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] This note focuses on the ICJ cases to summarise and analyse whether a State is criminally responsible for committing genocide itself by virtue of the Genocide Convention.

The 1948 Genocide Convention

First, Genocide Convention does not contain a provision explicitly imposing an obligation on a State to refrain from committing genocide itself.  In addition to this, assuming such an obligation is implied in this Convention, this Convention does not clarify what is the nature of responsibility for violation of this obligation.

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 a plain reading of 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, the drafting history of this provision and debates of States show that contracting parties have intended to qualify the scope of responsibility of State to civil responsibility.[3] 

In addition, the attitude of the UK and the US were divergent during the negotiation. The UK managed to insert a provision considering the responsibility of State for committing genocide, which failed in other articles but partly succeeded in Article IX.  By contrast, the US openly objected to the idea of State responsibility for international crimes, even if it is of civil nature. It even opposed to the proposal of stipulating measures for failure to prevent the genocide, such as compensation.

Despite these debates and the text reading, the majority of the ICJ seems to open a door for State responsibility for its act of genocide by virtue of article IX the Convention. Through systematic interpretations of article IX in connection with articles I and III of the Genocide Convention,  the ICJ in several cases confirms that Genocide Convention sets out obligations on States for non-commission of an act of genocide.

1996 Application of Genocide Convention Preliminary Objections case

In the 1996 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. 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 committed by itself under the Genocide Convention. It remains silent on the question of whether that responsibility is a criminal nature.

2007 Application of Genocide Convention case

Later on, the view that the ICJ has jurisdiction over responsibility for an act of genocide committed by the State was endorsed by the ICJ. In the 2007 Application of Genocide Convention case,  the ICJ provided a detailed analysis.[7]

It argued that Article IX is only a jurisdictional provision, but Article I provides the substantive obligation of States. Taking the purpose of the Genocide Convention into consideration, the majority of the ICJ held that articles I and III imply that State parties are under an obligation not to commit or through one act listed in article III to commit genocide.[8]   The ICJ also 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” set out in Article IX to confirm this conclusion.  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.”

It concluded that State responsibility “for genocide” in Article IX is not limited to “failing to prevent and punish” genocide, but also includes “committing genocide itself” as listed in Article III. Accordingly, the ICJ upholds that the Genocide Convention provides States with the obligation of not committing genocide. In addition, Article IX of the Gencode Convention provides a judicial mechanism for the ICJ to exercise jurisdiction over disputes about the responsibility.

The ICJ’s reasoning indicates that 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 examine how the ICJ identified a violation of such an obligation and what the nature of this State responsibility is.

Identifying a violation of the obligation not to commit genocide by the ICJ

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 are based on a presumption that a State can commit international crimes. However, there was no explanation on it. Instead, the ICJ simply concluded that States 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 tries to identify whether a crime of genocide is committed by organs or groups; and then to answer the question of 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, through this approach, the ICJ set aside or avoided controversial debates about the nature of State acts and mens rea of a State for an internatioanl crime. Rather, it follows the traditional idea of State responsibility by attributing acts to the State.

The nature of State responsibility

It is unclear what it is the nature of responsibility 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. The ICJ and the parties to the Application of Genocide Convention case, however, 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 both claimed that international law does not recognise the criminal responsibility of States.[14]  Therefore, according to the ICJ, a State is responsible for committing the crime of genocide and it will be attributed to State (civil) responsibility, rather than criminal responsibility.

Conclusion

To sum up,  the scope of State obligation under article I of the Genocide Convention is broadened by the ICJ to include the obligation of non-commission of genocide by the State itself.  In addition, the ICJ opens the Pandora’s Box of State responsibility for committing genocide, whereas, it does not claim a criminal nature of that responsibility. The ICJ is creative to impose responsibilities on States for committing genocide, regardless of the nature of that responsibility. Nevertheless,  the ICJ has tried to justify its reasoning by establishing a crime of genocide committed by organs, persons or groups, despite that it is 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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