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

INTERNATIONAL COURT OF JUSTICE
Written Observations of
THE GOVERNMENT OF
SWEDEN
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)
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I. INTRODUCTION
1. On 5 June 2023, the International Court of Justice ("the Court") decided that the
declarations of intervention under Article 63 of the Statute of the Court ("the Statute")
submitted by, among others, Sweden ("Order on 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)
("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 ("the Rules")2.
2. Sweden's intervention 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 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")4 concerning the
Court's jurisdiction ratione materiae is in question at the present stage of the Proceedings5.
In accordance with the Order on Admissibility of the Declarations of Intervention, the
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 to other rules and principles
of international law outside the Genocide 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")7. Sweden 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.
1 Allegations a/Genocide under the Convention on the Prevention and Punishment of the Crime a/Genocide
(Ukraine v. Russian Federation) (Order of 5 June 2023) https://www.icj-cij.org/sites/default/files/caserelated/
182/I 82-20230605-ORD-01-00-EN.pdf, paras 99 and I 02(1).
2 Ibid, para. I 02(3).
3 Ibid, para. 26.
4 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered
into force 12 January 1951) 78 UNTS 277.
5 Order on Admissibility of the Declarations oflntervention (n I), p. 26.
6 Ibid, para. 99.
7 Ibid, para. 84.
8 Ibid, para. 84.
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3. Upon the Court's invitation to coordinate with other intervening States, Sweden has
agreed the substance of its position with Denmark, Estonia, Croatia, Belgium,
Luxembourg, Finland and Ireland. Part II and III of present written observation is
therefore identical to the corresponding parts of the written observations of these
interveners. However, in order to be able to meet the strict deadline set by the Court and
for logistical reasons, Sweden files the joint content separately in its national capacity.
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. Sweden 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 (Article 31 to 33 of the Vienna Convention
that 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 seize 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.
9 Allegations a/Genocide under the Convention on the Prevention and Punishment of the Crime a/Genocide
(Ukraine v. Russian Federation), Order of 16 March 2022, paras. 28-49.
10 Arbitral Award of 3 October I 899 (Guyana v. Venezuela) [2023] !CJ Judgment of 6 April 2023 https://www.icjcij.
org/sites/default/files/case-related/171 /171-20230406-JUD-O 1-00-EN.pdf, para. 87.
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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. Sweden contends that the notion of"dispute" is already well-established in the case law of
the Court. 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 11 . In order
for a dispute to exist, "[i]t must 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 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 constant jurisprudence of the Court, that certain facts or omissions may give rise
to a dispute that fall within the ambit of more than one treaty 16
. Hence, a parallel dispute
arising out of the same facts about the use of force between two States does not create an
11 Mavrommotis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
12 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.
13 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Provisional Measures, Order af23 July 2018, I.CJ. Reports 2018, p. 406, at p.414,
para. 18; !CJ, 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.CJ. Reports 1950,
p. 74.
14 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, p. 27, 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 of? March 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 of 3 February 2021, para. 56.
; I 16
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 dispute must be "relating to the interpretation, application or fulfilment
of the present Convention". Sweden 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 of the International Court 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 in three sub-categories.
15. The first point ("relating to") establishes a link between the dispute and the Convention.
16. 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 18. The term 'fulfilment' partially overlaps with the latter,
and it may be understood to refer to an application that 'meets the requirements' of a
norm 19. Nevertheless, the addition of the term 'fulfilment' supports a broad interpretation
of Article IX20. It appears that 'by inserting all the three alternative terms, the drafters had
sought to 'give a coverage as exhaustive as possible to the compromissory clause' and to
'close down all possible loopholes'21 .
17 Application of the Convention on the Prevention and Punishment of the Crime a/Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Preliminary Objections, Declaration of Judge Oda, I.CJ. Reports 1996
(II), p. 627, para. 5 (emphasis in the original).
18 C. Tams, Article IX, note 45, in: Tams/Gerster/Schiffbauer, Convention on the Prevention and Punishment of
Genocide, A Commentary (Beck 2014).
19 C. Tams (n 18), Article IX, note 45.
20 Allegations a/Genocide under the Convention on the Prevention and Punishment of the Crime a/Genocide (Ukraine
v. Russian Federation), Joint Declaration oflritervention of the Governments of Canada and the Kingdom of the
Netherlands of7 December 2022, para. 29.
21 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.
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17. The third point ("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 thereot22
•
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 allegation: if it is not satisfied that
there were any acts of genocide actually being committed by the respondent State, it may
decline its jurisdiction24
.
19. While this scenario of ( alleged) responsibility for acts of genocide constitutes an important
type of dispute about the "interpretation, application or fulfilment" of the Convention, 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 I25, and the Court affirmed itsjurisdictionratione materiae26
•
In the case 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 genocide committed on its territory.
Therefore, there can also be disputes about "non-action" as a violation of the substantive
obligations under Article I, IV and V.
22 R. Kolb, Scope Ratione Materiae (note 21), 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, p. 43, at p. 75, para. 169.
24 Case Concerning Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999, p. 363, at pp. 372-373, paras. 24-31. Later, the !CJ 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. !CJ, 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).
25 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.C.J. Reports I 996, p. 595, at
p. 614, para. 28 and p. 603, para. 4.
26 lbid, 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), Judgment of22 July 2022, p. 12, para. 24, Points (I) (c), d) and (e).
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20. The ordinary meaning of Article IX makes it clear that there is no need to establish
genocidal acts as a basis 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 ... ") further confirms this reading. In particular, the
unusual feature of the words "including" in the intermediate sentence indicates a 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 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 Convention30
,
22. Hence, the context of the phrase ("relating to") in Article IX confirms that the Court's
jurisdiction goes beyond disputes between States about the responsibility for alleged
genocidal acts, but also covers disputes between States about the absence of genocide and
the about the performance of treaty obligations by one or more State parties. In other words:
"With a view to the question of positive fulfilment, the Court has jurisdiction over the
question whether a Contracting Party ( ... ) has not violated its obligation to prevent and
punish genocide. In 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
28 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 Gambiav. Myanmar), Order of23 January 2020, I.C.J.
Reports 2020, p. 14, para. 30.
29 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.
30 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").
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 of 15 December
2022, para. 20.
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, p. 36, para. 107.
sl 16
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. Famously, in its 1951 Advisory Opinion, the Court held33
:
"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. "
25. The Convention's object to protect the "most elementary principles of morality" also
requires that a State Party does not to abuse its provisions for other means. 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-a-vis another State party to the Convention. Such
abuse can take two forms: abusive allegations and/or or abusive action, which will now be
examined in the next two sections.
33 Reservations to the Genocide Convention, Advisory Opinion of28 May 1951, I.C.J. Reports 1951, p. 23.
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B. Article IX of the Genocide Convention Applies to Disputes About Abusive
Allegations of Genocide
26. Sweden 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 of whether the Convention enables a
State to seize the Court of a dispute concerning allegations of genocide made by another
State34.
28. Sweden contends that Article IX of the Genocide Convention applies also to disputes
relating to abusive allegations of genocide, as they raise the question of compliance with
Article I of tbe 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 tbe Court already emphasised, in fulfilling their duty to prevent
genocide, Contracting Parties must act within the limits permitted by international law35
•
Moreover, carrying out the duty under Article I must be done in good faith (Article 26 of
the Vienna Convention on the Law of Treaties and general 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 marmer 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 tbe creation and performance oflegal obligations",
good faith is also directly linked to the "trust and confidence [that] are inherent in
34 For a discussion of this question, see e.g. Order on Provisional Measures (n 9), Declaration of Judge
Bennouna, para. 2.
35 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgrnent, I.CJ. Reports 2007, p. 43, at p. 221, para. 430;
Allegations a/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.
36 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J.
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 of23 May 1969."
37 Gabifikovo-Nagymaros Project (Hungary/Slovakia), Judgrnent, I.CJ. Reports 1997, p. 7, at p. 79, para. 142.
IOI 16
international co-operation"38 .
30. In Sweden's view, the notion of"undertake to prevent" implies that each State Party must
assess whether a genocide or a serious risk of genocide exist prior to taking action pursuant
to Article 139. Such an assessment must be based on substantial evidence40
.
31. Importantly, the UN 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 constitutes good practice to rely on the results of independent investigations under UN
auspices42 before qualifying a situation as genocide.
3 3. 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 obligations, a State may seize the United Nations' political or
judicial organs45
.
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 distort the
terms of the Convention. Accordingly, Article IX also covers such disputes.
38 Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 7, at p. 142.
39 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.
4° 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. 90, para. 209.
41 UN Human Rights Council, Resolution 43/29: Prevention of Genocide (29 June 2020), UN Doc
A/HRC/RES/43/29, para. 11.
42 See for example the reliance of The Gambia on the reports of the Independent International Fact-Finding
Mission on Myanmar established by the UN Human Rights Council before bringing a case to the Court; for
details see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Judgment of22 July 2022, at pp. 25-27, paras. 65-69.
43 Order on Provisional Measures (n 9), para. 56.
44 Ibid.
45 Order on Provisional Measures (n 9), Separate Opinion of Judge Robinson, para. 30.
11 I 16
C. Article IX of the Genocide Convention Applies to Disputes About Unlawful Action
as 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 case46. 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 multilateral and peaceful
means to prevent genocide. Such reading is in accordance with Chapter VI of the UN
Charter on the peaceful settlement of disputes, the continuance of which is likely to
endanger the maintenance of international peace and security. Article IX 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 peacefully47 . Sweden emphasizes that all State
Parties shall be engaged in preventing and punishing genocide worldwide for the benefit of
humankind, and not in order to protect their own interests.
46 See e.g. Australia v. Japan (New Zealand intervening), Judgment, I.CJ. 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 a/Genocide under the Convention on the Prevention and Punishment of the Crime a/Genocide
(Ukraine v. Russian Federation), Declaration oflntervention of New Zealand of28 July 2022, para. 25.
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38. It follows from the obligation to carry out a good faith assessment of the existence of
genocide or 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 case Oil Platforms48
•
39. A State may not claim to enforce international law by violating international law. As the
Court explained in the Bosnian Genocide case, already referred to in para. 29 above, "it is
clear that every State may only act within the limits permitted by international law."49 In
other words, Article I of the Genocide Convention imposes an obligation of State 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
for the stated purpose of preventing and punishing alleged genocide51
•
48 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J.
Reports 1996, 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 oflntervention of
Australia of 30 September 2022, para. 41.
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, p. 43, at p. 221, para. 430.
50 Order on Provisional Measures (n 9), Separate Opinion of Judge Robinson, para. 27.
51Order on Provisional Measures (n 9), p. 11, para. 45.
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D. Any party to the dispnte may seize the Conrt under Article IX of the Genocide
Convention
41. Finally, Sweden 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, the concepts of "dispute" and "fulfilment" in Article IX are
sufficiently broad to allow the Court to issue a declaration that the applicant State bears no
responsibility for a breach under the Convention, as alleged by another State. Moreover,
the plain wording of Article IX confirms that "any of the parties" to the dispute may seize
the Court. Thus, where there 1s a dispute concermng 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 seeking the judicial protection before
the Court. On the contrary, such an interpretation would risk precluding a victim State from
seeking relief from the Court in the face of abuses 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 had requested several Court findings that it had complied with
Articles 5, 6 and 7 of the of the 1971 Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation on the basis of Article 14 of the
Convention54. The United States objected and argued that none of the provisions quoted
52 Order on Provisional Measures (n 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 of I August 2022, para. 34; Declaration of Intervention
of Australia of30 September 2022, paras. 35-36; Declaration of Intervention of Norway of 10 November 2022, para. 21.
54 Questions of lnte1pretation 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.CJ. Repmts 1998, p. 115, atp. 123,
para. 25.
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by the applicant concerned obligations binding upon it as respondent55
. The Court rejected
the 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 that it had not violated the Montreal Convention.
45. Moreover, Sweden 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 in by Article Ill 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
independence of
People's Republic'
and therefore
declare that the Russian Federation's recognition of the
the so-called 'Donetsk People's Republic' and 'Luhansk
on 22 February 2022 is based on a false claim of genocide
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
non-repetition 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.
(j) 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."
55 Ibid, p. 124, para. 26
56 Ibid, p. 127, para. 28.
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46. While it is for the Court to clarify the precise meaning of the requests, none of the reliefs
sought expressly mention the question of"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 allegation that genocide had been taken place in the oblasts of Donetsk and
Luhansk were abusive. Under such 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. Sweden 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
dispute about otherwise unlawful action as a means for prevention and punishment of
genocide under the Genocide Convention. Fourth, any party to the dispute may seize the
Court under Article IX, including the party who is the victim of an abusive allegation or
unlawful action as a means for prevention and punishment of genocide.
48. In conclusion, 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 for
the stated purpose of preventing and punishing alleged genocide.
Respectfully,
Ambassador, Director-General for Legal Affairs
Agent of the Government of Sweden
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