On 14 January 2024, the Ministry of Foreign Affairs of Bangladesh issued a press statement in support of South Africa's application instituting proceedings against Israel before the International Court of Justice (ICJ) concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the 'Genocide Convention') in relation to Palestinians in the Gaza Strip. In the statement, Bangladesh welcomed "the opportunity to file a declaration of intervention in the proceedings in due course." This piece enunciates the relevant international law on Bangladesh's right of intervention in cases concerning the Genocide Convention.

Interventions by States in the ongoing Genocide Convention cases before the ICJ (i.e., South Africa v Israel, Ukraine v Russian Federation and Gambia v Myanmar) are permitted under Article 63 of the Statute of the ICJ (the "ICJ Statute"), which states that:

1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.

2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

The modalities of availing this right of intervention under Article 63 of the ICJ Statute are provided for in Article 82 of the Rules of the Court, which states that:

1. A State which desires to avail itself of the right of intervention conferred upon it by Article 63 of the Statute shall file a declaration to that effect, signed in the manner provided for in Article 38, paragraph 3, of these Rules. Such a declaration shall be filed as soon as possible, and not later than the date fixed for the opening of the oral proceedings. In exceptional circumstances a declaration submitted at a later stage may however be admitted.

2. The declaration shall state the name of an agent. It shall specify the case and the convention to which it relates and shall contain:

(a) particulars of the basis on which the declarant State considers itself a party to the convention;

(b) identification of the particular provisions of the convention the construction of which it considers to be in question;

(c) a statement of the construction of those provisions for which it contends;

(d) a list of the documents in support, which documents shall be attached.

3. Such a declaration may be filed by a State that considers itself a party to the convention the construction of which is in question but has not received the notification referred to in Article 63 of the Statute.

Since the Genocide Convention cases involve the 'construction' (i.e., the interpretation of one or more provisions) of the said convention, prima facie, any State that is a party to the Genocide Convention has the right to intervene.

The ICJ in its order on the "Admissibility of the Declarations of Intervention" of 5 June 2023 in the case of Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation: 32 States intervening) (the "5 June 2023 Order") held that, a State does not have the right to intervene under Article 63 of the ICJ Statute in respect of the construction of a provision of a convention if that State itself is not bound by that provision due to a reservation (para 96). 

Bangladesh during its accession to the Genocide Convention on 5 October 1998 made the following declaration: "Article IX:  For the submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice, the consent of all parties to the dispute will be required in each case."

It is evident that the above declaration has the effect of a reservation to Article IX of the Genocide Convention. In its 5 June 2023 Order, the ICJ, while assessing the United States' declaration of intervention, ruled on the effect of a similarly worded reservation entered by the United States to Article IX. The reservation stated that: "With reference to Article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case."

The Court, in its Provisional Measures Order of 2 June 1999 in the case of Legality of the Use of Force (Yugoslavia v United States of America), found that the United States' reservation to Article IX has the effect of excluding the said article from the provisions of the Genocide Convention in force for the United States. Therefore, the Court in its 5 June 2023 Order found that the United States cannot intervene in relation to the construction of Article IX since it is not bound by that provision. Consequently, the legal interest that the United States is presumed to have, under Article 63 of the ICJ Statute, in the construction of the Genocide Convention, as a party to it, does not exist in respect of Article IX (paras 95-96).

Since in the case of Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation: 32 States intervening), the United States sought to intervene during the preliminary objections stage of the proceedings, which concerned the construction of Article IX of the Genocide Convention vis-à-vis the jurisdiction ratione materiae of the ICJ, the Court concluded that the declaration of intervention of the United States is inadmissible in so far as it concerns that stage of the proceedings (paras 97-98).

Bangladesh's declaration of 5 October 1998 owing to its wording would purportedly have the same effect as the United States' reservation to Article IX. Therefore, it is very likely that Bangladesh will not be allowed to intervene during the preliminary objections stage of the proceedings in the Genocide Convention cases (provided the proceedings do concern the construction of Article IX). However, Bangladesh does seemingly have the right to intervene during the merits phase of the proceedings in these cases. Of course, Bangladesh could at any time withdraw its declaration of 5 October 1998, thus removing the above discussed barrier to intervention in all stage of the proceedings in the Genocide Convention cases.

Farhaan Ahmed is an international lawyer; and associate legal officer in the judiciary of the International Criminal Court, The Hague. The views expressed herein are those of the author alone and do not reflect the views of the International Criminal Court.

We welcome your contributions and analysis of global events. To submit articles to our weekly page, Geopolitical Insights, please send an email to ramisa@thedailystar.net

Follow The Daily Star Opinion on Facebook for the latest opinions, commentaries and analyses by experts and professionals. To contribute your article or letter to The Daily Star Opinion, see our guidelines for submission.