The Invalidity of Art. IX Reservations to the Genocide Convention

[Yonah Diamond is Senior Legal Counsel at the Raoul Wallenberg Centre for Human Rights]

In recent years, States have increasingly turned to the ICJ to consider claims under the Genocide Convention, particularly to intervene in outbreaks of mass violence, based on its Article IX compromissory clause, giving the Court jurisdiction over disputes under the Convention. The full provision reads as follows: 

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Of the 153 States parties to the Genocide Convention, there remain sixteen States with Article IX reservations on the books, in effect shielding a fringe group of States from any judicial scrutiny into their responsibility for suspected breaches of Genocide Convention. This article will outline the key developments in practice and law which render Article IX reservations invalid. 

Incompatibility of Article IX Reservations with the Convention’s Object and Purpose  

According to Article 19 of the Vienna Convention on the Law of Treaties, a reservation is prohibited when it is “incompatible with the object and purpose of the treaty.” The object and purpose of the Genocide Convention is most aptly captured by the title and article I: for State parties to prevent and punish the crime of genocide. The 1951 ICJ advisory opinion on reservations to the Genocide Convention characterizes the convention’s purpose as “purely humanitarian,” and defines its object as “to safeguard the very existence of certain human groups” (1951 Advisory Opinion p. 12). The Court also underscored the Convention’s unique status amongst treaties, where the parties “do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes.” (p. 12) As a result, the Court already rejected outright the view that a State can prioritize their narrow self-interest above the Convention’s purpose or make “any reservation it chooses by virtue of its sovereignty… [which] could lead to a complete disregard of the object and purpose of the Convention” (p. 13).

The ICJ is the world’s only institution endowed with authority to examine State compliance with the Genocide Convention, issue time-sensitive orders to safeguard protected groups, and render judgments against States for punishable acts under the Convention; in other words, entrusted with preventing and punishing State responsibility for genocide and related acts. The very process of compelling States to prove their compliance with the Convention in open proceedings on an international stage itself serves to prevent and mitigate the risk of genocide. Otherwise, a reserving State can simply avoid any scrutiny over its actions, allowing them to breach substantive obligations under the Convention with impunity. A reservation to Article IX forecloses the sole judicial mechanism with the power to tangibly prevent, mitigate, and punish genocide and, thus, undoubtedly undermines the Convention’s object and purpose. Simply put, without ICJ jurisdiction, the Genocide Convention has no teeth. 

DRC v. Rwanda Case

The only time the ICJ considered the validity of an Article IX reservation was in the DRC v. Rwanda case, in a determination on only one of eight jurisdictional grounds invoked by the DRC. The Court based this peripheral finding on a flawed distinction between a reservation to a procedural aspect versus “substantive obligations relating to acts of genocide themselves” (DRC v. Rwanda para. 67). Here, the Court evidently erred in assuming that substantive provisions are more germane to the object and purpose of a treaty than procedural provisions. In the context of the Genocide Convention, Article IX is the portal on which the practical implementation of all provisions of the Genocide Convention depend, clearly more central to its object and purpose than the espousal of obligations in the abstract. 

Furthermore, under customary international law, the prohibition of genocide is considered a jus cogens norm, binding on all States regardless of their accession to the Genocide Convention. Without the Genocide Convention, States are still legally bound by the substantive obligations to refrain from any of the punishable acts. The Genocide Convention itself must therefore introduce a purpose beyond the written formalization of preexisting universal State obligations, i.e. the tangible enforcement of the legal framework therein and its provisions.

At the time of the DRC v. Rwanda judgment, more than a third of the Court rejected or urged the reconsideration of the validity of Article IX reservations. In analogizing to similar conventions, the justices in the Joint Separate Opinion emphasized that procedural provisions “may well be central to the whole efficacy of those instruments” (para. 21). The justices then expressed disbelief that, in the early 21^st century, and a fortiori today, a State is still “in a position to shield from international judicial scrutiny any claim that might be made against it concerning genocide” (DRC v. Rwanda Joint Separate Opinion, para. 25).

Developments in Law and Practice

In the two decades since the 2006 DRC v. Rwanda judgment, there have been unprecedented developments in law and State practice related to implementation of the Genocide Convention, which ought to definitively settle the invalidity of Article IX reservations. The Court’s only genocide jurisprudence on questions of merit all follows the DRC judgment. In 2007 and 2015, the Court issued its first genocide judgments in Bosnia v. Serbia and Croatia v. Serbia. In the following years, four additional cases invoked Article IX to initiate proceedings under the Genocide Convention— Gambia v. Myanmar, Ukraine v. Russia, South Africa v. Israel, and Nicaragua v. Germany. During this period, the Court has indisputably emerged as the sole institution and arbiter of context-specific implementation of the Genocide Convention. In particular, the Court exponentially expanded the scope of Article IX, and its capacity to hear cases under the Genocide Convention, and cemented the Convention’s unique status as only governing the common interest of all States parties to prevent, suppress, and punish genocide. 

In the Provisional Measures Orders for the Gambia v. Myanmar and South Africa v. Israel, the Court affirmed the right of any State party to bring a case against another State for suspected breaches of the Genocide Convention to ensure compliance with that State’s erga omnes partes obligations, owed to all parties of the Convention (Gambia v. Myanmar Provisional Measures Order, paras. 41-42; Gambia v. Myanmar Preliminary Objections, paras. 111-112; South Africa v. Israel Provisional Measures Order 01/26/2024, para. 33). In allowing the case of Nicaragua v. Germany to proceed, where Nicaragua seeks Court intervention in suspending Germany’s military assistance to Israel, the Court further expanded its jurisdictional authority over claims by unaffected States against other secondary States under the Genocide Convention. 

While the full impact of ICJ oversight on preventing or mitigating allegations of genocide will continue to be researched for years to come, this increased activity and articulation of binding State obligations in specific situations by the world’s only inter-state court is undoubtedly essential to the realization of the Genocide Convention’s object and purpose. Even where the Court refuses to issue provisional measures, as in Nicaragua v. Germany, the case still compelled the German government to disclose and clarify internal arms licensing procedure and practice, promoting transparent compliance with obligations to prevent and avoid complicity in genocide. 

State Practice

The evolution in State practice also demonstrates an emerging consensus on the invalidity of Article IX reservations and the centrality of the ICJ to the object and purpose Genocide Convention. 

As noted, States are increasingly relying on the Court as the only recourse for Genocide Convention enforcement. The proliferation of Genocide Convention cases at the ICJ confirms its indispensable role in upholding the Convention, and further opened doors to unprecedented third-party State interventions. The new phenomenon of “mass intervention” in these cases demonstrates an increasing recognition of the Court’s unique role as the sole international mechanism charged with the application, interpretation, and fulfillment of the Convention. 

In terms of State orientation towards Article IX reservations, a number of influential States unequivocally objected to their validity from the start, including the UK, Brazil, Netherlands, Norway, Ecuador, Croatia, and Mexico, explicitly holding these reservations to be incompatible with the Convention’s object and purpose (see UN Treaty Collection on the Genocide Convention for Status of reservations and objections). Some of the objecting States do not even consider the reserving State a party to the Convention or their reservations applicable to them.

Moreover, States are increasingly withdrawing Article IX reservations, trending towards the elimination of Article IX reservations and diluting the already tenuous status of the negligible remaining reservations. In recent decades, 12 States have withdrawn their Article IX reservations. The reservation of two of the ostensibly remaining States, Serbia and Montenegro, are ambiguous in that they retain the same wording of the reservation lodged by their predecessor, the former Yugoslavia, requiring the “consent of the FRY [not Serbia or Montenegro].” The validity of this original 2001 FRY reservation, however, is itself dubious as it was made in an attempt to dismiss on jurisdictional grounds an active dispute against the FRY eight years into the Court’s first contentious Genocide Convention case. It is an open question if any of the remaining States with Article IX reservations would even seek to refuse ICJ jurisdiction in practice.

The centrality of the ICJ to implementation of the Genocide Convention, and the significant developments in law and practice cited herein, overwhelmingly point to a consensus around the invalidity of Article IX reservations, as clearly incompatible with the object and purpose of the Genocide Convention. 

No technicality should stand in the way of the universal and foundational international commitment to prevent and punish genocide.