Judicial Impartiality, Abuse of Process and Article 63 Interventions: The ICJ’s Intervention Order in the Ukraine v. Russia case

Written by Juan Pablo Hernández Páez
The Treaty Examiner, vol. 3, issue 1
11 June 2023

All opinions expressed in this article are exclusively the author’s own and do not reflect the position of any organization.

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On 5 June 2023, the International Court of Justice (ICJ) issued an order ruling on the admissibility of the declarations of intervention filed by a historic number of States in support of Ukraine in the Allegations of Genocide case. As the reader may recall, this proceeding was initiated by Ukraine against the Russian Federation following the illegal act of aggression the latter initiated on 24 February 2022. As argued in the Application, Ukraine claims that the Russian Federation violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) by using an unsubstantiated allegation that genocide is occurring on Ukrainian territory as a pretext to launch a full-scale military invasion.

Following the filing of this application, the ICJ ordered provisional measures at the request of Ukraine, directing the Russian Federation to halt its “special military operation” on Ukrainian territory pending a decision of the Court. During the subsequent months, thirty-three States filed with the Court declarations of intervention on the basis of Article 63 of the ICJ Statute, based on their status as parties to the Genocide Convention, the interpretation of which is at the heart of the dispute. The present Order deals with the admissibility of these declarations for the purposes of the preliminary objections stage.

In light of the Russian Federation’s objections to these States’ intervention declarations, the Order on their admissibility has raised a number of legal issues that are worth examining. That is the purpose of this article.

Impartiality of ICJ Judges

One issue that permeates the Court’s analysis in the intervention order is the impartiality of its judges in dealing with the legal issues under consideration. This question comes at the forefront due to the incredible number of States that requested leave to intervene in the case, and became evident when the Court was faced with the issue of which Judge would preside the proceeding regarding the admissibility of the interventions. At paragraph 24 of the Order, it was revealed that the President of the ICJ, Judge Donoghue, decided not to exercise her functions as president in these proceedings as her State of nationality, the United States of America, was one of the countries seeking permission to intervene. This possibility was foreseen in Article 13(1) of the Rules of Court. Likewise, by virtue of Article 32(1) of the Rules, the Vice-President, Judge Gevorgian, was unable to exercise the functions of the presidency in the admissibility proceedings by virtue of the fact that he is a national of the respondent State, the Russian Federation. The next two Judges in order of seniority, Tomka and Abraham, also declined to assume the presidency because they are nationals of Germany and France, respectively, both being States seeking to intervene in the case. Thus, it was reported that Judge Bennouna, who is the next in seniority within the bench, would assume the functions of the presidency. As a national of Morocco, Judge Bennouna was cleared to exercise this role without appearance of bias.

The Statute of the Court and its Rules are clear that Judges are to act with impartiality and independence in discharging their duties. Thus, when faced with even the possibility of an appearance of bias, the aforementioned Judges declined to preside the Court for the purposes of these proceedings. Nonetheless, these Judges continued to sit and vote, and the question of impartiality was limited to their ability to discharge the functions of the Presidency and only for the purposes of the admissibility of the interventions. Indeed, this is shown by the fact that, during the provisional measures Order, this issue did not arise; President Donoghue acted as such, and so did Vice-President Gevorgian.

This fact was not overlooked by the Respondent. Indeed, the Russian Federation raised the argument (para 47) that seven out of the sixteen Judges in the Bench, including the ICJ President, were nationals of States that sought to intervene in the Allegations of Genocide case. This, in the Respondent’s view, would impair the equality of the Parties and the Court’s ability to administer justice fairly. Although this objection was phrased in terms of the Parties’ equality of treatment and arms in the proceedings, in light of the fact that all intervening States took Ukraine’s side, there is an undeniable impartiality element that needed to be addressed. In response, the ICJ stated as follows (para 51):

The Court observes that the fact that some judges on the Bench are nationals of States seeking to intervene cannot affect the equality of the Parties because intervening States do not become parties to the proceedings. In any event, all judges are bound by their duty of impartiality.

Thus, the Court rejected the Russian Federation’s objection (para 53).

Well, does the Russian Federation’s concern actually hold water? The answer is that, if one addresses it from the perspective of impartiality and disqualification, it does not. Article 31(1) of the ICJ Statute clarifies that the fact that a Judge has the nationality of one of the Parties is not enough to disqualify him or her. A fortiori, having the nationality of an intervening State, who does not become a party, is less of a reason for dismissal. Indeed, the question of nationality before the ICJ operates in the reverse way: this is why the ad hoc Judge mechanism exists in the first place.

Admittedly, this may not fully address the concerns of a State in the Respondent’s position. It is true that ICJ Judges are bound to exercise their powers impartially and conscientiously (Article 20 of the Statute) and that, if for a “special reason” they should not sit in a case, they shall inform the Presidency (or the President may herself give notice accordingly, Article 24(1), (2) of the Statute). However, it is clear that this course of action must not be taken in every case, as the ordinary meaning of the word “special” indicates. Since the ICJ is tasked with dealing with disputes that always involve States in all poles, the nationality of the Judges is not enough to show that a “special reason” exists. And there exists the more general concern that interpreting standards of impartiality too broadly could affect the independence of the Judges.

It is worth reviewing the Court’s practice in this regard. Here it is useful to distinguish between the general structural measures that exist in the Statute of the ICJ to prevent partiality in the Judges, from actual recusal at party request. In the first instance, as described by Gleider Hernández (2012, p. 205), there is a practice of “conscientious self-disqualification”, which mandates that the Judges should disqualify themselves, or the President may do it herself, in accordance with Article 24 of the Statute, when a conflict of interest arises. This has happened a number of times, for instance, in Barcelona Traction (by an unnamed judge), Frontier Dispute (Burkina Faso/Mali) (by a Judge that had previously presided a conciliation commission in the same dispute), Temple of Preah Vihear (where Judge Jessup recused himself because he had previously acted as counsel in the same case), Nottebohm (by Judge Lauterpacht for the same reasons), Aerial Incident at Lockerbie (Libya v. United Kingdom) (by Judge Higgins), and Djibouti v. France (by Judge Abraham, referred to as “the Member of the Court of French nationality”). There have also been instances where Judges have been recused by their peers, such as in South West Africa, where President Spender gave notice that Judge Khan had been dismissed at the oral stage.

In the second instance, which concerns recusal at party request, the practice is more sporadic. In the context of the Nicaragua case, the United States of America questioned the impartiality of some Judges, claiming inter alia that it “[would] not risk US national security by presenting … material … before a Court that includes two judges from Warsaw Pact nations…”. A famous response came from Judge Lachs in his separate opinion, who dismissed the idea that nationality should be the dividing line between Judges who are mandated to come from a diversity of jurisdictions, schools of legal thought and philosophies. Judge Lachs emphasized that “while [Judges] may have served their countries in various capacities, they have had to cut the ties on becoming a Judge.” He also pointed out that this was not the first time that security risks had been invoked before the ICJ. In Corfu Channel, the United Kingdom refused to produce documents alleging naval secrecy, and the ICJ could not “draw from th[is] refusal … any conclusions differing from those to which the actual events gave rise”.

Moreover, in the Construction of a Wall advisory proceedings, Israel objected to Judge Elaraby’s participation, on the ground that he had previously acted as legal adviser to the Ministry of Foreign Affairs of Egypt and to the Egyptian Delegation at Camp David in 1978; that he had spoken at the 10th Emergency Special Session of the General Assembly, from which the request for an advisory opinion had emerged; and that he had been interviewed in 2001 on his views regarding Israel. In support of its request for recusal, Israel invoked Article 34(2) of the Rules of Court, which provides that a Party may bring to the attention of the President, through a confidential written submission, any fact which it considers relevant to the application of the Statute’s provisions on judicial impartiality.

In its Order dated 30 January 2004 on the Composition of the Court, the ICJ rejected Israel’s request on its merits. The Court referred to its assertion in the Namibia advisory proceedings that “statements made or other participation of the Members concerns, in their former capacity as representatives of their Governments, in United Nations organs which were dealing with matters concerning” the issue in question did not “attract the application of” the statutory provisions on judicial impartiality (para. 9). The ICJ then pointed out that many of Judge Elaraby’s activities had been performed while in his capacity as diplomatic representative of Egypt, many years before the question presented to the Court had even arisen; that his participation in the 10th Emergency Special Session of the General Assembly had occurred before the submission of an advisory opinion request was discussed in that Session; and that in the 2001 interview, Judge Elaraby had not expressed any opinion on the substance of the question presented to the Court. Thus, Article 17(2) of the Statute did not apply, and the ICJ did not dismiss Judge Elaraby.

It is worth noting that Judge Buergenthal dissented from this decision. He accused the majority of giving Article 17(2) of the Statute “the most formalistic and narrow construction … imaginable, and one that is unwarranted on the facts of this case”. He admitted that Judge Elaraby’s statements as a Government official were not relevant to the issue, since he was not expressing his own views, but those of his Government. However, Judge Buergenthal took issue with the 2001 interview, in which Judge Elaraby did speak about the Israeli-Palestinian conflict, albeit not about the specific issue at stake in the advisory proceedings, which was “the legal consequences arising from the construction of the wall being built by Israel” (para 13):

It is technically true, of course, that Judge Elaraby did not express an opinion on the specific question that has been submitted to the Court by the General Assembly of the United Nations. But it is equally true that this question cannot be examined by the Court without taking account of the context of the Israeli/Palestinian conflict and the arguments that will have to be advanced by the interested parties in examining the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”. Many of these arguments will turn on the factual validity and credibility of assertions bearing directly on the specific question referred to the Court in this advisory opinion request. And when it comes to the validity and credibility of these arguments, what Judge Elaraby has to say in the … interview … creates an appearance of bias that in my opinion requires the Court to preclude Judge Elaraby’s participation in these proceedings.

The aforementioned precedents show that the bar to disqualify a Judge in the ICJ at a party’s request is high, and even a claim of bias based on nationality is not enough. Another element is relevant for the notion of bias in the Allegations of Genocide case: according to Article 25(2) and (3) of the ICJ Statute, the number of Judges sitting in a case must not be reduced below eleven in the case of circumstantial dispensations and rotation, and that a quorum of nine Judges is the minimum for constituting the Court. By mere happenstance, if the Judges alluded to by Russia were to be dismissed, the composition of the ICJ would be left with exactly nine Judges to hear the case, thus still not infringing Article 25 of the Statute. Yet, to allow for the disqualification of so many Judges in a given case would set a horrendous precedent that could severely impair the functioning of the Court, especially when based on a claim of bias that, in light of the statutory law, is shaky at best.

At the same time, and giving credit where it is due, it is worth noting that the Russian Federation did not request the removal of the Judges that are nationals of the declarant States. Rather, Russia’s argument was framed in terms of equality of treatment and fair administration of justice. The argument goes that the admission of the intervention requests would put the Russian Federation at a procedural disadvantage vis-a-vis Ukraine, and should therefore lead to the dismissal of the thirty-three declarations of intervention. The Court dismissed this argument pointing out that its power to rule on the manner in which procedure is to be conducted gives it enough flexibility to address any concern that the Respondent could have with respect to equality of treatment. After ruling that the fact that some judges on the Bench were nationals of intervening States was not enough to harm the equality between the Parties, it said that (para 52):

the Court has taken note of the concerns of the Russian Federation. It is incumbent on the Court to organize the proceedings in a manner which ensures the equality of the parties and the good administration of justice. Should any declarations of intervention be found admissible at the present stage, the Court will ensure that each Party will have a fair opportunity and the necessary time to respond to the observations of the intervening States.

This seems to be a sensible way of resolving the issue. Going to the heart of Russia’s concern, the fact that some judges are nationals of intervening States does not mean that those judges are suddenly deprived of their own capacity for independent judgment and discernment. Judges are presumed to act with impartiality and independence, and the highest moral character, and the burden to rebut this presumption should be heavy. Thus, a nexus of nationality should fall short of the proof required to establish an issue of equality between the parties.

The dilemma raised through this argument by Russia is that, so long as these Judges sit, the States seeking intervention cannot be admitted without affecting party equality. This argument has some glaring shortcomings.

First, there is no indication that this is a valid ground for rejecting requests for intervention.

Second, even if that were so, then it should only lead to the exclusion of the States that have their nationals sitting on the ICJ’s bench, not all thirty-three declarant States. And if the presence of these Judges is to be considered alongside the other facts (e.g., the number of intervening States, or their apparent alignment with Ukraine), then the Russian argument falls apart, because there would be no criterion for the Court to fairly determine which interventions come in and which do not.

Third, this argument presupposes that there is a dilemma that would require the Court to choose between judicial recusal and rejection of interventions. However, such a dilemma does not exist. Leaving aside the points already made about the independence and impartiality of Judges, the Court has the power to put in place the procedures necessary to ensure that the inequality perceived by Russia does not affect the parties’ respective ability to present their cases. If Russia has to respond to thirty-four written submissions (even if only one contains actual claims and the rest concern only the interpretation of the Genocide Convention), the Court can take this into account when fixing time limits. The Court can also set requirements for the submission of arguments by intervening States, so as to not overly prejudice the Respondent. It has already done so in part by setting a short period of time for the presentation of observations by the intervening States (5 July 2023, i.e., one month).

Fourth, to assume the accuracy of this argument would have severe consequences for the Court’s judicial functions. As was rightly pointed out by the ICJ, it cannot deprive all States of the right to intervene under Article 63 simply because they hold opinions which are contrary to the Respondent’s position (para 50). This would essentially nullify Article 63, especially considering its limited scope. Thus, the Court’s conclusion seems justified in light of the facts and the applicable law.

Abuse of process before the ICJ: intervening or applicant States?

Another argument made by Russia during these intervention proceedings attempted to challenge the reasons behind the decision of the thirty-three declarant States to request leave to intervene. According to the Russian Federation (paras 42, 54), these declarations of intervention were politically motivated and not genuine. Their intention, according to Russia, was not to weigh in on the interpretation of the Genocide Convention, as required by Article 63 of the ICJ Statute, but to become de facto co-applicants against Russia, thereby not only affecting equality between the parties (para 47), but also utilizing Article 63 for purposes which were foreign to that provision (para 42). Thus, Russia alleged that these interventions constituted an abuse of process that made them inadmissible (para 54).

Since this cross-cutting argument was presented in a number of ways during the intervention proceedings, the Court examined it from different perspectives.

First, going to the merits of the Russian Federation’s argument, the ICJ noted that the intentions behind the decision to request intervention were irrelevant. Following its precedents in the Haya de la Torre and Whaling in the Antarctic cases, the ICJ concluded that its task when deciding on the admissibility of an intervention is to determine whether the declaration relates to the construction of a multilateral convention which is at the heart of the dispute, in line with Article 63 of the Statute. That is the extent of its analysis when determining whether the intervention is “genuine” (para 44). It noted that while many declarant States appeared to propose constructions of the Genocide Convention which were “close to the views of Ukraine”, this did not constitute a reason to render the interventions inadmissible (para 46).

Second, as to the other prong of the argument, the Court pointed out that abuse of process could only lead to the rejection of a procedural action if the State “has misused that procedure” to an extent that justifies denying a claim based on a valid title of jurisdiction (para 56). In other words, this applies only in exceptional circumstances (para 57). Since the Court is not called upon to examine the motivations of the intervening States, it follows that this case does not trigger the abuse of process defense (paras 58-60).

The Court’s decision on both issues seems to be warranted. Indeed, Article 63(2) of the Statute does not ask the Court to rule on the motivation behind the declaration of intervention. It says that “every” State notified under Article 63(1) “has the right to intervene in the proceedings”. Article 82 of the Rules of Court further specifies that the intervening State must identify the relevant provisions of the multilateral convention and give a statement as to its understanding regarding its construction. To that extent, there is no space for the ICJ to probe into the intentions of the intervening State when deciding on admissibility, so long as that State is complying with these requirements.

At the same time, the Court’s decision leaves open the question of whether an intervention request under Article 63 could ever be the object of an abuse of process defense. Yes, the Court did recognize expressly that the argument of abuse of process applied to intervention proceedings (para 57). However, if the standard under Article 63 of the Statute does not allow the Court to probe into intentions, then how can a State prove that the intervening State has abused the process of intervention? It follows that the application of this rule can only rely on objective manifestations by a State that evidence an attempt to misuse the intervention process. Perhaps one answer lies in Article 82(3) of the Rules of Court. This provision states that a declaration of intervention may also be filed by a “State that considers itself a party to the convention the consruction of which is in question”, but which was not notified in accordance with Article 63(1) of the Statute. Indeed, according to Article 82(2) of the Rules, that State is only required to identify the “particulars of the basis on which [it] considers itself a party to the convention”. Notably, these provisions do not require the State seeking intervention to actually be a party to the relevant convention, but only to consider itself to be one. Conceivably, a State could invoke an invalid basis to claim party status (for instance, on the basis of an opportunistic and ultimately incorrect argument of estoppel) and thus enter into the proceedings for political reasons. The circumstances in which this could plausibly occur are narrow, but not vanishingly so.

Notwithstanding the foregoing, I do not fully agree with the Court that intentions are irrelevant for abuse of process. I would even argue that, when confidently established, these intentions could be a valuable element of analysis when determining whether abuse of process has occurred. Indeed, Article 63 and its corresponding Rules provision do not call upon the Court to rule on intentions. However, the Court itself has clarified, in this very Order (para 57), that its consideration of abuse of process does not turn on whether there is a valid procedural basis, but exists in addition to it: the Court said that the question is whether it should “reject a claim based on a valid title of jurisdiction”. Thus, saying that abuse of process can only exist when the procedural requirements are not met, is not only a non-answer, but also risks the possibility of circular reasoning. In my opinion, the intentions behind a certain action may be relevant in determining whether the intervention request is abusive.

That being said, I agree with the Court’s ultimate conclusion that there is no abuse of process in this case, for two reasons. First, there is no evidence that the intentions of the intervening States are to bring additional claims against the Russian Federation, beyond those already made by Ukraine. Even if that were the case, the Court has already said that it would dismiss any argument that exceeds the limited scope of an Article 63 intervention (para 84):

The Court is of the view that the declarations of intervention at issue generally concern the construction of the provisions of the Genocide Convention. However, to the extent that some declarations also address other matters, such as the existence of a dispute between the Parties, the evidence, the facts or the application of the Convention in the present case, the Court will not consider them. Further, while some of the declarations also refer to other rules and principles of international law outside the Genocide Convention, such references will only be considered by the Court in so far as they concern the construction of the Convention’s provisions, in accordance with the customary rule of interpretation reflected in Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties.

Second, the intentions of the States intervening in this case may only strengthen the validity of their intervention. If it were to be established that the thirty-three declarant States’ intention was to ensure that a similar act of aggression does not occur again on the basis of the Genocide Convention, by proposing constructions of the Convention to that effect, then politically motivated or not, this intention would only show that they have a genuine juridical interest in the interpretation of the Genocide Convention that may be affected by the decision (see infra). In short, no State wants the Genocide Convention to become a back-door exception to the prohibition on the use of force, especially when its invocation is wholly pretextual. The fact that the provisional measures Order already started addressing this on a prima facie basis confirms this (para 59 of the PM Order):

At the present stage of the proceedings, it suffices to observe that the Court is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.

The law of treaties also confirms this, as subsequent practice and agreements is an authentic means of fine-tuning the interpretation of a multilateral convention, and the interpreter is also bound to construe it in accordance with any relevant rule of international law applicable in the relations between the parties, in line with Article 31(3) of the Vienna Convention on the Law of Treaties.

Legal Interests in Article 63 Interventions

The final issue I wish to address in reference to the Intervention Order is the treatment given by the Court to Article 63 interventions. As mentioned before, the scope of an intervention under that article is limited: it concerns only the construction of a multilateral convention which is the object of the dispute. This limited object has been considered by the Court to differentiate this kind of intervention from its counterpart under Article 62 of the Statute. Article 62 interventions are available only to States that have a legal interest that may be directly affected by the decision of the Court.

However, as I have argued before (Hernández Páez, La Corte Internacional de Justicia: Jurisprudencia y Práctica, Third Moon Publishing 2023, § 144), this dichotomy does not mean a contrario that under Article 63 of the Statute, States seeking intervention are not required to prove a legal interest that is endangered by the ICJ’s decision. Rather, this only suggests that the legal interest is presumed, and this was precisely what the Court said in the Intervention Order under analysis (para 27):

The object of the intervention under Article 63 of the Statute is limited to the construction of the convention concerned. In this context, the Court is not required to ascertain whether the State seeking to intervene has “an interest of a legal nature” which “may be affected by the decision [of the Court]” in the main proceedings, as it is obliged to do when it is seised of an application for permission to intervene under Article 62 of the Statute. The legal interest of the declarant State in the construction of the convention is presumed by virtue of its status as a party thereto.

The Allegations of Genocide case provides a new piece of the puzzle: this presumption of a legal interest can be rebutted. This was shown by the Russian Federation’s objection to the intervention of the United States of America. This objection was based on the fact that the United States has a reservation on Article IX of the Genocide Convention, which governs dispute settlement and particularly the submission of disputes to the ICJ (para 90). The United States argued that this reservation was irrelevant because it remains a party to the Genocide Convention and its compliance with that treaty, from a substantive standpoint, could be affected by the ICJ’s decision (para 91).

The ICJ agreed with both in different respects. Yes, the United States can intervene in the merits stage of the proceedings, by virtue of its party status under Article 63 of the Statute. However, the Court was analyzing, specifically, the right of States to intervene in the preliminary objections stage of the proceedings, and in this respect, the proceedings would turn on the interpretation of Article IX of the Genocide Convention (para 93). By virtue of its reservation, the United States is not bound by that provision and thus does not have the right to intervene in relation to that provision, because “[t]he reservation of the United States excludes the legal effect of that Article in relation to that State.” Therefore (para 95),

… the legal interest that the United States is presumed to have in the construction of the Genocide Convention, as a party to that instrument, does not exist in respect of Article IX.

As a consequence, in the Court’s opinion (para 96),

… the declaration of intervention of the United States, in so far as it concerns the construction of Article IX, does not fall within the scope of Article 63 of the Statute, which permits States parties to a convention to intervene in relation to the construction of any of its provisions in question before the Court, provided that they are bound by the provision in question.

The Court concluded that the United States intervention was inadmissible at the preliminary objections stage (paras 97, 98).

The foregoing analysis demonstrates that Article 63 of the Statute merely sets up a presumption juris tantum, which may be rebutted in an individual case if it is demonstrated that the intervening State does not actually have a juridical interest at stake. The United States reservation is but one example of this, since any decision of the Court in respect of Article IX of the Genocide Convention would be wholly irrelevant to the United States, as a State that has entered a reservation to that article.

Other examples could include disputes that concern provisions of a convention that do not confer rights or obligations in respect of States because of their individual circumstances. That could be the case of a landlocked State that seeks to intervene in respect of a provision regarding the rights of coastal States that, in the individual circumstances of the landlocked State, does not confer upon it any rights or interests, and does not seek to impose any obligations. This is admittedly a rather narrow circumstance, since a State could have a genuine legal interest in respect of provisions that technically do not apply to it. For instance, the landlocked State should be allowed to intervene in respect of provisions regarding the conservation and sustainable use of the oceans, and non-nuclear weapon States should be allowed to do the same in respect of the compliance by other countries with conventional disarmament obligations that accrue by virtue of their status as nuclear weapon States.