INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION: 32 STATES INTERVENING)
WRITTEN OBSERVATIONS OF THE REPUBLIC OF LATVIA
SJULY2023
TABLE OF CONTENTS
I. INTRODUCTION ............................................................... .............................................. 3
II. CONSTRUCTION OF ARTICLE IX AND OTHER PROVISIONS OF THE
GENOCIDE CONVENTION RELEVANT FOR JURISDICTION RAT/ONE MATERIAE ... 4
A. Article IX of the Genocide Convention is Formulated in Broad Terms and Covers
Non-Violation Complaints .................................... .. ............. .............. ... .............. ... .. .............. 5
B. Article IX of the Genocide Convention Applies to "Disputes" Concerning the
Prohibition of Abusive Allegations of Genocide ................................................................... 7
C. Article IX Applies to "Disputes" Concerning Otherwise Unlawful Use of Force as a
Means for Prevention and Punishment of Genocide ........................................................... 13
III. CONCLUSION ................................................................................................................ 16
2
I. INTRODUCTION
1. 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, Latvia ("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 admissible. 1 The Court fixed 5 July 2023 as the
time limit for the filing by Latvia of the written observations referred to in Article 86,
paragraph 1, of the Rules of Court ("the Rules").2
2. Latvia'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 Court.3 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
Proceedings. 5 In accordance with the Order on Admissibility of the Declarations of
Intervention, Latvia's 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 Proceedings.6 References
to other rules and principles of international law outside the Genocide Convention in the
written observations will only concern the construction of the Genocide 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
1 A/legations 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/
182/182-20230605-0RD-O 1-00-EN.pdf-> [99], [102(1)].
2 Ibid l 102(3 )J.
3 Ibid [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 I) [26].
6 Ibid [99].
3
Convention"). 7 Latvia will not address other matters, such as the existence of a dispute
between the Parties, the evidence, the facts or the application of the Convention in the
present case. 8
3. Latvia has taken into account in the preparation of written observations the Court's
encouragement to present joint observations, to the extent possible.9
II. CONSTRUCTION OF ARTICLE IX AND OTHER PROVISIONS OF THE
GENOCIDE CONVENTION RELEVANT FOR JURISDICTION RAT/ONE
MATERIAE
4. As outlined in its declaration of intervention filed in the Registry of the Court on 21 July
2022, 10 Latvia makes three submissions on construction of the Genocide Convention at
the present stage of the Proceedings. Latvia applies the rules of treaty interpretation to be
found in Articles 31 to 33 of the Vienna Convention that reflect rules of customary
international law. 11 First, Article IX of the Genocide Convention is formulated in broad
terms to include "disputes" concerning the "fulfilment" of obligations under the
Convention and applies to claims that have been described as non-violation complaints.
Secondly, Article IX of the Genocide Convention applies to "disputes" concerning the
prohibition of abusive allegations of genocide under other provisions of the Genocide
Convention. Thirdly, Article IX of the Genocide Convention applies to "disputes"
concerning otherwise unlawful w,e uf force as a means for pre\iention and punishment of
genocide under other provisions of the Genocide Convention. These written observations
further elaborate the reasoning and authority for the submissions of construction, which
will be addressed in tum.
7 Ibid [84].
8 Ibid [84].
9 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian federation: 32 States intervening) (Letter from the Registrar of the Court to the Agent of
Latvia of23 June 2023).
10 Order on Admissibility of the Declarations of Intervention (n I) [13]; 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 Republic of Latvia of I 9 July 2022) <https://www. icjcij
.org/public/files/case-related/182/182-20220719-WRI-0 1-00-EN.pdt> Section F.
11 Arbitra/ Award of 3 October 1899 (Guyana v. Venezuela) [2023] ICJ Judgment of 6 April 2023
<https://www.icj-cij.org/sites/default/files/case-related/171/171-20230406-JUD-O 1-00-EN.pdt> [87].
4
A. ARTICLE IX OF THE GENOCIDE CONVENTION IS FORMULATED IN BROAD
TERMS AND COVERS NON-VIOLATION COMPLAINTS
5. Latvia contends that Article IX of the Genocide Convention is formulated in broad terms
and covers claims that have been described as "non-violation complaints". 12 Latvia will
make two points concerning the construction of Article IX: (1) Article IX is formulated in
broad terms; (2) Article IX covers non-violation complaints.
6. First, Article IX of the Genocide Convention is formulated in broad terms:
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 III, shall be
submitted to the International Court of Justice at the request of any of the parties to
the dispute. 13
7. There is a twofold difference between Article IX and the standard dispute settlement
provision commonly considered in the judicial practice of the Court to grant jurisdiction
over interpretation and application of the relevant treaties. 14 Article IX "add[s] the word
'fulfilment' to the provision conferring on the Court jurisdiction over disputes as to the
'interpretation and application' of the Convention". 15 Article IX also has "[t]he unusual
feature [ of] the phrase 'including those [disputes] relating to responsibility of a State for
genocide or any of the other acts enumerated in Article III"', which has been applied by
the Court in supporting a broad construction of the Convention. 16 Taken together, the
effect of these drafting choices is "to close down all possible loopholes weakening the
12 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) <https://www.icj-cij .org/public/files/caserelated/
l 82/182-20220316-ORD-0 1-00-EN .pdf> Declaration of Vice-President Gevorgian [8].
13 Genocide Convention (n 4) art IX.
14 See Immunities and Criminal Proceedings (Equatorial Guinea v. France) (Preliminary Objections) [2018]
!CJ Rep 292 [44)-[45); Certain Iranian Assets (Islamic Republic of Iran v. United States of America)
(Preliminary Objections) [2019) ICJ Rep 7 [29); Application of the International Convention for the
Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms
of Racial Discrimination (Ukraine v. Russian Federation) (Preliminary Objections) [2019) ICJ Rep 558 [34);
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates) (Preliminary Objections) [2021) !CJ Rep 71 [72).
15 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) [2007] ICJ Rep 43 [ I 68).
16 Ibid [169).
5
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 in denying jurisdiction on account of an insufficient link with that
Convention". 17
8. Secondly, the broad formulation of Article IX of the Genocide Convention covers
"disputes" concerning non-violation of the treaty. The jurisdiction granted to the Court by
Article IX includes disputes in which a State alleges that another State has committed
genocide. 18 It also, and necessarily, includes disputes in which a State, having been
subjected to allegations of genocide by another State, brings a case against the latter State,
seeking a "negative" declaration from the Court that these allegations are without legal
and factual foundation. Such a claim plainly raises questions of "interpretation,
application or fulfilment of the present Convention, including those relating to the
responsibility of a State" that can be the subject of a "dispute" in the broad technical
sense of international law. 19 The construction is further supported by "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"'20 and the atypical addition of "fulfilment" to categories of
"disputes" covered by Article IX noted in the previous paragraph. The construction
advanced by Latvia would enable the Court to perform an important judicial function in
confirming whether or not a State has complied with its obligations.
9. Non-violation complaints are known in the Court's practice. For example, in the case
concerning Rights of Nationals of the United States of America in Morocco (France v.
United States of America), France commenced proceedings before the Court seeking a
17 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) 442, 453.
18 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar) (Preliminary Objections) [2022] !CJ Judgment of 22 July 2022 <https://www.icjcij.
org/sites/default/files/case-related/ l 78/178-20220722-JUD-0 1-00-EN.pdf> [63 ]-[77].
19 Ibid [63]-[64]; ILC, 'Draft conclusions on settlement of international disputes to which international
organizations are parties' (15 May 2023) UN Doc A/CN.4/L.983 draft conclusion 2(b); Asier Garrido Munoz,
'Al filo de su competencia ratione materiae: la providencia de la Corte Internacional de Justicia en el asunto
Alegaciones de Genocidio en Virtud de la Convenci6n para la Prevenci6n y la Sanci6n del Crimen de Genocidio
(Ucrania c. Federaci6n Rusa)' (2022) 74 Revista espaflola de derecho intemacional 77, 99-100.
20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar) Preliminary Objections (n 18) [111] (emphasis added).
6
declaration that the license control system in question "is in conformity with the
economic system which is applicable to Morocco, according to the conventions which
bind France and the United States".21 The Court unanimously rejected France's
submission on the merits but there was no suggestion by either the Court or Judges
writing individually (or indeed the United States) that the non-violation framing of the
claim was legally problematic for jurisdiction.22 Had it been otherwise, "according to
well-established jurisprudence" requiring the Court "to always be satisfied it has
jurisdiction", it would have "go[ne] into the matter proprio motu".13 Importantly, the
Court engaged in the same type of analysis of interpretation and application of treaties as
in other cases considered under standard dispute settlement provisions, in line with the
construction contended for above. Another example is provided by the cases concerning
Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie, where the Court decided that it had jurisdiction
over Libya's claims that partially related to its compliance with the Montreal
Convention. 24
10. The result of Latvia's construction of Article IX of the Genocide Convention is that
where a State has accused another State of genocide such that a dispute has arisen, the
Court will have jurisdiction over any claim by the latter State seeking a declaration that
the former State's accusations are without legal and factual foundation.
B. ARTICLE IX OF THE GENOCIDE CONVENTION APPLIES TO "DISPUTES"
CONCERNING THE PROHIBITION OF ABUSIVE ALLEGATIONS OF GENOCIDE
11. Latvia contends that Article IX of the Genocide Convention applies to "disputes"
concerning prohibition of abusive allegations of genocide under other provisions of the
21 Rights of Nationals of the United States of America in Morocco (France v. United States of America) [1952]
!CJ Rep 176, 182.
22 Ibid 182-184.
23 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) [2012] ICJ Rep 99 [40].
24 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Preliminary Objections) [ 1998] ICJ Rep 9 [ 14],
[26]; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) (Preliminary Objections) [1998]
!CJ Rep 115 [12], [13], [25].
7
Genocide Convention, which fall within the scope of the Court's jurisdiction ratione
materiae. These provisions include, among others, Articles I and IV,25 which provide
context for the construction of Article IX. Latvia submits that no Party to the Genocide
Convention is permitted to make abusive allegations of genocide. Such allegations risk
undermining the character of genocide as a crime of exceptional gravity and the stigma
that attaches to it as an affront to the "most elementary principles of morality".26 This
would be contrary to the object and purpose of the Genocide Convention. Latvia will
make three points concerning the construction of Article IX, read in the context of
Articles I, IV, and other relevant provisions of the Genocide Convention: (1) the
obligations under the Genocide Convention shall be performed and interpreted in good
faith; (2) a unilateral and unfounded determination that a situation constitutes genocide is
abusive and contrary to the letter and the spirit of the Genocide Convention; (3) the
Genocide Convention provides guidance concerning the means by which the Parties may
act lawfully to prevent and punish genocide.
12. First, obligations to prevent and punish genocide, set out in Article I and further in Article
IV, must be performed and interpreted "in a reasonable way and in such a manner that
[the Genocide Convention's] purpose can be realized".27 The obligation to "abstain from
acts calculated to frustrate the object and purpose of the treaty" is "clearly implicit in the
obligation to perform the treaty in good faith". 28 It would be unreasonable to allow a
Contracting Party to make abusive allegations of genocide and thus distort the terms of
the Genocide Convention. Indeed, this would be contrary to the basic moral and
humanitarian objectives that the Genocide Convention seeks to protect.
13. Good faith interpretation thus operates as a safeguard against misuse of the terms and
institutions of the Genocide Convention. Good faith is also directly linked to the "[t]rust
25 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) (Memorial of Ukraine of I July 2022) [78]; Allegations of Genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)
(Preliminary Objections of the Russian Federation of 1 October 2022) [163].
26 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory
Opinion) [1951] !CJ Rep 15, 23.
27 Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 [142].
28 ILC, 'Draft Articles on the Law of Treaties with Commentaries' (1966) II Yearbook of the International Law
Commission 211 Draft article 23 Commentary 4; also R Kolb, la bonne Joi en droit international public (PUF
2000) 284-85.
8
and confidence [that] are inherent in international co-operation".29 This is particularly
important in the context of the Genocide Convention, given that it is an instrument in
relation to which the Contracting 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".30
14. Secondly, a unilateral and unfounded allegation that a situation constitutes genocide 1s
abusive and contrary to the letter and the spirit of the Genocide Convention. According to
the Court, "proof at a high level of certainty [is] appropriate to the seriousness of the
allegation", namely that concerning a failure to prevent and punish genocide.31 Unless
supported by plausible evidence, based on independent and impartial sources of
information, and verified and corroborated in consultation with the Parties, the United
Nations organs, and other international mechanisms, such allegations are abusive.32 Given
the content of these obligations, Contracting Parties to the Genocide Convention often
rely on the results of independent investigations33 and information exchanged through
international34 and regional cooperation mechanisms before qualifying a situation as
genocide and taking any further action pursuant to Article I. 35 Best practices for
implementation of the Genocide Convention prioritise cooperation through existing and
further-enhanced international mechanisms.36
29 Nuclear Tests (Australia v. France) [1974] ICJ Rep 253 [46].
30 Reservations to the Genocide Convention (n 26) 23.
31 Application of the Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (n 15) [21 0].
32 Ibid [211].
33 For example, the unilateral determination by the United States of alleged genocide in Darfur was based on the
findings of the Darfur Atrocities Documentation Project (DADP), an investigation conducted by independent
experts, see the declaration before the Senate Foreign Relations Committee by Colin Powell, 'The Crisis in
Darfur' (9 September 2004 ), <https://200 l -2009.state.gov/secretary/former/powell/remarks/36042.htm>.
34 For example, The Gambia communicated its allegations to Myanmar prior to commencing proceedings before
the Court and relied inter alia on the reports of the Independent International Fact-Finding Mission on
Myanmar, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar) (Order of23 January 2020) [2020] ICJ Rep 3 [28].
35 'Report of the Secretary-General: Advancing Atrocity Prevention: Work of the Office on Genocide
Prevention and the Responsibility to Prevent' (3 May 2021) UN Doc N75/863-S/202 l/424 [2 l]-[27].
36 UN Human Rights Council, 'Resolution 43/29: Prevention of Genocide' (29 June 2020) UN Doc
NHRC/RES/43/29 [10]-[l l].
9
15. Thirdly, 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",37 "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".38 Articles VIII and IX are "means for the resolution of disputes that
the Convention provides. These means would of course have been open to Russia as
alternatives to the military action that it commenced in Ukraine on 24 February 2022".39
In Latvia's view, Articles IV, VI, VII, VIII and IX provide context for construction of the
content and scope of the obligations to prevent and punish genocide in Article I:
Articles IV, VI and VII: The Contracting Parties undertake to punish genocide
regardless of the personal status of the offenders.40 While every Contracting Party has
an interest in the performance of that obligation, the Convention reserves a particular
role to the territorial State. Thus, the obligation to prosecute genocide or other acts
enumerated in Article III "is subject to an express territorial limit".41 To the extent that
the territorial State is unwilling or unable to prosecute, Article VII provides for the
duty to extradite.42 Thus, any Contracting Party, which has reason to believe that the
territorial State is unwilling or unable to prosecute alleged offenders, may engage in
bilateral exchanges with the territorial State and request extradition. This "makes up a
vital part within the conventional duties to international cooperation".43
Article VI: A Contracting Party may discharge its obligation to punish alleged
perpetrators of genocide by having recourse to domestic or international penal
37 Order on Provisional Measures (n 12) [56].
38 Ibid.
39 Order (n 12) Separate Opinion of Judge Robinson <https://www.icj-cij.org/public/files/case-related/182/l 82-
20220316-0RD-Ol-04-EN.pdt> [30].
40 Genocide Convention (n 4) Article IV.
41 Genocide Convention (n 4) Article VI; also Application of the Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro) (n 15) [184], [442].
42 Genocide Convention (n 4) Article VI.
43 B Schiffbauer, "Article VII" in CJ Tams, L Berster and B Schiffbauer (eds), Convention on the Prevention
and Punishment of the Crime of Genocide (Beck/Hart/Nomos 2014) 268.
10
tribunals.44 For example, the International Criminal Court ("ICC") is well equipped to
investigate, prosecute, and punish the crime of genocide. States Parties to the Rome
Statute of the ICC may refer situations in which genocide or other acts enumerated in
Article III are alleged to have been committed to the attention of the ICC Prosecutor.45
Even if they are not parties to the Rome Statute, they may recognize its competence
over specific crimes, including genocide, alleged to have occurred in their own
territory.46
Article VIII: A Contracting Party with reason to believe that genocide or other acts
enumerated in Article III have occurred or that there is a risk that such acts may occur,
may call upon the competent United Nations organs to undertake necessary
enforcement actions.47 Article VIII sets out a basic framework of cooperation within
which the obligations to prevent and to punish may be performed and provides a
reference point for the actions that States Parties should resort to in the discharge of
those obligations.48 Article VIII does not exhaust the scope of the obligation to
prevent genocide,49 and the Contracting Parties may fulfil their Article I obligations
though "bilateral engagement or exchanges within a regional organization". 50
However, it does significantly reduce the risk of abusive allegations as the competent
United Nations organs would be well-placed to independently verify and corroborate
any such allegations before undertaking any enforcement actions. If Article I were to
be interpreted in a way that permits a Contracting Party to make an abusive unilateral
characterisation of a situation as genocide and act upon it, Article VIII would be
44 Genocide Convention (n 4) Article VI.
45 Rome Statute of the International Criminal Court (adopted 17 July I 998, entered into force I July 2002) 2187
UNTS 3 Article 14(1).
46 Ibid Article 12(3).
47 Genocide Convention (n 4) Article VIII.
48 Application of the Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (n 15) Separate Opinion of
Judge Tomka 310 [66]; also L Pezzano, 'Rescatando una nonna del olvido: el art. VIII de la Convenci6n contra
el genocidio y la responsabilidad de proteger' (2021) 73 Revista espanola de derecho internacional 207, 215-
225.
49 Application of the Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (n 15) [427].
50 Order on Provisional Measures (n 12) [57].
11
redundant (ejfet utile). This would be contrary to "the well-established principle in
treaty interpretation that words ought to be given appropriate effect". 51
Article IX: As discussed in the previous section, a Contracting Party may submit to
the Court a dispute relating to the performance or non-performance of Convention
obligations, including under Article I. 52 The Court is well placed to make
determinations as to the occurrence of genocide or other acts enumerated in Article III
and has the power to order provisional measures. Accordingly, a Contracting Party
which knows or has reason to suspect that genocide or other acts set out in Article III
have occurred or are about to occur may institute judicial proceedings against the
alleged perpetrator. Importantly, beyond the usual requirement of the dispute there are
no procedural preconditions in the Genocide Convention, such as the obligation to
negotiate or the obligation to resort first to other means of dispute settlement.
Considerations of ejfet utile, similar to those noted earlier in respect of Article VIII,
also apply when interpreting Article I in light of Article IX.
16. The means for the prevention and punishment of genocide described above are consistent
with "the spirit and aims of the United Nations" and the need for "international cooperation",
two elements that are expressly reflected in the Preamble of the Convention. 53
Conversely, it would be inconsistent with the rationale of the Convention to allow a
Contracting Party to make abusive allegations of genocide and employ means to prevent
and to punish it that are not themselves in accordance with the aims and purposes of the
United Nations. Finally, the construction contended for is also confirmed by the travaux
preparatoires of the Convention.54
51 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation) (Preliminary Objections) [201 l] ICJ Rep 70 [133]; also Territorial Dispute
(Libyan Arab Jamahiriya/Chad) [ 1994] ICJ Rep 6 [51] (with further references).
51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia) (Preliminary Objections) [1996] [CJ Rep 595 [32].
53 Genocide Convention (n 4) Preamble.
54 See UN Economic and Social Council, 'Prevention and Punishment of Genocide: Comments by Governments
on the Draft Convention Prepared by the Secretariat' (30 January 1948) UN Doc E/623 (statement by
Venezuela); UN Economic and Social Council, Ad Hoe Committee on Genocide, 'Summary Record of the
Seventh Meeting held on 12 April 1948' (20 April I 948) UN Doc E/AC.25/SR.7 (statement by Poland); Official
Records of the Third Session of the General Assembly, Sixth Committee, Summary Records of Meetings (21
September-JO December 1948), in particular UN Doc A/C.6/SR.96 (statement by the Union of Soviet Socialist
12
C. ARTICLE IX APPLIES TO "DISPUTES" CONCERNING OTHERWISE UNLAWFUL
USE OF FORCE AS A MEANS FOR PREVENTION AND PUNISHMENT OF GENOCIDE
17. Latvia contends that Article IX of the Genocide Convention applies to "disputes"
concerning otherwise unlawful use of force as a means for prevention and punishment of
genocide. Latvia will make four points of construction: (1) the Convention does not
authorize use of force that would otherwise be unlawful under applicable international
law; (2) the means of fulfilling the obligation to prevent and punish genocide not
provided for in the Convention cannot include the unlawful use of force; (3) the
Convention prohibits the otherwise unlawful unilateral use of force as a means for
prevention and punishment of genocide; (4) the content of the rule prohibiting unlawful
unilateral use of force as a means of prevention and punishment of genocide is to be
determined by taking into account other relevant rules of international law.
18. First, the Convention does not authorize a use of force that would otherwise be unlawful
under applicable international law. The Genocide Convention contains no explicit
authorization of the use of force. This textual silence stands in contrast with the detailed
provisions employed when the Convention does authorize particular conduct by the
Parties; for example regarding trial of persons charged with genocide, 55 their
extradition,56 and submission of disputes to the Court.57 Nor is a rule dispensing with such
an important principle of international law as the prohibition of unlawful use of force
tacitly provided for in the Convention. 58 The Court has stated that "every State may only
act within the limits permitted by international law" in discharging its duty to prevent
genocide under the Convention, 59 which is accepted to signify that the Convention does
Republics); UN Doc A/C.6/SR.98 (statement by the Union of Soviet Socialist Republics); UN Doc
A/C.6/SR. l 09 (statement by the United States of America); UN Doc A/C.6/SR. l 09 (statement by Uruguay).
55 Genocide Convention (n 4) Article VI.
56 Ibid Article Vil.
57 Ibid Article IX.
58 Elettronica Sicula SpA (£LSI) (United States of America v. Italy) [1989] !CJ Rep 15 [50]; Oil Platforms
(Islamic Republic of Iran v. United States of America) [2003] ICJ Rep [41 ].
59 Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (n 15) [430];
Order on Provisional Measures (n 12) [57].
13
not authorize an otherwise unlawful use of force. 60 Latvia agrees with the point made in
the Order that "it is doubtful that the Convention, in light of its object and purpose,
authorizes a Contracting Party's unilateral use of force in the territory of another State for
the purpose of preventing or punishing an alleged genocide. "61
19. Secondly, any means of fulfilling the obligation to prevent and punish genocide not
provided for in the Convention cannot include a use of force that would otherwise be
unlawful under applicable international law.62 The Court notes in the Order that "Article I
does not specify the kinds of measures that a Contracting State may take to fulfil this
obligation",63 and further identifies the engagement with the competent organs of the
United Nations64 and submission of disputes to the Court as measures authorized to
prevent and punish genocide. 65 The Court also refers to "other means ... such as bilateral
engagement or exchanges within a regional organization".66 In Latvia's view, these rules
of the Charter of the United Nations on peaceful means for the settlement of international
disputes are legally relevant to the construction of the Convention by way of Article 31,
paragraph 3, sub-paragraph (c), of the Vienna Convention.67 The principles of
6° CJ Tams, L Berster, and 8 Schiftbauer (eds), Convention on the Prevention and Punishment of the Crime of
Genocide: A Commentary (Beck/Hart/Nomos 2014) 51; A de Hoogh, 'Jus Cogens and the Use of Armed Force'
in M Weller (ed), The Oxford Handbook on the Use of Force in International law (OUP 2015) 1161, 1185
("absence of a justification for the use of armed force laid down in the Genocide Convention"); R O'Keefe,
International Criminal Law (OUP 2015) 344-5; G Mettraux, International Crimes: Law and Practice (Volume
I: Genocide, OUP 2019) 96 ("the duty to prevent [genocide] does not purport to provide an exception to ... the
general principles regulating the lawful use force").
61 Order on Provisional Measures (n 12) [59].
62 If the obligation is breached, States may rely on applicable customary secondary rules to implement State
responsibility, Application of the Genocide Convention Order (The Gambia v. Myanmar) Order (n 34) [41 ];
International Law Commission, 'Articles on responsibility of States for internationally wrongful acts' Yearbook
of the International law Commission 200/: Volume II Part 2 UN Doc A/CN.4/SER.A/2001/Add.l (Part 2) 26
Articles 48, 54. These rules do not authorize otherwise unlawful use of force either, ibid Article 50( I )(a).
63 Order on Provisional Measures (n 12) [56].
64 Genocide Convention (n 4) Article VIII.
65 Ibid Article IX.
66 Order on Provisional Measures (n 12) [57].
67 Ibid [58]; Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) I UNTS
XVI Articles I, 33( I). See also Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep 16 [53] ("an international instrument has to be interpreted and applied within the framework of
the entire legal system prevailing at the time of the interpretation").
14
effectiveness and good faith in treaty interpretation reqmre that the (for its time)
innovatory and far-reaching regime of measures set out in the Convention and the Charter
of the United Nations cannot be supplemented by unlawful use of force.
20. Thirdly, the Convention prohibits an otherwise unlawful use of force as a means for
prevention and punishment of genocide. Latvia fully agrees with the proposition that
"Article I of the Genocide Convention imposes an obligation on Russia not only to act to
prevent genocide, but to act within the limits permitted by international law to prevent
genocide."68 The balance struck between the means for prevention and punishment of
genocide in the Convention, demonstrated above, is consistent with a positive prohibition
of those other means not in conformity with the spirit and aims of the United Nations
Charter (such as "the suppression of acts of aggression or other breaches of the peace").69
This construction is supported by the ordinary meaning of Article I ("genocide . . . is a
crime under international law which they undertake to prevent and to punish"), which
interpreted in good faith entails the prohibition of "the supreme international crime"70 as a
means for implementing the Convention. 71 It is further supported by interpretation of
"measures that a Contracting State may take to fulfil this obligation" in Article 172
consistently with the relevant rules of international law on the use offorce73 ofjus cogens
character.74 The construction put forward is not contradicted by the Court's rejection of
arguments regarding external rules in the very different circumstances where such rules
were "unrelated to the stated object and purpose"75 or "simply not germane to the
68 Order on Provisional Measures Separate Opinion of Judge Robinson (n 39) [27] (emphasis in the original).
69 Order on Provisional Measures (n 12) (58].
70 'Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg,
30 September and 1 October 1946 (Reproduced)' (1947) 41 AJIL 172, 186.
71 Applicatinn nf thP 1rPnnridP Convention (Bosnia and Herzegovina v. Serhia and Montenegro) (n 15) [163].
72 Order on Provisional Measures (n 12) [56].
73 Oil Platforms (n 58) [41]-[42].
74 2022 ILC Draft conclusions on identification and legal consequences of peremptory norms of general
international law (jus cogens) in Report of the International Law Commission (Seventy-third session) UN Doc
A/77/10 11 Draft conclusion 20, Draft annex (a).
75 Immunities and Criminal Proceedings (n 14) [95].
15
concerns underlying the drafting of' the treaties being interpreted. 76 Unlike those cases,
the Genocide Convention's rules, institutions, and teleology are closely related to the
modem international regulation of the use of force, both in principle and in practice.
Consequently, the Court's jurisdiction under Article IX of the Convention extends, where
appropriate, to the determination of whether action alleged to be taken as a means for
prevention and punishment of the crime of genocide was or was not unlawful use of
force. 77
21. Fourthly, the scope of the prohibition of unlawful use of force as a means of prevention
and punishment of genocide is to be determined by taking into account other relevant
rules of international law. Consistently with Article 31, paragraph 3, sub-paragraph (c), of
the Vienna Convention, the determination of whether action alleged to be taken as a
means for prevention and punishment of genocide was or was not unlawful use of force is
to be carried out by reference to international law applicable to this question, that is to
say, the provisions of the Charter of the United Nations and customary international law
on the use of force. 78 Latvia's proposed construction is in line with the approach taken in
the Order, 79 which Latvia regards as correct.
III. CONCLUSION
22. Latvia has made three submissions on construction of the Genocide Convention. First,
Article IX of the Genocide Convention is formulated in broad terms to include "disputes"
concerning the "fulfilment" of obligations under the Convention and applies to claims
that have been described as "non-violation complaints". Secondly, Article IX of the
Genocide Convention applies to "disputes" concerning the prohibition of abusive
allegations of genocide under other provisions of the Genocide Convention. Thirdly,
Article IX of the Genocide Convention applies to "disputes" concerning otherwise
76 Certain Iranian Assets (n 14) [65], also [58] ("these provisions clearly indicate that the purpose of At1icle IV
is to guarantee certain rights and minimum protections for the benefit of natural persons and legal entities
engaged in activities of a commercial nature. It cannot therefore be interpreted as incorporating, by reference,
the customary rules on sovereign immunities.").
77 To paraphrase the Court in Oil Platforms (n 58) [42].
78 To again paraphrase the Court in ibid.
79 Order on Provisional Measures (n 12) [58].
16
a means fo prevention and punishment of genocide under other provisions of the Genocide
Resp
(Sign
17
Written observations of Latvia on the subject-matter of its intervention