Written observations of New Zealand on the subject-matter of its intervention

INTERNATIONAL COURT OF JUSTICE
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ALLEGATIONS OF GENOCIDE UNDER THE
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(Ukraine v Russian Federation, 32 States Intervening)
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WRITTEN OBSERVATIONS OF THE GOVERNMENT OF NEW ZEALAND
(PRELIMINARY OBJECTIONS)
4JULY2023
To the Registrar, International Court of Justice.
The undersigned being duly authorized by the Government of New Zealand.
1. These Written Observations are submitted to the Court in accordance with its Order
of S June 20231 and the provisions of Article 86(1) of the Rules of the Court.
SCOPE OF THE WRITTEN OBSERVATIONS
2. New Zealand intervenes in its capacity as a Contracting Party to the Convention on
the Prevention and Punishment of the Crime of Genocide 1948 ("the Convention").2
It does so in response to the gravity of the circumstances giving rise to this case, its
implications for the maintenance of international law, and its impact on the
obligations shared by all parties to the Convention.
3. In these Written Observations, New Zealand responds to the key arguments in
relation to the construction of the Convention that arise from the Preliminary
Objections of the Russian Federation of 1 October 2022 ("the Russian Federation's
Preliminary Objections" "the Preliminary Objections"}. In doing so it expands on the
summary of New Zealand's interpretation of the Convention set out in its Declaration
of Intervention submitted to the Court on 28 July 2022.
4. The position of the Government of New Zealand with respect to Russia's illegal
invasion of Ukraine was clearly stated in its Declaration of Intervention. 3 It will further
be clear from the interpretation set out in the Declaration and these Written
Observations that New Zealand considers that, on the facts presented by Ukraine,
there is a legal dispute between Ukraine and the Russian Federation within the scope
of Article IX of the Convention and Ukraine has properly submitted that dispute to the
Court.
1 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
{Ukraine v Russian Federation), Order, 5 June 2023 ("Order").
2 Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, 78 UNTS
277 (entered into force on 12 January 1951) ("Convention").
3 At para. 11.
5. In accordance with the Court's Order, however, these Written Observations are solely
restricted to New Zealand's views on:4
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.
6. New Zealand therefore will not address the application of the Convention to the facts
of the present case. Nor will it address the significant misrepresentations of fact
contained in the Russian Federation's Preliminary Objections. Likewise, it will not
address those legal arguments raised by the Preliminary Objections that do not
relate to the interpretation of the Convention itself.
KEY ISSUES ARISING FROM THE PRELIMINARY OBJECTIONS
7. The Preliminary Objections raise two central issues:
a. Is there a "dispute" between the parties?
b. And, if so, is that a dispute "relating to the interpretation, application or
fulfilment" of the Convention?
8. The interpretation of Article IX of the Convention is directly relevant to both issues.
To an extent, the second issue - jurisdiction ratione materiae- also raises questions
regarding the interpretation of Article I of the Convention. But, as Ukraine has
correctly pointed out, it is not necessary for the Court to conclusively determine those
questions at this preliminary stage.5
9. In assessing these issues, the Court must rely on the facts as pleaded by the applicant.6
It is not necessary, or appropriate, for the Court to try to resolve matters of disputed
fact at the jurisdictional stage. Indeed, the very presence of a disagreement as to the
4 Order at para. 99.
5 Written Statement of Observations and Submissions on the Preliminary Objections of the Russian Federation
-Submitted by Ukraine (3 February 2023} ("Ukraine's Written Observations") at para.105-106.
6 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2021, at p. 26, para. 53.
underlying facts of the case will be directly relevant to the Court's assessment of both
the existence and scope of the dispute.7
THE COURT'S JURISDICTION UNDER ARTICLE IX OF THE CONVENTION
The legal scope of the Dispute Settlement Obligation in Article IX
10. Article IX of the Convention provides:
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 Ill, shall be submitted to the International Court of Justice at the request
of any of the parties to the dispute.
Article IX establishes compulsory jurisdiction
11. Under Article IX Contracting Parties to the Convention have agreed that they "shall"
submit "disputes ... relating to the interpretation, application or fulfilment" of the
Convention to this Court at the request of any of the parties to the dispute. There is
no further requirement for consent with respect to a particular dispute.8
12. By accepting Article IX, therefore, parties have consented in advance to settle their
disputes by recourse to this Court. As Merrills and Brabandere note:9
once a legal act indicating consent has been performed jurisdiction may be
established, even if the state is unwilling to litigate when an actual case arises.
Absent any express reservation on the part of either party to the dispute, 10 Article IX
therefore provides a basis for this Court to exercise compulsory jurisdiction over all
disputes falling within its scope.
7 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment, I.C.J. Reports 1996, at p. 616,
para. 32-33.
8 In contrast, for example, to Article Xl{3) of The Antarctic Treaty, Washington D.C., 1 December 1959, 402
UNTS 71 (entered into force on 23 June 1961) ("The Antarctic Treaty'l
9 J G Merrills and E De Brabandere, Merrills' International Dispute Settlement (7th ed, Cambridge University
Press, Cambridge, 2022) at p. 273.
1° Compare e.g., Legality of Use of Force (Yugoslavia v Belgium), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999, at pp. 137-138, para. 37- 41 with: Legality of Use of Force (Yugoslavia v Spain), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999, at p. 772, para. 29-33; and Armed Activities on the Territory
of the Congo (New Application: 2002} (Democratic Republic of the Congo v Rwanda), Jurisdiction and
Admissibility, Judgment, I.CJ. Reports 2006, at p. 6, para.70.
13. This compulsory jurisdiction, established by prior agreement, is fully consistent with
the principle of consent and "free choice of means" .11 It is clearly contemplated by,
and falls squarely within, the scope of, Article 36(1) of the Statute.12
14. The Contracting Parties' decision to submit their disputes to this Court reflects the
significance of the Convention's obligations, 13 the consistency of those obligations
with "the spirits and aims of the United Nations",14 and the central role the Court
plays in the peaceful settlement of disputes within the United Nations system.15
Article IX gives effect to the Contracting Parties' pre-existing obligation under Articles
2(3) and 33{1) of the United Nations Charter and customary international law to settle
their disputes by peaceful means.16 That obligation serves a central place within
international law.17 It is both a prerequisite to the maintenance of international
peace and security; and necessary to secure the effectiveness of the international
legal system itself.18
Article IX confers a deliberately wide jurisdiction on the Court
15. Article IX is an unusually - and deliberately - broad compromissory clause.19 As
highlighted by Ukraine, Article IX applies to disputes "relating to the interpretation,
11 See, e.g., Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ Ser. B. 1923, No. 5, at p. 27: "It is
well established in international law that no State can, without its consent, be compelled to submit its disputes
with other States either to mediation or to arbitration, or to any other kind of pacific settlement."
12 Article 36(1) of the Statute provides: "The jurisdiction of the Court comprises all cases which the parties refer
to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions
in force." (emphasis added)
13 The Court discussed and confirmed the significance of the Convention and its obligations in its Advisory
Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951,
I.C.J. Reports, at p.23.
14 See the first paragraph of the preamble to the Convention: "Having considered the declaration made by the
General Assembly of the United Nations in its resolution 96 (1) dated 11 December 1946 that genocide is a
crime under international law, contrary to the spirit and aims of the United Nations and condemned by the
civilized world" (emphasis added).
15 See, for example, the General Assembly's reaffirmation of the role of the Court in the Manila Declaration on
the Peaceful Settlement of International Disputes, A Res. 37 /10 (15 November 1982) ("Manila Declaration" ) at
para. 11.5.
16 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America), Merits, Judgment, I.C.J. Reports 1986, at p. 145, para. 290.
17 Y Tanaka, The Peaceful Settlement of International Disputes (Cambridge University Press, Cambridge, 2018)
at p.3.
1s /d.
19 R Kolb, "The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ", in The UN
Genocide Convention: A Commentary (Paola Gaeta, ed., Oxford University Press 2009), at p. 453: "[Article IX
was written) to close down all possible loopholes weakening the jurisdictional reach of the Court. The purpose
application or fulfilment" of the Convention. The singular use of the term "fulfilment"
is of particular significance. Further, disputes can be submitted at the request of "any
of the parties to the dispute" consistent with the ergo omnes character of the
obligations of the Convention.20 And there is no pre-condition of prior notification,
consultation or negotiation before a dispute may be submitted to the Court.21
Article IX has both a procedural and a substantive character
16. Article IX is not merely a procedural provision. It also has a substantive character.
Through Article IX, Contacting Parties have identified a procedure for the settlement
of their disputes - submission to this Court. At the same time, they have assumed a
substantive obligation to comply with that procedure reasonably and in good faith.22
17. Although it can be regarded as an obligation of conduct rather than result, Article IX
is nevertheless governed by the principle of good faith. 23 This Court recognised in the
Gabcfkovo-Nagymaros Project case that the obligation of good faith requires a party
to apply a treaty provision "in a reasonable way and in such a manner that its purpose
can be realised".24 This obligation "is no less applicable to the provisions of a treaty
relating to dispute settlement" .25 It is implicit within the principle of good faith that
pursued in 1948 was to grant the Court a jurisdiction as wide as possible in the life of the Convention,
forestalling all the potential subtle arguments denying jurisdiction on account of an insufficient link with that
Convention."
20 Bosnia Genocide Preliminary Objections judgment, supra n.7, at p. 615 para. 31; and Armed Activities on
the Territory of the Congo (New Application: 2002}, Jurisdiction and Admissibility, Judgment, I.C.J. Reports
2006, at p. 31 para. 64.
21 In contrast for example to: Article Xl{l} of The Antarctic Treaty; Articles 283 and 286 of the United Nations
Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3 (entered into force on 16
November 1994}; and Article 20(1) of the International Convention for the Suppression of Terrorist Bombings,
New York, 15 December 1997, 596 UNTS 261 (entered into force 23 May 2001).
22 See, e.g., Manila Declaration, supra n. 15, at para. 1.11: "States shall in accordance with international law
implement in good faith all the provisions of agreements concluded by them for the settlement of their
disputes."
23 The application of the obligation of good faith in the context of dispute settlement provisions was confirmed
by the Arbitral Tribunal in South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, at
para. 1171. Similarly, the Court has previously found that the principle of good faith "applies to all obligations
established by a treaty, including procedural obligations which are essential to co-operation between States":
Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, at p. 67, para. 145-146.
See also Tanaka, supra n. 17, at pp. 7-8.
24 Gabcfkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, J.C.J. Reports 1997, at
p. 79, para. 142.
25 South China Sea Arbitration, supra n.23, at para. 1171.
a party must abstain from acts calculated to frustrate its treaty obligations.26 Such
acts would constitute a breach of the treaty itself.
18. Parties must therefore fulfil their obligations under Article IX in good faith and actively
cooperate in the Court's determination of a given dispute:27
Where a treaty provides for the compulsory settlement of disputes, the good
faith performance of the treaty requires the cooperation ofthe parties with the
applicable procedure.
That principle gives rise to certain specific expectations of conduct on the part of
parties to a dispute. Most significantly, once a dispute has been submitted to the
Court under Article IX, the parties must "refrain from any action whatsoever which
may aggravate the situation ... and impede the peaceful settlement" of that dispute.28
19. By agreeing in Article IX to submit their disputes for determination by the Court,
Contracting Parties to the Convention have accordingly agreed to abide by the Court's
procedures and any orders or judgments issued by it. They must do so not only out
of respect for the judicial authority of the Court under the Charter and the Statute,
but also as a consequence of their own consent to submit their disputes to the Court's
jurisdiction.
20. A singular strength of the Court's jurisdiction is its authority to issue decisions that
are binding on the parties. Article 94(1) of the United Nations Charter confirms that:
Each Member of the United Nations undertakes to comply with the decision of
the International Court of Justice in any case to which it is a party.
26 International Law Commission Yearbook of the International Law Commission, 1996, Vo/ II, at p.211,
paragraph 4; see also the other authorities cited in paragraph 2.
27 South China Sea Arbitration, supra n.23, at para. 1171. The duty of cooperation in the context of judicial
dispute settlement proceedings mirrors this Court's recognition of an equivalent duty in the context of
negotiation, see: North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic
of Germany/Netherlands), Judgment, /.C.J. Reports 1969, at p. 47, para. 85{a}, and pp. 48-49, para. 86-87;
Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, I.CJ. Reports 1974, at p.33, para 78;
Gabcfkovo-Nagymaros Project (Hungary/Slovakia), supra n. 24, at pp. 78-79, para. 141-142; Pulp Mills on the
River Uruguay (Argentina v Uruguay}, supra n. 23, at p. 67, para. 145-146; and Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment,
I.C.J. Reports 2011, at. p. 132, para. 157. For a discussion of the duty of cooperation in the context of dispute
settlement see also: A. Peters "International Dispute Settlement: A Network of Cooperational Duties" EJIL
(2003) Vol 14 No.1, pp. 1-34.
28 Manila Declaration, supra n.15, at para.1:8. See also: Electricity Company of Sofia and Bulgaria, Order, 1939
PC/J Ser. A/8, No 79 at p. 199; and South China Sea Arbitration, supra n.23, at para. 1169-1173.
The strength of that undertaking is reinforced by Article 94(2) of the Charter, which
further provides a mechanism for the enforcement of the Court's judgments through
the Security Council.
21. This Court has expressly confirmed that the obligation to comply with its decisions
extends to decisions indicating provisional measures in a particular case. As the Court
stated in the la Grand case, "orders on provisional measures under Article 41 [of the
Statute] have binding effect" .29 That finding has been consistently reaffirmed,
including in the Court's Order on provisional measures in this case.30 As a corollary,
this Court has further confirmed that a State's failure to comply with any order for
provisional measures is a breach of that party's international obligations under the
Charter and the Statute.31 It can further be considered a substantive breach of Article
IX itself.
22. A failure to comply with provisional measures will accordingly not only aggravate the
central dispute under the Convention, but may also give rise to a dispute regarding
compliance with the substantive obligations contained in Article IX. It of course
remains open for a respondent State to challenge the jurisdiction of the Court under
Article IX, in accordance with the proper procedures of the Statute and the Rules. Any
provisional measures indicated by the Court, however, remain binding on the
respondent State in those circumstances. The respondent State challenging
jurisdiction may not simply choose to ignore them in defiance of the Court and its
accepted authority.
Existence of a legal "dispute"
23. This Court addressed the legal considerations relevant to the establishment of a
dispute under Article IX of the Convention in its 2022 judgment in the preliminary
29 LaGrande (Germany v United States of America), Judgment, I.C.J. Reports 2001, at p. 506, para. 109.
30 Alfegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v Russian Federation), Order, 16 March 2022, at para. 83.
31 See, in particular: the Court's finding in 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, at
p. 43, para. 451-458.
objections phase of The Gambia v Myanmar Genocide case.32 Drawing on its previous
jurisprudence, the Court confirmed that:
a. According to the established case law of the Court, a dispute is "a
disagreement on a point of law or fact, a conflict of legal views or of interests"
between parties.33
b. In order for a dispute to exist, "[iJt must be shown that the claim of one party
is positively opposed by the other". 34 The two sides must hold clearly opposite
views concerning the question of the performance or non-performance of
certain international obligations.35
c. The Court's determination of the existence of a dispute is a "matter of
substance and not a question of form or procedure".36
d. In principle, the date for determining the existence of a dispute is the date on
which the application is submitted to the Court.37 However, conduct of the
parties subsequent to the application may be relevant for various purposes,
in particular to confirm the existence of a dispute.38
24. In applying those considerations to the facts of a particular case, the Court may look
to both the words and the actions of the parties - both before, and after, the
application was submitted to the Court.
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v
Myanmar), Preliminary Objections, Judgment of 22 July 2022, at para. 63-64.
33 At para 63, citing: Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, at p.
11.
34 Ibid citing: South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962, at p. 328.
35 Ibid citing: Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 {I), at p.
270, para. 34; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, t.C.J. Reports 2016 (I), at p. 26, para. 50.
36 At para 64, citing: Georgia v. Russian Federation, supra n.27 at p. 84, para. 30.
37 Ibid citing: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, supra n. 35, at
p. 27, para. 52.
38 Ibid citing: Marshall Islands v. India, supra n.35, at p. 272, para. 40.
25. In its past decisions, the Court has relied on evidence regarding findings and public
statements of Government bodies, Government officials and political leaders. The
Court has considered the nature and number of such statements, as well as where,
when and by whom they were made. As the Court has consistently found, it is not
necessary that such statements refer specifically to a particular treaty or its provisions
in order to establish the existence of a dispute.39 Nor is it necessary that they be made
in a formal diplomatic context.
26. The Court will also look to the actions of the parties - especially where there have
been no formal diplomatic exchanges between them.40 In such cases, a party's
actions may speak as loudly as - or louder than - its words. As the Court affirmed in
Land and Maritime Boundary between Cameroon and Nigeria:41
a disagreement on a point of law or fact, a conflict of legal views or interests,
or the positive opposition of the claim of one party by the other need not
necessarily be stated expressis verbis. In the determination of a dispute, as in
other matters, the position or the attitude of a party can be established by
inference, whatever the professed view of that party. (emphasis added)
No requirement for the dispute to have "crystallised" in the same terms as the pleadings, as
argued by the Russian Federation
27. The Russian Federation goes beyond existing authority to argue that a dispute cannot
exist unless it has "crystallised"42 in the same terms as the pleadings at the time that
the application was filed. The Russian Federation seeks to argue that, prior to filing
its application, the applicant State must have alleged a breach of a specific
obligation43 in the precise terms in which that breach is subsequently described in its
pleadings to the Court.44 The Russian Federation suggests further that the dispute
39 The Gambia v Myanmar, supra n.32, at para. 72 confirming its statement Georgia v. Russian Federation,
supra n.27, at p. 85, para. 30.
40 Obligations Concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v United Kingdom}, Preliminary Objections, Judgment, I.C.J. Reports 2016, at p.
850, para 40.
41 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, J.C.J. Reports 1998, at p. 315, para. 89
42 Russian Federation's Preliminary Objections at para 80.
43 Ibid at para. 77 and 80.
44 Ibid at para. 72: "the fact remains that Ukraine must demonstrate that a dispute existed with respect to
each of the claims as formulated in the Memorial at the time of the filing of the Application."
must also have been formally brought to the attention of the respondent in those
exact terms.45
28. There is no basis for such a pre-condition in the terms of Article IX of the Convention.
As already noted, a significant feature of Article IX is that it does not contain any
requirements regarding the prior identification or notification of a dispute. In this
respect, it contrasts with compromissory clauses found in other multilateral treaties,
which expressly include this pre-condition.46
29. Nor is there any basis in the jurisprudence of the Court. It is clear from The Gambia v
Myanmar Genocide case that no such pre-condition exists as a matter of general law.
As the Court reaffirmed in that case, the applicant State does not need to have
previously alleged the breach of a specific provision of the Convention in order to
establish the existence of a "dispute" under Article IX.47 Further, as expressly stated
in the Marshall Islands v United Kingdom case, "notice of an intention to file a case is
not required as a condition for the seisin of the Court".48 It is enough that, in all the
circumstances, the respondent State "could not have been unaware" that there was
a disagreement on a point of law or fact, a conflict of legal views or of interests
between the parties.49
Dispute "relating to the interpretation, application or fulfilment" of the provisions of the
Convention "including ... the responsibility of a State for genocide"
30. Article IX of the Convention confers jurisdiction ratione materiae over disputes:
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 Ill.
31. As identified above, the words "or fulfilment" mark a departure from the standard
language of compromissory clauses in multilateral agreements. They indicate a
45 Ibid at para. 76.
46 See, e.g., Article 283 of UNCLOS, which requires that dispute settlement proceedings must commence with
a formal exchange of views between the parties.
47 The Gambia v Myanmar, supra n.32, at pp 27-28, para. 72, confirming its statement in Georgia v. Russian
Federation, supra n.27, at p. 85, para. 30.
48 Marshall Islands v United Kingdom, supra n.40, at p.849, para. 38, citing: Land and Maritime Boundary
between Cameroon and Nigeria, supra n.41, at p. 297, para. 39.
49 Ibid at at p. 850, para. 41.
deliberate intention of the Contracting Parties to confer jurisdiction on the Court to
resolve a wide range of potential disputes arising under the Convention.50 By
including disputes relating to "the interpretation, application or fulfilment" of the
Convention Article IX encompasses disputes about: the meaning and legal scope of
the provisions of the Convention; their application; and the manner and extent to
which Contracting Parties have given effect to them. Such disputes may relate to any
of the provisions of the Convention - including the interpretation, application or
fulfilment of Article IX itself.
32. It is not necessary that a dispute must have its origins exclusively under the
Convention in order to fall within the scope of Article IX. A single political situation
may give rise to multiple different legal disputes. It has been well established by this
Court that acts or omissions may give rise to a dispute that falls within the ambit of
more than one treaty.51 Likewise, this Court has repeatedly confirmed that the fact
that a legal dispute may be underpinned by, or embedded within, a wider political
dispute does not detract from its legal character.52
33. In assessing the issue of jurisdiction ratione materiae at the Preliminary Objections
stage the Court must be satisfied that the applicant's claims are "capable of falling
within the provisions" of the Convention. 53 That will require the Court to consider the
interpretation of those provisions, 54 and New Zealand offers its construction of Article
I of the Convention in order to assist the Court in that assessment. As noted, however,
50 The travaux preparatoires record the inclusion of these words through an amendment proposed by Belgium
and the United Kingdom and its support from, amongst others, India on the grounds that the word "fulfilment"
has a "much wider meaning" than "application": see Official records of the 3rd session of the General Assembly.
legal questions : 6th Committee : summary records of meetings, 21 September --10 December 1948. Also see
R Kolb, supra n.19, at p. 453. The Oxford English Dictionary defines the verb 'to fulfil' as: "to carry out
(something commanded or required); to obey, to follow (the law, a command, etc.); to accomplish (a duty,
task, mission, etc.)," "[t]o achieve, to realize (a purpose, plan, end); to satisfy, to meet (a requirement,
condition, standard, etc.); to perform (a function)." This definition supports a wider meaning than mere
"application".
51 See AUeged Violations of the 1955 Treaty of Amity, supra n.6, at p.27, para. 56. See also Georgia v. Russian
Federation, supra n.27, at p. 70, para 113, where the Court found that there were two parallel disputes: one
relating to the lawfulness of Russia's use of force, and another falling within the scope of CERD.
52 See, e.g., United States Diplomatic and Consular Staff in Tehran (United States of America v fran), Judgment,
J.C.J. Reports 1980, at p.20, para. 37.
53 fmmunities and Criminal Proceedings {Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, at p. 319, para. 85.
54 Alleged Violations of the 1955 Treaty of Amity, supra n.6, at pp. 31-32, para. 75.
it is not necessary for the Court to finally determine the construction of Article I at
this Preliminary Objections stage. Any disagreement between the parties regarding
the scope and content of Article I is properly a matter for the merits.ss
The legal scope of Article I of the Convention
34. Article I of the Convention provides that:
[t]he Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake
to prevent and to punish.
35. The duty to prevent and punish genocide sits at the very centre of the Convention.
As with the other principles underlying the Convention, it is "recognized by civilized
nations as binding on States, even without conventional obligations"56 - and thus
forms part of customary international law. Nevertheless, parties to the Convention
remain bound to engage with one another through the prism of the Convention and
cannot evade their Convention obligations through reliance on parallel custom.
36. The duty to prevent and punish genocide is triggered whenever a State learns of, or
should normally have learned of, the commission of genocide or a serious risk that
genocide will be committed.s7 When triggered, the duty requires all Parties to
"employ all means reasonably available so as to prevent genocide as far as possible".s8
Article I thus contains a positive duty to act, although it is not in itself an authority for
action.
37. The Article I duty to prevent and punish genocide also contains certain obligations
that are not stated expressis verbis, but are necessarily implied, including:
a. the obligation to refrain from committing genocide;
ss Consistent with the Court's approach in the Bosnia Genocide Preliminary Objections judgment, supra n.7 at
p. 616, para. 32-33.
56 Reservations to the Genocide Convention, supra n.13, at p. 23.
57 Bosnia Genocide Preliminary Objections judgment, supra n. 7, at p. 222, para. 431.
58 Bosnia Genocide case, supra n.31, at p. 221, para. 430.
b. the obligation to invoke and discharge the duty to prevent and punish
genocide only in good faith; and
c. the obligation on a State to refrain from acts, in purported reliance on the
duty to prevent and punish genocide, that exceed the limits permitted by
international law.
38. These implicit obligations are founded in, and form an integral part of, Article I of the
Convention. They are not separate to it as the Russian Federation has asserted.59 A
dispute about "the interpretation, application or fulfilment" of any of these implicit
obligations is a dispute "relating to the interpretation, application or fulfilment" of
Article I itself. It thus falls within the scope of Article IX and the jurisdiction ratione
materiae of the Court.
The obligation to refrain from committing genocide
39. In the Bosnia Genocide case, the Court held that, while the Convention does not
expressly require States themselves to refrain from committing genocide, "the
obligation to prevent genocide necessarily implies the prohibition of the commission
of genocide" .60
40. The Court's jurisprudence clearly confirms that it has jurisdiction to consider disputes
relating to this implied obligation, including by determining whether allegations of
genocide made by one Contracting Party against another Contracting Party are
established on the evidence.61 Whether acts amount to "genocide" so as to trigger
the application of Article I is not simply a matter of a party's subjective interpretation.
The definition of "genocide" in Article II of the Convention applies and must be
satisfied on the facts. That requires a consideration of whether both the actus reus
and mens rea of genocide (and/or other associated punishable acts enumerated in
Article Ill of the Convention} are made out. 62
59 Russian Federation's Preliminary Objections at sections IV D and E.
60 Bosnia Genocide case, supra n.31, at p 113, para. 166.
61 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)
('Croatia Genocide case'), Judgment, I.C.J. Reports 2015, p. 3
62 Ibid at p.61, para. 130.
41. Where a Contracting Party takes actions which infringe the legal rights of another
state in purported reliance on the duty to prevent genocide, the Contracting Party
must be prepared to defend those actions on the basis of compelling evidence that
genocide has occurred, or is about to occur.63 The actori incumbit probatio principle
applies generally to allegations of genocide64 so the party taking measures
purportedly to prevent genocide under Article I of the Convention must be able to
prove the objective basis for its determination.65
42. As already noted, Article IX provides that a dispute "relating to the responsibility of a
State for genocide or for any of the other acts enumerated in Article Ill" shall be
submitted to the Court at the request of any of the parties to the dispute.
Accordingly, the Court has jurisdiction ratione materiae over such disputes whether
they are submitted to the Court by the Contracting Party alleging genocide, or by the
Contracting Party alleged to have committed genocide.
The obligation to invoke and discharge the duty to prevent and punish genocide only in good
faith
43. Article I of the Convention is underpinned by an implicit obligation to invoke and
discharge the duty to prevent and punish genocide only in good faith. That obligation
arises from the general principles of international law,66 as codified in the Vienna
Convention on the Law of Treaties {VCLT}, and reflected in the jurisprudence of the
Court.
44. The International Law Commission has described the principle of good faith as "the
fundamental principle of the law of treaties".67 The preamble to the VCLT records
that "the principles of free consent and of good faith and the pacta sunt servanda rule
are universally recognized". Article 26 of the VCLT sets out the requirement that
63 Bosnia Genocide case, supra n.31, at p. 129, para. 208).
64 Croatia Genocide case, supra n.61, at p. 73, para. 170
65 Bosnia Genocide case, supra n.31, at pp. 128-129, para. 204, 209.
66 See section 38(1)(c} of the Statute of the International Court of Justice.
67 International Law Commission, supra n.26, p. 211, para. 1. See also Villiger Commentary on the 1969 Vienna
Convention on the Law of Treaties (Martinus Nijhoff, Leiden/Boston, 2009) at p. 363: "[The rule of pacta sunt
servandaJ has been applied since time immemorial. .. and is seen today as the cornerstone of international
relations. Ulpian referred to it, for Grotius it lay at the centre of the international legal order. No case is known
in which a tribunal has repudiated the rule or questioned its validity."
"[e]very treaty in force is binding upon the parties to it and must be performed by
them in good faith." Consistent with this, Article 31 of the VCLT further provides that
every treaty must also be "interpreted in good faith" in light of its object and purpose.
Jt is implicit within those obligations that a party to a treaty "must abstain from acts
calculated to frustrate" the treaty and its object and purpose.68
45. The significance of the principle of good faith has also been recognised by this Court.
In the Nuclear Tests Case, the Court held that:69
One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international cooperation ...
Further, in the Gabcikovo-Nagymaros Project case, the Court found that the
obligation of good faith requires a party to apply a treaty provision "in a reasonable
way and in such a manner that its purpose can be realised". 70
46. Article I of the Convention must therefore be interpreted, applied and fulfilled in
good faith in such a manner that its object and purpose can be realised. As recognised
by this Court in its Advisory Opinion on Reservations to the Genocide Convention: 71
The Convention was manifestly adopted for a purely humanitarian and civilizing
purpose. It is indeed difficult to imagine a convention that might have this dual
character to a greater degree, since its object on the one hand is to safeguard
the very existence of certain human groups and on the other to confirm and
endorse the most elementary principles of morality. In such a convention the
contracting States do not have any interests of their own; they merely have, one
and all, a common interest, namely, the accomplishment of those high purposes
which are the raison d'etre of the convention. Consequently, in a convention of
this type one cannot speak of individual advantages or disadvantages to States,
or of the maintenance of a perfect contractual balance between rights and
duties. The high ideals which inspired the Convention provide, by virtue of the
common will of the parties, the foundation and measure of all its provisions.
(emphasis added)
47. The good faith fulfilment of those "high ideals" entails that Contracting Parties must
refrain from, inter alia, invoking and discharging their duty to prevent and punish
genocide on a false basis to achieve purposes inconsistent with the object and
purpose of the Convention and/or to interfere with the legal rights of another State.
68 Ibid, at para. 4.
69 Nuclear Tests Case (Australia v France) (Merits), Judgment, I.C.J. Reports 1974, , at p.268, para. 46
70 Gabcfkovo-Nagymaros Project (Hungary/Slovakia), supra n.24 , at p. 79, para. 142.
71 Reservations to the Genocide Convention, supra n.13, at p. 23.
In New Zealand's view, a dispute arising out of such conduct would lie squarely within
the scope of Article I and engage the jurisdiction ratione materiae of the Court.
The obligation to refrain from acts, in purported reliance on the duty to prevent and punish
genocide, that exceed the limits permitted by international law
48. As this Court recognised in the Bosnian Genocide case, the duty to prevent and punish
genocide must be exercised within the limits permitted by international law.72
49. The Court confirmed and reinforced that limitation in the provisional measures Order
in this case, noting:73
The acts undertaken by the Contracting Parties "to prevent and to punish"
genocide must be in conformity with the spirit and aims of the United Nations,
as set out in Article 1 of the United Nations Charter.
And further that it is therefore:
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.
SO. Article I of the Convention accordingly implicitly constrains the actions a Contracting
Party can properly take in purported discharge of its duty to prevent and punish
genocide. Contracting Parties are obliged to refrain from acts, in purported reliance
on the Article I duty, that exceed the limits of international law or are inconsistent
with the purposes of the United Nations.
51. Article VIII of the Convention underscores that, in the first instance, parties will seek
to act collectively to prevent and supress genocide through the mechanisms of the
United Nations. Members of the United Nations have accepted a corresponding duty
to respond to requests for action presented to them under Article VIII of the
Convention.74 As this Court has recognised, Article VIII does not exhaust a party's
duty to prevent genocide.75 Actions beyond recourse to the competent organs of the
United Nations may be required - particularly where the competent organs of the
72 See Bosnia Genocide case, supra n.31, at p. 221, para. 430.
73 Provisional Measures Order of 16 March 2022, supra n .30, at para. 58-60.
74 By extension of their own duty to prevent under Article I of the Convention and international customary law,
and as confirmed by UNGA resolution A/RES/60/1 {2005} at paragraphs 138 and 139.
75 Bosnia Genocide case, supra n.31, at pp. 219 - 220, para. 427.
United Nations have manifestly failed to act. However, on its own the duty to prevent
genocide does not provide a legal basis for the use of force in violation of Article 2(4)
of the UN Charter.76
52. Accordingly, New Zealand considers that the Court has jurisdiction ratione materiae
over disputes relating to acts, taken in purported discharge of the duty to prevent
genocide, that exceed the limits of international law or are inconsistent with the
purposes of the United Nations. In particular, the Court has jurisdiction ratione
materiae where a Contracting Party, in purported discharge of its duty to prevent
genocide, causes injury through the use of force against another Contracting Party.
53. The scope ofthat jurisdiction should not be misunderstood. Article IX does not confer
jurisdiction in relation to disputes that do not arise from obligations founded in the
Convention. In general terms, the Convention does not regulate the use of force
between States, save where the requisite intent for genocide is present,77 and it does
not regulate the protection of human rights in armed conflict.78 However, where a
Contracting Party frames its own acts as justified or required by obligations founded
in the Convention, then a dispute arising out of those acts will properly fall within the
Court's jurisdiction ratione materiae.
CONCLUSION
54. It follows from the authorities described above that a dispute within the scope of
Article IX of the Convention will exist wherever there is evidence that the parties
fundamentally disagree on the underlying facts; their application to the Convention;
the meaning and legal scope of one or more provisions of the Convention; and/or the
manner and extent to which those provisions have been complied with - including
any implicit obligations contained within them.79 Such a dispute may relate to any of
76 Article 2(4) UN Charter, as elaborated by the GA in Resolution 3314 (XXIX) Definition of Aggression.
77 Legality of Use of Force {Yugoslavia v. Belgium), supra n.10, at p. 124, para. 40.
78 Bosnia Genocide case, supra n.31, at p. 104 para. 147.
79 The words of the Court in its 1996 Judgment at the preliminary objections phase of the Bosnia Genocide
case are particularly pertinent in this regard: " ... it is sufficiently apparent ... that the Parties not only differ
with respect to the facts of the case, their imputability and the applicability to them of the provisions of the
Genocide Convention, but are moreover in disagreement with respect to the meaning and legal scope of
several of those provisions, including Article IX. For the Court, there is accordingly no doubt that there exists
a dispute between them relating to "the interpretation, application or fulfilment of the ... Convention,
the provisions of the Convention - including the interpretation, application or
fulfilment of Article IX itself. And it may be brought before the Court by any party to
the dispute - including a party that has been accused of genocide.
55. In particular, New Zealand considers that:
a. Through Article IX, Contracting Parties to the Convention have identified a
procedure for the settlement of their disputes - submission to this Court. At
the same time, they have assumed a substantive obligation to comply with
that procedure reasonably and in good faith. By accepting Article IX of the
Convention Contracting Parties have accordingly agreed to abide by the
Court's procedures and any orders or judgments issued by it.
b. A Contracting Party's failure to comply with any order for provisional
measures indicated by the Court is a breach of that Party's international
obligations under the Charter, the Statute and Article IX. Such failure not only
aggravates the central dispute but may give rise to a dispute regarding
compliance with the substantive obligations contained in Article IX itself.
c. The existence of a "dispute" under Article IX can be determined from the
words and the actions of the parties - both before, and after, the application
was submitted to the Court. An applicant State does not need to have
previously expressly identified a breach of a specific provision of the
Convention in order to have established the existence of a "dispute".
d. In assessing the question of jurisdiction ratione materiae under Article IX the
Court must be satisfied that the applicant's claims are capable of falling within
the provisions of the Convention. But it is not necessary that a dispute must
have its origins exclusively under the Convention in order to establish
jurisdiction.
inc/uding ... the responsibility of a State for genocide ... ", according to the form of words employed by that
latter provision." (Bosnia Genocide Preliminary Objections judgment, supra n.7, at pp 616-617, para. 33
emphasis added)
e. The duty in Article I of the Convention to prevent and punish genocide also
contains certain obligations that are not stated expressis verbis but are
necessarily implicit within it, including: the obligation to refrain from
committing genocide; the obligation to invoke and discharge the duty to
prevent and punish genocide only in good faith; and the obligation to refrain
from acts, in purported reliance on the duty to prevent and punish genocide,
that exceed the limits permitted by international law or are inconsistent with
the purposes of the United Nations.
f. A dispute about the "interpretation, application or fulfilment" of any of these
implicit obligations is a dispute "relating to the interpretation, application or
fulfilment" of Article I itself. It thus falls within the jurisdiction ratione
materiae of the Court.
g. Such a dispute may be brought to the Court by any party to the dispute. This
includes a party alleged to have committed genocide, and the Court may
properly determine and declare whether those allegations are established on
the evidence before it.
Respectfully,
L)C(Ja-v<~"""j_
Susannah Gordon
Co-Agent of the Government of New Zealand