State (Criminal) Responsibility for the Crime of Genocide: ICJ Cases

 

The Nuremberg IMT established a famous statement that: “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[1] This statement provides a legal basis for individual criminal responsibility for international crimes. However, it did not aim to exclude other subjects of the international law, States and organisations, to be held liable for international crimes, in particular, the crime of crimes, genocide.[2]

Article IX of the Genocide Convention 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.”

According to the text, it is unclear what the phrase “the responsibility of a State for genocide” refers to. It seems that the type of criminal responsibility is not expressly excluded from this Convention. However, by referring to the drafting history of this provision and debates of States, it clearly shows that contracting parties had intended to qualify the scope of responsibility of State to civil responsibility.[3]

Through interpretations of article IX in connection with articles I and III of the Genocide Convention, the ICJ seems to open a door for State responsibility for its act of genocide. In the Application of Genocide Convention Preliminary Objections case, the ICJ was asked to decide whether Yugoslavia was responsible for the massacre committed in Bosnian-Herzegovina by its armies under the Genocide Convention. In 1996, the ICJ concluded that article IX of the Genocide Convention “does not exclude any form of State responsibility”.[4] Without considering the application of Bosnia and Herzegovina[5] and the objection of Yugoslavia, it is difficult to identify what this statement means. In fact, the Yugoslavia claimed that “the responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention”.[6]  The ICJ rejected this argument and held that a State would also be responsible for the crime of genocide under the Genocide Convention. However, it still did not expressly say that responsibility is a criminal nature.

In 2007, this jurisdictional view was endorsed by the ICJ in the Application of Genocide Convention case, and the ICJ further provided a detailed analysis.[7] Taking the purpose of the Genocide Convention into consideration, the majority of the ICJ held that it is implied in articles I and III that State parties are under an obligation not to commit or through one acts listed in article III to commit genocide.[8] Secondly, it added, “international responsibility of a State — even though quite different in nature from criminal responsibility — can be engaged through one of the acts, other than genocide itself, enumerated in Article III.” Thirdly, it referred to the phrase “including those [disputes] relating to the responsibility of a State for genocide or any of the other acts enumerated in article III” to confirm the first conclusion. It concluded that State responsibility “for genocide” in article IX is not limited to “failing to prevent and punish” genocide, but also include committing genocide itself as listed in article III. Hence, the scope of state responsibility under the Genocide Convention was broadened by the ICJ.

This reasoning further indicates that the there are two stages of assessing State responsibility for its genocide. First, a State has an obligation not to commit genocide under the Genocide Convention. Second, if a State breached such an obligation by committing genocide, it should be responsible for its violations. The next two paragraphs will examine how the ICJ identified a violation of such an obligation and what the nature of this State responsibility is.

In Application of Genocide Convention case, the ICJ found that Serbia has not committed genocide for the lack of evidence to establish dolus specialis (a specific intent).[9] In the Croatia v. Serbia case, the ICJ  concluded that no genocide was committed by Serbia for a similar reason.[10] In Logical, both findings seem to be based on a presumption that a State can commit international crimes. However, there was no explanation on it. Instead, the ICJ concluded state parties “are bound by the obligation under the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article III”.[11] It first tried to identify whether a crime of genocide is committed by organs or groups; second, whether the crime of these groups should be attributed to a State.[12] This two-step approach indicates that the ICJ did not construe that the crime of genocide was directly committed by a State, but by groups or organs attributable to a State. Therefore, it indeed set aside or avoided controversial debates about the nature of State acts and mens rea of a State.

With regard to the nature of responsibility, it is unclear what it is if genocide was considered to be committed and attributable to a State. Since a State is generally held responsible for its wrongful acts, the argument of the duality of responsibility, i.e., individual responsibility and state responsibility does not help to answer the theoretical question whether criminal responsibility may be attached to a State for international crimes. If a State committed a crime of genocide, logically, its responsibility might be criminal responsibility. However, the ICJ and the parties to the Application of Genocide Convention case actually denied this viewpoint. The ICJ clearly stated that the responsibilities for breach of the obligation not to commit genocide are not a criminal nature.[13] In addition, the applicant and the respondent, in this case, both claimed that international law does not recognise the criminal responsibility of States.[14]

To sum up, the ICJ opens the Pandora’s Box of State responsibility for committing genocide, while it did not claim the criminal nature of that responsibility. It is creative for the ICJ to impose responsibilities on States for committing genocide, regardless of the nature of that responsibility. However, it should be noted that the ICJ has tried to justify its reasoning by establishing a crime of genocide committed by organs, persons or groups, despite that it was only mandated to deal with State responsibility. Considering different evidentiary standards, new challenges arise concerning the dialogue between the ICJ and other international criminal tribunals.

[1] International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunals: Nuremberg, 14 November 1945-1 October 1946 (Nuremberg: The International Criminal Tribunal 1947) vol 1, p.223.

[2]  Prosecutor v Furundžija, Judgement, Case No. IT-95-17/1-T(Trial Chamber), 10 December 1998, para.142.

[3]  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para.169, 175-177.

[4]  Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I. C. J. Reports 1996, p. 595, para. 32, by vote 13 to 2.

[5]  Application of Genocide Convention Preliminary Objections, Judgment, I. C. J. Reports 1996, p. 595, p.603.

[6] Application of Genocide Convention Preliminary Objections, Judgment, I. C. J. Reports 1996, p. 595, para. 32.

[7] Application of Genocide Convention, Judgment, I.C.J. Reports 2007, p. 43.

[8] Application of Genocide Convention, Judgment, I.C.J. Reports 2007, paras. 166-67, 179.

[9]  Application of Genocide Convention, Judgment, I.C.J. Reports 2007, para. 328.354, 372, 376 (except in the case of Srebrenica; however the genocide in Srebrenica is not attributable to Serbia).

[10] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 2015, para. 441

[11] Application of Genocide Convention, Judgment, I.C.J. Reports 2007, para. 179.

[12]  Ibid,  para.390.

[13]  Ibid,para. 170.

[14]  Ibid, para. 170.

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