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| I. | Substantive International Law - First Part |
| 8. | VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES |
| 8.3. | Treaty Violations |
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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. 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.
[pp. 628-629 Decl. Oda] 6. In order to seise the Court of
the present case, Bosnia and Herzegovina would certainly have had to show
that applying the Genocide Convention to the situation in the area of the
former Yugoslavia, Yugoslavia could indeed have been responsible for the failure
of the fulfilment of the Convention in relation to Bosnia and
Herzegovina. But, more particularly, Bosnia and Herzegovina would have to show
that Yugoslavia has breached the rights of Bosnia and Herzegovina as a
Contracting Party (which by definition is a State) that should have been
protected under the Convention. This, however, has not been shown in the
Application and in fact the Convention is not inteirded to protect the rights of
Bosnia and Herzegovina as a State. Yugoslavia might have been responsible
for certain instances of genocide or genocidal acts committed by its
public officials or surrogates in the territory of Bosnia and
Herzegovina, but this fact alone does not mean that there is a "dispute"
between the States relating to the responsibility of a State, as
Yugoslavia did not violate the rights bestowed upon Bosnia and Herzegovina by
the Convention. I would like to repeat and to emphasize that what should be
protected by the Convention is not the particular rights of any
individual State (Bosnia and Herzegovina in this case) but the status of
human beings with human rights and the universal interest of the
individual in general
7. What Bosnia and Herzegovina did in its Application was to point to
certain facts tantamount to genocide or genocidal acts which had allegedly been
committed within its territory by the Government of Yugoslavia or by its agents
or surrogates, and to submit claims alleged to have arisen out of these acts.
This cannot be taken to indicate the existence of an inter-State dispute
relating to the responsibility of a State which could have been made a basis for
the Court's jurisdiction.
Bosnia and Herzegovina certainly might have claimed "reparations for any damages to persons and property as well as to the Bosnian economy and environment caused by the ... violations of international law" (Application, para. 135 (r)) - not under the Genocide Convention but only as a general issue of international law. (Bosnia and Herzegovina states that the claims to reparation for damages have been caused by the violations of international law, not by the Genocide Convention.) If this is the case, whether the present Court has jurisdiction over such claims under the Genocide Convention is quite a different problem and is irrelevant to the present case.
8. After all, Bosnia and Herzegovina does not appear to allege that it has a dispute with Yugoslavia relating to the interpretation or application of the Genocide Convention, although only such a dispute - and not the commission of genocide or genocidal acts which certainly are categorized as a crime under international law - can constitute a basis of the Court's jurisdiction under the Convention.
