Party to the Convention which has
been the addressee of an allegedly unsubstantiated allegation of genocide can validly address the
Court with a view to attaining an assessment confirming that the Convention has been correctly
applied by such State.
72. The general principles of treaty interpretation prevent States parties from abusively
constructing and invoking any treaty provision. This is all the more so with regard to a
Convention, like the one under consideration, which provides for legal protection to collective
interests of all contracting parties. Jn the light of the above and, more specifically of the object
and purpose of the Convention, the proper construction of Article JX well affords the Court
jurisdictional competence to entertain disputes between Contracting Parties over alleged abusive
interpretations of the Convention, especially when such interpretations are relied upon to justify
serious breaches of international law.
Respectfully,
Stefano Zanini
Agent of the Government of Jtaly
22
Written observations of Italy on the subject-matter of its intervention