Symposium : Genocide, Human Rights and the ICJ

• Gattini, Andrea

Abstract

In its judgment of 26 February 2007 in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court by a majority of 12 to three found the respondent to be in breach only of its obligations under Article I of the Convention, namely the duties of prevention and punishment. Despite the traditional self-restraint professed by the Court, stressing its intention to ‘confine itself to determining the specific scope of the duty to prevent in the Genocide Convention, and to the extent that such a determination is necessary to the decision to be given on the dispute before it’, in the key passage of its judgment the Court stretched the interpretation of Article I to its maximum possible extent. On the one hand, it audaciously decided to disentangle the obligation to prevent in Article I of the Genocide Convention from any territorial link, substituting the traditional concept of ‘jurisdiction’ with the new and much more vague one of ‘capacity to effectively influence’. On the other hand, it endeavoured to flesh out its general scope. However, after having found Serbia in breach of her duties under Article I of the Genocide Convention, the Court, somehow contradictorily, denied any causal link between Serbia's conduct and the losses resulting from the Srebrenica massacres, and contented itself with a declaratory judgment as a form of satisfaction. The Court's reluctance to address the issue of concomitant causes can be partly explained by the uncertain state of practice and doctrine. Furthermore, Bosnia itself had not asked for monetary compensation for breaches of Article I. Even so, the Court could have shown more creativity and sensitivity with regard to the non-material damage suffered by the surviving heirs or successors of the Srebrenica victims.