We Read 22 Intervention Declarations
So You Don’t Have To
Reviewing Key Themes and Arguments in Ukraine v. Russia*
by Juliette McIntyre, Ori Pomson & Kyra Wigard
Published on 27 October 2022
Introduction
If you follow the activity of the International Court of Justice (Court or ICJ) at all, you will not have failed to notice that an unprecedented number of States have chosen to intervene in the Ukraine v. Russia case pursuant to Article 63 of the Court’s Statute. Twenty-two, at the time of writing. The European Union (EU) has also furnished the Court with ‘relevant information’ pursuant to Article 34(2) of the Court’s Statute.
The case is brought pursuant to the Genocide Convention. It derives from President Putin’s assertions that Ukraine government and military were committing genocide against Russian-speakers in the Luhansk and Donetsk oblasts of eastern Ukraine. Ukraine argued during the provisional measures hearings in March 2022 that Russia’s aggressive war could not be justified on the basis of false Russian claims that acts of genocide had taken place.
Although each of the intervention declarations takes a slightly different approach, the dominant theme is one of outrage and condemnation. All of the intervenors come in support of Ukraine.
In this post, we review some of the key arguments raised by the intervenors.
Issues of Timing and ‘Negative Declarations’
To begin, the intervenors must establish that they are entitled to join the case, and moreover that they are entitled to join it at this stage, when Russia has filed preliminary objections and the Court’s jurisdiction is in question.
Every intervening State has emphasized their “right” to intervene and make submissions regarding the interpretation of Article IX of the Genocide Convention. The majority take a textual approach, pointing to the language of Article 63, which on its face draws no distinction between the phases of jurisdiction and merits. This line of argument is largely to address the problem of Military and Paramilitary Activities in and against Nicaragua, where the Court decided to reject El Salvador’s Article 63 declaration on the basis that application was untimely for being made in the jurisdictional phase of the proceedings.
Some States, such as New Zealand, the United States, France, Italy, and Ireland simply assert their right of intervention and emphasize the that the proper construction of the Genocide Convention is of concern to all States parties; placing reliance on the Court’s Reservations Advisory Opinion in which it held that parties to the Convention “do not have any interests of their own; they merely have, one and all, a common interest.” Some States, such as Denmark, Finland, and Croatia, make both arguments. Romania claims its right to intervene without offering additional justification.
These minor differences in argument will be unlikely to have much impact; either all the interventions will be admitted, or none of them. And it will be difficult for the Court, in the face of such an overwhelming concurrence between States regarding the existence of the right to intervene, to declare the interventions inadmissible, no matter what justification is offered. It will be interesting to see, however, which line of argument the Court accepts.
As for the intervenors’ submissions on the interpretation of Article IX, there is absolute unanimity that it bestows on the Court the competence to adjudicate upon disputes concerning not only the commission of acts of genocide, but also covers non-violation complaints and the alleged “fulfilment” of the terms of the Convention. Additionally, a number of States make the point that the term “dispute” is of sufficient breadth to encompass a disagreement over the lawfulness of the conduct of an applicant State.
This is in essence a question of whether the Court can issue a “negative declaration” of compliance; a point taken up at length by Austria, but also suggested by Latvia, Sweden, Poland, Finland, Estonia, Spain, Greece, and Croatia. It seems likely that the Court has this power: a declaratory judgment merely pronounces upon a legal relationship and need not contain an order which can be enforced against the defendant. It can be a declaration regarding the absence of legal justification. Although Article 63 intervenors will be bound by the Court’s interpretation of Article IX, a conclusion in this respect poses little risk for the intervening States as it simply provides a confirmation that they could in future elect to bring proceedings for such a declaration, should they so choose.
Good Faith, Due Diligence and Prevention of Genocide
A common theme running through almost all the declarations of intervention concerns how a valid determination of—actual or a serious risk of—genocide is to be made for the purposes of the Genocide Convention, following which action of prevention may be taken pursuant to Article I of the Convention. Essentially, the intervenors seek to reinforce Ukraine’s contention that Russia’s invasion for the purported prevention of genocide does not conform to the Convention.
The vast majority of intervenors emphasise the importance of acting in good faith and with due diligence in making a determination that a genocide—or a serious risk thereof—is occurring, before taking action in the name of preventing of genocide (eg United Kingdom, United States, France, Romania, Poland, Finland). Many also elaborate upon intricacies of such determinations (e.g. Latvia, Sweden, Luxembourg).
Yet, there is some absence in uniformity among States over the consequences of an improper determination of the occurrence or serious risk of genocide before taking acts of prevention. Some States, such as United Kingdom, France and Austria, appear to be content with the mere—but straightforward—conclusion that any purported acts of prevention cannot be considered acts of prevention of genocide pursuant to Article I obligation. Other States, such as New Zealand, Denmark, Ireland and Portugal, appear more audacious, arguing in one way or another that an abuse of the Convention amounts to a violation thereof. This argument makes room for the Court to make dispositive findings that Russia violated international law, but it lies on shakier legal grounds. To begin, whether the concept of abuse of right—or “abuse of law”, the term used by many intervenors—exists under international law is controversial. Moreover, it is not clear that an abuse of right itself would constitute a violation of international law, as opposed to denoting the inapplicability of the right in the circumstances of its abuse.
On the issue of what acts may be taken in the prevention of genocide assuming genocide or a serious risk thereof was validly determined, many States opined or implied that Russia’s unilateral recourse to force could not in any event constitute a valid act of prevention of genocide under the Convention. However, they somewhat differ on why that is the case. For some, the prevention of genocide under the Convention cannot justify a violation of international law (e.g. Latvia, Lithuania, Romania). In this regard, emphasis has been placed on the ICJ’s statement in Bosnia v. Serbia, repeated by the Court in its 16 March 2022 provisional measures order, that in the prevention of genocide “every State may only act within the limits permitted by international law” (e.g. Italy, Denmark). Other States appear to imply that, in certain circumstances, an (otherwise) violation of international law may be justified if it is an act of preventing genocide (e.g. United Kingdom, Estonia, Luxembourg). However, they also emphasise that acts of preventing genocide cannot preclude responsibility for aggression, crimes against humanity or violations of international humanitarian law. Thus, while perhaps academically interesting, the difference in approach does not present practical implications in the present case.
Assessing and Defining Genocide
Some interventions also venture into a discussion of more substantive issues such as the assessment of genocide while others go even further and elaborate on their interpretation of the definition of genocide. For example, some States, including Sweden, Poland, Estonia and Spain, observe that the prima facie establishment of allegations of genocide is necessary for the Court in its decision on jurisdiction. This means that if the Court is not satisfied by arguments of Ukraine and/or Russia on genocide, the Court could actually decline jurisdiction in this case. They contend that there can of course be other scenarios, citing The Gambia v. Myanmar, where the dispute revolves around “non-action” to “prevent” and “punish” as a violation of the substantive obligations under Article I, IV, and V which then entails that there is no need to establish genocidal acts as a basis to affirm the court’s jurisdiction.
This is an interesting, if not peculiar, argument and it appears that these observations conflate issues at the provisional measures stage to those of jurisdiction for the merits of the case. Moreover, this argument appears to undermine the argument Ukraine is making in its application at this stage. Ukraine has not formally accused Russia of violating the Genocide Convention by committing genocide in its application, although it stated that Russia’s actions and Putin’s rhetoric appear “suggestive of Russia’s intentional killings bearing genocidal intent.” In a recent speech, Ukraine’s Agent Anton Korynevych intimated that Ukraine does not intend to make an argument regarding Russia’s responsibility for committing genocide.
Moreover, a number of intervenors dive into Article II of the Genocide Convention. Sweden, Italy, Poland, Denmark, Australia and Portugal emphasise a narrow definition of genocide by offering a more detailed analysis of the elements of genocide under Article II. They elaborate on the meaning of intent, and more specifically, the need for the presence of specific intent (dolus specialis). The UK and the US take a similar approach, but do so not only citing ICJ jurisprudence, but they also turn to some of the case law of the ad hoc criminal tribunals for the former Yugoslavia (US) and Rwanda (UK) to explain their position on the definition and elements of genocide bringing in the case law of criminal courts to the ICJ. France takes a different approach and, without further elaboration in its intervention, intends to provide the Court with information how the Genocide Convention has been implemented in its legal order.
Conclusions
For obvious reasons, this post can be no more than a high-level summary. The Court will have the not insignificant task of grappling with the subtle differences in each of the declarations and deciding what to do about them. Some States, such as Germany, Sweden, Poland, Denmark, and Austria have indicated their willingness to co-operate with like-minded States to ease the burden of administration for the Court but even this has not been entirely consistent—Spain, Greece and Luxembourg for example—are only willing to co-operate with other EU States. How the Court manages the proceedings from here, and whether there are more interventions to come (including possibly from non-Western States) will be watched closely.
*(The Editor-in-Chief was not involved in the process of commissioning and reviewing of this post)