INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON
THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
WRITTEN OBSERVATIONS OF THE REPUBLIC OF POLAND ON
ARTICLE IX AND OTHER PROVISIONS OF THE CONVENTION ON
THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
RELEVANT TO THE DETERMINATION OF THE COURT'S JU RSI DICTION
(ARTICLE 86, PARAGRAPH 1, OF THE RULES OF COURT)
5 JULY 2023
Table of Contents
SECTION I: INTRODUCTION ....................................................................................................... 4
A: Outline of Written Observations ........................................................................................ 6
B: Principles of Interpretation ................................................................................................. 6
SECTION II: THE PROPER CONSTRUCTION OF ARTICLE IX ........................................................ 7
A: Notion of dispute ................................................................................................................ 8
B: Article IX of the Convention is formulated in broad terms and covers disputes over
"fulfilment" ............................................................................................................................. 9
C: Article IX of the Genocide Convention applies to disputes about false and abusive
allegations of genocide ......................................................................................................... 14
D: Article IX of the Genocide Convention applies to dispute about otherwise unlawful
action as means for prevention and punishment of genocide ............................................. 16
SECTION Ill: CONCLUSION ....................................................................................................... 18
3
Written observations of the Republic of Poland
Section I: Introduction
1. These Written Observations are submitted to the Court in accordance with its Order of 5
June 2023 relating to the interventions submitted by Australia, the Republic of Austria,
the Kingdom of Belgium, the Republic of Bulgaria, Canada and the Kingdom of the
Netherlands, the Republic of Croatia, the Republic of Cyprus, the Czech Republic, the
Kingdom of Denmark, the Republic of Estonia, the Republic of Finland, the French
Republic, the Federal Republic of Germany, the Hellenic Republic, Ireland, the Italian
Republic, the Republic of Latvia, the Principality of Liechtenstein, the Republic of
Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, New Zealand, the
Kingdom of Norway, the Republic of Poland, the Portuguese Republic, Romania, the
Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden,
the United Kingdom of Great Britain and Northern Ireland, and the United States of
America pursuant to Article 63 of the Statute of the Court in the case concerning
Allegations of Genocide under the Convention on the Prevention and Punishment of the
Crime of Genocide {Ukraine v. Russian Federation)1. In that Order, the Court decided that
the Declaration of Intervention filed by the Republic of Poland pursuant to Article 63,
paragraph 2, of the Statute was admissible, and fixed the time limit for filing these Written
Observations, as provided for in Article 86, paragraph 1, of the Rules of the Court ("the
Rules")2.
2. The Republic of Poland intervenes in its capacity as a party to the Convention on the
Prevention and Punishment of the Crime of Genocide ("Convention"). These Written
Observations present to the Court the Republic of Poland's views on construction of
Article IX and other provisions of the Convention that are relevant to the determination
of the Court's jurisdiction. In accordance with the Order of the Court, the Republic of
Poland's intervention does not deal with any other aspect of the case before the Court.
1 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation)), Admissibility of the Declarations of Intervention, Order of 5 June 2023 ("Order").
2 Ibid., paragraph 102.
4
References to other rules and principles of international law outside the Convention in
the written observations will only concern 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 ("Vienna Convention")3
.
The Republic of Poland will not address other matters, such as the existence of a dispute
between the Parties, the evidence, the facts, or the application of the Genocide
Convention in the present case4.
3. In response to the Court's invitation to coordinate with other intervening States, the
Republic of Poland has reached a large substantive convergence with the position of other
interveners, which are Member States of the European Union.
4. As outlined in its Declaration of Intervention, the Republic of Poland5 provided the
following summary of the proper construction of Article IX of the Convention:
a. Article IX of the Convention, which is a compromissory clause, is a broad
formulation that does not contain any specific restrictions;
b. The ordinary meaning of Article IX of the Convention makes it clear that there is
no need to establish genocidal acts as a basis to affirm the Court's jurisdiction;
c. The object and purpose of the Convention give further support to a broad
interpretation of its Article IX;
d. Article IX of the Convention grants the Court jurisdiction to declare the absence of
genocide;
e. Article IX of the Convention grants the Court jurisdiction over disputes concerning
the unilateral use of military force for the stated purpose of preventing and
punishing alleged genocide.
3 Ibid., para. 84.
4 Ibid., para. 84.
5 Declaration Of Intervention Under Article 63 Of The Statute Of The Court Submitted By The Republic Of Poland,
15 September 2022.
5
5. An outline of the interpretation of the Convention in these five respects was provided in
the Republic of Poland's Declaration of Intervention. These Written Observations further
elaborate on the reasoning and authority of this interpretation.
A: Outline of Written Observations
6. Section I of these Written Observations provides an introduction, including a summary of
the principles that guide the interpretation of Article IX of the Convention.
7. Section II addresses the proper construction of Article IX of the Convention.
8. Based on the foregoing analysis, Section Ill presents the conclusions.
B: Principles of Interpretation
9. The interpretation of the Convention, as an international agreement, is governed by the
provisions of Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties
("Vienna Convention")6. These provisions, as indicated by the Court on numerous
occasions, reflect customary law and can be applied also to treaties concluded before the
Vienna Convention 's date of adoption. This was also the practice of the Court7.
10. Article 31 of the Vienna Convention provides as the general rule of interpretation that
"[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and
purpose". The "context" includes the text and structure ofthe whole treaty, including its
preamble and any annexes8. The "object and purpose" may emerge from a consideration
of the treaty's aims as may be reflected, for example, in its scheme and preamble9.
6 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, 1155 UNTS 331 (entered into force on 27
January 1980) ("Vienna Convention"). Ukraine acceded to the Vienna Convention on 14 May 1986; the Russian
Federation acceded on 29 April 1986.
7 Kasikili/Sedudu Island (Botswana/Namibia), /.CJ. Reports 1999, p.18.
8 See, for example, Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of
Macedonia v Greece), Judgment of 5 December 2011, paragraphs 97 and 98.
9 See, for example, Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.CJ. Reports 1996, p. 803 at p. 813 (paragraph 27).
6
11. Such interpretation must also consider the subsequent practice of the parties to the
treaty (Article 31(3)(a) and (b) of the Vienna Convention) and may also be confirmed by
reference to supplementary means of interpretation (Article 32 of the Vienna
Convention). This Court has frequently examined the supplementary means of
interpretation for confirmation when it has found that useful in conjunction with the
general rule10.
12. An interpreter must also take into account any relevant rules of international law
applicable in the relations between the parties, including any developments in those rules
since the adoption of the treaty (Article 31(3)(c) of the Vienna Convention). Furthermore,
the principle 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" 11.
Section II: The proper construction of Article IX
13. Article IX of the Genocide Convention provides that:
"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."
14. In its order indicating provisional measures of 16 March 2022, the Court affirmed its
jurisdiction prima facie on the basis of Article IX of the Genocide Convention12.
10 See, for example: Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, /.C.J. Reports 1994, p. 6 at p.
27 (paragraph 55); Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russia), Preliminary Objections, Judgment of 1 April 2011, at paragraph 142.
11 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, I.C.J. Reports 1997, p.7 at
p. 79 (paragraph 142).
12 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, paras. 28-49.
7
A: Notion of dispute
15. The Republic of Poland contends that the notion of a "dispute" is already well-established
in the case law of the Court and supports the current interpretation. Accordingly,
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 parties.13 In order for
a dispute to exist, "[i]t must be shown that the claim of one party is positively opposed by
the other"14
. The two sides must "hold clearly opposite views concerning the question of
the performance or non-performance of certain international obligations"15.
16. It follows from the jurisprudence of the Court that "it is not necessary that a State must
expressly refer to a specific treaty in its exchanges with the other State to enable it later
to invoke that instrument before the Court ... the exchanges must refer to the subjectmatter
of the treaty with sufficient clarity to enable the State against which a claim is
made to identify that there is, or may be, a dispute with regard to that subject-matter"16.
17. The Court has previously confirmed that the "conduct of the parties may also be relevant"
to the assessment of whether or not a dispute exists, "especially when there have been
no diplomatic exchanges"17.
18. Furthermore, the conclusion that the parties hold clearly opposite views concerning the
performance or non-performance of legal obligations does not require that the
respondent must expressly oppose the claims of the applicant18: "in case the respondent
has failed to reply to the applicant's claims, it may be inferred from this silence, in certain
13 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
14 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21
December 1962, I.C.J. Reports 1962, p. 319, at p. 328.
15 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, p. 406, at p. 414, para.
18; ICJ, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2016, 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.
16 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia
v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30.
17 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, p. 850,
para. 40.
18 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. 71.
8
circumstances, that it rejects those claims and that, therefore, a dispute exists"19. As it
was observed: "[e]gregious conduct can create a dispute ipso facto, without the need for
a letter before action or other communication"20. This would be in line with the Court's
pronouncement that the "conduct of the parties subsequent to the application may be
relevant for various purposes, in particular to confirm the existence of a dispute"21.
19. Finally, the fact that certain conduct may give rise to a dispute that falls within the ambit
of more than one treaty does not create an obstacle to the jurisdiction of the Court under
the treaty invoked by the Applicant, provided that all conditions of the treaty in question
are fulfilled22.
B: Article IX of the Convention is formulated in broad terms
and covers disputes over "fulfilment"
20. In the Bosnian Genocide case, the Court noted the "one unusual feature" of Article IX
distinguishing it from "a standard dispute settlement provision" is that the Court's
jurisdiction "includ[es] those disputes relating to the responsibility of a State for
genocide"23
. That term must be understood to add something to this Court's jurisdiction,
consistent with the principle that each term of a treaty should be given effect and not
rendered superfluous24. It appears that 'by inserting all the three alternative terms,
drafters had sought to 'give a coverage as exhaustive as possible to the compromissory
19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 27, para. 71.
20 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, /.CJ. Reports 2016,
Dissenting Opinion of Judge Crawford, p. 1100, para. 17.
21 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. 64.
22 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 of 3 February 2021, para. 56.
23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, /.CJ. Reports 2007, p. 114, paras. 168-169; Armed Activities
on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda), Jurisdiction
and Admissibility, Judgment, /.CJ. Reports 2006, Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby,
Owada, and Simma, p. 72, para. 28; see also Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Declaration
of Judge Oda, /.CJ. Reports 1996 (II), p. 627, para. 5.
24 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, /.CJ. Reports 2011, pp. 125-126, paras. 133-
134.
9
clause' and to "close down all possible loopholes"25 weakening the jurisdictional reach of
the Court.
21. The travaux preparatoires confirm the added breadth intended by the word 11fulfilment".
The purpose pursued in 1948 was to grant the Court a jurisdiction as wide as possible
during the life of the Convention, forestalling all the potential subtle arguments denying
jurisdiction on account of an insufficient link with that Convention26.
22. The ordinary meaning of the phrase "relating to the interpretation, application or
fulfilment of the Convention" may be divided in three sub-categories.
23. The first point ("relating to") establishes a link between the dispute and the Convention.
24. The second point ("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 case. 27 The term 11fulfilment" partially overlaps with the term
"application", and it may be understood to refer to an application that 11meets the
requirements" of a norm28. Nevertheless, the addition of the term "fulfilment" supports
a broad interpretation of Article IX.
25. The third point (11of the Convention") makes it clear that the compromissory clause refers
back to all the Convention's provisions. 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
25 C. Tams, Article IX, note 45, in: Tams/Gerster/Schiffbauer, Convention on the Prevention and Punishment of
Genocide: A Commentary (London: Beck/Hart, 2014).
26 R. Kolb, "The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ", in Paola Gaeta, ed., The UN
Genocide Convention: A Commentary (Oxford, New York: Oxford University Press 2009), p. 453.
27 C. Tams, Article IX, note 45, in: Tams/Gerster/Schiffbauer, Convention on the Prevention and Punishment of
Genocide, A Commentary (London: Beck/Hart, 2014).
28 Ibid.
10
same t ime, the renvoi relates to the entire life of the Convention, including breaches
thereof29.
26. 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 genocide30. In
that scenario, the Court verifies the factual basis for such an allegation. If it is not satisfied
that any acts of genocide were actually committed by the respondent State, it may decline
its jurisdiction31.
27. While this scenario of (alleged) responsibility for acts of genocide constitutes an
important type of dispute over the Convention's "interpretation, application or
fulfilment", it is not the only one. In the case Bosnia and Herzegovina v. Yugoslavia, the
applicant alleged several violations of the Convention by the respondent, including a
failure to prevent and punish genocide under Article 132, and the Court affirmed its
jurisdiction ratione materiae33 . In the case The Gambia v. Myanmar (pending), the
applicant claimed that the respondent was not only responsible for prohibited acts under
Article Ill, but that it was also breaching 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 V34. 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 genocide committed on its territory. Therefore, disputes can exist over
"non-action" as a violation of the substantive obligations under Article I, IV and V.
29 R. Kolb, "The Scope Ratione Materiae", (note 26), p. 453.
30 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.
31 Case Concerning Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999,
/.C.J. Reports 1999, 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., ICJ, Case Concerning Legality of Use of Force (Serbia and Montenegro v.
France), Preliminary Objections, Judgment of 15 December 2004, I.C.J. Reports 2004, p. 595).
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, I.CJ. Reports 1996, p. 595, at p.
614, para. 28 and p. 603, para. 4.
33 /bid., pp. 615-617, paras. 30-33.
34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, p. 12, para. 24, Points (1) (c), d) and (e).
11
28. The ordinary meaning of Article IX of the Convention makes it clear that there is no need
to establish genocidal acts as a basis to affirm the Court's jurisdiction. Article IX does not
entail any limitations for reverse compliance judgments. Thus, where there is a dispute
concerning 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. As a result, the Court has jurisdiction over the question of
whether genocidal acts have been or are being committed.35
29. The context ofthe phrase ("relating to ... ") further confirms this reading. In particular, the
unusual feature of the words "including" in the intermediate sentence indicates a broader
scope for Article IX of the Convention when compared to a standard compromissory
clause36. Disputes relating to a State's responsibility for genocide or for any of the other
acts enumerated in Article Ill are therefore only one type of dispute covered by Article IX,
"included" in the wider phrase concerning disputes "relating to the interpretation,
application and fulfilment" of the Convention.
30. Hence, the context of the phrase ("relating to") in Article IX confirms that the Court's
jurisdiction extends beyond disputes between States over responsibility for alleged
genocidal acts and also covers disputes between States over the absence of genocide and
the performance of treaty obligations by one or more State parties.
31. Such an approach is corroborated by the Convention's object and purpose. Its preamble
reads:
"The Contracting Parties,
Having considered the declaration made by the General Assembly of the United Nations
in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under
35 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, p. 10, para. 43; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order of 23 January 2020, I.C.J.
Reports 2020, p. 14, para. 30.
36 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.C.J. Reports 2007, p. 43, at p. 75, para . 169.
12
international law, contrary to the spirit and aims of the United Nations and condemned
by the civilized world,
Recognizing that at all periods of history genocide has inflicted great losses on humanity,
and
Being convinced that, in order to liberate mankind from such an odious scourge,
international co-operation is required,
Hereby agree as hereinafter provided ... "
32. The Court noted in 1951:
"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"37.
33. The Preamble's reference to "the spirit and aims of the United Nations" indicates the
Convention's humanitarian object and purpose, which could be undermined by applying
a narrow reading of its provisions.
37 Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.
13
34. It is to be noted that the Court considered the prohibition of genocide has the character
of a peremptory norm (jus cogens). 38 This Court has also acknowledged that the rights
and obligations enshrined in the Convention have an erga omnes character39
.
35. The importance of the issue regulated by the Convention makes reverse compliance
interpretation of particular value as it can contribute to understanding the term genocide
under the Convention and influence its appropriate future application.
36. At the most general level, taking into account the Convention's object and purpose,
including the Court's pronouncements on this issue, the Republic of Poland wishes to
stress that the exclusion of such types of disputes would run counter to the Convention's
provisions, as well as to the humanitarian and civilizing purposes for which it was adopted.
37. To claim that the Convention does not govern the question of whether one State's
allegations with respect to another State's violations of the Convention are valid would
be a very formalistic reading of the Convention, which would go against its object and
purpose. Moreover, such a reading would ignore systemic interpretation in accordance
with article 31 (3) (c) of the Vienna Convention on the Law of Treaties. In this context it is
worth noting Security Council Resolution 2150 (2014), which "Calls upon States to
recommit to prevent and fight against genocide, and other serious crimes under
international law"40.
C: Article IX of the Genocide Convention applies to disputes
about false and abusive allegations of genocide
38. The Republic of Poland now wishes to examine more precisely one scenario of a dispute
under Article IX, namely, a false and abusive allegation by one State that another State
has committed genocide.
38 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 31-32, para. 64).
39 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, Preliminary Objections, I.C.J. Reports 1996, p. 615, para. 31.
40 Resolution 2150 (2014) Adopted by the Security Council at its 7155th meeting, 16 April 2014. Para 1; see also
Resolution 2171 (2014) Adopted by the Security Council at its 7247th meeting, 21 August 2014, para 16.
14
39. In doing so, the Republic of Poland has carefully reviewed whether the Convention
enables a State to seize the Court of a dispute concerning allegations of genocide made
by another State41 .
40. Republic of Poland contends that Article IX of the Genocide Convention applies also to
disputes relating to false and abusive allegations of genocide, as they raise the question
of compliance with Article I of the Convention, which provides context for the
construction of Article IX. Article I 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."
41. According to Article I of the Genocide Convention, all States Parties are obliged to prevent
and punish genocide. As the Court already emphasised, in fulfilling their duty to prevent
genocide, Contracting Parties must act within the limits permitted by international law42.
Moreover, carrying out the obligation set forth under Article I must be done in good faith
(Article 26 of the Vienna Convention43). 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"44. Good faith interpretation thus operates as a safeguard
against misuse of the terms and institutions 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 cooperation"
45.
41 For a discussion of this question, see, e.g., Order on Provisional Measures (n 9), Declaration of Judge Bennouna,
para. 2.
42 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, /.CJ. Reports 2007, 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), Order of 16 March 2022, para. 57.
43 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, /.CJ. Reports
1998, p. 275, 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."
44 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, /.CJ. Reports 1997, p. 7, at p. 79, para. 142.
45 Nuclear Tests (Australia v. France), /.CJ. Reports 1974, p. 7, at p. 142.
15
42. In Republic of Poland's view, the notion of "undertake to prevent" implies that each State
Party must assess whether genocide or a serious risk of genocide exists prior to taking
action pursuant to Article 146
. Such an assessment must be based on substantial
evidence47.
43. 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",48
"the Contracting Parties must implement this obligation in good faith, taking into account
other parts ofthe Convention, in particular Articles VIII and IX, as well as its Preamble".49
Rather than making false and abusive allegation of genocide against another State
without having discharged its due diligence obligations, a State may refer the issue in
question to the United Nations' political or judicial organs50.
44. It follows that a false and abusive allegation by one State against another runs counter to
the obligation to apply Article I of the Convention in good faith and thus distorts the terms
of the Convention. Accordingly, Article IX also covers such disputes.
D: Article IX of the Genocide Convention applies to dispute about otherwise
unlawful action as means for prevention and punishment of genocide
45. Another important scenario under Article IX of the Convention concerns disputes about
otherwise unlawful actions as a means for the prevention and punishment of genocide. A
State may not claim to enforce international law by violating international law. As the
Court explained in Bosnian Genocide, "it is clear that every State may only act within the
46 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.C.J. Reports 2007, p. 43, at pp. 221-222, paras.
430-431.
47 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
{Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, /.C.J. Reports 2007, p. 43, at p. 90, para. 209.
48 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
{Ukraine v. Russian Federation), Order of 16 March 2022, para. 56.
49 Ibid.
50 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, Separate Opinion of Judge Robinson, para. 30.
16
limits permitted by international law." 51 . This passage appears in a section of the Court's
judgment in Bosnian Genocide discussing the obligation to prevent genocide under Article
I of the Convention52. Thus: "Article I of the Convention imposes an obligation on Russia
not only to act to prevent genocide, but to act within the limits permitted by international
law to prevent genocide"53.
46. The scope of the "undertaking to prevent" is further coloured by the final recital in the
preamble, which emphasizes the need for "international co-operation". Moreover, under
Article VIII of the Convention, States may call upon the competent organs of the UN to
take action, and Article IX of the Convention provides for judicial settlement. All this
speaks in favour of a duty to employ multilateral and peaceful means to prevent genocide
first before taking unilateral action as a matter of last resort. Such a reading also coincides
with Chapter VI of the UN Charter, which contains a general obligation of States to settle
disputes by peaceful means. As stressed by New Zealand54, Article IX of the Convention
gives effect to the parties' pre-existing obligations under Articles 2(3) and 33 of the
Charter of the United Nations and customary international law to settle their disputes
peacefully. The Republic of Poland emphasizes that all State Parties are obliged to
suppress genocide worldwide for the benefit of mankind, and not to protect their own
interests.
47. In conclusion, the Court's jurisdiction under Article IX of the Convention extends to
disputes concerning the unilateral action for the stated purpose of preventing and
punishing alleged genocide, as it encompasses issues of interpretation concerning several
provisions of the Convention55.
51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, /.CJ. Reports 2007, p. 221, para. 430.
52 Ibid.
53 Provisional Measures Order of 16 March 2022, Separate Opinion of Judge Robinson, para. 27.
54 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 of 28 July 2022, para. 25. Separate
Opinion of Judge Robinson, para. 27.
55 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
{Ukraine v. Russian Federation), Order of 16 March 2022, p. 11, para. 45.
17
Section Ill: Conclusion
48. The ordinary meaning of Article IX of the Convention and its context, along with the object
and purpose of the entire Convention, show that a dispute regarding acts carried out by
one State against another State based on claims of genocide falls under the notion of a
"dispute between Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention". Thus, this provision concerns a situation in which
one State invokes the commission of genocide by another State and the latter opposes
such a claim .56 As a result, if the representative of one State makes a general allegation
that another State has committed genocide and tries to infer from this allegation certain
rights, such conduct is covered by the subject matter of the Convention. Certainly, such
behaviour cannot be considered insignificant from the perspective of the Convention's
jurisdictional and substantive provisions.
49. Thus, the jurisdiction of the Court under Article IX of the Convention also applies to
disputes concerning otherwise unlawful unilateral action for the stated purpose of
preventing and punishing alleged genocide.
50. Finally, from a systemic perspective, it is posited that the Court, as the principal judicial
organ of the United Nations, whose primary function is the preservation of international
peace and security, has a positive obligation to contribute to that aim by providing a
judicial framework for the resolution of legal conflicts, especially one which not only
threatens international peace and security but also has escalated to a full-scale military
invasion involving enormous human suffering and continuing loss of life.57
;t V
J1/0C,C?e ,eJ._
Dr. Konrad Jan Marciniak
Agent of the Government of the Republic of Poland
56 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, /.C.J. Reports 2007, p. 43, at p. 75, para. 169.
57 Legality of Use of Force (Yugoslavia v. United States of America). Request for the Indication of Provisional
Measu res (Removal from List), /.C.J. Reports 1999, Declaration of Judge Koroma, p. 930.
18
Written observations of Poland on the subject-matter of its intervention