Limitations in attributing state responsibility under the Genocide Convention

ABSTRACT

Protection from genocide has been a common denominator in state rhetoric since 1948 when the Genocide Convention was adopted. However, state accountability for this archetypical crime of the state is virtually nonexistent. This article addresses a two-pronged puzzle: namely, (1) why, no government involved in the commission of genocide has to date been held responsible for it; and (2) how legal processes of the sole court that addresses states' disputes regarding genocide, the International Court of Justice, condition and even limit the quality of decisions taken by the court with particular reference to state liability for this crime. The analysis contributes to an emerging debate on the application of state responsibility with reference to the protection from genocide by highlighting existing shortcomings pertaining to the interpretation and implementation of the Genocide Convention that, in turn, warrants a holistic revision of this treaty.

Acknowledgments

The authors of this article express their gratitude to the editor of the Journal of Human Rights, Professor Shareen Hertel, and two anonymous reviewers for very thorough and constructive feedback on an earlier version of the article.

Notes

1. The field of genocide studies has grown exponentially since the Polish jurist, Raphael Lemkin (1944), introduced the term “genocide” in his book Axis Rule in Occupied Europe. Influential studies from a legal, political, and sociological perspective include Schabas (2009), Meierhenrich (2014), and Chalk and Jonassohn (1990).

2. It was because genocide is essentially committed by or with the connivance of the states/governments that Sir Hartley Shawcross opined that the crime of genocide should not be left to the jurisdiction of national courts since the latter are unlikely to take effective measures for the suppression of genocide. Refer to Sir Hartley Shawcross remarks in the Sixty-Fourth meeting in Paris, October 1, 1948 (United Nations 1948b).

3. See United Nations (1981: 30, art. 19(3)(c)).

4. See United Nations (1998a: para. 43).

5. The specific intent to destroy the group “as such” has been explained by the ICTY in Prosecutor v. Radovan Karadžić as follows:

551. The specific intent to destroy the group “as such” makes genocide an exceptionally grave crime and distinguishes it from other serious crimes, such as persecutions as a crime against humanity. The term “as such” has great significance as it shows that the crime of genocide requires intent to destroy a collection of people because of their particular group identity based on nationality, race, ethnicity, or religion. (ICTY, Prosecutor v. Radovan Karadžić 2016: 551)

6. This point has been reiterated by the ICTY in Prosecutor v. Radovan Karadžić:

549. The mens rea required for the crime of genocide — “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” … — has been referred to variously as, for instance, special intent, specific intent, dolus specialis, particular intent and genocidal intent. Genocide requires not only proof of intent to commit the alleged acts of genocide, but also proof of the specific intent to destroy the protected group, in whole or in part. (ICTY 2016: 549)

7. The ICTY, on this point, has held that

541. The group targeted for genocide thus cannot be defined in terms of a negative characteristic, such as “non-Serbs” for instance. (ICTY 2016: 541)

8. The criterion of establishing the group on a case-by-case basis has been reasserted by the ICTY in its recent decision of Prosecutor v. Radovan Karadžić:

541. The determination of the composition of the group is necessarily made on a case-by-case basis. When more than one group is targeted, the elements of the crime of genocide must be considered in relation to each group separately. (ICTY 2016: 541)

9. In its 2007 judgment in the Bosnia v. Serbia, the ICJ established the following:

209. The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive. The Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts. 210. In respect of the Applicant's claim that the Respondent has breached its undertakings to prevent genocide and to punish and extradite persons charged with genocide, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation. (ICJ 1949: 16–17)

This passage was quoted with approval in the ICJ Croatia v. Serbia 2015 judgment:

The Court, after recalling that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive (cf. Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17)”, added that it “requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts.” (I.C.J. Reports 2007 (I), p. 129, para. 209). (ICJ 2015: 178)

10. The three cases being the following: United Kingdom v. Albania (ICJ 1949); Bosnia v. Serbia (ICJ 2007); and Croatia v. Serbia (ICJ 2015).

11. Genocide is an international crime because it has been so declared by the international community of states in an international treaty. Those states that have adhered to this treaty are in turn bound to incorporate this international crime in their national law, enforce it and punish it accordingly.

12. The predominant response to addressing disorder caused by operations of violent nonstate actors (VNSAs) so far has been physical, military counterforce with the view of establishing order, and an official monopoly of force. Virtually absent are law-related responses despite the fact that most VNSAs commit offenses against all kinds of law, including those related to arms and the use of violence and provisions on human and civil rights. To date, the inability to target and “discipline” VNSAs by means of international or national law not only leads to further spirals of lawlessness in so far as activities of these actors are concerned but also may do deeper and longer-lasting damage than anything that the VNSAs may have inflicted directly. For a rare emphasis of this point, refer to Bailes and Nord (2010: 441–466).

Additional information

Notes on contributors

Kevin Aquilina

Kevin Aquilina is Professor of Law and Dean of the Faculty of Laws of the University of Malta. He obtained his PhD from the London School of Economics and Political Science in 1997. His research and teaching interests center on the Maltese Legal System, International Law, and Human Rights Law.

Klejda Mulaj

Klejda Mulaj is Senior Lecturer in the Department of Politics of the University of Exeter. She obtained her PhD from the London School of Economics and Political Science in 2004. Her research and teaching interests center on conflict, security, and peace studies.