Symposium : Genocide, Human Rights and the ICJ

• Gaeta, Paola

Abstract

In the Genocide case the ICJ placed a broad interpretation on the obligation to prevent genocide, enshrined in Article I of the Genocide Convention. For the Court, this obligation has an operative and non-preambular nature with respect to the other obligations laid down in the Convention. In addition, it would necessarily imply the obligation for states themselves not to commit genocide. This latter finding is not entirely convincing for it is not in keeping with the historical foundations of the Convention and in addition results from an interpretation that, instead of clarifying the meaning of a treaty rule, infers a new obligation from it. The paper suggests that under international law the criminal liability of individuals and state responsibility for genocide are not triggered by the violation of the same primary rule. The contrary view is not corroborated by state practice and international case law: while the crime of genocide can be committed regardless of the existence of a state genocidal policy, the state's international responsibility necessarily requires such a policy. Also, for the international responsibility of the state to arise there is no need to demonstrate that the state as such, or one or more of its officials, harboured a genocidal intent in the criminal sense. The Court's finding is based on the notion that the state's international responsibility for genocide presupposes that of an individual acting on behalf of the state. This approach is flawed: in criminal matters the presumption of innocence only allows criminal courts to satisfy themselves that a person committed a crime. The Court could have confined itself to interpreting the obligation to prevent and punish genocide set out in Article 1 as endowed with an autonomous content and concluding, as in fact it did, that Serbia had violated both of them. It did not need to embark upon a construction of the Convention substantially marred by a misapprehension of the difference between genocide as an international wrongful act of state and genocide as a crime involving individual criminal liability.