COURT OF JUSTICE
Written Observations oC tbe
K1NGDOMt OF SPAIN
In the case of
GENOCIDE UNDER THE CONVENTION ON PUNISHMENT OF THE CRIME OF GENOCIDE v. RUSSIAN FEDERATION)
2023
1
l. OBJECT AND PURPOSE OF INTERVENTION
1. 5 June 2023, International J ustice ("the decided that
of
63 the COUlt
submitted among ("Order on Admissibility
Declarations of Intervention") in the case conceming Allegations of the Convention on the Prevention and Punishment ofthe Crime ofGenocide
v. Russian
("the Proceedings") were admissiblel . The
5 JuIy 2023 as
limit for
ofthe
to 86,
1,ofthe
ofthe Court
Rules"l intervention under Article 63 the Statute involves the exercise a
2.
by a State party to a convention construction of which is in
determined in the on
Declarations of Intervention,
construction
IX and of
provisions of the
on the
and Punishment of the
("Genocide Convention,,)4
the Court's jurisdiction at the present of the . In
IS In
with the Order on Admissibility of the Declarations of Intervention, the urr'TT"'n observations will solely concern construction of IX and other
ofthe
Convention are relevant the and principIes internationallaw outside the '--''-UV'-'l determination of References to Convention observations will only concem the construction the Convention's provisions, in with the rule of interpretation In
1 Allegations 01 Genocide under /he Convention on the Preven/ion and Punishment 01 the Crime 01
Genocide (Ukraine v. Russian Federation) of 5 June ¡t(;.::;.!.s;;;¡~t;:.:.I2f1H!lt;:g!....LQ.ff...LQ.A:f.YA~,)Y':}.\l,.J.:.\..J.I:"L!.:Y..L:\!Y.:.&<.l~.!}}.g, paras 9 9 and 102 (1 ).
2 Ibid, para. 102(3).
3 Ibid, para. 26.
4 Convention on the Prevention and Punishment of the Crime of Genocide aQ(mté:Q 9 December 1
entered into force 12 January 1951) 78 UNTS 277.
5 Order on Admissibility of the Declarations of lntervention (n 1), p. 26.
6 ¡bid, para. 99.
2
Treaties ("Vienna
3 (c), of Convention on
Artiele 31,
3. Upon the invitation to with other intervening Spain has reached a substantive with the position interveners. However, to be able to meet strict deadline set the Court and for logistical reasons, Spain files own content in the present observations to Artiele IX Genocide Convention. in its written it will focus on analysis of the key Prrl,p,.,'t" ineluded in
4. As Declaration Spain i) the concept between the Parties"; ii) and nature of a dispute to submitted to the Court ("relating to"): a) interpretation, application or the Convention; b) dispute "relatíng to responsibility of a S tate or for any of other acts enumerated in 111 of the Convention"; iii) the States ""'HHH.'Y to submit a ofany of the dispute").
5. However, addressing above-mentioned would like to make sorne comrnents on of the Genocide Convention in the Order, as they are a coherent the Spanish in particular to the principies we
n. THE GENOCIDE CONVENTION IN THE INTERNATIONAL LEGAL ORDER.
6.
The is the maín
of States to and punish ríght after the World War and in the ofthe United 1t is based on the assessment that genocíde is a crime undel' international law, and on the recognition the fight against genocide, at national and international level, as an unavoidable ethical and
legal
7 ¡bid, para. 84,
3
7.
The
role accorded to the
genocide
Second World
War has
in the
later by the
adoption
number
among which
Against the
and Security ofMankind, adopted
19969 , and the
Rome Statute of the Intemational Criminal Court lO must mentioned. On the other relevance of Convention in intemational reflected in the from 1951
8. The purpose highlighted the Court famous 1951 Opinion, which as follows:
"The origins 01 fhe Convention show tha! it was lhe intention 01 lhe United Nations fo condemn punísh genocide as 'a crime under
interna/lonal
law' involving a human a dental which losses lo YlII."" J'YI ollhe right 01 ofentire Ihe conscience 01 mankind and lo morallaw (1) of
lhe one is to saleguard Ihe existence ofcertain human groups andon other lo confirm lhe mos! principIes
gAs indicated in the third paragraph of ¡he the Convention was aO()p!(:a "in order to Iiberate mankind from such an odious scourge 9 See, article 17 and (3) of the "Ayn..,.,,,,,,r,,,,·,, to this article. Yearbook of the lnternational Law Commission, I vol. Il, Part ll, para.
10 See article 6 ofthe Rome Statute.
1I Reserva/ion lo the Convention on the Prevention and Punishment ofthe Crime ofGenocide, Application of/he Convention on the Prevention and Puníshment ofthe Crime (Bosnia and Hel"Zeí:mvma
v. Serbia Convention on Ihe Preven/ion and Punishment ofthe Crime of Genocíde Revision ,he JI ]996 in /he Case Ihe Convention on {he Preven/ion and Punishment /he Crime Genocide
Hel"Zel!Ovma
v. Yugoslavia), of/he Conven/ion on the Prevention and Punishment of/he Crime (The Gambia v. Myanmar), and Allega/ions under /he Conven/íon on the Preven/ion and Punishment of the Crime Genocíde (Ukraine v. Russian Federa/ion: 32 States intervening).
4
01 morality. In such a convention the contracting States do not have any interests oltheir own; they merely have, one and al!, a common interest, namely, the accomplishment olthose high purposes which are the raison d'étre 01 the convention. Consequently, in a convention 01 this type one cannot speak 01 individual advantages or disadvantages to States, or 01 the maintenance 01 a perlect contractual balance between rights and duties. The high ideals which inspired the Convention pro vide, by virtue 01 the common will 01 the parties, the loundation and measure 01 al! its provisions. ,,12
9. Those statements have been reiterated by the Court every time it has had to deal with disputes related to the crime of genocide and the Genocide Convention. As a result, in the recent case Application 01 the Convention on the Prevention and Punishment olthe Crime olGenocide ([he Gambia v. Myanmar), the Court held that "[a]ll the States parties 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"13. For the determination ofthis "common interest", Spain would like to recall that the Court stated in its 1951 Advisory Opinion that "[t]he objects 01 such a convention must qlso be considered", having emphasised the "raison d'etre" of the Convention as
a relevant basis for its reasoning. 14
10. In addition to that, and as a consequence of it, the ICJ has held that the rights and obligations enshrined the Convention are rights and obligations erga omnes15 and that the prohibition of genocide constitutes an erga omnes obligation, affirming expressly and unreservedly, that it is a norm of jus cogens. 16 This view has also
12 Reserva/ions /0 /he Genocide Conven/ion, Advisory Opinion of28 May 1951, I.CJ. Reports 1951, p. 23.
13 Applica/ion of/he Conven/ion on /he Preven/ion and Punishmen/ of/he Crime ofGenocide (The Gambia
v. Myanmar), Preliminary Objec/ions, Judgment of22 July 2022, p. 36, para. 107.
14 Reserva/ions /0 /he Genocide Conven/ion, Advisory Opinion of28 May 1951, I.CJ. Reports 1951, p. 9.
15 Applica/ion of/he Conven/ion on/he Preven/ion and Punishmen/ of/he Crime ofGenocide, (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objec/ions, Judgmen/, J. C J. Repor/s 1996, para. 31.
16 Armed Ac/ivi/ies on /he Terri/ory of /he Congo (New Applica/ion: 2002) (Democra/ic Republic of /he Congo v. Rwanda), Jurisdic/ion and Admissibility, J. CJ. Repor/s 2006, p. 6, at pp. 31-32, para. 64. See also Case Concerning Applica/ion of /he Conven/ion on /he Preven/ion and Punishmen/ of /he Crime of Genocide (Bosnia and Herzegovina v. Serbia and Mon/enegro), J.CJ. Repor/s 2007, p. 43, at pp. 110-111, para. 161, where the Court, having quoted the 1951 advisory opinion, states that it, in the 2006 judgment, had "reaffirmed the 1951 ... statement[] ... when it added that the norm prohibiting genocide was assuredly a peremptory norm of international law (jus cogens)". Armed A c/ivi/ies on /he Terri/ory of/he Congo, pp. 31-32, para. 64 ("the fact that a dispute relates to compliance with a norm having such a character [ofjus cogens], which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a
5
been In dissenting separate opinions of the judges of
17
The prohibition been as cogens by
the Intemational Tribunal Former Yugoslavia and by the Intemational Tribunal Rwanda. 18 The same conclusion been reached recently by the Intemational Law in its on "Peremptory norms Intemational
(jus
19
11.0n hand, it must be recalled that Court has the structure and nature of the Convention in broad complex terms. According to the construction of Genocide Convention set up by Court, Convention not declares genocide to a heinous under international
law lmposes States
some
duties
cnme
of "''''':lV'~lU HU.<.'VHI'U level, but also obliges parties to prosecute
act (both at national and intemational in order to prevent punish
genocide bearing mind the d of the in accordance and 20
with
basis for the jurisdictioo of the Court"). Case Concerning Application 01the Convention on the Preven/ion and Punishment 01the Crime olGenocide (Bosnia and Herzegovina v. Serbia and Montenegro), para. ]62; Applícation 01 the Convention on the Prevention and Punishment the Crime 01 Genocide v. ,~"'f·fJlI./J J.Cl. Reports p. 3, at pp. para. 88.
17 First among these was the separate opioion of ad hoc in the 01 the Conventíon on the Preven/ion and Punishment ol/he Crime olGenocide, Provisional Order 01 13 September 1. Cl. J993, p. at p. 440, para. ] 00 ("the prohibition of genocide has long been regarded as one of the few undoubted of See, e.g., Application 01 ¡he Convention on the Prevention and Punishment 01 fhe Crime (Croalia v. Serbia), opinion of Judge Trindade, pp. 234 and 238, paras. 83 and Legality 01 the Threat or Use 01 Nuclear Weapons, Opinion, J.CJ. Reporls dissenting of Judge Weeramantry, at p.
496.
18 See, e.g., Prosecutor v. Zoran Kupreskié el IT-95-1 Judgment, Tria] Chamber, International Tribunal for the Fonner Yugoslavia, Judicial Reports 2000, para. 520; Prosecutor v. Radisfav ITJudgment, Tríal Chamber, lnternational Tribunal for the Former Yugoslavia, 2 August 200], para. 541; Proseculor v. Mi/omir Stakié, IT-97-24-T, Trial lnternational Tribunal for the Former Yugoslavia, 31 July 2003; Proseculor v. B/agojevié and Dragan IT-02-60-T, Judgment, Trial Chamber, International Tribunal for the Former O, 17 2005. For decisions ofthe Intematíonal Tribunal for Rwanda see, for example, Proseculor v. Clémenl Kayishema and Obed rCTR-95-1 Judgment, Intemational Tribunal for Rwanda, 21 May 1999, 01
Decisions and Judgements 1999, vol. para. 88 Genocide Convention became widely """'''¡.JLvU as an intemational human instrument. Furthennore, the crime is considered of intemationa] law moreover, a nonn cogens.")
19 See conclusions on identifica/ion and legal consequences peremplory norms 01 general international law (ius Annex, alinea Report of the Intemational Law N77110, p. 16.
20 Application Conventíon on the Prevention 01Punishment Crime olGenocide Gambia
v. Myanmar) . Provisional Measures, para 52.
6
12.
Under this construction, the Genocide Convention is not exelusively a criminal law treaty. It contains elements elearly linked to the protection and safeguard of fundamental values and principies of intemational law, ineluding the protection of human dignity and the principie of accountability. Therefore, it is not possible to analyse the Genocide Convention as an isolated instrument that is unrelated to other relevant rules and principies of intemationallaw, ineluding the maintenance of intemational peace and security and the intemational protection of human rights.
13.
It is in that context that Artiele IX must be construed, having in mind that Artiele IX in itself is an expression of the relevance of the Genocide Convention in the intemational law system. As will be explained hereafter, Spain considers that the special nature and role attributed by States to the Genocide Convention has to be taken into account in the construction of Artiele IX, in order not to undermine the object and purpose of the Convention.
III. ARTICLE IX OF THE GENOCIDE CONVENTION: NATURE AND CRITERIA FOR INTERPRETATION
14. Artiele IX ofthe Genocide Convention reads as follows:
"Disputes between the Contracting Parties relating to the interpretation, application or lulfilment olthe present Convention, including those relating to the responsibility 01 a State lor genocide or lor any 01 the other acts enumerated in article JJI, shall be submitted to the Jnternational Court 01 Justice at the request 01 any 01 the parties to the dispute. "
A) Article IX as a compromissory clause
15. As the ICl has reiterated, Artiele IX is a compromissory elause which can function as the sole legal basis for the exercise of its jurisdiction with regard to the Genocide Convention. This provision must be distinguished from Artiele VIII as a political means to deal with genocide21 .
21 Application ofthe Conven/ion ofthe Preven/ion and Punishment ofthe Crime ofGenocide (The Gambia
v. Myanmar). Provisional Measures,.Order of23 January 2020, para. 35; Preliminary Objec/ions, para 88.
7
16.
The great significance that States have attached to this compromissory elause is reflected in the fact that sorne States that once reserved Artiele IX have subsequently withdrawn their reservations.
17.
Artiele IX is one of the first examples of a "compromissory clause" ineluded in multilateral treaties adopted under the auspices of the United Nations. Even though it responds to the same nature and purpose of similar provisions ineluded in other multilateral treaties adopted in the same framework, its wording contains several distinctive features. In particular, the reference to the word "fulfilment" besides "interpretation" and "application" of the Convention, on the one hand; and the phrase "ineluding ( ... ) the responsibility of a State for genocide or for any of the other acts enumerated in artiele III", on the other hand. FinaHy, it must be underlined that Artiele IX gives the possibility to file an application to "any ofthe parties to the dispute".
18.
In addition to that, mention must be made to the direct recognition by Artiele IX ofthe potentialjurisdiction ofthe Court without any precondition, neither relating to the fulfilment of several conditions linked to the so called "diplomatic protection" or "nationality ofthe elaim,m, nor to the need for a previous recourse to other means of peaceful settlement of disputes before filing an application under Artiele IX. As the Court has held, Artiele IX establishes a legal procedure for the settlement of disputes relating to the Genocide Conven1Íon based on law, and it is different to Artiele VIII which relates to actions to be adopted at the
politicallevel.23
19.
Thus, under Article IX, the International Court of Justice is identified as the privileged means and locus for the peaceful settlement of any dispute related to the Convention. A qualification which is fully consistent with the relevant role attributed to the Genocide Convention in the international legal order.
20.
The content ofArtiele IX, in particular the distinc1Íve features it presents, calls for a cautious analysis ofArtiele IX in order to construe or interpret it. The Court has
22 Application ofthe Convention on the Preven/ion and Punishment of/he Crime ofGenocide (The Gambia
v. Myanmar), Preliminmy objections, Judgment of22 July 202, paras. 109 and 110.
23Application ofthe Convention on the Prevention and Punishment ofthe Crime ofGenocide (The Gambia
v. Myanmar), Provisional Measures, Order of23 January 2020, paras. 33 and 35.
8
and
<lll"""L\..,U In
undertaken such a task in sorne of
genocide cases.
21. However, sorne issues rernain open and rnust Through this intervention, Spain to the Court in the construction of the key elernents case. ofthe procedure. For that >"",..,...,.,<",,, considers it useful
elernents in Part IV of subrnission.
to put forward sorne cornrnents about the
B) The applicable ofa recourse
22. As the Court has repeatedly
rnust
be to the as reflected in of May 1969,24 as well as especially
when it has interpreted 25
23. Pursuant to custornary international 31 the Vienna
Convention (General rule
"1. A treaty shall be interpreted in good faith in with ¡he ordinary meaning to be given to {he terms treaty in their context and in the light of ils objecl and purpose.
2. The context for {he purpose ofthe interpretatíon treaty shall in addition to the (ext, including its preamble and annexes:
(a)
any agreement relaling 10 the Ireaty which was between al! parties in connectíon with the conclusion ofthe
(b)
any instrument which was made
connection with ¡he
24 See Application ofthe International Conventionfor the of the International Convention on the Elimination of A// Forms Russian Federalion), Preliminary Objections, Judgment, I.CJ. App/ication ofthe Convention on the Prevention and Punishment Herzegovina v. Serbia and Montenegro), Judgment, I.Cl. App/ication of the Convention on the Prevention and Punishment Myanmar), Pre/iminary Objections, lC.l. "o,"->Ple
25 Application ofthe Convention on the Prevention and Punishment Herzegovina v. Serbia and Montenegro), f.C.l. k'mv,,./c the Prevention and Punishment the Crime Genocide v. 2008; Application ofthe Convention on the Prevention and Punishment
v. Serbia), Judgment, J.c.l. Reports Convention on the Preven/ion and Punishment of/he Crime ofGenocide lC.l. 2022
9
eonclusion o/the treaty nrt'pnrpn by the other parties as an instrument
lo the treaty.
3. There shall be taken together with the con/ex/:
rJ/'f"/"l''''''
(a)
any subsequenl between the parttes regarding the
the treaty or the
(b)
any subsequent n ..n'r·n,~o o//he treaty
agreement o/the interpreta/ion;
(e)
any ""',>HI'"'''' law applieable in ¡he relations
par/ies.
4. A special meaning shall lo a term ifit is established Iha! the so intended. "
24.
Even if Spain concurs that, as Court held, the interpretation is a
complex and unique which all the rules in 31 must be applied, it would a special reference to the rules or which, in its view, are more to determine the scope ofthe matertae and rattone jurisdiction under Article IX.
25.
Those criteria are, in a i) duty to foremost, "the ordinary
ofthe terms
ii) The duty to terms "in their context";
26.
The rules mentioned aboye underlined by the Court as interpretative to in cases relating to the Convention. The rules is particularly relevant to construe meaning of the word the phrase "any party to
27.
Together with those considers that the construction to take into account the and purpose of the Convention, a crucial 1951. object and IS an rule compelling to take ¡nto
account other provisions in particular Article 1 insofar as it declares genocide to be a intemational law in any circumstance, thereby connecting the Convention with the highest values intemational community and purpose of the Convention: to prevent
10
punish genocide in a broad sense non limited to the adoption ofnationallegislative
measures and practices.
28.
In any case, Spain would like to recall that all the criteria mentioned aboye must be applied in good faith. Reference to good faith is continuously present in the decisions adopted by the Court for interpretative purposes, inc1uding the orders and judgments issued in relation with disputes related to the Genocide Convention. For Spain, the principIe of good faith must playa central role in the construction of Artic1e IX, leading to the conc1usion that the ICJ jurisdiction ratione materiae inc1udes any dispute based on bad faith fulfilment of the Convention by a State party with a purpose other than the true object and purpose of the Genocide Convention as dec1ared by the Court.
29.
Finally, Spain would like to draw the attention to paragraph 3, point Cc) ofartic1e 31 ofthe Viena Convention on the Law ofthe Treaties, according to which, in the interpretation of a treaty "[t]here shall be taken into account, together with the
context: Ce) any relevant rules of international law applicable in the relations between the parties."
30.
Spain is aware ofthe warning contained in the ICJ Order on 5 June with regard to the other rules and principIes of international law26 and concurs with it. For that reason, it is not the intention of Spain to resort, in this intervention, to other rules and principIes of international law, beyond the Genocide Convention, with the only exception of rules that are relevant to the interpretation ofArtic1e IX thereto.
31.
However, it must be stated, at least, that for Spain, resorting to other rules and principIes of international law is the logical consequence of the construction of the international law as a coherent system. From that perspective, it must be recalled that, as the Court has held with regard to cases relating to the Genocide Convention, a State party has to fulfil its obligations under the Convention in conformity with internationallawY
26 Allegations 01 Genocide under the Convention on the Prevention and Punishment 01 the Crime 01 Genocide (Ukraine v. Russian Federation) (Order of 5 June 2023), para. 84.
27 Case Concerning Application 01 the Convention on the Prevention and Punishment 01 the Crime 01 Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, J.c.J. Reports 2007, p. 43, at p. 221, para. 430; Allegations 01 Genocide under the Convention on the Prevention and Punishment 01 the Crime olGenocide (Ukraine v. Russian Federation), Order of 16 March 2022, para. 57.
11
32. Thus, Spain considers that other mies and principies of intemationallaw could be taken into account in order to identify the content and scope of a dispute relating to the fulfilment ofthe Convention. This would be appropriate, in particular, when determining if the obligation to prevent and ptmish genocide could be fulfilled by certain acts that could be contrary to a fundamental principie of intemationallaw, as is the prohibition of the use of force. In this regard, the nOlms establishing the prohibition to use force [i.e., the United Nations Charter and the General Assemble Resolution 2625(XXV)] or the intemational protection ofhuman rights are relevant for the interpretation of Article IX of the Genocide Convention, insofar as they are relevant for determining the existence of a dispute regarding the interpretation, application or fulfilment of the Convention.
IV. THE KEY ELEMENTS OF ARTICLE IX
A) Disputes between the Contracting Parties
33.
The existence of a dispute between the Parties is a requirement for the Court's jurisdiction under Article IX of the Genocide Convention. The Court's determination of the existence of a dispute is a matter of substance and not a question of form or procedure.28
34.
The Court has consistently held that a dispute is "a disagreement on a point oflaw or fact, a conflict of legal views or of interests" between parties.29 For a dispute to exist, "[iJt must be shown that the c1aim of one party is positively opposed by the other".30 According to well-established jurisprudence, there is a difference from the moment that there is !la situation in which the two sides hold c1early opposite views conceming the question of the perfOlmance or non-performance of certain treaty obligations".31 The two sides must have c1early opposing views
28 Application ofthe International Conven/ion on the Elimination ofAl! Forms of Racial Discrimination (Georgia v. RlIssian Federation), Preliminar y Objections, JlIdgment, J.c.J Reports 2011 (1), p. 84, para. 30
29 Mavrommatis Palestine Concessions, JlIdgment No. 2, 1924, PC.l.J, Series A, No. 2, p. 11
30 SOll/h West Africa (Ethiopia v. South Africa; Liberia v. SOllth Africa), Preliminmy Objections, Judgment,
J.c.J
Reports 1962, p. 328
31 Interpreta/ion of Peace Treaties with BlIlgaria, HlIngary and Romania, First Phase, Advisory Opinion,
J.
C. J Reports 1950, p. 74.
12
,.011711"""
Jurisdiction and Admissibility, Judgmenl, I.C.J. IlUJVrrlPYlf
on the question of or non-perfonnance of obligations.32
35. However, the conclusion hold clearly opposite the perfonnance or oflegal obligations do es not respondent must the claims of the case, a respondent that a dispute exists
claims. Such a consequence would unacceptable.33 Court has pointed out, in certain
36. In the same vein, as was
held by the Court, "the positive opposition
the c1aim of one party by
other need not necessarily be stated expressis
... the position or the
a party can be established by
the professed view
35
particular, "the existence of a
be inferred from the
to respond to a claim in
a response is called
whether such an
37. In relatíon to at dispute arises, the date existence of a IS on which the application is Court.38 However, the parties subsequent to the filing
in
the mayalso a difference.34 depends on the case.37
lo Cessation of the Nuclear Arms Race and lO Nuclear
2016
and Marítime Spaces in the Caribbean Sea
I,C.J, Reports 2016 p, para. 50
33 Applica/ion oflhe Convenlion on the Prevention and Punishment of/he Crime Myanmar), Preliminary f.CJ para. 71
34 Ibídem
35 Land and Marítime between Cameroon and Nigeria (Cameroon v, Nigeria), Preliminary L/U,'""U"JF,"}, Judgment, I.CJ I<PI1¡'),.f~ p, 315, para. 89
36 Application ofthe International Convention on the Elímination ofAl! Forms ofRacial Discriminalion (Georgia v. Russian Federa/ion), Objeclíons, Judgment, f.c.J Reports 2011 (1), p. para. 30
37 Application of/he Convention on the Preven/ion and Punishmen/ ofthe Crime ofGenocide (GamMa V. Myanmar), Preliminary Objections, Judgmenl, J.c.J Reports 2022, para. 75
3B Alleged Violations of Sovereign Rights and Marítime Spaces in the Caribbean Sea Irtlrn,rua V. Colombia), Preliminary Objections, Judgment, J.CJ Reports 2016 (1), p. 27, para. 52
13
application relcvant for various ín particular to confirm a dispute.39
38.
As the pointed out, for a dispute to relatíon to a given treaty, it is not that the treaty or its expressly cited.40 Court ........L""'''.., "[w ]hile it is not must to a in its exchanges to enable it later to
I"IPf'("'p the Court ... must refer to the
of the
clarity to ,-,u",.v,,-,
against which a claim is
to that there ¡s, or may
a
with regard to that
matter".41
39.
As Court observed, applications are to it ofien present a particular that arises in the context ofa disagreement between partiesY that a dispute before part ofa complex that however hold cannot lead the to resol ve that dispute, provided that have recognized to do so and the conditions of its jurisdiction are met,43 .
40.
Finally, it be emphasized that certain acts within the ambit ofmore than one a dispute acts may relate to "interpretation or application" of more than one or another instrurnent44 . In
39 I\lUO'f'l1nllm'1~ relaling lo Cessation Nuclear Arms Race and lo Nuclear
Ylf'UrnH1a
Mr.w~t¡nll Islands v. India), Jurisdíclion and Judgment, J.C.J. Reporls 2016
40 Application ol/he lnternational Convention on lhe Eliminalion 01 AIl Forms 01 Racial Discrimina/ion (Georgia v. Russian Preliminary Objections, Judgment, J.c.l. 20l! (1), pp. 94-95, para. 72
41 Application ol/he lnternational Convention on /he Elimina/ion 01 Al! Forms 01 Racial Discriminalion (Georgia v. Russian Federa/ion), Preliminary Objections, Judgmenl, J.C.J. 2011 (1), p. 85, para. 30
H"I/«U"<" ollran v. United States Preliminary Objec/ions, Obligation lO Negolia/e Access lO /he Ocean (Bolivia .Iur.f¡:¡m¡:ml. l. c.l. Reports 20/5 p. para. 32
43 Interna/ional the Suppression olthe and olthe International Convention on the Elimination 01 Al! Forms Discrimination (Ukraine v. Russian Federalion), Preliminary Judgment, J.c.l. Reporls 20/9 (/1), p. para. 28
44 Alleged Violations 01 lhe /955 01 Amity, Economic Relations. and Consular Righls (Islamic Republic oOran v. United States ofAmerica), Preliminary Objectlons, of3 February 2021, para.
56.
14
any case, to found its jurisdiction, the Court must still ensure that the dispute in question does indeed fall within the provisions of Artiele IX of the Genocide
Convention.45
B) relating to the interpretation, application or fulfilment ofthe present Convention
a) relating to ... of the present Convention
41. The first point ("relating to") establishes a link between the dispute and the Convention. The end of the sentence ("of the present Convention") makes it elear that the compromissory elause refers back to all the provisions ofthe Convention. The ordinary meaning of the terms implies that disputes in respect of which
Artiele IX attributes jurisdiction to the Court must refer to the Convention. The phrase makes no specific reference to a particular artiele of the Convention, but to the Convention as a whole. In other words, Artiele IX confers jurisdiction on the Court to hear any dispute conceming the interpretation, application or fulfilment of any provision of the Convention, ineluding its object and purpose. But this does not mean that the Genocide Convention must be the only intemational norm to be taken into account by the Court when exercising its jurisdiction in a specific case. On the contrary, as has been explained in paragraph 32, under artiele 31.3.(c) ofthe Vienna Convention on the Law ofthe Treaties, the Court "[s]hall take into account... any relevant rules of intemational law applicable in the relations between the parties".
b) the interpretation
42.
Artiele IX deals, in the first place, with disputes conceming the interpretation. This is a cornmon formula in many compromissory elauses of intemational treaties.
43.
As has been repeatedly stated, the purpose of interpretation is to elarify the exact meaning and content of the treaty. In the opinion of the PCIJ, "the Court is of the opinion that the expression "to construe" must be understood as meaning to give
45 Application ofthe Convention on the Prevention and Punishment ofthe Crime ofGenocide, Preliminary Objections, Judgment, 1. C. J. Reports 1996, para. 30.
15
a definition of meaning and scope" position is identical: interpretation "signifies that its object must be to obtain of the and the it must be that the competen ce to to the interpretation the entire Convention.
c) =::.l:===
44. The term application Convention is also pe,lcetU! Disputes conceming the of a treaty to whether or not provlslOns have res:oeClt:o and are to ofpacta sunt the formulation of whích ís contained in Artiele the Vienna Convention on the Law Treaties: "Every in force is binding upon the parties to it and must by them in fruth". In as with interpretation, the of application faith is at of many and should the resolution48
d) =-::;.===
45. Final1y, Article IX includes a third term that is not usually found in arbitration fulfilment of As the the as compared with compromissory found
other multilateral treaties which provide for submission to the Intemational Court such disputes Contracting as relate to the interpretation or applícation ofthe question"49.
is 46. to
"application". The three are listed autonomously, followed by commas,
without establishing any relationship of coordination or dependence
them.
46 Interpretation Nos. 7 and 8 al Chorzów), PCIJ, Series A N° 13, December 1927,p.lO
47 Demande d'interprélation de ['arre! du 20 novembre 1950 en dll draft d'asile (Co/ambie c. Péroll), ClJ, 1950, p. 402
48 Poner aquí citas sobre la buena fe.
49 Applícation Convention on Ihe Prevenlion and PlInishment Crime HeJ"ze<J'¡)vmav. Serbia and Mantenegro),
Objections,
Declaration ofJudge Oda, LC.J.
1996 (11), p. para. 5 (emphasis in the
16
47.
One ofthe general principies oftreaty interpretation is that ofejJet utile, according to which the inelusion ofthis term must be understood as adding something to the Court's jurisdiction under Artiele IX. As noted by the Court, "It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision ofthis sort occurring in a special agreement should be devoid ofpurport or effect". so To these arguments, it should be added that it is elear from the travaux préparatoires of the Convention that, during the drafting process, there was a debate on the inelusion or not of the word "fulfilment", which ended with its retention in the text finally adoptedsl . Therefore, the determination ofthe meaning ofthe word "fulfilment" in Artiele IX ofthe Genocide Convention requires special attention, in order to determine which elements make it possible to differentiate it from the tenns "interpretation" and -aboye all -"application".
48.
As the Court remarked in 1951, "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 principies ofmorality"S2. In this sense, the Genocide Convention is a treaty of particular importance in the context of intemational human rights law. And it is precisely in the framework of intemational human rights law that the meaning ofthe term "fulfilment" has been particularly developed. It is generally accepted that, by becoming parties to human rights treaties, States as sume obligations and duties under intemational law to respect, to protect and to fulfil human rightsS3. In this context, the obligation to
50 Corfu Channel case, ludgment ofApril 9th, 1949, LC. 1. Reports 1949, p. 24. See also Territorial Dispute (Libyan Arab JamahiriyalChad), C1J, recuel, 1994, p. 23.
51 Official Records of the Third Session of the General Assembly, Part 1, Sixth Committee, Summary Records ofMeetings 21 September-IO December 1948, U.N. Doc. No. AlC.6/SR.61-140, pp. 428, 437 and
447. Vide: Written statement of observations and submissions on the Prelirninary objections of the Russian Federation submitted by Ukraine, 3 February 2023, par. 95.
52 Reservations to the Genocide Convention, Advisory Opinion of28 May 1951, ICl Reports 1951, p. 23.
53 Among the many references, see the definition of intemational human rights law of the Office of the United Nations High Cornmissioner for Human Rights (bJtp~:/!»,-\Yw,Qb<:hGºrg!~ll/jn~truIllS;_m~::ªnd-= !J1~chanism~/inls;.matjonªl:humªn~_tigh!:s-=Jªw). The Human Rights Committee (ad ex.: General cornment
No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPRlCl2llRev.l/Add. 13, par. 7), the Committee on Economic, Social and Cultural Rights (ad ex.: General comment 12 on The right to adequate food, E/C. 1211999/5, par. 15), the CEDAW (ad ex.: General recornmendation No. 24: Article 12 ofthe Convention: women and health, 1999, par. 13) or the Committee on the Rights of the Child (ad ex.: General comment No. 4 on Adolescent health and development in the
17
fulfil is interpreted as meaning "to take positive measures to ensure the realization of the convention,,54, "to take steps to ensure the convention in practice,,55 or "to adopt appropriate measures towards the full realization ofthe convention,,56. This was expressed by the Court when it pointed out that under Article I of the Convention "the obligation of States parties is to employ all mean s reasonably available to them, so as to prevent genocide so far as possible,,57.
49.
In conc1usion, the fulfilment ofthe Convention refers to the obligation ofall States Parties to take all measures within their power to prevent and punish any act of genocide or any other act covered by the Convention.
50.
The obligation to adopt these measures is imposed on all States Parties to the Convention and not onJy on the State on whose territory or under whose jurisdiction the genocide is (or may be) committed. In accordance with the nature of the Genocide Convention, described in Part JI, this obligation applies whether or not such acts are committed on their territory, whether or not they affect their nationals, whether or not they have a direct interest in them, because "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 accomplislunent ofthose high purposes which are the raisan d'e/re 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."58 The Court thus conc1uded that "the obligation each State thus has
context ofthe Convention on the Rights ofthe Child, CRC/GC/2003/4, introduction) have also made similar pronouncements.
54 For example, General comment No. 14 of Committee on Economic, Social and Cultural Rights on The righl lo Ihe highesl attainable slandard 01heallh (art. 12), E/C.12/2000/4, par. 52.
55 For example, General comment No. 16 of Committee on Economic, Social and Cultural Rights on The equal right 01 men and women lo the enjoyment 01 al! economic, social and cultural righls (arl. 3),
E/C.12/2005/4, par. 21,
56 For example, General comment No. 15 of Committee on Economic, Social and Cultural Rights on The right 10 waler, E/C. 12/2002/ 11 , par. 26.
57 Case Concerning App/icalion ollhe Convenlion on Ihe Preven/ion and Punishment ollhe Crime 01 Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, J.c.J. Reporls 2007, p. 43, at p. 221, para. 430.
58 Reservations lo Ihe Genocide Convenlion, Advisory Opinion of28 May 1951, 1Cl Reporls 1951, p. 23 .
18
to prevent and to punish the crime of genocide is not territorially limited by the Convention"S9. In this sense, the Court has referred to the obligation to prevent genocide by States geographically distant from the place of the events, and even to the combined efforts ofseveral States Parties to prevent genocide60.
51.
However, as the Court has elearly stated, in fulfilling the obligation to prevent that all States are under, "it is elear that every State may only act within the limits permitted by internationallaw"61. In this regard, the Court has already pointed out several conditions required by international law for the adoption of preventive measures by any State. Among them are that the State Party assess whether a genocide or a serious risk of genocide exists prior to taking action pursuant to Artiele 162, and that such an assessment must be justified by substantial evidence "that is fully conelusive"63. To these conditions one must add, logically, that the measures be in conformity with the basic principies of intemational law as formulated in the Charter of the United Nations and in General Assembly Resolution 2625 (XXV), ineluding the principies ofgood faith, prohibition of the use offorce and non-intervention in internal affairs.
52.
As indicated in paragraph 28, the Court has stated that the principie of good faith "obliges the Parties to apply [a treaty] in a reasonable way and in such a manner that its purpose can be realized"64. Good faith interpretation thus operates as a safeguard against misuse of the terms and institutions of the Genocide Convention. As "one of the basic principies governing the creation and
59 Application ofthe Convention on the Prevention and Punishment ofthe Crime ofGenocide, Preliminary Objections, Judgment, f. e 1. Reports /996, p. 595, para. 31.
60 Case Concerning Application of the Conven/ion on /he Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, f.e1. Reports 2007, p. 43, at p. 221, para. 430.
6\ Ibídem, para. 430; Allegations ofGenocide under the Convention on the Prevention and Punishment of the Crime ofGenocide (Ukraine v. Russian Federation), Order of 16 March 2022, para. 57.
62 Case Concerning Application of/he Convention on the Prevention and Punishment ofthe Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, l.c.J. Reports 2007, p. 43, at
p. 90, para. 209.
631bidem.
64 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, l.e.J. Reports 1997, p. 7, at p. 79, para.
142.
19
of legal faith is also linked to the "trust
confidence [that] are international
. Moreover, the Genocide Convention provides guidance concerning the lawful means by which the may prevent and punish genocide. While
1 does not specify the
ofmeasures that a
may take
to
obligation",66
HU''''''''''.'''' Parties must
obligation
faith, taking into account other parts of the
in particular
and IX, as well as
Preamble",67
54. Thus, not only the failure to adopt preventive measures constitutes a violation of obligation to prevent, but adoption of measures that "'''''~''''v.... the limi ts
by
international law especially measures an to
the fulfilment of Convention,
ofrights or contrary
55. In considers term "fulfilment" should
as
between content of
an autonomous reference to one of types or categories of
States that may be submitted to lCJ under Article
such
a
is to be determined by Court, taking into account the specific
the case. In the inclusion of the term
"fulfilment" refer to to to Court a does
not to the determination the meaning and a
provision Convention (interpretation) or to the application of one the specific obligations defined therein (application), but to take a11 measures within the means State Party to prevent punish any act of or any other act to in Artiele III of understood as a whole, to the object and
including any
action clearly
Convention
56. This term " fulfilment" is with the importance genocide, which
the international cornmunity attaches to
States not only to concrete measures to nn'\fpn and punish acts
65 Nuclear Tests (Australia v. l.eJ. Reports 1974, p. 7, at p. 142.
66 Order on Provisional Measures (n para. 56.
67 lbid.
20
on
their own t""..r,tF'>"'<l but also to act in ofthe as mankind from" "'v,,'vv, the to achieve the ultimate objective is none other than "to liberate íntemational contrary to by civilized world".68
57. In
term "fulfilment", it would be possible
to submit to
of a State Party which,
without being directly
obligatíon formally set forth in the
Convention, constitute acts or
by reason ofthe manner in which
they are performed, by reason of
or by reason of their
manifest abuse,
are
and purpose of the
Convention. Whether or not such acts or
are contrary to the object and
purpose of the Convention;
or
or
not
recourse
to
the Convention is
abusive; or whether or not they are In bad could constitute a dispute conceming "fulfilment" with
to
as a whole.
C) including Ihose relaling lo Ihe responsibility ola or for any 01
/he o/her acts enumeraled in article 111
58. Spain considers that, according to the the
expression "including those tol'
under the Court's jurisdictíon rationae
to disputes IIrelating to the responsibility any
of other acts enumerated in artiele nr', as a
in a larger set of categories covered words, disputes relating to the responsibility ofa State genocide or any the other acts enumerated in article III are but one of the of
conceming the interpretation, applicatíon or fulfilment of Convention.
mentíon of disputes relating to responsibility is justified the the Conventíon decided to make it elear that the expression "relating to the interpretation, application or fulfilment of the present Conventionlt also
68 See above paras. 8-11
21
includes
type of dispute.
other interpretation would
go
the
ordinary
ofthe terros
60. Therefore,
IX confers to
Court a broad
covering
rnatters
to
interpretation,
or
the Convention, ofwhich the
relating to responsibility are a part, but not
the only one.
shall be lo the Internattonal Court ofJustice at request ofany
61. The last sentence of Artiele IX to the standing to subrnit a dispute to Court. The terros are broad: "any the parties to the dispute".
Spain has in this intervention, disputes rnay concem various
of a provision of the Convention (interpretation), the application of one of obligations defined therein (applícation), or the adoption of appropriate rneasures to prevent
and punish any act
genocide or
act covered
the Convention
understood as a
including any
clearly
to the
purpose ofthe
(fulfilrnent).
63. Under the text of Convention, any that is in with any State Party a point of law or a conflict of views or of interpretation, H""''''"'H or fulfilrnent Genocide
rnay to Court of text IX does not any other requirernent.
V. CONCLUSION
to the following regarding the IX ofthe Convention:
in broad terros to include disputes over the of the rneaning scope ofa provision ofthe Convention the
(application), and the of appropriate rneasures towards ful1
22
realization of the convention understood as a whole, ineluding any fonn of action elearly contrary to the object and purpose ofthe Convention (fulfilment). Such a broad conception of Artiele IX corresponds to the nature and purposes of the convention, linked to the protection and safeguard of fundamental values and principies of intemational law.
-Artiele IX allows disputes to be brought before the Court not only on whether the failure to take preventive measures constitutes a breach of the obligation to prevent, but al so disputes on the adoption of preventive measures that exceed the limits pennitted by international law, especially if they involve an abuse of law, have been taken contrary to the principie of good faith, or involve violations of basic principies ofinternationallaw such as the prohibition ofthe use offorce or non-intervention in internal affairs.
-In accordance with this interpretation of the tenn "fulfilment", it would be possible to submit to the consideration ofthe ICJ acts or omissions ofa State Party which, without being directly linked to a specific obligation fonnally set forth in the Convention, constitute acts or omissions which, by reason of the manner in which they are perfonned, by reason of their lack of good faith, or by reason of their manifest abuse, are in themselves contrary to the object and purpose of the Convention. Whether or not such acts or omissions are contrary to the object and purpose of the Convention; or whether or not recourse to the Convention is abusive; or whether or not they are in bad faith, could constitute a dispute conceming "fulfilment" with respect to the Convention as a whole.
-Any party to the dispute may bring a case under Artiele IX, ineluding the party which is the victim ofpreventive measures which are abusive, have not been taken in good faith, or involve violations ofbasic principies ofintemationallaw.
~
(Signed) CONSUELO FEMENíA
Co-Agent of the Kingdom of Spain
23
Written observations of Spain on the subject-matter of its intervention