On 6 August 2024, the International Court of Justice issued a press release relating to the pending Ukraine v. Russia case titled “Declarations of intervention under Article 63 of the Statute of the Court for the purposes of the merits stage of the proceedings”. The Court announced that, of the 32 states which had previously intervened in Ukraine v. Russia, six indicated to the Registrar that “they wish[ed] to maintain their declarations of intervention without adjustments”, a further eight states submitted “adjusted declarations of intervention”, and nine states submitted new declarations of intervention. These “adjusted” and new declarations of intervention have also been uploaded to the Court’s website.
We have previously discussed on this blog and more extensively elsewhere matters pertaining to the interventions in Ukraine v. Russia. However, these recent developments answer previously lingering questions while raising some others.
No Longer Interventions in Limbo?
On 2 February 2024, the ICJ delivered its judgment on preliminary objections. The Court partially upheld Russia’s preliminary objections, particularly regarding Ukraine’s submissions concerning Russia’s unlawful use of force. However, it allowed Ukraine’s submission that “there is no credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donetsk and Luhansk oblasts of Ukraine” to proceed to the merits.
One question which arose following the judgment was whether the states which previously intervened in the case maintained their intervenor status. While there is little indication that the proceedings regarding the admissibility of the interventions were initially intended to be confined to the preliminary objections stage, the operative paragraphs of the Court’s order only appear to directly decide on admissibility for the purposes of preliminary objections. Additionally, perhaps the biggest hint that they no longer maintained their intervenor status was that in its orders in the case following the judgment, the Court omitted the words “32 States Intervening” from the case name.
The recent developments all but confirm this. As the abovementioned press release indicated, in an email dated 18 June 2024 to the 32 intervening states (reproduced in full here), states which had previously sought to intervene at both the preliminary objections and merits stages were requested to inform the Registrar “whether they maintain their declaration”. Such states were also notified that “[i]f deemed necessary, they may adjust … their declarations of intervention in light of the Judgment of 2 February 2024”. Additionally, states which had previously only sought to intervene at the preliminary objections stage were requested to submit new declarations of intervention, should they wish to continue intervening. In any event, the 32 states were informed that Ukraine and Russia would have an opportunity to comment on the admissibility of the interventions; depending on any objections to admissibility a further round of written observations would follow, pursuant to Article 84(2) of the Rules; and ultimately the Court will decide on their admissibility.
There seems to be little to prevent the Court from bifurcating proceedings on admissibility of declarations of intervention. Indeed, the very bifurcation of proceedings between preliminary objections and merits stages was introduced by the Permanent Court of International Justice without basis in the Statute or Rules but is considered to have been a valid use of inherent powers. However, the Court’s ambiguity on the issue is perhaps regrettable. Indeed, it appears that until June 2024, the intervening states were left in limbo as to their status.
Additionally, the Court’s introduction of “adjusted declarations” is curious. When preliminary objections are partially upheld (recent examples: Immunities and Criminal Proceedings; Alleged Violations of Sovereign Rights) the applicant does not get another bite at the apple. Its memorial remains the same and proceedings continue as if aspects of the memorial falling outside the Court’s jurisdiction or inadmissible are excised therefrom. Adopting a similar approach towards declarations of intervention would lead to the conclusion that there should not be a possibility of adjustment. Indeed, an excision approach was recently adopted by the Court regarding the declarations of intervention in The Gambia v. Myanmar. Noting that the declarations of intervention addressed certain issues falling outside the confines of Article 63 of the Statute, the Court simply stated that it would “not consider such issues and expect[ed] the intervenors to refrain from addressing them any further”. Conversely, to the extent that the declarations of intervention solely addressed questions of jurisdiction, it is not obvious why a state should be permitted to submit a new declaration of intervention concerning the merits. In such circumstances, if anything, such a declaration of intervention is similar to observations on preliminary objections (see Article 79bis(3) of the Rules) which have little bearing on the merits.
It does, however, bear recalling that the Court and the intervenors were in uncharted territory. It was the first instance of mass intervention and the first in which declarations of intervention were ruled admissible prior to a judgment on preliminary objections. More generally, until Ukraine v. Russia, Article 63 had been invoked on very few occasions. Perhaps the Court was signalling to the intervenors to focus their declarations in light of the Court’s developing jurisprudence on the subject? Putting such explanations aside, the possibility of adjusted interventions does not seem conducive to streamlining the process of intervention overall.
32 Becomes 23?
The Registrar requested that the previously intervening states submit adjusted or new declarations of intervention, or otherwise inform that they were maintaining their prior declaration, by 2 August 2024. Not-so-coincidentally, 2 August 2024 was the deadline for Russia to submit its counter-memorial. This conforms to the Court’s recent amendments to Article 82 of its Rules, which require submitting a declaration of intervention under Article 63 of the Statute “no later than the date fixed for the filing of the Counter Memorial”. Previously, third states had until “the date fixed for the opening of the oral proceedings” to submit their declarations of intervention. Nine states which previously intervened had not indicated their desire to continue their participation by that date: Belgium, Croatia, Cyprus, Greece, Ireland, Liechtenstein, Malta, Norway and Slovakia.
Interestingly, on 30 July 2024, the President of the Court extended the deadline for the submission of Russia’s counter-memorial to 16 September 2024. Could these remaining nine – or even other states, such as the United States, whose initial declaration of intervention was declared “inadmissible in so far as it concerns the preliminary objections stage of the proceedings” – thus still decide to intervene based on the new deadline for Russia’s submission? As one of us has argued on this blog, it appears the purpose of the relevant amendment was to address the potential for disruption of the Court’s already tight schedule. Prolonging the time available to submit adjusted or new declarations of intervention would seemingly run counter to that. Accordingly, beyond minimal digressions from submission deadlines, for which the Court is often tolerant, it seems unlikely the Court will accept an adjusted or new declaration by these or other states.
However, it remains to be seen if any of the mentioned nine states would still be interested in intervening. In the meantime, the outside observer can only speculate on the reasons for their absence. One option could be that the state has nothing further to say on the merits, or that their goal of offering political support has already been achieved. A change in government in Slovakia, bringing a more dovish stance towards Russia, would seem a safe bet for that state’s omission.
Substance of the Adjusted and New Declarations
The adjusted and new declarations reveal several things. First, all intervening states again come out in support of Ukraine. Second, intervening states overwhelmingly focus on Articles I and II of the Convention. Yet, while Ukraine will not have this opportunity during the merits phase, many of the intervening states could not resist taking another bite from the fruit of due diligence. Indeed, quite a number of declarations continue to elaborate on the meaning of the obligation to prevent genocide, emphasising the due diligence standard. Lithuania, for example, contends in its adjusted declaration that “the obligation to act with due diligence to prevent genocidal acts from occurring entails a due diligence obligation to collect such credible evidence before taking any further action in fulfilment of Article I. Article I is manifestly breached when a Contracting Party fails to do so” (11). Or Latvia finding that as a “result of Latvia’s construction of Article IX of the Genocide Convention is that where a State has accused another State of genocide such that a dispute has arisen, the Court will have jurisdiction over any claim by the latter State seeking a declaration that the former State’s accusations are without legal and factual foundation” (44).
However, considering the preliminary objections judgment, it is questionable that the Court will entertain this line of argument during the merits stage as it expressly rejected Ukraine’s argument. Nevertheless, the submissions are understandable when considered as legal arguments backed by political support; it also puts on record state interpretations of the Genocide Convention which may become relevant in future disputes.
Third, many interventions concern the burden of proof. Judge Tomka elaborated on this in his declaration in the preliminary objections judgment, stating that:
“I take no position at this time on the question of how the burden of proof should be allocated in the present case concerning the question whether Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donetsk and Luhansk oblasts. I would only point out that it would be useful for the Parties to address this fundamental question as the case proceeds to the merits.”
Many intervenors addressed this question, arguing that in cases where the applicant state seeks a declaration that it is not responsible for committing genocide, the burden of proof is on the respondent state to establish any such responsibility. For example, Denmark states that:
“it is for the State Party bringing a case against another State Party for a false allegation of genocide used as a basis to justify preventive action to provide prima facie evidence that its action did not fall under the definition of genocide as laid down in Article II. In turn, the respondent State asserting that its allegation was well-founded to justify its preventive action must provide conclusive evidence in support since this attempted justification involves charges of exceptional gravity. After adversarial scrutiny, it would then be for the Court to evaluate all the evidence produced by the two Parties so as to reach its own conclusions.” (23).
Fourth, Poland, New Zealand and Bulgaria explicitly elaborate on the binding character of provisional measures pending a final decision by the Court. They share their interpretation that “finding the violation of an order indicating provisional measures is independent of the conclusion that other international law obligations were violated” (Poland, 55) and that “a failure by a party to abide by any order for provisional measures is accordingly a breach of that party’s international obligations under Article IX of the Convention” (New Zealand, 30). Interestingly they also share with the Court that they understand the Court’s silence on the provisional measures in the preliminary objections to express that the provisional measures will be maintained until the Court’s final judgment in the merits phase.
Neither questions of burden of proof nor the binding character of provisional measures have anything to do with the construction of the Genocide Convention. As such, the Court may need to rearticulate its position from The Gambia v. Myanmar that it will not consider such issues.
Some Further Points of Note
There has also been a new twist in the case; in addition to its Article 63 declaration, Poland is also requesting permission to intervene under Article 62 explicitly invoking the erga omnes status of obligations under the Genocide Convention to establish its “legal interest” in the matter. This development is particularly noteworthy because it means we may soon see new jurisprudence on whether an erga omnes obligation provides a sufficient legal interest to justify intervention under Article 62 of the ICJ’s statute, which could again have an impact on that other case, South Africa v. Israel, where Nicaragua has invoked a similar legal interest. However, it is unclear if this will meet the Court’s standard, which demands a legal interest that requires protection – a different issue from standing to claim a breach of an erga omnes obligation.
We had previously noted an overlap in intervention declarations, even going as far as allowing for their grouping based on substance. What stands out in this new wave of intervention declarations is that the three new groups (no adjustments, adjustments, and new declarations) are completely different from the groupings of interventions in our paper. Moreover, the form chosen does not necessarily seem to reflect the substance of the intervention. Indeed, the vast majority in substance appear to be adjusted interventions and not new interventions declarations. Following the Court’s urgent request for states to consider the administration of justice, Austria, Czechia, Finland, and Slovenia submitted a new joint-declaration. While this is a commendable effort, it also means that the vast majority of states have decided not to do so and instead submitted individual new or adjusted declarations although many indicated they would be prepared to take a common approach with other intervening states for the next phases of the proceedings (Canada and the Netherlands had already submitted jointly prior). One may also speculate whether coordinating joint declarations would have been more straightforward for states were they given earlier notice regarding the fate of their intervenor status and their prior declarations.
Conclusion
In conclusion, the proceedings in Ukraine v. Russia once again show that it is crucial to draw lessons from past interventions, especially with this large number of intervenors, to improve future processes. This is particularly so considering that South Africa v. Israel and The Gambia v. Myanmar are also on the Court’s docket. One practical suggestion could be to streamline the intervention process by requiring states to submit a single, comprehensive document that addresses all points of interpretation they wish to raise. This approach is further supported by the Court’s stance in The Gambia v. Myanmar order, where it was clarified that intervenors are limited to interpretation, but not strictly to the points of interpretation that are in dispute between the parties. By consolidating all interpretative arguments into one submission, even at an early stage, the process would become more efficient, and would mirror the requirements imposed on applicants when submitting a memorial.
Interventions in Ukraine v Russia: Plus ça change?
Written by Juliette McIntyre, Kyra Wigard and Ori PomsonOn 6 August 2024, the International Court of Justice issued a press release relating to the pending Ukraine v. Russia case titled “Declarations of intervention under Article 63 of the Statute of the Court for the purposes of the merits stage of the proceedings”. The Court announced that, of the 32 states which had previously intervened in Ukraine v. Russia, six indicated to the Registrar that “they wish[ed] to maintain their declarations of intervention without adjustments”, a further eight states submitted “adjusted declarations of intervention”, and nine states submitted new declarations of intervention. These “adjusted” and new declarations of intervention have also been uploaded to the Court’s website.
We have previously discussed on this blog and more extensively elsewhere matters pertaining to the interventions in Ukraine v. Russia. However, these recent developments answer previously lingering questions while raising some others.
No Longer Interventions in Limbo?
On 2 February 2024, the ICJ delivered its judgment on preliminary objections. The Court partially upheld Russia’s preliminary objections, particularly regarding Ukraine’s submissions concerning Russia’s unlawful use of force. However, it allowed Ukraine’s submission that “there is no credible evidence that Ukraine is responsible for committing genocide in violation of the Genocide Convention in the Donetsk and Luhansk oblasts of Ukraine” to proceed to the merits.
One question which arose following the judgment was whether the states which previously intervened in the case maintained their intervenor status. While there is little indication that the proceedings regarding the admissibility of the interventions were initially intended to be confined to the preliminary objections stage, the operative paragraphs of the Court’s order only appear to directly decide on admissibility for the purposes of preliminary objections. Additionally, perhaps the biggest hint that they no longer maintained their intervenor status was that in its orders in the case following the judgment, the Court omitted the words “32 States Intervening” from the case name.
The recent developments all but confirm this. As the abovementioned press release indicated, in an email dated 18 June 2024 to the 32 intervening states (reproduced in full here), states which had previously sought to intervene at both the preliminary objections and merits stages were requested to inform the Registrar “whether they maintain their declaration”. Such states were also notified that “[i]f deemed necessary, they may adjust … their declarations of intervention in light of the Judgment of 2 February 2024”. Additionally, states which had previously only sought to intervene at the preliminary objections stage were requested to submit new declarations of intervention, should they wish to continue intervening. In any event, the 32 states were informed that Ukraine and Russia would have an opportunity to comment on the admissibility of the interventions; depending on any objections to admissibility a further round of written observations would follow, pursuant to Article 84(2) of the Rules; and ultimately the Court will decide on their admissibility.
There seems to be little to prevent the Court from bifurcating proceedings on admissibility of declarations of intervention. Indeed, the very bifurcation of proceedings between preliminary objections and merits stages was introduced by the Permanent Court of International Justice without basis in the Statute or Rules but is considered to have been a valid use of inherent powers. However, the Court’s ambiguity on the issue is perhaps regrettable. Indeed, it appears that until June 2024, the intervening states were left in limbo as to their status.
Additionally, the Court’s introduction of “adjusted declarations” is curious. When preliminary objections are partially upheld (recent examples: Immunities and Criminal Proceedings; Alleged Violations of Sovereign Rights) the applicant does not get another bite at the apple. Its memorial remains the same and proceedings continue as if aspects of the memorial falling outside the Court’s jurisdiction or inadmissible are excised therefrom. Adopting a similar approach towards declarations of intervention would lead to the conclusion that there should not be a possibility of adjustment. Indeed, an excision approach was recently adopted by the Court regarding the declarations of intervention in The Gambia v. Myanmar. Noting that the declarations of intervention addressed certain issues falling outside the confines of Article 63 of the Statute, the Court simply stated that it would “not consider such issues and expect[ed] the intervenors to refrain from addressing them any further”. Conversely, to the extent that the declarations of intervention solely addressed questions of jurisdiction, it is not obvious why a state should be permitted to submit a new declaration of intervention concerning the merits. In such circumstances, if anything, such a declaration of intervention is similar to observations on preliminary objections (see Article 79bis(3) of the Rules) which have little bearing on the merits.
It does, however, bear recalling that the Court and the intervenors were in uncharted territory. It was the first instance of mass intervention and the first in which declarations of intervention were ruled admissible prior to a judgment on preliminary objections. More generally, until Ukraine v. Russia, Article 63 had been invoked on very few occasions. Perhaps the Court was signalling to the intervenors to focus their declarations in light of the Court’s developing jurisprudence on the subject? Putting such explanations aside, the possibility of adjusted interventions does not seem conducive to streamlining the process of intervention overall.
32 Becomes 23?
The Registrar requested that the previously intervening states submit adjusted or new declarations of intervention, or otherwise inform that they were maintaining their prior declaration, by 2 August 2024. Not-so-coincidentally, 2 August 2024 was the deadline for Russia to submit its counter-memorial. This conforms to the Court’s recent amendments to Article 82 of its Rules, which require submitting a declaration of intervention under Article 63 of the Statute “no later than the date fixed for the filing of the Counter Memorial”. Previously, third states had until “the date fixed for the opening of the oral proceedings” to submit their declarations of intervention. Nine states which previously intervened had not indicated their desire to continue their participation by that date: Belgium, Croatia, Cyprus, Greece, Ireland, Liechtenstein, Malta, Norway and Slovakia.
Interestingly, on 30 July 2024, the President of the Court extended the deadline for the submission of Russia’s counter-memorial to 16 September 2024. Could these remaining nine – or even other states, such as the United States, whose initial declaration of intervention was declared “inadmissible in so far as it concerns the preliminary objections stage of the proceedings” – thus still decide to intervene based on the new deadline for Russia’s submission? As one of us has argued on this blog, it appears the purpose of the relevant amendment was to address the potential for disruption of the Court’s already tight schedule. Prolonging the time available to submit adjusted or new declarations of intervention would seemingly run counter to that. Accordingly, beyond minimal digressions from submission deadlines, for which the Court is often tolerant, it seems unlikely the Court will accept an adjusted or new declaration by these or other states.
However, it remains to be seen if any of the mentioned nine states would still be interested in intervening. In the meantime, the outside observer can only speculate on the reasons for their absence. One option could be that the state has nothing further to say on the merits, or that their goal of offering political support has already been achieved. A change in government in Slovakia, bringing a more dovish stance towards Russia, would seem a safe bet for that state’s omission.
Substance of the Adjusted and New Declarations
The adjusted and new declarations reveal several things. First, all intervening states again come out in support of Ukraine. Second, intervening states overwhelmingly focus on Articles I and II of the Convention. Yet, while Ukraine will not have this opportunity during the merits phase, many of the intervening states could not resist taking another bite from the fruit of due diligence. Indeed, quite a number of declarations continue to elaborate on the meaning of the obligation to prevent genocide, emphasising the due diligence standard. Lithuania, for example, contends in its adjusted declaration that “the obligation to act with due diligence to prevent genocidal acts from occurring entails a due diligence obligation to collect such credible evidence before taking any further action in fulfilment of Article I. Article I is manifestly breached when a Contracting Party fails to do so” (11). Or Latvia finding that as a “result of Latvia’s construction of Article IX of the Genocide Convention is that where a State has accused another State of genocide such that a dispute has arisen, the Court will have jurisdiction over any claim by the latter State seeking a declaration that the former State’s accusations are without legal and factual foundation” (44).
However, considering the preliminary objections judgment, it is questionable that the Court will entertain this line of argument during the merits stage as it expressly rejected Ukraine’s argument. Nevertheless, the submissions are understandable when considered as legal arguments backed by political support; it also puts on record state interpretations of the Genocide Convention which may become relevant in future disputes.
Third, many interventions concern the burden of proof. Judge Tomka elaborated on this in his declaration in the preliminary objections judgment, stating that:
Many intervenors addressed this question, arguing that in cases where the applicant state seeks a declaration that it is not responsible for committing genocide, the burden of proof is on the respondent state to establish any such responsibility. For example, Denmark states that:
Fourth, Poland, New Zealand and Bulgaria explicitly elaborate on the binding character of provisional measures pending a final decision by the Court. They share their interpretation that “finding the violation of an order indicating provisional measures is independent of the conclusion that other international law obligations were violated” (Poland, 55) and that “a failure by a party to abide by any order for provisional measures is accordingly a breach of that party’s international obligations under Article IX of the Convention” (New Zealand, 30). Interestingly they also share with the Court that they understand the Court’s silence on the provisional measures in the preliminary objections to express that the provisional measures will be maintained until the Court’s final judgment in the merits phase.
Neither questions of burden of proof nor the binding character of provisional measures have anything to do with the construction of the Genocide Convention. As such, the Court may need to rearticulate its position from The Gambia v. Myanmar that it will not consider such issues.
Some Further Points of Note
There has also been a new twist in the case; in addition to its Article 63 declaration, Poland is also requesting permission to intervene under Article 62 explicitly invoking the erga omnes status of obligations under the Genocide Convention to establish its “legal interest” in the matter. This development is particularly noteworthy because it means we may soon see new jurisprudence on whether an erga omnes obligation provides a sufficient legal interest to justify intervention under Article 62 of the ICJ’s statute, which could again have an impact on that other case, South Africa v. Israel, where Nicaragua has invoked a similar legal interest. However, it is unclear if this will meet the Court’s standard, which demands a legal interest that requires protection – a different issue from standing to claim a breach of an erga omnes obligation.
We had previously noted an overlap in intervention declarations, even going as far as allowing for their grouping based on substance. What stands out in this new wave of intervention declarations is that the three new groups (no adjustments, adjustments, and new declarations) are completely different from the groupings of interventions in our paper. Moreover, the form chosen does not necessarily seem to reflect the substance of the intervention. Indeed, the vast majority in substance appear to be adjusted interventions and not new interventions declarations. Following the Court’s urgent request for states to consider the administration of justice, Austria, Czechia, Finland, and Slovenia submitted a new joint-declaration. While this is a commendable effort, it also means that the vast majority of states have decided not to do so and instead submitted individual new or adjusted declarations although many indicated they would be prepared to take a common approach with other intervening states for the next phases of the proceedings (Canada and the Netherlands had already submitted jointly prior). One may also speculate whether coordinating joint declarations would have been more straightforward for states were they given earlier notice regarding the fate of their intervenor status and their prior declarations.
Conclusion
In conclusion, the proceedings in Ukraine v. Russia once again show that it is crucial to draw lessons from past interventions, especially with this large number of intervenors, to improve future processes. This is particularly so considering that South Africa v. Israel and The Gambia v. Myanmar are also on the Court’s docket. One practical suggestion could be to streamline the intervention process by requiring states to submit a single, comprehensive document that addresses all points of interpretation they wish to raise. This approach is further supported by the Court’s stance in The Gambia v. Myanmar order, where it was clarified that intervenors are limited to interpretation, but not strictly to the points of interpretation that are in dispute between the parties. By consolidating all interpretative arguments into one submission, even at an early stage, the process would become more efficient, and would mirror the requirements imposed on applicants when submitting a memorial.
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