On September 7, 2022 the United States filed a Declaration of Intervention to the International Court of Justice (ICJ) regarding acts of genocide allegedly committed by Ukraine in the Donetsk and Luhansk regions of Ukraine.
Background to the ICJ Proceedings
The Russian Federation invaded Ukraine on February 24, 2022. Two days later, Ukraine instituted proceedings before the ICJ against the Russian Federation regarding “a dispute . . . relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’ or ‘Convention’).” (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).)
The Russian Federation initially based its justification for its invasion of Ukraine, which it termed a “special military operation,” on its allegations that the state of Ukraine was committing acts of genocide in the Donetsk and Luhansk oblasts of Ukraine. The Ukrainian government, to the contrary, maintains that no acts of genocide occurred in these areas before the “special military operation,” and further contends that the Russian military is now committing “grave and widespread” human rights violations against the Ukrainian people. (Declaration of Intervention para. 5.)
Basis for US Intervention
At issue in the ICJ case is the interpretation of the Genocide Convention, to which the United States became a party in 1988. The Genocide Convention is under ICJ jurisdiction. The United States issued its declaration under authority granted to it by article 63 of the Statute of the International Court of Justice. Specifically, when the interpretation of a convention under ICJ jurisdiction is in question, parties to the convention may intervene to clarify their position on interpretation.
The United States’ Position
The United States’ intervention focuses on articles I, II, III, IV, VIII, and IX of the Genocide Convention — those relevant to the ongoing case brought by Ukraine. (Declaration para. 17.) The United States focuses on the obligation for parties to the convention to prevent acts of genocide as soon as they learn of a serious risk that genocide will be committed. (Declaration para. 22.) The United States further declares that its interpretation of genocide (as defined in the Genocide Convention and by previous ICJ cases) is consistent with its domestic legal definition of the crime of genocide under 18 U.S.C. §§ 1091–1093. (Declaration para. 24 & n.26.)
The United States also maintains that the Genocide Convention does not authorize a state party to “commit aggression” in another country to prevent or punish a crime of genocide. (Declaration para. 29.) Instead, disputes of this nature should be handled by the United Nations, as authorized under article VIII of the Genocide Convention. (Declaration para. 27.) The United States also notes that it is one of the only parties to have previously invoked article VIII of the Genocide Convention, regarding an investigation in the Darfur region of Sudan. (Declaration para. 10 & n.10.)This case is still ongoing in the ICJ, and many other countries entered their own Declarations of Intervention during the summer of 2022.