Note: This translation has been prepared by the Registry for internal purposes and has no official
character
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION
ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION: 32 STATES INTERVENING)
WRITTEN OBSERVATIONS OF THE KINGDOM OF BELGIUM
5 July 2023
[Translation by the Registry]
I. INTRODUCTION
1. On 5 June 2023, the International Court of Justice (hereinafter “the Court”) decided that the
declarations of intervention under Article 63 of the Statute of the Court (hereinafter “the Statute”)
submitted by, among others, the Kingdom of Belgium (hereinafter the “Order on the Admissibility
of the Declarations of Intervention”) in the case concerning Allegations of Genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation) (hereinafter “the proceedings”) were admissible1. The Court fixed 5 July 2023 as the
time-limit for the filing of the written observations referred to in Article 86, paragraph 1, of the Rules
of the Court (hereinafter “the Rules”)2.
2. The intervention of the Kingdom of Belgium (hereinafter “Belgium”) under Article 63 of
the Statute involves the exercise of a right by a State party to a convention the construction of which
is in question before the Court3. As determined by the Court in the Order on the Admissibility of the
Declarations of Intervention, the construction of Article IX and of other provisions of the Convention
on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide
Convention”)4 concerning the Court’s jurisdiction ratione materiae is in question at the present stage
of the proceedings5. In accordance with the Order on the Admissibility of the Declarations of
Intervention, these written observations will solely concern the construction of Article IX and other
provisions of the Genocide Convention that are relevant for the determination of the Court’s
jurisdiction ratione materiae in the proceedings6. References in these written observations to other
rules and principles of international law outside the Genocide Convention will concern only the
construction of the Convention’s provisions, in accordance with the customary rule of interpretation
reflected in Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties (hereinafter
the “Vienna Convention”)7. Belgium will not address other matters, such as the dispute between the
Parties, the evidence, the facts or the application of the Genocide Convention in the present case8.
3. Upon the Court’s invitation to co-ordinate with other intervening States, Belgium has agreed
the substance of its position with the Republic of Croatia, the Kingdom of Denmark, the Republic of
Estonia, the Republic of Finland, Ireland, the Grand Duchy of Luxembourg and the Kingdom of
Sweden. Parts II and III of the present written observations are therefore identical to the
corresponding parts of the written observations of those intervening States. However, in order to be
able to meet the strict time-limit set by the Court and for logistical reasons, Belgium is filing the joint
content separately in its national capacity.
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, available at https://www.icj-cij.org/sites/default/files/caserelated/
182/182-20230605-ORD-01-00-EN.pdf, paras. 99 and 102 (1).
2 Ibid., para. 102 (3).
3 Ibid., para. 26.
4 Convention on the Prevention and Punishment of the Crime of Genocide, signed at Paris on 9 Dec. 1948,
United Nations, Treaty Series, Vol. 78, p. 277 (entered into force on 12 Jan. 1951).
5 Order on the Admissibility of the Declarations of Intervention (fn. 1), para. 26.
6 Ibid., para. 99.
7 Ibid., para. 84.
8 Ibid.
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II. CONSTRUCTION OF ARTICLE IX AND OTHER PROVISIONS OF THE GENOCIDE CONVENTION
RELEVANT FOR JURISDICTION RATIONE MATERIAE
4. In its Order of 16 March 2022 indicating provisional measures, the Court affirmed its
jurisdiction prima facie on the basis of Article IX of the Genocide Convention9.
5. Belgium wishes to make four observations on the construction of the Genocide Convention
at the present stage of the proceedings.
6. First, applying the rules of treaty interpretation (such as those contained in Articles 31 to 33
of the Vienna Convention, which reflect rules of customary international law10), it is important to
recall the broad scope of Article IX of the Genocide Convention, which includes disputes about the
“fulfilment” of obligations under the Convention.
7. Second, Article IX of the Genocide Convention applies to disputes about abusive
allegations of genocide under the Genocide Convention.
8. Third, Article IX of the Genocide Convention applies to disputes about unlawful action as
a means for prevention and punishment of genocide under the Genocide Convention.
9. Fourth, any party to the dispute may seise the Court under Article IX, including the party
which is the victim of an abusive allegation of genocide or any unlawful action as a means for
prevention and punishment of genocide.
A. Article IX of the Genocide Convention is formulated in broad terms
and covers disputes about the “fulfilment” of the Convention
10. Article IX of the Genocide 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.”
11. Belgium contends that the notion of “dispute” is already well-established in the
jurisprudence of the Court and of its predecessor, the Permanent Court of International Justice. It
concurs with the meaning given to the word “dispute” as “a disagreement on a point of law or fact,
a conflict of legal views or of interests” between parties11. In order for a dispute to exist, “[i]t must
9 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, available at: https://www.icjcij.
org/sites/default/files/case-related/182/182-20220316-ORD-01-00-EN.pdf, paras. 28-49.
10 Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Judgment of 6 April 2023, available at:
https://www.icj-cij.org/sites/default/files/case-related/171/171-20230406-JUD-01-00-EN.pdf, para. 87.
11 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
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be shown that the claim of one party is positively opposed by the other”12. The two sides must “hold
clearly opposite views concerning the question of the performance or non-performance of certain
international obligations”13. Moreover, “in case the respondent has failed to reply to the applicant’s
claims, it may be inferred from this silence, in certain circumstances, that it rejects those claims and
that, therefore, a dispute exists”14.
12. In that respect, the document communicated by the Russian Federation to the Court on
7 March 2022 seems to construe the notion of a dispute unduly narrowly by insisting that Article IX
cannot be used to establish the jurisdiction of the Court for disputes relating to the use of force or
issues of self-defence under general international law15. However, it follows from the consistent
jurisprudence of the Court that certain facts or omissions may give rise to a dispute that falls within
the ambit of more than one treaty16. Hence, a parallel dispute arising out of the same facts about the
use of force between two States does not create an obstacle to the jurisdiction of the Court under
Article IX of the Genocide Convention, provided that its other conditions are fulfilled.
13. In particular, such a dispute must “relat[e] to the interpretation, application or fulfilment
of the present Convention”. Belgium contends that Article IX is a broad jurisdictional clause,
allowing the Court to adjudicate upon disputes concerning the fulfilment by a Contracting Party of
its obligations under the Convention. The inclusion of the word “fulfilment” is “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 Contracting Parties as relate to the
interpretation or application of the treaties in question”17.
14. The ordinary meaning of the phrase “relating to the interpretation, application or fulfilment
of the Convention” may be divided into three parts.
15. The first part (“relating to”) establishes a link between the dispute and the Convention.
16. The second part (“interpretation, application or fulfilment of the Convention”)
encompasses three terms. While “interpretation” is typically understood as the process of “explaining
the meaning” of a legal norm, “application” is the “action of putting something into operation” in a
12 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J.
Reports 1962, p. 319, at p. 328.
13 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 406, at p. 414, para. 18;
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), p. 3, at p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74.
14 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, para. 71.
15 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Document of the Russian Federation, 7 Mar. 2022, paras. 8-15.
16 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, p. 27, para. 56.
17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), declaration of Judge Oda, p. 627,
para. 5 (emphasis in the original).
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given case18. The term “fulfilment” partially overlaps with the latter, and it may be understood to
refer to an application that “meets the requirements” of a legal norm19. Nevertheless, the addition of
the term “fulfilment” supports a broad interpretation of Article IX20. It appears that “by inserting all
three alternative terms”, the drafters sought to “give a coverage as exhaustive as possible to the
compromissory clause” and to “close down all possible loopholes”21.
17. The third part (“of the Convention”) makes clear that the compromissory clause refers
back to all the provisions of the Convention. In other words, Article IX does not create further
substantive rights or obligations for the parties; the substantive legal norms that are subject to the
Court’s jurisdiction must be found elsewhere in the Convention. At the same time, the renvoi relates
to the entire life of the Convention, including breaches thereof22.
18. For example, there can be a dispute about the interpretation, application or fulfilment of
the Convention when one State alleges that another State has committed genocide23. In that scenario,
the Court verifies the factual basis for such an allegation: if it is not satisfied that there were any acts
of genocide actually being committed by the respondent State, it may decline its jurisdiction, also
prima facie24.
19. While this scenario of (alleged) responsibility for acts of genocide constitutes an important
type of dispute concerning the “interpretation, application or fulfilment” of the Convention, it is not
the only one. In the Bosnia and Herzegovina v. Yugoslavia case, the applicant alleged several
violations of the Convention by the respondent, including a failure to prevent and punish genocide
under Article I25, and the Court affirmed its jurisdiction ratione materiae26. In the case of
The Gambia v. Myanmar (pending), the applicant claims that the respondent not only bears
responsibility for prohibited acts under Article III, but also for violations of its obligations under the
Convention by failing to prevent genocide in violation of Article I, and failing to punish genocide in
violation of Articles I, IV and V27. In these examples, one State alleges that another State is not
honouring its commitment to “prevent” and “punish” genocide, because it grants impunity to acts of
18 C. Tams, “Article IX” in C. Tams, L. Berster and B. Schiffbauer, Convention on the Prevention and Punishment
of Genocide: A Commentary, Beck/Hart/Nomos, Munich/Oxford, 2014, para. 45.
19 Ibid.
20 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), joint declaration of intervention of the Governments of Canada and the Kingdom of the
Netherlands, 7 Dec. 2022, para. 29.
21 C. Tams (fn. 18), “Article IX”, para. 45; R. Kolb, “Scope Ratione Materiae”, in P. Gaeta (ed.), The UN Genocide
Convention: A Commentary, OUP, Oxford, 2009, p. 451.
22 R. Kolb (fn. 21), “Scope Ratione Materiae”, p. 453, with an account of the case law.
23 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 (I), p. 43, at p. 75, para. 169.
24 Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 363, at pp. 372-373, paras. 24-31. Later, the ICJ declined its jurisdiction on the ground that Serbia and
Montenegro did not have access to the Court, at the time of the institution of the proceedings, under Article 35 of the Statute
(see e.g. Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections, Judgment, I.C.J. Reports
2004 (II), p. 595).
25 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595, at p. 614, para. 28, and
p. 603, para. 4.
26 Ibid., pp. 615-617, paras. 30-33.
27 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, para. 24, points (1) (c), (d) and (e).
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genocide committed on its territory. Therefore, there can also be disputes about “non-action” as a
violation of the substantive obligations under Articles I, IV and V.
20. The ordinary meaning of Article IX makes it clear that there is no need to establish
genocidal acts in order to affirm the Court’s jurisdiction. Rather, the Court has jurisdiction over the
question whether genocidal acts have been or are being committed or not28.
21. The context of the phrase (“relating to”) confirms this reading. In particular, the unusual
feature of the word “including” in the intermediate sentence indicates the broader scope of Article IX
of the Convention when compared to a standard compromissory clause29. Disputes relating to the
responsibility of a State for genocide or for any of the other acts enumerated in Article III are
therefore only one of the types of dispute covered by Article IX, which are “included” in the wider
phrase of disputes “relating to the interpretation, application and fulfilment” of the Convention30.
22. Thus, the context of the phrase (“relating to”) in Article IX confirms that the Court’s
jurisdiction goes beyond disputes between States about responsibility for alleged genocidal acts, but
also covers disputes between States about the absence of genocide and about the performance of
treaty obligations by one or more States parties. In other words:
“With a view to the question of positive fulfilment, the Court therefore has
jurisdiction over the question whether a Contracting Party . . . has done enough to
prevent and punish genocide. ln a negative way, the Court can also adjudicate whether
a Contracting Party has failed to fulfil these obligations.”31
23. Finally, the object and purpose of the Convention gives further support to the wide
interpretation of Article IX. The Court noted that “[a]ll the States parties to the Genocide Convention
[thus] have a common interest to ensure the prevention, suppression and punishment of genocide, by
committing themselves to fulfilling the obligations contained in the Convention”32. The erga omnes
nature of the obligations under the Convention also underpins the paramount significance of the text
for the international community as a whole, entrusting the International Court of Justice in 1948 with
a particularly important mission to enforce it in the interest of all States.
24. In its 1951 Advisory Opinion, the Court held:
“The objects of such a convention must also be considered. The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed
28 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, para. 43; Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of
23 January 2020, I.C.J. Reports 2020, p. 14, para. 30.
29 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 (I), p. 43, at p. 75, para. 169.
30 See also the Written Observations of The Gambia on the Preliminary Objections raised by Myanmar, 20 Apr.
2021, pp. 28-29, para. 3.22 (“The inclusion of disputes ‘relating to the responsibility of a State for genocide’ among those
that can be brought before the Court unmistakably means that responsibility for genocide can [emphasis added] be the
object of a dispute brought before the Court by any [emphasis in the original] contracting party.”).
31 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 Principality of Liechtenstein, 15 Dec. 2022, para. 20.
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, para. 107.
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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’être 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.”33
25. The Convention’s object to protect the “most elementary principles of morality” also
requires that a State party does not abuse its provisions for other purposes. It also strongly supports
a reading of Article IX, according to which disputes relating to the interpretation, application and
fulfilment include disputes about the abuse of the Convention’s substantive provisions to justify a
State’s action vis-à-vis another State party to the Convention. Such abuse can take two forms: abusive
allegations and/or or abusive action, which will be examined in the next two sections.
B. Article IX of the Genocide Convention applies to disputes
about abusive allegations of genocide
26. Belgium now wishes to turn to one of the scenarios of a dispute under Article IX more
precisely, namely the abusive allegation of one State that another State has committed genocide.
27. In doing so, it has carefully reviewed the question whether the Convention enables a State
to seise the Court of a dispute concerning allegations of genocide made by another State34.
28. Belgium contends that Article IX of the Genocide Convention also applies to disputes
relating to abusive allegations of genocide, since they raise the question of compliance with Article I
of the Convention, which provides context for the construction of Article IX. Article I of the
Convention reads:
“The 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.”
29. According to Article I of the Genocide Convention, all States parties are obliged to prevent
and punish genocide. As the Court has previously emphasized, in fulfilling their duty to prevent
genocide, Contracting Parties must act within the limits permitted by international law35. Moreover,
the duty under Article I must be carried out in good faith (in accordance with Article 26 of the Vienna
33 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
34 For a discussion of this question, see e.g. the Order on Provisional Measures (fn. 9), declaration of
Judge Bennouna, para. 2.
35 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 (I), p. 43, at p. 221, para. 430; Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), Provisional Measures, Order of 16 March 2022, para. 57.
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Convention, reflecting customary international law36). As the Court has observed, the principle 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”37. Good faith interpretation thus operates as a safeguard against misuse of
the Genocide Convention. As “one of the basic principles governing the creation and performance
of legal obligations”, good faith is also directly linked to the “trust and confidence [that] are inherent
in international co-operation”38.
30. In Belgium’s view, the notion of “undertake to prevent” implies that each State party must
assess whether a genocide or a serious risk of genocide exists prior to taking action pursuant to
Article I39. Such an assessment must be based on substantial evidence40.
31. Importantly, the United Nations Human Rights Council called upon all States,
“in order to deter future occurrences of genocide, to cooperate, including through the
United Nations system, in strengthening appropriate collaboration between existing
mechanisms that contribute to the early detection and prevention of massive, serious
and systematic violations of human rights that, if not halted, could lead to genocide”41.
32. It may thus be considered good practice to rely on the results of independent investigations
conducted under the auspices of the United Nations42 before qualifying a situation as genocide.
33. Moreover, the Genocide Convention provides guidance concerning the lawful means by
which the Contracting Parties may prevent and punish genocide. While “Article I does not specify
the kinds of measures that a Contracting Party may take to fulfil this obligation”43, “the Contracting
Parties must implement this obligation in good faith, taking into account other parts of the
Convention, in particular Articles VIII and IX, as well as its Preamble”44. Rather than making an
abusive allegation of genocide against another State without having discharged its due diligence
obligation, a State may seise the political or judicial organs of the United Nations45.
36 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 275, at p. 296, para. 38: “The Court observes that the principle of good faith is a
well-established principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations;
it is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969.”
37 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p. 79, para. 142.
38 Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253, at p. 268, para. 46.
39 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 (I), p. 43, at pp. 221-222, paras. 430-431.
40 Ibid., p. 90, para. 209.
41 United Nations Human Rights Council, resolution 43/29: Prevention of Genocide (29 June 2020),
UN doc. A/HRC/RES/43/29, para. 11.
42 See e.g. the reliance of The Gambia on the reports of the Independent International Fact-Finding Mission on
Myanmar drawn up by the United Nations Human Rights Council before bringing a case to the Court; for more details, see
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, paras. 65-69.
43 Order on Provisional Measures (fn. 9), para. 56.
44 Ibid.
45 Ibid., separate opinion of Judge Robinson, para. 30.
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34. It follows that an abusive allegation by one State against another State runs contrary to the
former State’s obligations to apply Article I of the Convention in good faith and distorts the terms of
the Convention. Accordingly, Article IX also covers such disputes.
C. Article IX of the Genocide Convention applies to disputes about unlawful
action as a means for prevention and punishment of genocide
35. Another important scenario of a dispute under Article IX of the Convention concerns
disputes about otherwise unlawful action as a means for the prevention and punishment of genocide.
As described in the previous section, the correct construction of Article I is that a State is under a
due diligence obligation to gather evidence from independent sources before making any allegation
of genocide against another State.
36. In the same vein, a State may not take unlawful action based on such abusive allegations.
37. Rather, the scope of the “undertaking to prevent” should be read in light of the final recital
in the preamble, which emphasizes the need for “international co-operation”. Referring to the
preamble is an accepted method of treaty interpretation, as stressed by the Court for example in the
Whaling in the Antarctic case46. Moreover, under Article VIII, States may call upon the competent
organs of the United Nations to take action, and Article IX provides for judicial settlement. All this
speaks in favour of a duty under the Convention to employ multilateral and peaceful means to prevent
genocide. Such a reading is also in accordance with the general obligation set out in Chapter VI of
the Charter of the United Nations (hereinafter the “Charter”), which requires the parties to any
dispute, the continuance of which is likely to endanger the maintenance of international peace and
security, to first seek a solution by peaceful means. Article IX also gives effect to the parties’
pre-existing obligations under Article 2, paragraph 3, of the Charter and customary international law
to settle all their disputes peacefully47. Belgium emphasizes that all States parties must be engaged
in preventing and punishing genocide worldwide for the benefit of humankind as a whole, and not in
order to protect their own interests.
38. It follows from the obligation to carry out a good faith assessment of the existence of
genocide or a serious risk of genocide that, where a State has not carried out such an assessment, it
cannot invoke the “undertak[ing] to prevent” genocide in Article I of the Convention as a justification
for its conduct. This includes conduct which involves the threat or use of force, as underlined by the
Court in the Oil Platforms case48.
39. A State may not claim to enforce international law by violating international law. As the
Court explained in the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) case, already referred to in
paragraph 29 above, “it is clear that every State may only act within the limits permitted by
46 See e.g. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014,
p. 226, at p. 215, para. 56 (referring to the preamble of the International Convention on the Regulation of Whaling to discern
its object and purpose).
47 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), declaration of intervention of New Zealand, 28 July 2022, para. 25.
48 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J.
Reports 1996 (II), pp. 811-812, para. 21. See also Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation), declaration of intervention of Australia, 30 Sept.
2022, para. 41.
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international law”49. In other words, Article I of the Genocide Convention imposes an obligation on
States parties “not only to act to prevent genocide, but to act within the limits permitted by
international law to prevent genocide”50.
40. In conclusion, the jurisdiction of the Court extends to disputes concerning unlawful action
taken for the stated purpose of preventing and punishing alleged genocide51.
D. Any party to the dispute may seise the Court under
Article IX of the Genocide Convention
41. Finally, Belgium wishes to comment on the view according to which a State cannot invoke
the compromissory clause under Article IX of the Convention “only to have the Court confirm its
own compliance”52.
42. As noted in Section B above, the concepts of “dispute” and “fulfilment” in Article IX are
sufficiently broad to allow the Court to declare that the applicant State bears no responsibility for a
breach under the Convention, as alleged by another State. Moreover, the wording of Article IX
confirms that “any of the parties” to the dispute may seise the Court. Thus, where there is a dispute
concerning the question whether a State has engaged in conduct contrary to the Convention, the State
accused of such conduct has the same right to submit the dispute to the Court as the State that has
made the accusation, with the effect that the Court will have jurisdiction over that dispute53.
43. In addition, the already mentioned erga omnes partes character of the Genocide
Convention speaks against a narrowly construed opportunity to seek judicial protection before the
Court. On the contrary, such an interpretation might preclude a victim State from seeking relief from
the Court in the face of abuse of the Convention. This would undermine the Convention’s credibility
and efficiency as a universal instrument for the prevention of genocide, as well as the role of the
Court as a critical avenue for redress against abuses of the law.
44. More generally, nothing prevents a requesting State from invoking the compromissory
clause of a given convention to ask the Court for a negative declaration that it has not breached its
international obligations under the convention in question. For example, in the Lockerbie case, Libya
requested several Court findings that it had complied with Articles 5, 6 and 7 of the 1971 Montreal
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation on the basis
of Article 14 of that convention54. The United States objected and argued that none of the provisions
cited by the applicant concerned obligations binding upon it as respondent55. The Court rejected the
49 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 (I), p. 43, at p. 221, para. 430.
50 Order on Provisional Measures (fn. 9), separate opinion of Judge Robinson, para. 27.
51 Order on Provisional Measures (fn. 9), para. 45.
52 Order on Provisional Measures (fn. 9), declaration of Vice-President Gevorgian, para. 8.
53 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 United Kingdom, 1 Aug. 2022, para. 34; declaration of
intervention of Australia, 30 Sept. 2022, paras. 35-36; declaration of intervention of Norway, 10 Nov. 2022, para. 21.
54 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 115, at p. 123, para. 25.
55 Ibid., p. 124, para. 26.
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preliminary objection. It held that there was a specific dispute before it on the interpretation and
application of Article 7 — read in conjunction with Article 1, Article 5, Article 6 and Article 8 of the
Montreal Convention — which fell to be decided by the Court on the basis of Article 1456. The Court
thus assumed jurisdiction over the applicant’s request for a determination that it had not violated the
Montreal Convention.
45. Moreover, Belgium notes that it may not even be necessary for the Court to enter into a
discussion on whether Article IX also covers “non-violation complaints”. In its Application, Ukraine
respectfully requests the Court to:
“(a) Adjudge and declare that, contrary to what the Russian Federation claims, no acts
of genocide, as defined by Article III of the Genocide Convention, have been
committed in the Luhansk and Donetsk oblasts of Ukraine.
(b) Adjudge and declare that the Russian Federation cannot lawfully take any action
under the Genocide Convention in or against Ukraine aimed at preventing or
punishing an alleged genocide, on the basis of its false claims of genocide in the
Luhansk and Donetsk oblasts of Ukraine.
(c) Adjudge and declare that the Russian Federation’s recognition of the independence
of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on
22 February 2022 is based on a false claim of genocide and therefore has no basis
in the Genocide Convention.
(d) Adjudge and declare that the ‘special military operation’ declared and carried out
by the Russian Federation on and after 24 February 2022 is based on a false claim
of genocide and therefore has no basis in the Genocide Convention.
(e) Require that the Russian Federation provide assurances and guarantees of nonrepetition
that it will not take any unlawful measures in and against Ukraine,
including the use of force, on the basis of its false claim of genocide.
(f) Order full reparation for all damage caused by the Russian Federation as a
consequence of any actions taken on the basis of Russia’s false claim of genocide.”
46. While it is for the Court to clarify the precise meaning of the requests, none of the reliefs
sought expressly mentions the question of the “compliance” of Ukraine with the Convention. In
particular, point (a) could also be understood as a request to the Court to declare that Russia’s
allegations that genocide has taken place in the oblasts of Donetsk and Luhansk are abusive. Under
such a reading, the jurisdiction of the Court would have to be ascertained in line with the
interpretation of Article IX of the Convention advanced in Section C above.
III. CONCLUSION
47. Belgium puts forward four observations on the construction of the Genocide Convention.
First, Article IX thereof is formulated in broad terms to include disputes about the fulfilment of
obligations under the Convention. Second, it applies to disputes relating to abusive allegations of
genocide under the Genocide Convention. Third, it also applies to disputes about otherwise unlawful
action as a means for prevention and punishment of genocide under the Genocide Convention.
Fourth, any party to the dispute may seise the Court under Article IX, including the party that is the
56 Ibid., p. 127, para. 28.
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victim of an abusive allegation or unlawful action as a means for prevention and punishment of
genocide.
48. In conclusion, Belgium contends that the ordinary meaning of Article IX of the
Convention, its context and the object and purpose of the entire Convention show that a dispute
regarding acts carried out by one State against another State based on abusive claims of genocide
falls under the notion of “dispute between Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention”. Accordingly, the Court has jurisdiction to
declare the absence of genocide and the violation of a good faith performance of the Convention.
Moreover, the jurisdiction of the Court extends to disputes concerning unlawful action taken for the
stated purpose of preventing and punishing alleged genocide.
Respectfully,
(Signed) Piet HEIRBAUT,
Agent of the Government, Legal Adviser,
Director-General of Legal Affairs,
Federal Public Service for Foreign Affairs,
Foreign Trade and Development Co-operation.
___________
Written observations of Belgium on the subject-matter of its intervention