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

INTERNATIONAL COURT OF JUSTICE
WRITTEN OBSERVATIONS
OF THE FEDERAL REPUBLIC OF GERMANY
ON THE CONSTRUCTION OF ARTICLE IX OF THE CONVENTION ON
THE PREVENTION AND PUNISHMENT OF THE CRIME OF
GENOCIDE
5 July 2023
In the case of
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
2
I. Introduction
1. On 5 June 2023, the Court decided that the declarations of intervention
under Article 63 of the Statute of the Court ("the Statute") submitted by, among
others, Germany ("Order on Admissibility of the Declarations of Intervention") in
the case concerning Allegations ef Genocide under the Convention on the Prevention and
Punishment ef the Crime ef Genocide (Ukraine v. Russian Federation) ("the Proceedings")
were admissible.1 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
("the Rules'').2
2. Germany avails itself of the right to intervene conferred upon it by
Article 63, paragraph 2, of the Statute. As determined by the Court in the Order on
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 ("Genocide Convention")3 concerning the Court's jurisdiction
ratione materiae is in question at the present stage of the proceedings. In accordance
with the Order on Admissibility of the Declarations of Intervention, the written
observations will solely concern the construction of Article IX of the Genocide
Convention, determining the Court's jurisdiction in the Proceedings4. References to
other rules and principles of international law outside the Genocide Convention in
the written observations will be made only where and as far as they concern the
construction of Article IX of the Genocide Convention.
1 Allegations of Genocide under the Convention on the Prrvenlion and P1mishment of the Crime of Genocide {Ukraine v. &ssian
Federation) (Order of 5 June 2023) https· / /www jcj-cjj mg/sites /default/fi)es/qse-related/182/J 82-20230605-ORD-
01-00-EN pdf, paras 99 and 102(1).
2 Ibid, para. 102(3).
3 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into
force 12January 1951) 78 UNTS 277.
4 Ibid, para. 99.
3
3. Upon the Court's invitation to the intervening States to coordinate the
observations in the interest of the good administration of justice,5 Germany hereby
submits its observations, which are largely coordinated on substance with the
interventions of other EU Member States.
II. Construction of Article IX of the Genocide Convention
4. Germany wishes to make submissions on the construction of Article
IX of the Genocide Convention regarding the following four points:
(1) the requirement and notion of a 'dispute' that must exist between the
Contracting Parties applies to disputes about allegations of genocide;
(2) the broad scope of Article IX of the Genocide Convention includes
disputes about the "fulfilment" of obligations under the Convention;
(3) Article IX of the Genocide Convention applies to disputes about
whether an otherwise unlawful use of force can be justified as a means
for prevention and punishment of genocide;
(4) to submit the dispute to the Court is possible at the request of any of
the parties to such dispute.
1. Notion of dispute between the Contracting Parties applies to allegations of
genocide
5. According to the established case law of the Court,6 a dispute is "a
disagreement on a point of law or fact, a coeflict of legal views or of interest!' between parties.7
s Letter by the Court's Registrar dated 6 June 2023.
6 Application of the Conv,ntion on the Pnvention and Puni,hmenf of the Crime of Genocide ([he Gambia v. Myanmar), Preliminary
Objections, Judgment, !CJ, 22 July 2022, para 63.
1 Mavrommatis Pak,tine Concmion,, Judgment No. 2, 1924, P.C.!.J., Series A, No. 2, p. 11.
4
In order for a dispute to exist, "[ijt must be shown that the claim of one parry is positive!;
opposed l?J the othet''.8 The two sides must "'hold clear!J opposite views concerning the question
of the pe,jormance or nonpe,jormance of certain' international obligations".9 A dispute typically
exists when one of the Parties maintains that the Convention applies, while the other
denies it.10
6. The case at hand raises the question whether an alleged behavior by the
applicant State, which would violate the provisions of the Genocide Convention, can
justify a reaction by another state. The Parties thus disagree over the lawfulness of
the conduct of the applicant State under the Genocide Convention. Their opposite
views concerning the question of whether the applicant State abided by its
obligations under the Genocide Convention or not constitute a disagreement that is
encompassed by the term "dispute".
7. Germany has carefully reviewed the question of whether the
Convention enables a State to seize the Court of a dispute concerning allegations of
genocide made by another State.11
8. Germany contends that Article IX of the Genocide Convention applies
also to disputes about abusive allegations of genocide, as they raise the question of
compliance with Article I of the Genocide Convention, which provides context for
the construction of Article IX.
9. According to Article I of the Genocide Convention, all States Parties
are obliged to prevent and punish genocide. As the Court has observed, the principle
of good faith "obliges the Parties to apply [a treaty] in a reasonable way and in such
8 South West A.frica (Ethiopia v. South A.frica; uberia v. South Africa), Preliminary Objections, Judgment, !.C.J. Reports
1962, p. 328.
9 Alkged Violations ofS overeign Rights and Maritime Spaces in the Caribbean Sea (Nicarag,,a v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50, citing Inte,pretation of Peace Treaties with Bulgaria, Hungary and Romania,
First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74.
10 Application of the International Convention on the Elimination of All Fomlf of Racial Discrimination (Q.atar v. United Arab
Emirates), Provisional Measures, Order of 23 July 2018, !.C.J. Reports 2018 (II), p. 414, para. 18.
11 For a discussion of this question, see e.g. Order on Provisional Measures (n 9), Declaration of Judge Bennouna,
https://www jcj-cjj.org/sjtes/default/fi!es/case-re)ated/182/J 82-20220316-0RD-01-02-EN pdf, para. 2.
5
a manner that its purpose can be realized"12
. Good faith interpretation thus operates
as a safeguard against misuse of the terms and institutions of the Genocide
Convention.
10. In Germany's view, the notion of "undertake to prevent" refers not
only to one's own territory, but also to transnational and international efforts to
prevent genocide. The notion implies that each State Party must first assess whether
a genocide or a serious risk of genocide exists prior to taking action pursuant to
Article P3. Such an assessment must be justified by substantial evidence "that is fully
conclusive"14
.-
11. 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",15 "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".16 Rather than making an abusive allegation of
genocide against another State without having discharged its due diligence
obligations, a State may seize the United Nations' political or judicial organs. 17
12. It follows that an abusive allegation from one State against another State
runs contrary to the former State's obligations to apply Article I of the Convention
in good faith, distorts the terms of the Convention and thus constitutes a dispute
according to Article IX of the Genocide Convention.
12 Gabcikovo-Nagymaros Project (Hungary/ Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p. 79, para. 142.
13 Case Concerning Application ef the Convention on the Pr,wntion and Punishment of Jhe Crime of Genoa"de (Bomia and Htrz!§Jvina
v. Serbia and Mont,negro),Judgment, I.C.J. Reports 2007, p. 43, at pp. 221-222, paras. 430-431.
14 Case Concerning Application of the Conv,ntion on the Prevention and Punishment of the Crime of Genocid, (Bosnia and Herz!!fJvina
v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 90, para. 209.
15 Order on Provisional Measures (n 26), para. 56.
16 Ibid.
17 Order on Provisional Measures (n 26) Separate Opinion of Judge Robinson, para. 30.
6
2. Broad scope of Article IX of the Genocide Convention
13. If a dispute between the Contracting Parties exists, this dispute must
relate to the interpretation, application or fulfilment of the Convention in order for
the Court to be able to exercise its jurisdiction under Article IX of the Genocide
Convention.
14. Germany contends that Article IX is intentionally broad. As Professor
Kolb has observed, Article IX of the Genocide Convention is "a model of clarity
and simplicity, opening the seizing of the Court as largely as possible"18
.
15. As the Court has recalled in its order on provisional measures in the
case at hand, a compromissory clause of a specific treaty can be invoked provided
the dispute refers to the subject-matter of the treaty with sufficient clarity.19
16. The term ,,relating to" in Article IX establishes a link between the
dispute and the Convention. The subject matter of the dispute must concern the
Convention itself. Or, to put it otherwise: it would not be permissible to use the
Genocide Convention as a means of bringing before the Court a dispute regarding
alleged violations of other rules of international law.
17. The phrase "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 given case20
. The inclusion of the word
"fulfilment" is "unique as compared with the compromissory clauses found in other
multilateral treaties which provide for submission of the International Court of such
disputes between Contracting Parties as relate to the interpretation or application of
ts R. Kolb, 'The Compromissory Clause of the Convention", in: Paola Gaeta (ed), The UN Genocide Convention:
A Commentary, (OUP 2009), p. 420.
19 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime o/ Genocide (Ukraine v. Russian
Federation) , Order of the Court of 16 March 2022 on the Request for the Indication of Provisional Measures, para. 44.
20 C. Tams, Article IX, note 45, in: Tams/Gerster/Schiftbauer, Convention on the Prevention and Punishment of
Genocide, A Commentary (Beck 2014).
7
the treaties in question"21 . The term 'fulfilment' partially overlaps with the term
"application", since it may be understood to refer to an application that 'meets the
requirements' of a norm22. Nevertheless, the addition of the term 'fulfilment'
supports a broad interpretation of Article IX,23 since the fulfilment of a norm may
also be understood to refer to more than its mere application. It appears that 'by
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'24
.
18. It is already the ordinary meaning of Article IX which makes it clear
that the Court has jurisdiction over the question whether genocidal acts have been
or are being committed or not.25 In particular, the inclusion of the word "fulfilment"
in Article IX in addition to the more common formulation of "interpretation and
application" in compromissory clauses supports the view that the Court has
jurisdiction rationae materiae to declare the absence of genocide when genocide is being
alleged to take place. Where one State party to the Genocide Convention accuses
another of committing genocidal acts, the 'fulfilment' of the Convention is clearly at
stake.
19. Thus, whenever there is a dispute between two or more State parties on
whether a State party has engaged in conduct contrary to the Convention, the State
party accused of such conduct has the same right to submit the dispute to the Court
as the State that has made the accusation, and the Court will be in a position to
exercise its jurisdiction.
21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzeguvina v. Serbia and Montenegro), Preliminary Objections, Declaration of Judge Oda, I.C.J. Reports 1996
(II), p. 627, para. 5 (emphasis in the original).
22 C. Tams (n 18), Article IX, note 45.
23 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 of
7 December 2022, para. 29.
24 C. Tams (note 18), Article IX, note 45; R. Kolb, Scope Ratione Materiae, in: Paola Gaeta (ed), The UN Genocide
Convention: A Commentary, (OUP 2009), p. 451.
25 Alkgations ef Genocide under the Convention on the Prevention and Punishment ef the Crime ef Genocide (Ukraine v. Russian
Federation), Order of 16 March 2022, p. 10, para. 43; App.ication ef the Convention on the Prevention and Punishment ef the
Crime efGenocide (The Gambia v. Myanmar), Order of 23 January 2020, I.C.J. Reports 2020, p. 14, para. 30.
8
20. Otherwise a State party could freely invent violations of the Genocide
Convention, allegedly committed by another State party without the latter being able
to have recourse to the Court. Such interpretation would thereby not only pave the
way for genocide-related disputes arising which the Court could not address, but also
as the current situation brought about by the allegations of genocide brought forward
by the Russian Federation unfortunately to serious misuses of the Genocide
Convention.
21. The all-encompassing nature of Article IX of the Genocide Convention
is further supported by the unusual feature of the words "including". It indicates a
broader scope of Article IX of the Convention when compared to a standard
compromissory clause26. 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
type of dispute covered by Article IX, which are "included" in the wider phrase of
disputes "relating to the interpretation, application and fulfilment" of the
Convention. 27
22. A broad understanding of the Convention's compromissory clause is
furthermore supported by the fact that it does not require, unlike many other
compromissory clauses, any additional procedural steps such as prior negotiations or
attempts to settle the dispute by way of arbitration.
23. Finally, the object and purpose gives further support to the wide
interpretation of Article IX. Famously, in its 1951 Advisory Opinion, the Court
held28
26 Case Concerning 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. 43, at p. 75, para. 169.
27 See also the Written Observations of The Gambia on the Preliminary Objections raised by Myanmar, 20 April
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 be the
object of a dispute brought before the Court by any contracting party").
23 Rmrvations to the Genocide Convention, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 23.
9
"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 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."
24. The Convention's object to protect the most elementary principles of
morality also prohibits any possibility of a Contracting Party to abuse its provisions
for other means. It would undermine the Convention's credibility as a universal
instrument to outlaw the most abhorrent crime of genocide if its authority could be
abused by any Contracting Party without a possibility of the victim of such abuse to
turn to the Court. The purpose of the Convention hence speaks loudly in favour of
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
authority to justify a Contracting State's action vis-a-vis another Contracting State.
25. Thus, the ordinary meaning of Article IX of the Convention, its context
and the object and purpose of the entire Convention all confirm that a dispute
regarding acts carried out by one State against another State based on false claims of
genocide while claiming to be itself in fulfilment of its obligations to prevent and
punish genocide falls under the notion of a "dispute between Contracting Parties
relating to the interpretation, application or fulfilment of the present Convention".
10
Accordingly, the Court has jurisdiction to declare the absence of genocide and the
violation of a good faith performance of the Convention resulting in an abuse of the
law.
3. Application to disputes about an otherwise unlawful action that is being justified
as a means for prevention and punishment of genocide
26. Germany contends that Article IX of the Genocide Convention also
applies to disputes about an otherwise unlawful action that is being justified as a
means for the prevention and punishment of genocide. This follows from the
correct construction of Article I of the Genocide Convention whereby a State is
under a due diligence obligation to gather evidence from independent sources
before making any allegations of genocide against another State.
27. In the same vein, a State may not take other unlawful action based on
such abusive allegations.
28. Rather, the scope of the "undertaking to prevent" genocide 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 case29
.
Moreover, under Article VIII States may call upon the competent organs of the
UN to take action, and Article IX provides for judicial settlement. All this speaks in
favour of a duty under the Convention to employ all multilateral and peaceful
means available to prevent genocide.
29 See e.g. 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 lntemational Convention on the Regulation of W'haling to discern its object and
purpose).
11
29. Article IX thus also gives effect to the parties' pre-existing obligations
under Article 2(3) of the UN Charter and customary international law to settle all
their disputes peacefully3°.
4. Possibility to submit the dispute to the Court at the request of any of the parties
to such dispute.
30. The words ,,any of the parties to the dispute" make it abundantly clear
that such a dispute can not only be submitted to the Court (as has been done in the
past) by a party that accuses the other party to the dispute of committing acts of
genocide. On the contrary, this language suggests that a State accused of committing
genocide has the same right to submit the dispute to the Court as the State making
the accusation. Indeed, there is no reason why a State facing what it considers to be
an unfounded allegation of breach of the Convention cannot, on its own accord,
bring the matter before the Court. Certainly, in the case of the Genocide Convention,
a State party standing accused of acts of genocide has a legal interest in obtaining a
resolution of the dispute. Otherwise, due to the erga omnes character of the obligations
under the Genocide Convention, that State stands exposed to possible (counter)
measures taken by any of the other State parties of the Convention.
III. Conclusion
31. It is on the basis of the above arguments that Germany interprets
Article IX of the Genocide Convention as follows:
32. Article IX of the Genocide Convention is intentionally broad, covering
all disputes between the Contracting Parties relating to the interpretation, application
or fulfilment of the present Convention, including disputes relating to abusive
allegations of genocide.
Jo Allegations of Genocitk 11nder the Conwntion on the Prevention and Punishmenl of the Crime of Genocide (Ukraille v. Rlissian
Federation), Declaration of Intervention of New Zealand of 28 July 2022, para. 25.
12
33. Article IX of the Genocide Convention also applies to disputes about
an otherwise unlawful action that is being justified as means for prevention and
punishment of genocide under the Genocide Convention. Any party to the dispute
may seize the Court under Article IX, including the party who is the victim of an
abusive allegation or an unlawful action that is being justified as a means for
prevention and punishment of genocide.
34. Article IX of the Genocide Convention thus also covers disputes which
relate to situations in which one State party of the Convention alleges that another
State party is committing acts of genocide on its territory and where, relying on such
accusations, the former State party then uses military force against the latter.
35. In order to resolve such a dispute, the Court is called upon to apply the
Genocide Convention to the relevant facts in order to determine whether there is a
basis for such allegations.
Respectfully submitted,
Ambassador CyrillJean Nunn
Co-Agent of the Government of the Federal Republic of Germany