I. Introductionđ
The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was the first international human rights treaty adopted by the United Nations General Assembly.
Article I establishes genocide as a crime under international law, whether committed in time of peace or in time of war, and not only obliges States to not commit genocide, but also to prevent and punish it. Article II defines the crime of genocide as âany of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as suchâ:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group; and
- Forcibly transferring children of the group to another group.1
Under article III, the following acts are punishable:
- Committing genocide;
- Conspiracy to commit genocide;
- Direct and public incitement to commit genocide;
- Attempt to commit genocide;
- Complicity in genocide.
The obligations of the Genocide Convention are erga omnes (meaning that they apply to all States, whether or not they are a Party to the Convention),2 erga omnes partes (meaning that a State Party owes them to all other States Parties),3 and peremptory international norms (jus cogens) from which no derogation is permitted.4 The principles underlying the Convention are principles which are recognised by the international community as binding on all States, even without any conventional obligation.5
The International Court of Justice (ICJ) decides disputes between States Parties relating to the interpretation, application or fulfilment of the Genocide Convention.6 The erga omnes partes nature of the Genocide Conventionâs obligations allows any State Party to institute proceedings before the ICJ concerning another State Partyâs alleged responsibility for a breach of the Convention.7 To do so, the former State is not required to have been âspecially affectedâ by that breach; for example, it does not need to demonstrate that any of the alleged breachâs victims were its nationals.8 All States Parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide.9
However, the erga omnes character of its obligations does not affect the rule that States must consent to the ICJâs jurisdiction before it may decide disputes.10 The fact that rights and obligations erga omnes may be at issue in a dispute does not give the ICJ jurisdiction to consider that dispute.11 Similarly, the fact that a dispute relates to compliance with a jus cogens norm does not of itself provide a basis for the jurisdiction of the ICJ to consider that dispute.12
Further, despite the jus cogens nature of the prohibition of genocide and the erga omnes obligations which result from it, reservations to the Genocide Convention are not prohibited.13 Reservations to article IX, which concerns the jurisdiction of the ICJ, are acceptable as they do not affect substantive obligations and instead exclude a particular method of settling a dispute. Therefore, such reservations are not incompatible with the object and purpose of the Genocide Convention.14
The substantive obligations arising from articles I and III are not limited by territory. States must prevent and not commit acts of genocide wherever they are able to address such acts.15
I.1 Sexual Violence under the Genocide Conventionđ
The ICJ has recognised that sexual violence could constitute genocide if accompanied by a specific intent to destroy the protected group.16
To characterise a crime as genocide, the perpetrator must commit one of the acts listed in article II and have carried out that act with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. These two distinctive elements are referred to as actus reus (i.e., the criminal act itself) and mens rea (i.e., the intent behind the act).
Rape and other acts of sexual violence may constitute the actus reus of genocide when they cause serious bodily or mental harm to members of a protected group,17 and are genocide when committed with the required intent.18
In Bosnia and Herzegovina v Serbia and Montenegro, the ICJ quoted with approval:
- The Akayesu case from the International Criminal Tribunal for Rwanda, stating that rape and sexual violence constitute infliction of serious bodily and mental harm on the victims/survivors, and are one of the worst ways of inflicting harm on the victim/survivor as they suffer both bodily and mental harm;19 and
- The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), recognising that causing serious bodily and mental harm includes âacts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injuryâ.20
In the instant case, the protected group had been systematically subjected to massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during conflict and, in particular, in detention camps: this amounted to an actus reus of genocide, namely â[c]ausing serious bodily or mental harm to members of the groupâ.21 However, the ICJ could not establish, based on the evidence, that those atrocities had been committed with the specific intent to destroy the protected group, in whole or in part, required to constitute genocide.22
In Croatia v Serbia, the ICJ stated that rape and other acts of sexual violence may also constitute:
- The deliberate infliction on the protected group of conditions of life calculated to bring about its physical destruction, in whole or in part;23 and
- Measures intended to prevent births within the group.24
The systematic nature of such acts must be considered in determining whether they are capable of constituting the actus reus of genocide. Further, for acts intended to prevent births, the circumstances of those actsâ commission, and their consequences, must affect the groupâs capacity to procreate.25
Note to reader
All obligations relating to the prevention and punishment of genocide, listed in this subchapter, apply to CRSV that amounts to the crime of genocide.
II. Legal Frameworkđ
Note to reader
For an explanation of the ICJâs powers and the bindingness of its jurisprudence, refer to the âRatification and Enforcement of Treatiesâ chapter, âInternational Court of Justiceâ subsection.
III. Obligationsđ
Preventionđ
III.1 States must take legislative and other actions to prevent CRSVđ
Under article I, States Parties undertake to prevent the crime of genocide. Article I âbrings out the close link between prevention and punishmentâ:26Â âone of the most effective ways of preventing criminal actsâ is for States to provide penalties for and to impose them effectively on perpetrators.27Â The obligation to prevent is a distinct obligation that is not âabsorbed by the obligation to punishâ.28
The obligation to prevent genocide is one of conduct and not of result. States are not required to successfully prevent genocide.29Â Rather, States must employ all means reasonably available to them to prevent genocide as far as possible.30Â States incur responsibility only when they manifestly failed to take all actions available to them.31Â The argument that a genocide could not have been prevented, even if a State had employed all means reasonably at its disposal, is irrelevant to the question of whether that State breached its obligation to prevent genocide.32
In assessing whether a State took all measures reasonably available, the ICJ has identified as relevant the Stateâs capacity to influence effectively the action of possible or actual perpetrators. This capacity may depend on the geographical distance of a State from the scene of the events, and on the strength of political and other links between the authorities of that State and the perpetrators.33Â States Parties cannot dispense with the obligation to prevent genocide by calling upon the United Nations (UN) to take action under the UN Charter for the prevention and suppression of any of the acts listed in article III.34
Finally, the ICJ has clarified that a State may be held responsible for breaching the obligation to prevent any of the acts listed in article III only in cases in which genocide has been perpetrated.35Â This does not mean that the obligation to prevent genocide only applies âwhen perpetration of genocide commencesâ. States should prevent or attempt to prevent the commission of genocide when they become aware or normally should have become aware of the existence of serious risks that any of the acts listed in article III will be committed.36
III.2 States must not commit CRSVđ
Through the prohibition of genocide and other acts found in article III and the obligation to prevent genocide under article I, States are under an obligation not to commit the prohibited acts through their own organs, or persons whose conduct is attributable to the State.37
Complicity of States in genocide. The obligation not to commit genocide requires States not to support perpetrators of genocide. Otherwise, States may be responsible for complicity in genocide.38
To be considered an accomplice, a State must take action to provide aid or assistance to its perpetrators.39Â The State may be responsible for complicity in genocide if at least its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment the authorities became aware, enabled or facilitated the perpetrators to commit acts of genocide.40Â The State must have given support in perpetrating the genocide with full knowledge of the facts.41
Note to reader
Whether, to be complicit in genocide, States must share the specific intent to destroy, in whole or in part, a protected group with the perpetrators is an open legal question, as the ICJ declined to address this matter in the Croatia v Serbia case.
Justice and Accountabilityđ
III.3 States must punish CRSVđ
States must not afford impunity to those who commit genocide:42Â States must punish perpetrators of any of the acts listed in article III, whether they are heads of state, public officials or private actors.43Â States must also provide effective penalties for perpetrators of genocide in their domestic law.44
Under article VI, only a State on whose territory any of the acts listed in article III were committed must prosecute the perpetrators in a competent tribunal of that State. Alternatively, perpetrators must be tried by an international penal tribunal whose jurisdiction States Parties have accepted.45Â While article VI does not prohibit other States from prosecuting any of the acts listed in article III, they are not under an obligation to do so.46
In the absence of domestic prosecution, States Parties must cooperate with the international penal tribunal whose jurisdiction they have accepted.47Â States must arrest persons accused of genocide who are in their territory â even if the crime was committed outside the State â and hand them over for trial by the competent international tribunal.48
The notion of an âinternational penal tribunalâ covers all international criminal courts created after the adoption of the Genocide Convention of potentially universal scope, and competent to try any of the acts listed in article III.49 In Bosnia and Herzegovina v Serbia and Montenegro, the ICJ found that Serbia had failed in its duty to co-operate fully with the ICTY and that this failure constituted a violation of its duties as a Member of the UN and its obligations under article VI of the Genocide Convention.50
State responsibility may arise under the Genocide Convention for any of the acts listed in article III acts if no individual has been convicted. This may be the case when a Stateâs leaders have allegedly committed genocide but they have not been brought to trial because, for instance, they are still in control of the powers of the State including the police, prosecution services and the courts, and there is no international penal tribunal able to try the alleged crimes; âor the responsible State may have acknowledged the breachâ.51
Attributing genocide committed by private actors to States. While the issue of attribution of genocide committed by private actors to States and the customary rules governing State responsibility is beyond the scope of the Guidebook, as a general matter, whether States may incur international responsibility for genocide committed by private actors depends on three issues:52
- First, whether the acts of genocide may be attributed to a State must be determined under the rules of customary international law of State responsibility. The acts must have been committed by persons or organs whose conduct is attributable to the State;53
- Second, whether acts prohibited under article III, other than genocide itself, were committed by persons or organs whose conduct is attributable to a State must be determined under those same rules;54
- Finally, it must be determined whether a State complied with its obligations to prevent and punish genocide under article I. The question whether a State has complied with its obligations to prevent and punish genocide arises only if the answer to the first two questions is in the negative.55
âThese three issues must be addressed in the order set out above, because they are so interrelated that the answer on one point may affect the relevance or significance of the othersâ.56
III.4 States may extradite perpetrators of CRSVđ
Under article VII, States must not consider any of the acts listed in article III as political crimes for the purpose of extradition, and States undertake in such cases to grant extradition.57
Case study: So far, the ICJ has not been presented with a case based solely on article VII. However, in Belgium v Senegal, it had the opportunity to analyse a similar provision: article 7 of the Convention against Torture (CAT), which declares that the State Party in whose territory a person alleged to have committed torture is found must prosecute the alleged perpetrator, if it does not extradite them.58 The International Law Commission (ILC) has found that article 7 can serve as a model for prosecute-or-extradite regimes governing prohibitions covered by peremptory norms, such as genocide.59
The ICJ stated that, under the CAT, the obligation to prosecute is normally implemented after the State has criminalised torture, allowed its courts to adjudicate the matter and inquired into the facts.60
Under article 7 of the CAT, a State must prosecute torture, âirrespective of the existence of a prior request for the extradition of the suspectâ. A State must make a preliminary inquiry âimmediately from the time that the suspect is present in its territoryâ. The inquiry must not necessarily result in the institution of proceedings.61
If that State in whose territory the suspect is present has received a request for extradition to another State, it can relieve itself of its obligation to prosecute by complying with that request. However, the choice between extradition or domestic prosecution does not mean that States must give the two alternatives the same weight. Under the CAT, extradition is an option, while prosecution is an international obligation, the violation of which engages the responsibility of the State.62
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