World Court Digest

---

---

I.	Substantive International Law - First Part
2.	SOURCES OF INTERNATIONAL LAW
2.1.	General Questions
2.1.4.	Ius cogens / Obligations erga omnes

¤ Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment of 11 July 1996,
I.C.J. Reports 1996, p. 595

[pp. 615-616] 31. ... Lastly, as to the territorial problems linked to the application of the Convention, the Court would point out that the only provision relevant to this, Article VI, merely provides for persons accused of one of the acts prohibited by the Convention to "be tried by a competent tribunal of the State in the territory of which the act was committed ...". It would also recall its understanding of the object and purpose of the Convention, as set out in its Opinion of 28 May 1951, cited above:

"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (1) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention)." (I.C.J. Reports 1951, p. 23.)

It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.

[pp. 626-627 Decl. Oda] Genocide is defined as "a crime under international law which [the Contracting Parties] undertake to prevent and to punish" (Art. 1). Even if this general clause (which was subjected to criticism at the Sixth Committee in 1948 when it was felt by some delegates that it should have been placed in the preamble, but not in the main text) is to be interpreted as meaning specifically that the Contracting Parties are obliged "to prevent and to punish" genocide or genocidal acts, these legal obligations are borne in a general manner erga omnes by the Contracting Parties in their relations with all the other Contracting Parties to the Convention - or, even, with the international community as a whole - but are not obligations in relation to any specific and particular signatory Contracting Party.
The failure of any Contracting Party "to prevent and to punish" such a crime may only be rectified and remedied through (i) resort to a competent organ of the United Nations (Art. VIII) or (ii) resort to an international penal tribunal (Art. VI), but not by invoking the responsibility of States in inter-State relations before the International Court of Justice. This constitutes a unique character of the Convention which was produced in the post-war period in parallel with the emergence of the concept of the protection of human rights and humanity.

---

---