INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING THE ALLEGATIONS OF GENOCIDE UNDER THE
CONVENTION ON THE PREVENTION AND PUNISI-Th1ENT OF
THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
WRITTEN OBSERVATIONS OF ROMANIA
5 July 2023
I. INTRODUCTION
1. This written statement is submitted by Romania following the Order of the International
Cout1 of Justice of 5 June 2023 1 by which it declared admissible the declaration of
intervention submitted by the Government of Romania in the case concerning the Allegations
of genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation).
2. According to the mentioned ICJ Order, the declarations of intervention filed in this case
(including that of Romania) "are admissible at the preliminary objection state in so far as
they 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
present case. "2
3. Romania recalls that its intervention submitted on the basis of Article 63, paragraph 2 of the
Statute of the International Court of Justice concerns issues pertaining to the construction of
the Convention arising in the context of the present case.3 Specifically, it contended that
the situation under scrutiny requires a proper interpretation of the scope of the following
obligations under the Genocide Convention:
a) The obligation under Article IX of the Convention to submit to the Court disputes
relating to the interpretation, application or fu(filment of the Convention.
b) The obligation under Article I of the Convention to prevent and punish the crime
of genocide, which entails also the interpretation of Articles II, III and VIII of the
Convention. 4
1 Notified to the Agent of Romania on 6 June 2023.
2 Paragraph 99.
3 Paragraph 13 of the Declaration of Intervention of Romania.
4 Idem paragraph 15.
2
4. In light of the Order of the Court, Romania will develop in this written statement its
arguments concerning the proper constrnction of Article IX of the Genocide Convention in
support of the determination of the Court's jurisdiction ratione materiae in this case. In line
with the suggested approach by the Court, these observations reflect the coordination with
other intervening States sharing a common view.
5. Romania recalls, at the same time, that by intervening in this case it does not seek to interfere
with the positions of the Parties in the proceedings, but to contribute to clarifying the proper
interpretation of the Genocide Convention.
II. INTERPRETATION OF ARTICLE IX OF THE GENOCIDE CONVENTION
General remarks
6. The Genocide Convention is a landmark treaty that includes not only the definition of the
crime of genocide, but also certain obligations for Contracting Parties to prevent and punish
genocide, wherever committed, including by enacting relevant legislation and punishing
perpetrators.
7. As confirmed by the Court in its Opinion of 28 May 1951,5
[t]he origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as 'a crime under international law'
involving a denial of the right of existence of entire human groups, a denial ivhich
shocks the conscience of mankind and results in great losses to humanity, and
which is contra,y to moral law and to the spirit and aims of the United Nations
(Resolution 96 (]) of the General Assembly, December 1 J'" 1946). The first
consequence arising from this conception is that the principles underlying the
Convention are principles which are recognized by civilized nations as binding on
5 Reservations to the Convention on Genocide, Advisory Opinion: I.C. J. Repo1ts 1951, p. 15 at p. 23.
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States, even without any conventional obligation. A second consequence is the
universal character both of the condemnation of genocide and of the cooperation
required 'in order to liberate mankind.from such an odious scourge' (Preamble to
the Convention)."
8. Therefore, the Convention sets forth erga omnes rights and obligations,6 the prohibition to
commit genocide having a peremptory nature. In the accomplishment of the high purposes
which define the object and purpose of the Convention (as above emphasized), the
Contracting States must act in good faith and in compliance with the UN Charter and other
principles and rules of international law.7
9. The legal relationship established between the Contracting Parties by virtue of their
participation to the Genocide Convention includes the acceptance of the jurisdiction of the
Comt over disputes that might occur between them in relation to the Convention, unless a
reservation has been introduced blocking the exercise of jurisdiction.
I 0. According to Article IX, the compromissory clause which constitutes the legal basis for the
proceedings instituted by Ukraine against the Russian Federation,
Dfaputes between the Contracting Parties relating to the inte,pretation,
application or fi1ljilment 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.
11. In order to determine the ratione materiae jurisdiction of the Court in this case, an
interpretation of this compromissory clause is required, which thereafter should be placed in
the context of the case.
6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I. C. J. Reports 1996, p. 595, at p. 616, paragraph 31.
7 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 , paragraph 430.
4
12. The interpretation of A11icle IX of the Genocide Convention should be done against the
general rnles of treaty interpretation enunciated in Alt 31 of the Vienna Convention on the
Law of Treaties which codifies customary international law:
i. A treaty shall be inte,preted in good faith in accordance w;i/1 the ordinary
meaning to be given to tl,e terms of the trea~y in their context and in the light of its
object and pwpose.
2. The context for the pwpose of the inte,pretation of a treaty slrall comprise, in
addition to tl,e text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connection witlr the conclusion of the treaty;
(b) any instrument 1,vhich was made by one or more parties in connection
wit!, the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken ;nto account, together with the context:
(a) any subsequent agreement bet.veen the parties regarding the
inte,pretation of the treaty or the app/icatfon of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its inte,pretation;
(c) any relevant rules of international law applicable in the relations
beti,veen the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
13. Atticle 32 of the Vienna Convention on the Law of Treaties is also of assistance m
determining the correct construction of the provisions of the Genocide Convention.
14. The principle of good faith, which is pai1 of the core obligations of a State patty to a treaty, is
stated in Atticle 26 of the Vienna Convention:
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Every treaty in force is binding upon the parties to it and must be petformed by
them in good faith.
15. A good faith application of the Genocide Convention implies that the Contracting States
apply the treaty in a reasonable way and in such a manner that its purpose can be realized.8
This implies both that (I). the provisions of Article IX cannot be interpreted as a pretext and
misused for the sole purpose of triggering the jurisd iction of the Court over disputes the
subject-matter of which do not relate to the Genocide Convention, and that (2). the provisions
of the Genocide Convention cannot be misused / cannot serve as a basis for abusive
allegations in order to justify conduct which represents a violation of international law.
16. Hence, the bad faith conduct in the application of the Genocide Convention cannot be
invoked to reject a good faith interpretation of the provisions of the same treaty (including of
Article IX) that would bring the dispute generated by the bad faith conduct within the
jurisdiction of the Court.
17. Good faith interpretation thus operates as a safeguard against the misuse of the Genocide
Convention.
"One of the basic principles governing the creation and pe,formance of legal
obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international cooperation[ .. .}. " 9
18. As also stated in leading doctrine,
[l}he reasonable and bona fide exercise of a right implies an exercise which is
genuinely in pursuit of those interests which the right is destined to protect and
which is not calculated to cause any unfair prejudice to the legitimate interests of
8 Gabcikovo-Nagymaros Project (Hunga1y/S/ovakia), Judgment, I.CJ. Reports 1997, p. 7, at p. 79, paragraph 142.
9 Nuclear Tests (Australia v. France), Judgement, I.CJ. Reports 1974, p. 253, at p. 268 paragraph 46.
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another State, whether these interests be secured by treaty or by general
international law. JO
19. An immediate conclusion that can be drawn form a good faith interpretation of the terms of
Atticle IX of the Convention, in light of its object and purpose, implies that the Court has
jurisdiction to interpret the provisions of the Convention and to determine the proper
application and fulfi lment of the Convention in all circumstances when there is a dispute
between the Contracting Parties over such questions.
20. Thus, in order to have ratione materiae jurisd iction, two conditions must be verified under
Article JX of the Convention:
• there must be a dispute between Contracting Parties to the Convention;
• the dispute must relate to the inte,pretafion, application or fulfilment of the
Convention, or to the responsibility of a State for genocide.
21. As the Cou1t observed in The Gambia v. Myanmar case,
"[t]he Genocide Convention does not attach additional conditions to the
invocation of responsibility or admissibility of claims submilled to the Court. The
use of the expression "the Contracting Parties" in article IX is explained by the
fact that the Court 's jurisdiction under Article IX requires the existence of a
dispute between two or more Contracting Parties. "11
22. Further, there is nothing in Article IX that could be interpreted as limiting the jurisdiction of
the Court to those situations when the applicant is the Contracting Party formulating
accusations of genocide against another Contracting Party or other Contracting Parties. Quite
to the contrary, the correct construction of Article IX implies that the only two-folded
element to be proven in order to trigger the jurisdiction of the Court is the existence of a
10 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Stevens and Sons Ltd.
1953,pp. 131-1 32.
11 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 37, paragraph 11 0.
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dispute between the Contracting Parties on the interpretation, application or.fi1(f,lment of the
Convention.
There must be a dispute
23. The notion of "dispute" has been extensively analyzed in the jurisprudence of the Court,
being established that it implies "a disagreement on a point o_f law or fact, a conflict of legal
views or of interests"12 between the Parties, provided that it is "shown that the claim of one
party is positively opposed by the other".13
24. Furthermore, in making a determination on the existence of a dispute and in isolating the real
issue in the case and identify ing the object of the claim, 14 the Court refers to the date on
which the application was submitted to the Cou1t, but also to the conduct of the Parties
subsequent to the application, paying special attention to the author of the statement or
document, their intended or actual addressee and their content. 15
25. It can also be that a dispute falls within the scope of more than one treaty, in which case the
di spute can be entertained if it fa lls in at least the ambit of one treaty in relation to which
jurisdiction ratione materiae can be established. 16
The dispute must relate with the inte,pretation, application or fulfilment of the Convention,
or to the responsibility of a State for genocide
26. It should be noted that the language of the compromissory clause is wider than the specific
clauses of similar nature, by not I imiting the jurisdiction of the Court only to disputes on the
12 Mavrommatis Palestine Concessions, Judgment No. 2, /924, P.C I. J., Series A, No. 2, p. 11.
13 Soulh Wes/ Africa (Ethiopia v. South Aji-ica; Liberia v. South Africa), Preliminary O~jections, Judgment of 21
December 1962, I.CJ. Reports 1962, p. 319, at p. 328.
14 Nuclear Tests (New Zealand v. France), Judgrnent, I.CJ . Repo1ts 1974, p. 466, paragraph 30.
15 Id. p. 25, paragraph 64 and the jurisprudence cited therein.
16 See for instance the Application of the international Convention on the Elimination of All Forms of Racial
discrimination (Georgia v. Russian Federation), Preli111ina1y Objections, Judgment, I.CJ Reports 20/ I, p. 70 at p.
120, paragraph 113.
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interpretation or application of the Convention, but adding disputes relating to the fu lfi lment
of the Convention.
27. The rationale for the use of this language was to ensure the widest possible exercise of
j urisdiction by the Court in connection with its provisions:
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 jurisdictfon on account of an insufficient link with that
Convention. 17
28. The term fulfilment partially overlaps with the term application, and it is understood to refer,
in its regular meaning, to an application that 'meets the requirements' of a norm, 18 therefore
going beyond the mere application of the norm, into the area of compliance.
29. A dispute may concern the fu lfi lment of the Convention when either there is no action on the
pa11 of a Contracting State that meets the requirements of the norm, or there is a certain
action that is not suitable for such purpose. In The Gambia v. Myanmar case, the dispute
concerned inter alia the non-action of the Myanmar authorities in sanctioning the
perpetrators of genocide; thus, Myanmar fa iled to fulfil the provisions of the Convention
precisely because they did not act. 19
30. r mproper or no action may concern the fulfilment of any provision of the Convention be it
the prevention or the punishment of genocide. In genera l, actions taken to punish genocide
and further prevent the perpetration of genocide require a proper determ ination of the actual
occurrence of genocide. Such determination for purposes of punishment and further
prevention cannot be done but based on solid and reliable information, reports and evidence.
17 Robert Kolb, The scope Ratione Materiae of the Co111puls01J1 Jurisdiction of the !CJ, in The UN Genocide
Convention: a Co111menta1y, edited by Paola Gaeta, Oxford University Press 2009, p. 453.
18 C. Tams, Article IX in Convention on the Prevention and Punishment of the Crime of Genocide: A Co111111enta1y
by Christian J . Tams, Lars Berster and Bjorn Schiffbauer, C. H. BECK Hart Nomos 20 14, p. 3 13.
19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmai), Judgment of22 July 2022, p. 12, paragraph 24, Points ( I) (c), d) and (e).
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It cannot be done in an arbitrary manner. Otherwise, it may lead to an improper fulfilment of
the Convention.
31. Indeed "[a]II the States patties to the Genocide Convention have a common interest to ensure
the prevention, suppression and punishment of genocide, by committing themselves to
fulfilling the obligations contained in the Convention".20 However, the good faith fulfillment
of the obligations under the Convention requires that this duty is discharged in accordance
with the provisions of the Convention (see for instance Article VIII on the basis of which the
UN competent organs may take action or Article IX which provides for a judicial settlement),
and general principles of international law, including through international co-operation (as
stated in the Preamble of the Convention).
32. Moreover, the use of these means provided for under the Convention voices the general
obligation that States have to settle disputes by peaceful means.
33. Thus, within the scope of the duty to prevent and punish cannot be included making abusive
allegations or unsubstantiated claims of perpetration of genocidal acts on the basis of which a
Contracting State would perform its duty to suppress and punish against the State accused,
especially if actions taken to that effect are unlawful under international law. Such conduct
distorts the scope of Article I and generally the object and purpose of the Convention.
34. As the Court explained in the Bosnian Genocide case, "it is clear that every State may only
act within the limits permitted by international law."21 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".22
20 Id. p. 36, paragraph I 07.
21 Application of the Convention on the Prevention and Punishment of the Cri111e of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, l.C.J. Reports 2007, p. 43, at p. 221, paragraph 430.
22 Allegations of Genocide under the Convention on the Prevention and Punishment of the Cri111e of Genocide
(Ukraine v. Russian Federation), Order on Provisional Measures of 16 March 2022, Separate Opinion of Judge
Robinson, paragraph 27.
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35. lt would be even more restrictive to argue that a dispute concerning the improper conduct of
a Contracting Party in the fulfilment of obligations under Article I is left outside the scope of
Article IX.
36. Further, Article IX specifies that the Court has ratione materiae jurisdiction over disputes
relating to the responsibility of a State for genocide.
37. It would frustrate the ordinary meaning of the terms of Article IX to read this specific
language of the compromissory clause as including only those disputes brought before the
Court by Contracting States claiming the responsibility of another State for genocide, while
restricting the right of the State whose responsibility for genocide has been claimed by other
Contracting State/States to defeat those allegations and verify whether actions taken against it
(especially actions with severe consequences, as deprivation of sovereignty over parts of its
territory or use of force) are within what is permitted by international law for purposes of
punishing the alleged perpetration of genocide.
38. The objective of the Convention to protect the most elementary principles of morality and
humanity fully endorses such an interpretation of Article IX.
39. In conclusion, the object and purpose of the Convention, its terms and context testify to the
fact that, by vi1tue of Article IX, the Court was endowed with the widest possible jurisdiction
to assess the perpetration or not of the crime of genocide and the appropriateness of the
measures taken to prevent and punish genocide in fulfillment of the Convention, whenever
there is a dispute between the Contracting Parties in relation to such matters, irrespective of
which of the parties brings such dispute before it.
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Ill. CONCLUSION
40. Following these considerations, Romania submits that disputes concerning the fol lowing fall
within the ratione materiae jurisdiction of the Court:
the fulfilment or not by a Contracting Party of its duty to prevent and punish genocide
within the meaning of Article I of the Convention, including the defeat of abusive
allegations regarding the responsibility of a Contracting State for genocide;
the measures and actions the Contracting Parties to the Convention may take in the good
faith fu lfi lment of the Convention in response to genocidal acts committed by another
Contracting Party on its territory.
41. The correct construction of Article IX supports the exercise of the jurisdiction of the Court in
its widest possible expression, as only in th is way the Court would be able to assist the
Contracting Parties in the realization of the Convention's humanitarian objective of
preventing and punishing genocide.
Res pectfu II y,
4r1
Professo~ Bogd
Agent of Roman ia
12
Written observations of Romania on the subject-matter of its intervention