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

WRITTEN OBSERVATIONS OF THE REPUBLIC OF SLOVENIA
5 July 2023
INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION: 32 STATES INTERVENING)
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TABLE OF CONTENTS
INTRODUCTION ................................................................................................. 1
I. THE PRINCIPLES RELEVANT TO THE CONSTRUCTION AND INTERPRETATION
OF ARTICLE Ⅸ AND OTHER PROVISIONS OF THE CONVENTION ......................... 2
II. THE CONSTRUCTION OF ARTICLE Ⅸ OF THE CONVENTION ............................... 2
A. Article Ⅸ includes disputes concerning the compliance by a
Contracting State with its Obligations under the Convention ................... 4
B. Article Ⅸ includes disputes concerning the means and measures
taken by a State on the basis of Allegations of Genocide ........................ 11
C. In any event, Article Ⅸ includes disputes concerning the interpretation
of the Convention, including Article Ⅸ .................................................. 16
III. CONCLUSIONS ................................................................................................. 17
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WRITTEN OBSERVATIONS OF THE REPUBLIC OF SLOVENIA
Introduction
1. On 24 November 2022, the Republic of Slovenia availed itself of its right
to intervene in the case concerning Allegation of Genocide under the Convention
on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation) and submitted a Declaration of Intervention in accordance with
Article 63 of the Statute of the Court and Article 82 of the Rules of Court.
2. By its Order of 5 June 2023, the Court rejected the objections raised by the
Russian Federation in respect of declarations of intervention deposited by several
States, including the Republic of Slovenia, and declared that the declarations of
intervention made by several States, including the one submitted by the Republic
of Slovenia, admissible at the preliminary objections stage of the proceedings 1. In
the same Order, the Court fixed the time-limit for the filing of written observations
referred to in Article 86, paragraph 1, of the Rules of Court 2.
3. The present Written Observations by the Republic of Slovenia are filed in
accordance with the Court’s Order. Pursuant to the Court’s instructions, Slovenia’s
Written Observations are limited to “the construction of Article Ⅸ and other
provisions of the Convention on the Prevention and Punishment of the Crime of
Genocide that are relevant for the determination of the jurisdiction of the Court” 3.
They will not address other matters, such as the existence of a dispute between the
Parties, the evidence (or the absence thereof), the facts or the application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(hereinafter the “Convention”) in the present case.
4. In the interest of an efficient and good administration of justice and upon
the Court’s invitation to coordinate with other intervening States, the Written
Observations of the Republic of Slovenia are largely coordinated on substance with
those of other Member States of the European Union intervening in the proceedings.
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, paras. 99 and 102 (1).
2 Ibid., para. 102 (3).
3 Ibid., para. 102 (1).
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I. The principles relevant to the construction and interpretation of Article Ⅸ
and other provisions of the Convention
5. The Republic of Slovenia reiterates 4 that the construction and interpretation
of Article Ⅸ and other relevant provisions of the Convention has to be established
in accordance with the customary rules and principles of treaty interpretation, as
codified and reflected in Articles 31 to 33 of the 1969 Vienna Convention on the
Law of Treaties 5.
II. The construction of Article Ⅸ of the Convention
6. Article Ⅸ of the Convention reads as follows:
“Disputes between the Contracting Parties relating to the
interpretation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide or for any of the
other acts enumerated in article Ⅲ, shall be submitted to the International
Court of Justice at the request of any of the parties to the dispute.”
7. This compromissory clause is formulated broadly. The plain language of
Article Ⅸ entrusts the Court with jurisdiction concerning any “dispute[] … relating
to the interpretation, application or fulfilment of the … Convention” submitted by
“any of the parties to the dispute”. It has been highlighted that this broad
formulation of Article Ⅸ was aimed at giving
“a coverage as exhaustive as possible to the compromissory clause. The aim
was thus to close down all possible loopholes weakening the jurisdictional
reach of the Court. The purpose pursued in 1948 was to grant the Court a
jurisdiction as wide as possible in the life of the Convention, forestalling all
the potential subtle arguments denying jurisdiction on account of an
insufficient link with that Convention.” 6
4 Declaration of Intervention, para. 12.
5 Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objection,
Judgment of 6 April 2023, para. 87; 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. 87; Application of the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2019 (II), p. 598, para. 106.
6 R. Kolb, “The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ”, in P.
Gaeta (ed.), The UN Genocide Convention: A Commentary, Oxford University Press, 2009, p. 453.
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Article Ⅸ entrusts the Court with a far-reaching and important role 7 in the full and
faithful implementation of the Convention through judicial process, in accordance
with the general obligation of States to settle their disputes peacefully, reflected in
Articles 2 (3) and 33 (1) of the United Nations Charter.
8. The Republic of Slovenia considers that the interpretation of the term
“dispute” is well settled in the case law of the Court 8, as most recently expressed
in the Court’s judgment in the case concerning the Application of the Convention
on the prevention and punishment of the crime of Genocide (The Gambia v.
Myanmar) 9. Therefore, the Republic of Slovenia does not consider necessary to
comment further on the interpretation of this term in the present observations, or to
discuss the question whether a dispute between Ukraine and the Russian Federation
actually exists.
9. Article Ⅸ of the Convention further characterizes the disputes which the
Contracting Parties agree to submit to the compulsory jurisdiction of the Court, i.e.,
any dispute “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”.
10. The construction of this part of Article Ⅸ of the Convention is particularly
relevant for the determination of the jurisdiction of the Court in the present
proceedings. In its preliminary objections, the Russian Federation alleges that the
dispute submitted by Ukraine is not one “relating to the interpretation, application
or fulfilment” of the Convention and that, therefore, the Court lacks ratione
materiae jurisdiction 10. In its Application, Ukraine contends that the dispute relates
7 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Joint Separate Opinion of Judges
Higgins, Kooijmans, Elaraby, Owada, and Simma, I.C.J. Reports 2006, p. 72, para. 28.
8 See Declaration of Intervention, 24 November 2022, para. 18. The Republic of Slovenia
notes that Ukraine (Memorial, para. 151; Observations on Preliminary Objections, para. 31), as well
as several intervening States (Declarations of Intervention of Germany, para. 29; of Sweden,
para. 27; of France, para. 26; of Italy, para. 28; of Romania, para. 25; of Poland, para. 25; of
Denmark, para. 19; of Ireland, para. 22; of Finland, para. 28; of Estonia, para. 26; of Spain, para. 18;
of Portugal, para. 22; of Austria, paras. 30-31; of the Hellenic Republic, para. 27; of Luxembourg,
para. 22; of Croatia, para. 18; of the Czech Republic, para. 25; of Bulgaria, para. 20; of Malta,
para. 18; of Norway, para. 15; of the Slovak Republic, para. 32; of Belgium, paras. 30-31; of Canada
and the Netherlands, para. 27; of Cyprus, para. 21; of the United Kingdom, para. 33; of Australia,
para. 30; and of Liechtenstein, para. 17) have expressed similar views.
9 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. 63-64.
10 Preliminary Objections of the Russian Federation, paras. 138-229.
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to the Genocide Convention and concerns “the Russian Federation’s long-standing
allegation that Ukraine is committing genocide in violation of the Genocide
Convention, and Russia’s reliance on this false allegation to recognize the
independence of the DPR and LPR and engage in its large-scale invasion of
Ukraine” 11.
11. The Republic of Slovenia will address two aspects of the interpretation of
the relevant part of Article Ⅸ, i.e., that the compromissory clause includes disputes
concerning the compliance by a Contracting State with its obligations, and that it
also covers disputes concerning the means and measures taken by a State on the
basis of allegations of genocide, their lawfulness and their consequences. The
Republic of Slovenia also wishes to clarify that disputes concerning the
interpretation of any of the provisions of the Convention, including Article Ⅸ itself,
fall within the scope of the compromissory clause.
A. ARTICLE Ⅸ INCLUDES DISPUTES CONCERNING THE COMPLIANCE BY A
CONTRACTING STATE WITH ITS OBLIGATIONS UNDER THE CONVENTION
12. The Republic of Slovenia considers that under a proper construction of
Article Ⅸ of the Convention, the Court has jurisdiction over disputes concerning
the compliance and the respect by a Contracting State of its obligations under the
Convention, including its obligation not to commit genocide encompassed in the
Convention 12.
13. The terms of Article Ⅸ refer to any dispute “relating to the interpretation,
application or fulfilment” of the Convention. According to the ordinary meaning of
these terms, the provision thus covers all disputes that concern the meaning of the
Convention and its provisions (“interpretation”) 13, the question whether and how
the provisions of the Convention are put into operation (“application”) 14, or the
question whether a Contracting Party performs its obligations and duties as required
11 Ukraine’s Observations on Preliminary Objections, para. 81. See also Application,
paras. 7-11.
12 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. 114,
para. 167.
13 See Oxford English Dictionary, 3rd edn., 2015, online (interpretation: “the action of
explaining the meaning of something”). For the French term “interprétation”, see Dictionnaire de
l’Académie française, 9th edn., online (“Explication du sens qu’on peut donner à un texte”).
14 See Oxford English Dictionary, 3rd edn., 2015, online (application: “the action of putting
something into operation”). See also Dictionnaire de l’Académie française, 9th edn., online (“Mise
en oeuvre, en pratique”).
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and expected (“fulfilment”) 15. This includes disputes, like the one submitted by
Ukraine to the Court, on the issue whether a Contracting State has fully respected
and performed its obligations under the Convention, including the obligation not to
commit genocide.
14. Nothing in the text of Article Ⅸ limits the scope or the nature of the
disputes that the Contracting Parties agree to submit to the compulsory jurisdiction
of the Court to those concerning the violation of the provisions of the Convention
or those concerning claims that a Contracting Party has committed genocide, only.
The text of Article Ⅸ makes clear that disputes relating to the interpretation,
application or fulfilment of the Convention include those “relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
article Ⅲ”. But it does not suggest that disputes concerning the responsibility of a
Contracting State for acts of genocide are the only ones that can be submitted to the
Court. Rather, the term “including” suggests that disputes “relating to the
interpretation, application and fulfilment” of the Convention necessarily cover a
broader spectrum of disputes 16, including those where a Contracting Party claims
that it has complied with its obligations and that it has therefore not engaged its
responsibility for acts of genocide. All these disputes relate without doubt to the
interpretation, application or fulfilment of the Convention 17, independently of the
different question which State submits the dispute to the Court and, related thereto,
how the claims of the applicant State are formulated.
15. This is further confirmed by the text of Article Ⅸ which states that a
dispute falling into the categories outlined, including those relating to the
responsibility of a State for genocide, shall be submitted to the Court “at the request
of any of the parties to the dispute”. This wording had been specifically
(re)introduced during the drafting of the Convention on the basis of an amendment
submitted by India 18. Under the plain terms of Article Ⅸ, a dispute concerning the
15 See Oxford English Dictionary, 3rd edn., online, 2015 (fulfilment: “the meeting of a
requirement, condition, or need”; “the performance of a duty or role as required, pledged, or
expected”). For t he m eaning o f t he F rench t erm “ exécution”, see Dictionnaire de l’Académie
française, 9th edn., online (“Action de faire passer des dispositions dans les faits”).
16 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. 114,
para. 169. See also Written Observations of Ukraine on Preliminary Objections, para. 98.
17 See also Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First
Phase), Advisory Opinion, I.C.J. Reports 1950, p. 75.
18 United Nations, Official Records of the General Assembly, Third Session, Part Ⅰ, Sixth
Committee, Summary Records of Meetings, 104th meeting, 13 November 1948, UN doc.
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Convention can be submitted by a Contracting Party that claims that another
Contracting Party has not fulfilled its obligations, including the obligation not to
commit genocide, or by a Contracting Party that is accused of having failed to fulfil
these obligations. In other words, it does not matter which party to a dispute
advances a claim of correct performance or of non-performance and which side
opposes it 19. If a Contracting State is permitted to submit a dispute claiming that
another Contracting State has breached its obligations, it is also legitimate for this
other State to seize the Court and to claim that it has complied with its obligations.
Otherwise, a State accused of breaching the Convention would be deprived of any
remedy under the Convention and would be submitted to the unilateral will of the
State raising such accusation to submit the dispute to the Court.
16. Hence, the text of Article Ⅸ, taken as a whole, confirms that disputes
concerning the compliance with the provisions and obligations of the Convention,
including the obligation not to commit genocide – which are nothing else than the
other side of the coin of a dispute where the applicant contents that these obligations
where breached – fall within the scope of the compromissory clause. Nothing in the
text of Article Ⅸ precludes the Court, being a court of law, to accept claims of
violation as well as claims of compliance. As already pointed out 20, in the case
concerning Rights of Nationals of the United States of America in Morocco (France
v. United States of America), the French Republic introduced proceedings and
requested the Court to declare, inter alia, that “the decree of December 30th, 1948,
concerning the regulation of imports not involving an allocation of currency, is in
conformity with the economic system which is applicable to Morocco, according
to the conventions which bind France and the United States” 21, and to draw all
consequences from this situation. This claim was opposed by the United States 22.
The Court had no difficulty to entertain, to address and to decide upon this claim 23
although it was a claim concerning the compliance with and not the violation of
obligations under the applicable conventions. Similarly, in the case concerning
Questions of Interpretation and Application of the 1971 Montreal Convention, the
applicant claimed before the Court that it had complied with several obligations
A/C.6/SR.104, p. 447 (Sundaram). See also ibid., 103rd meeting, 12 November 1948, UN doc.
A/C.6/SR.103, p. 437.
19 See also Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 26, para. 50.
20 Declaration of Intervention of Latvia, para. 43; Declaration of Intervention of Italy,
para. 37.
21 Rights of Nationals of the United States of America in Morocco (France v. United States
of America), Judgment, I.C.J. Reports 1952, p. 180.
22 Ibid.
23 Ibid., pp. 181-186.
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under the Montreal Convention 24. The Court rejected the preliminary objection of
the United States of America according to which the provisions relied upon did not
create any obligations on them and confirmed that the dispute submitted to it
concerned the interpretation and application of the relevant provisions of the
Montreal Convention 25.
17. This construction of Article Ⅸ further entails that, contrary to the
allegations made by the Russian Federation 26, the jurisdiction of the Court is not
dependent on the existence of acts of genocide or on the plausibility of acts of
genocide having taken place or likely to be committed.
18. As explained above 27, the text of Article Ⅸ confirms that the jurisdiction
of the Court is not limited to alleged violations of the Convention, or to claims that
a Contracting Party is responsible for genocide. It concerns any dispute relating to
the interpretation, application or fulfilment of the Convention. Such disputes may
arise “without any infraction having been noted” 28, and also without any act of
genocide actually having been committed.
19. This is obvious in respect of disputes concerning the interpretation of the
Convention and its provisions. The Permanent Court confirmed in this regard that
“[t]here seems to be no reason why States should not be able to ask the Court to
give an abstract interpretation of a treaty; rather would it appear that this is one of
the most important functions which it can fulfil” 29. In other words, a dispute related
to the interpretation of the Convention can arise outside of a concrete case of
application and, therefore, independently of the existence of acts of genocide.
20. The context of the Convention’s compromissory clause and, in particular,
the obligations contained in the Convention further confirm that it is not limited to
or conditioned upon the commission of acts of genocide. The obligation of not
24 Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 123-124, para. 25.
25 Ibid., p. 124, para. 26 and p. 127, para. 28.
26 See, in particular, Preliminary Objections of the Russian Federation, paras. 139, 145-155.
27 See paras. 14-15 above.
28 Interpretation of the Statute of the Memel Territory, Preliminary Objections, Judgment,
1932, P.C.I.J., Series A/B, No. 47, p. 248; Applicability of the Obligation to Arbitrate under Section
21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J.
Reports 1988, p. 30, paras. 42-43.
29 Certain German Interests in Polish Upper Silesia, Merits, Judgment, 1926, P.C.I.J.,
Series A, No. 7, p. 18-19.
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committing acts of genocide necessarily exists independently of genocide having
taken place. Indeed, its aim is to ensure that no genocide takes place. Therefore, a
dispute concerning the interpretation, application or fulfilment of this particular
obligation cannot be limited to cases of genocide having been committed only.
21. This is also the case of other obligations contained in the Convention. For
instance, under Article Ⅴ, the Contracting Parties “undertake to enact, in
accordance with their respective Constitutions, the necessary legislation to give
effect to the provisions of the present Convention, and, in particular, to provide
effective penalties for persons guilty of genocide or any of the other acts
enumerated in article Ⅲ”. This obligation exists and operates independently of the
commission and existence of acts of genocide. The Court had already the occasion
to confirm this point in respect of similar provisions of the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 30. In light of the aim of the obligation of Article Ⅴ of the Convention
and the scope of its application, it applies and must be implemented as soon as a
State is bound by the Convention. Its application and fulfilment are not conditioned
upon acts of genocide having been committed. Indeed, it would be too late to
implement this obligation once genocide had taken place. For this reason alone,
Article Ⅸ, which also encompassed disputes concerning the interpretation,
application or fulfilment of Article Ⅴ, cannot be submitted to the condition that
genocide was committed.
22. The object and purpose of the Convention equally commands a broad
interpretation of Article Ⅸ and precludes any prerequisite condition of genocide
having taken place for its operation.
23. The principle aim of the Convention is to prevent genocide. In its
resolution 96 (Ⅰ), the General Assembly invited “the Member States to enact the
necessary legislation for the prevention and punishment of [the crime of
genocide]” 31 and recommended “that international co-operation be organized
between States with a view to facilitating the speedy prevention and punishment of
the crime of genocide” 32. The preamble of the Convention reiterates the aim “to
liberate mankind from such an odious scourge”. In accordance with Article Ⅰ, the
30 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, I.C.J. Reports 2012, p. 451, para. 75.
31 United Nations, General Assembly, Resolution A/RES/96 (1), The Crime of Genocide,
11 December 1946 (emphasis added).
32 Ibid. (emphasis added).
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Contracting Parties “undertake to prevent and to punish” genocide (emphasis
added). The Court explained and repeated that:
“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’être of the
convention. Consequently, in a convention of this type one cannot speak of
individual advantages or disadvantages to States, or of the maintenance of
a perfect contractual balance between rights and duties. The high ideals
which inspired the Convention provide, by virtue of the common will of the
parties, the foundation and measure of all its provisions.” 33
Thus, in the opinion of the Court,
“[a]ll the States parties to the Genocide Convention … have a common
interest to ensure the prevention, suppression and punishment of genocide,
by committing themselves to fulfilling the obligations contained in the
Convention” 34.
24. The object and purpose of the Convention to prevent genocide would be
defeated if, as the Russian Federation seems to suggest, the Convention and the
mechanisms aimed at its effective interpretation, application and fulfilment only
become operative when genocide was committed. For this reason alone, the
jurisdiction of the Court is not conditioned upon a claim that genocide was
committed or the demonstration of the likelihood of acts of genocide taking place.
Indeed, as highlighted by the representative of Czechoslovakia during the drafting
of the Convention and Article Ⅸ, the guarantees for the application of the
convention need to “be appropriate to the object of the convention, which was to
ensure the prevention and punishment of the crime of genocide” 35.
33 Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23; 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. 106.
34 Ibid., para. 107.
35 United Nations, Official Records of the General Assembly, Third Session, Part Ⅰ, Sixth
Committee, Summary Records of Meetings, 103rd meeting, 12 November 1948, UN doc.
A/C.6/SR.103, p. 439 (Zourek).
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25. In this respect, the reliance by the Russian Federation of extracts from
previous decisions of the Court in order to establish an additional condition for
Article Ⅸ’s operation, or the existence of other obligations under the Convention,
is misplaced. It is true that in cases where an applicant State claims that the
respondent State has breached obligations under a treaty, the Court has frequently
ascertained whether the breaches alleged are capable of falling within the provisions
of the treaty in question 36; it is also right that the Court has refused to exercise its
power to indicate provisional measures where it was not convinced, prima facie,
that the acts complained of could constitute acts of genocide as defined by the
Convention 37. Nevertheless, the Court has already held that, in order to exercise its
power to recommend provisional measures:
“the Court is not required to ascertain whether any violations of Myanmar’s
obligations under the Genocide Convention have occurred. Such a finding,
which notably depends on the assessment of the existence of an intent to
destroy, in whole or in part, the group of the Rohingya as such, could be
made by the Court only at the stage of the examination of the merits of the
present case.”38
This holds equally true in respect of the establishment of the Court’s jurisdiction.
The existence of acts of genocide prohibited by the Convention is a question
concerning the interpretation, application or fulfilment of the Convention that the
Court can only ascertain definitely at the merits stage of the proceedings.
26. More generally, the question whether a violation of treaty has actually
taken place or not is not an issue of jurisdiction. The Court has already established
its jurisdiction in cases concerning the interpretation or application of a treaty while
36 See, e.g., Legality of Use of Force (Serbia and Montenegro v. Belgium), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 138, para. 40.
37 Ibid., p. 138, para. 40. Contrary to the representation made by the Russian Federation in its
Preliminary Objections (para. 207), the Court did not reject Yugoslavia’s claims of genocide at the
provisional measures stage. The Court only considered that it was “not in a position to find, at this
stage of the proceedings, that the acts imputed by Yugoslavia to the Respondent are capable of
coming within the provisions of the Genocide Convention” (ibid., para. 41).
38 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020,
p. 14, para. 30. See also Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,
Order of 16 March 2022, para. 43.
11
later concluding that no breach had occurred 39. This confirms that the existence of
genocide cannot be a prerequisite for the Court’s jurisdiction.
27. For all these reasons, Article Ⅸ includes disputes concerning the correct
compliance by a Contracting State of its obligations under the Convention,
including the obligation not to commit genocide, and the consequences this
compliance creates vis-à-vis other State parties. The Republic of Slovenia contends
that this construction of the compromissory clause, which stems from the ordinary
meaning of the terms of the provision, in their context and taking into account the
object and purpose of the provision and the Convention, ensures an effective
remedy to Contracting States against abusive, unjustified claims of genocide. This
is an essential element for safeguarding the authority of the Convention as a whole
and the most elementary principles of morality contained therein.
B. ARTICLE Ⅸ INCLUDES DISPUTES CONCERNING THE MEANS AND MEASURES
TAKEN BY A STATE ON THE BASIS OF ALLEGATIONS OF GENOCIDE
28. The Republic of Slovenia considers that under a proper construction of
Article Ⅸ of the Convention, the Court has jurisdiction over disputes concerning
the question whether a Contracting Party is entitled to take certain measures against
another Contracting State on the basis of unsubstantiated and false claims of
genocide, and the consequences for the States concerned of such measures having
been implemented.
29. Indeed, such disputes plainly fall under the terms of Article Ⅸ of the
Convention. They relate to “the interpretation, application or fulfilment of the
Convention”, and, in particular, of the obligation set out in Article Ⅰ to prevent
genocide.
30. Within the ordinary meaning of the terms of Article Ⅸ, the Court has
jurisdiction to ascertain whether a Contracting Party could rely on this obligation
to prevent genocide in order to take measures vis-à-vis another Contracting Party.
This is a question concerning the interpretation of Article Ⅰ, i.e., concerning the
meaning of its terms, on the one hand, and its application, on the other hand. The
Permanent Court had already noted that differences “as to the extent of the sphere
39 See, e.g., Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment,
I.C.J. Reports 1989, p. 15; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia), Merits, Judgment, I.C.J. Reports 2015, p. 3.
12
of application” of provisions of a treaty fall within the interpretation and application
of the treaty 40. It pointed out that disputes relating to the application of a treaty:
“include not only those relating to the question whether the application of a
particular clause has or has not been correct, but also those bearing upon the
applicability of these articles, that is to say, upon any act or omission
creating a situation contrary to the said articles” 41.
31. This conclusion is reinforced by the well-established principle that treaties
must be performed in good faith, codified in Article 26 of the 1969 Vienna
Convention on the Law of Treaties 42. In its commentaries to draft Article 23 (which
became Article 26 of the Vienna Convention), the International Law Commission
confirmed that the principle of good faith performance included the duty to “abstain
from acts calculated to frustrate the object and purpose of the treaty” 43. In the case
concerning the Gabčíkovo-Nagymaros Project, the Court confirmed that “[t]he
principle of good faith obliges the Parties to apply [the treaty] in a reasonable way
and in such a manner that its purpose can be realized” 44. Whether a treaty, or a
specific provision of that treaty, has been applied or relied upon in a reasonable way
is a question concerning the interpretation, application and fulfilment of the said
treaty, i.e., a question whether a party performs its obligation as required and
expected 45.
32. The dispute submitted to the Court in the present proceedings concerns
such a question of applicability of the provisions of the Convention. Indeed, the
question raised by Ukraine is whether the acts committed by the Russian Federation
have created a situation – an état de choses – contrary to the provisions of the
Convention, in particular its Articles I and Ⅳ, and whether the Russian Federation
has applied the Convention in a reasonable manner, as required and expected, or
not. Whether genocide has actually been committed is irrelevant in this respect; the
40 Certain German Interests in Polish Upper Silesia, Preliminary Objections, Judgment
No. 6, 1925, P.C.I.J., Series A, No. 6, p. 16.
41 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9,
p. 20-21.
42 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 296, para. 38.
43 Yearbook of the International Law Commission, 1966, vol. II, p. 211. See also J. Salmon,
“Article 26 Convention of 1969”, in O. Corten and P. Klein (eds.), The Vienna Conventions on the
Law of Treaties. A commentary, Oxford University Press, 2011, p. 679-680.
44 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997,
p. 78-79, para. 142.
45 See para. 13 above.
13
obligation to apply the provisions of a treaty in good faith and without abuse always
exists.
33. For the same reasons, the jurisdiction of the Court under Article Ⅸ covers
disputes concerning the means and measures taken by a Contracting Party when
purportedly implementing its obligations under the Convention, including the
consequences of an improper implementation or fulfilment of the Convention.
These are plainly questions of interpretation, application and fulfilment of the
Convention and of its provisions.
34. Although the text of Article Ⅰ does not refer to or detail the specific means
that a Contracting Party – or rather the Contracting Parties – can or must take in
order to implement their undertaking to prevent or to punish genocide, the
interpretation of this provision, taking into account its context and the object and
purpose of the Convention, provides further guidance in respect of its
implementation 46.
35. It is significant that Article Ⅰ is formulated in the plural and refers to “[t]he
Contracting Parties” and that “they undertake to prevent and to punish” genocide.
This confirms that these obligations are assumed collectively in the pursuance of a
common interest 47. The preamble stresses the Contracting Parties’ conviction that,
“in order to liberate mankind from such an odious scourge, international cooperation
is required”. Articles Ⅷ and Ⅸ establish mechanisms ensuring the
collective implementation of the Convention and its obligations. Whereas the
former addresses “the prevention and suppression of genocide ‘at the political level
rather than as a matter of legal responsibility’” 48 through collective determinations
and actions by the competent organs of the United Nations, the latter empowers the
Court to decide disputes “between the Contracting Parties” in accordance with
international law. The erga omnes nature of the obligations under the Convention
also underpins the paramount significance of the text for the international
community as a whole, entrusting the International Court of Justice with a
46 Allegations of Genocide under the Convention on the Prevention and Punishment of the
Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of
16 March 2022, para. 56.
47 Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23; 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. 106.
48 Ibid., para. 88; 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. 109, para. 159.
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particularly important mission to enforce it in the interest of all States. The Republic
of Slovenia is particularly sensitive to the necessary collective implementation of
the Convention 49; only such collective implementation is capable of fulfilling the
Convention’s purpose and of preventing unreasonable and abusive accusation of
genocide through unilateral action.
36. In addition, the Court has already determined some of the principles and
rules that must guide Contracting States when implementing their obligations to
prevent and to punish genocide. It found that:
“Various parameters operate when assessing whether a State has duly
discharged the obligation concerned. The first, which varies greatly from
one State to another, is clearly the capacity to influence effectively the
action of persons likely to commit, or already committing, genocide. … The
State’s capacity to influence must also be assessed by legal criteria, since it
is clear that every State may only act within the limits permitted by
international law; seen thus, a State’s capacity to influence may vary
depending on its particular legal position vis-à-vis the situations and persons
facing the danger, or the reality, of genocide.” 50
37. Therefore, disputes concerning the application and the purported
implementation of the obligation to prevent and punish genocide necessarily
include any dispute concerning the means and actions taken by a Contracting State
and their conformity with the requirements of the Convention, including the duty
to act within the limits permitted by international law and the spirit and aims of the
United Nations 51, and the consequences of abusive reliance on the Convention.
These are disputes falling under Article Ⅸ if construed properly 52.
38. Indeed, as repeatedly recalled by the Court, it “must not exceed the
jurisdiction conferred upon it by the Parties, but it must also exercise that
49 See the address to the General Assembly by Mr. Janez Janša, Prime Minister of the
Republic of Slovenia, United Nations, Official Records of the General Assembly, Sixty-seventh
session, Verbatim Records, 12th plenary meeting, 27 September 2012, UN doc. A/67/PV.12,
p. 35-37.
50 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. 221,
para. 430 (emphasis added). See also Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional
Measures, Order of 16 March 2022, para. 57.
51 Ibid., para. 58.
52 For a similar view, see Enrica Lexie (Italy v. India), Award, 2 July 2020, paras. 809-811.
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jurisdiction to its full extent” 53. The Permanent Court has also found that the
jurisdiction conferred to the Court by virtue of a compromissory clause must
necessarily entail the power of the Court to draw all the consequences of an
improper application of the treaty in question:
“An interpretation which would confine the Court simply to recording
that the Convention had been incorrectly applied or that it had not been
applied, without being able to lay down the conditions for the reestablishment
of the treaty rights affected, would be contrary to what would,
prima facie, be the natural object of the clause; for a jurisdiction of this kind,
instead of settling a dispute once and for all, would leave open the
possibility of further disputes.” 54
39. Allegations that the measures in question are not controlled by rules and
provisions of the Convention, but rather by other rules of international law cannot
deprive the Court of its jurisdiction under Article Ⅸ. Indeed, as the Court has
recognized, “[c]ertain acts may fall within the ambit of more than one instrument
and a dispute relating to those acts may relate to the ‘interpretation or application’
of more than one treaty” 55. Yet, as noted by the Permanent Court:
“It is clear that the Court’s jurisdiction cannot depend solely on the
wording of the Application; on the other hand, it cannot be ousted merely
because the respondent Party maintains that the rules of law applicable in
the case are not amongst those in regard to which the Court’s jurisdiction is
recognized.” 56
In the case concerning the Appeal Relating to the Jurisdiction of the ICAO Council,
the Court considered, in the same vein:
“The question is whether the Council is competent to go into and give
a final decision on the merits of the dispute in respect of which, at the
instance of Pakistan, and subject to the present appeal, it has assumed
jurisdiction. The answer to this question clearly depends on whether
53 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 23,
para. 19. See also Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986,
p. 577, para. 45; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J.
Reports 2012, p. 671, para. 136.
54 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 25.
55 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J.
Reports 2021, p. 27, para. 56.
56 Certain German Interests in Polish Upper Silesia, Preliminary Objections, Judgment
No. 6, 1925, P.C.I.J., Series A, No. 6, p. 16.
16
Pakistan’s case, considered in the light of India’s objections to it, discloses
the existence of a dispute of such a character as to amount to a
‘disagreement … relating to the interpretation or application’ of the Chicago
Convention or of the related Transit Agreement …. If so, then prima facie
the Council is competent. Nor could the Council be deprived of jurisdiction
merely because considerations that are claimed to lie outside the Treaties
may be involved if, irrespective of this, issues concerning the interpretation
or application of these instruments are nevertheless in question. The fact
that a defence on the merits is cast in a particular form, cannot affect the
competence of the tribunal or other organ concerned, – otherwise parties
would be in a position themselves to control that competence, which would
be inadmissible. As has already been seen in the case of the competence of
the Court, so with that of the Council, its competence must depend on the
character of the dispute submitted to it and on the issues thus raised – not
on those defences on the merits, or other considerations, which would
become relevant only after the jurisdictional issues had been settled.” 57
40. Therefore, the question of the applicability of the obligations of the
Convention, and in particular its Article Ⅰ, and the related question of the conformity
of the measures taken in purported reliance on the Convention are related to the
interpretation, application or fulfilment of the Convention. They fall within
Article Ⅸ. This remains true independently of the allegations made by the
respondent State that acts and measures taken would fall under different rules and
principles of international law or are justifiable aliter et aliunde; these are questions
concerning the merits of the case and no conclusions can be drawn from them so as
to exclude ipso facto the Court’s jurisdiction under Article Ⅸ.
C. IN ANY EVENT, ARTICLE Ⅸ INCLUDES DISPUTES CONCERNING THE
INTERPRETATION OF THE CONVENTION, INCLUDING ARTICLE Ⅸ
41. Finally, the Republic of Slovenia considers that according to the terms of
Article Ⅸ, a dispute covered by the compromissory clause can relate just as well to
a question of interpretation of the Convention as to a question of the application or
fulfilment thereof. Consequently, a dispute relating to the interpretation, that is to
the meaning and content, of any one of the articles of the Convention, including
57 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment,
I.C.J. Reports 1972, p. 61, para. 27. See also Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 18, paras. 24-25.
17
Article Ⅸ itself, falls within the scope of the provision. As set out above 58, nothing
prevents the Court to exercise its jurisdiction related to the interpretation – even in
abstracto – of the Convention or of several of its provisions. Indeed, in its Judgment
on the preliminary objections in the case between Bosnia and Herzegovina and
Yugoslavia, the Court found that the parties were “in disagreement with respect to
the meaning and legal scope of several of [the] provisions [of the Convention],
including Article Ⅸ” and considered that “there is accordingly no doubt that there
exists a dispute between them relating to ‘the interpretation, application or
fulfilment of the … Convention, including … the responsibility of a State for
genocide …’, according to the form of words employed by that latter provision” 59.
III. Conclusions
42. As set out in detail above, the Republic of Slovenia considers that
Article Ⅸ is broadly formulated. It covers any dispute concerning the
interpretation, application or fulfilment of the Convention and its provisions.
43. Interpreted in good faith in accordance with the ordinary meaning to be
given to its terms in their context and in the light of the object and purpose of the
Convention, Article Ⅸ includes in particular any dispute concerning the
compliance by a State with its obligations under the Convention, including the
obligation not to commit genocide, and, as a result, any dispute regarding abusive
allegations of genocide.
44. Under a proper interpretation, Article Ⅸ also applies to disputes in relation
to the means and measures taken for the prevention and punishment of genocide
under the Convention, their lawfulness and consequences.
45. In any event, disputes relating to the matters above raise questions of
interpretation of the relevant provisions of the Convention, including its
compromissory clause. They also fall within the scope of application of Article Ⅸ
properly construed.
58 See para. 19 above.
59 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996,
p. 616, para. 33.
The Hague, 5 July 2023
Dr. Marko Rakovec
Director-General of the Directorate for
International Law and Protection of Interests of
the Ministry of Foreign and European Affairs of
the Republic of Slovenia
Agent of the Republic of Slovenia
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