Written observations of Lithuania on the subject-matter of its intervention

WRITTEN OBSERVATIONS OF
THE REPUBLIC OF LITHUANIA
IN THE CASE OF
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
5 JULY 2023
1. These written observations are filed pursuant to the Court's Order dated 5 June
2023 and "concern the construction of Article IX and other provisions of the Convention
on the Prevention and Punishment of the Crime of Genocide that are relevant for the
determination of the jurisdiction of the Court". 1 Because "the question of whether the
Court was validly seised appears to be a question of jurisdiction", 2 these written
observations also address the interpretation of Article IX insofar as it concerns the seisin
of the Court.
2. Article IX of the Convention reads as follows:
"Disputes between the Contracting Parties relating to the interpretation, application
or fulfilment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
Article III, shall be submitted to the International Court of Justice at the request of
any of the parties to the dispute."
3. Article IX must be read in the context of the other provisions of the Convention. 3
In this regard, Lithuania recalls that "Article IX provides the conditions for recourse to
the principal judicial organ of the United Nations in the context of a dispute between
Contracting Parties, whereas Article VIII allows any Contracting Party to appeal to other
competent organs of the United Nations, even in the absence of a dispute with another
Contracting Party."4 Also in contrast to Article IX, Article VIII is exclusively concerned
with "the prevention and suppression of acts of genocide or any of the other acts
enumerated in Article III." As the text of Article IX makes clear, the disputes that may be
submitted for decision to the Court are not limited to "the prevention and suppression of
acts of genocide or any of the other acts enumerated in Article III", which is the province
of Article VIII. Rather, the disputes under Article IX may more broadly "relat[ e] to the
interpretation, application or fulfilment of the present Convention, including those
1 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 5 June 2023, para. 102 (I).
2 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction
and Admissibility, Judgment, I.CJ Reports 1995, p. 23, para. 43.
3 Article 31, paragraph 2, of the Vienna Convention on the Law of Treaties and see not. Maritime Delimitation in
the Indian Ocean (Somalia v. Kenya), Prelimina,y Objections, Judgment, I. C.J Reports 2017, pp. 29-30, paras.
64-65.
4 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Preliminary Objections, Judgment of22 July 2022, para. 89.
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relating to the responsibility of a State for genocide or for any of the other acts enumerated
in Article III." As the Court has made clear, "disputes relating to the responsibility of
Contracting Parties for genocide [ ... ] are comprised within a broader group of disputes
relating to the interpretation, application or fulfilment of the Convention. "5
4. The functional and textual differences between Articles VIII and IX, 1.e. their
"distinct areas of application",6 indicate that disputes stemming from allegations of acts
of genocide may be submitted to the Court for adjudication, even if the claims submitted
to the Court by the Applicant do not concern the perpetration of acts of genocide by the
Respondent. In other words, the Court's jurisdiction under A1iicle IX extends to disputes
resulting from the contestation by the Applicant of allegations by the Respondent that
acts of genocide occurred or were about to occur on the territory of the former. Thus, as
set out in its Declaration of Intervention of 22 July 2022, Lithuania considers that when
a State accuses another State of committing genocide, or claims that acts of genocide are
in the making on its territory, and that the State so accused rejects such accusations, a
"dispute" exists under Article IX of the Convention.7 This includes instances in which
the accusation of genocide is made with a view to justifying acts that may engage other
rules of international law.
5. This construction of Article IX is confirmed by two important textual elements
present in the said provision:
First, the fact that the disputes must be about the "interpretation, application or
fulfilment" of the Convention. This wording has been described as "unique as
compared with the compromissory clauses found in other multilateral treaties
which provide for submission to the International Court of Justice of such
disputes between the Contracting Parties as relate to the interpretation or
application of the treaties in question". 8 It has also been underscored that "by
5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007 (I), p. I 14, para. 169.
6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Prelimina,y Objections, Judgment of 22 July 2022, para. 89.
7 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Declaration of Intervention of the Republic of Lithuania of 19 July 2022, para.
24.
8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Prelimina,y Objections, Declaration of Judge Oda, I.CJ. Reports 1996
(JI), p. 627, para. 5 (emphasis in the original); see also Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J.
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(
inserting all the three alternative terms, drafters had sought to 'give a coverage
as exhaustive as possible to the compromissory clause' and to 'close down all
possible loopholes'." 9 In Lithuania's submission, "the well-established
principle in treaty interpretation that words ought to be given appropriate
effect" 10 clearly indicates that the addition of the word "fulfilment" extends the
type of "disputes" under the Convention that can be submitted to the Court
under Article IX. In that regard, Lithuania recalls that the travaux preparatoires
reveal that a proposal to delete the word "fulfilment" was rejected. 11 In light of
the customary rules on treaty interpretation reflected in Article 31 of the Vienna
Convention on the Law of Treaties, 12 "fulfilment" (in French: "I 'execution")
must be understood in its ordinary linguistic meaning, namely, to refer to the
action, act, or process of accomplishment, performance or completion of an
obligation. 13 Thus, when State A protests against State B's allegations that
genocide is occurring or about to occur on State A's territory, such contestation
gives rise to a dispute about thefitlfilment of the Convention's obligations that
can be submitted to the Court by either State A or State B.
Second, this understanding is reinforced by the fact that "disputes relating the
interpretation, application or fulfilment" of the Convention can "be submitted
to the International Court of Justice at the request of any of the parties to the
dispute". By stating that the seisin of the Court can be the initiative of "any of
the parties to the dispute", the last part of Article IX confirms that recourse to
Reports 2006, Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, p. 72, para.
28: "Article IX speaks not only of disputes over the interpretation and application of the Convention, but over the
"fulfilment of the Convention" (emphasis added).
9 C. Tams, "Article IX", in Tams/Gerster/Schiffbauer (eds.), Convention on the Prevention and Punishment of
Genocide, A Commenta,y (Beck 2014), p. 313, para. 45, citing from R. Kolb, "Scope Ratione Materiae" in Paola
Gaeta (ed.), The UN Genocide Convention: A Commenta,y, (OUP 2009), p. 451.
lO Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia
v. Russian Federation), Preliminmy Objections, Judgment, I.CJ. Reports 2011 (/), p. 125, para. 133, referring to
Free Zones of Upper Savoy and the District ofGex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13.
11 Official Records of the Third Session of the General Assembly, Part I, Sixth Committee, Summary Records of
Meetings 21 September-I O December 1948, A/C.6/SR. l 04, Hundred and fourth meeting, Palais de Chaillot, Paris,
Saturday, 13 November 1948, reproduced in H. Abtahi & Ph. Webb (eds.), The Genocide Convention, The Travaux
Preparatoires, Volume Two (Martinus Nijhoff2008), p. 1784.
12 See Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Prelimina,y Objections, Judgment of 6 April
2023, para. 87.
13 Oxford English Dictionary (3rd ed., 2016), fitlfilment (accessed online at https://www.oed.com/
view/Entry/75295?redirectedFrom=fulfilment#eid).
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it is available to a State that considers itself falsely accused of acts of genocide
by another Party to the Convention. While many compromissory clauses allow
the seisin of the Court by "any of the parties to the dispute", 14 the fact that such
seisin may concern, under Article IX, a dispute "relating to the ( ... ) fulfilment"
of the Convention, and is possible in the absence of any prior negotiations, is
significant insofar as the specific configuration of the present dispute is
concerned.
6. Lithuania further considers that the object and purpose of the Convention, as
eloquently described by the Court in its 1951 Advisory Opinion, 15 also supports the
interpretation of Article IX according to which a dispute resulting from allegations of
genocide can be submitted to the Court for decision by the State accused of genocide.
The higher purposes of the Convention, and the shared interests of States in the prevention
and punishment of genocide, confirm that accusing a State of genocide is a serious
allegation that must not be made lightly, and be exempt from any judicial control. Without
this, the object and purpose of the Genocide Convention, and the obligations contained
therein, would be seriously undermined. In order to preserve the integrity of the
Convention, Article IX is therefore open to any State party that considers itself falsely
accused of genocide by any other State party.16 Article IX has thus a protective value and
effect for States that have accepted it.
7. A State that considers itself falsely accused of genocide may claim that such
accusation is the result of a breach of Article I of the Convention and that the actions
undertaken for the alleged purpose of preventing the alleged genocide are likewise
wrongful under the Convention. The Court has clarified that disputes falling within the
scope of A1ticle IX need not necessarily relate to obligations that "are expressly imposed
by the actual terms of the Convention". 17 As Lithuania set out in its Declaration of
Intervention in the present dispute, whether or not a party has fulfilled its obligations
under the Convention may be particularly salient in relation to the obligation of due
14 See e.g. International Convention on the Elimination of All Forms of Racial Discrimination (21 December
1965), Art. 22.
15 Reservations to the Convention on the Prevention and Punishment of th.e Crime of Genocide, Adviso,y Opinion
of28 May 1951, I.C.J. Reports 1951, p. 23 .
16 Absent any reservation on Article IX by the States parties to the dispute.
17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (/), p. 113, para. 166.
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diligence, entailed by Article I, to collect substantial evidence from independent sources
that acts of a genocidal nature are being perpetrated, before undertaking any preventive
action pursuant to the same provision. 18 Such claim falls within the jurisdiction
ratione materiae of the Court under Article IX. It would be for the Court to determine,
when examining the merits of the case and interpreting Article I, whether that provision
entails the obligation of due diligence identified by Lithuania in its Declaration of
Intervention and, if so, whether that obligation has been breached.
8. Lithuania also reiterates its position, also set out in its Declaration of Intervention,
that the Convention imposes upon States a duty not to engage in military aggression on
the basis of factually unsubstantiated allegations of genocide. As developed in the
Declaration of Intervention, such a duty flows from Article I, read in conjunction with
Article VIII of the Convention. It requires States that purport to allegedly prevent
genocide to act diligently, that is to say, to justify their action by reference to substantial
evidence from independent sources confirming that genocidal acts are being perpetrated
or that there exists "a serious risk that genocide will be committed".19 This duty flows
from the Court's recognition that in discharging its duty to prevent genocide, "every State
may only act within the limits permitted by international law",20 and its confirmation that
"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". 21 It is Lithuania's position that claims regarding the
compliance with said obligation fall within the jurisdiction ratione materiae of the Court
under Article IX.
9. Finally, Lithuania recalls that the means by which an international obligation is
breached-in particular the means by which the obligation to prevent genocide under
Article I is allegedly fulfilled-are irrelevant for jurisdictional purposes. Indeed, as the
Court has made clear in the Oil Platforms case: "[a]ny action by one of the Parties that is
incompatible with [the] obligations [ under the 1955 Treaty] is unlawful, regardless of the
18 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Declaration of Intervention of the Republic of Lithuania of 19 July 2022, para.
20.
19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.CJ. Reports 2007 (!) , p. 221, para. 431.
20 Ibid., para. 430.
21 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order on Provisional Measures of 16 March 2022, para. 58.
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means by which it is brought about. A violation of the rights of one party under the Treaty
by means of the use of force is as unlawful as would be a violation by administrative
decision or by any other means. Matters relating to the use of force are therefore not per
se excluded from the reach of the Treaty of 1955." 22 This finding applies mutatis
mutandis to the Genocide Convention. Lithuania further recalls that when the Court has
jurisdiction under Article IX, such jurisdiction extends to applying "the rules of general
international law on treaty interpretation and on responsibility of States for internationally
wrongful acts. ,m In Lithuania's opinion, the Court's jurisdiction necessarily extends also
to applying other rules of treaty law, in particular the one concerning the obligation to
perform treaties in good faith. 24
*
Respectfully submitted,
Ricard Dzikovic
Co-Agent of the Republic of Lithuania
5 July 2023
22 Case concerning Oil Platforms (Iran v. United States of America), Preliminary Objections, Judgment, I.CJ
Reports 1996, p. 803, para. 21.
23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.CJ Reports 2007 (!), p. 105, para. 149.
24 See A1t. 26 of the Vienna Convention on the Law of Treaties.
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