| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.9. | Specific Treaties |
| 7.9.6. | Convention on the Prevention and Punishment
of the Crime of Genocide of 1948 |
¤
Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 13 September 1993,
I.C.J. Reports 1993, p. 325
[p. 345] 42. ... Whereas it appears to the Court, from the
definition of genocide in Article II of the Genocide Convention (set out, so far
as relevant, in paragraph 39 of the Court's Order of 8 April 1993), that its
essential characteristic is the intended destruction of "a national,
ethnical, racial or religious group", and not the disappearance of a State
as a subject of international law or a change in its constitution or ist
territory; whereas, accordingly, the Court is unable to accept, for the purpose
of the present request for the indication of provisional measures, that a "partition
and dismemberment", or annexation of a sovereign State, or its
incorporation into another State, could in itself constitute an act of genocide
and thus a matter falling within the jurisdiction of the Court under Article IX
of the Genocide Convention;
[pp. 431-432 S.O. Lauterpacht] 68. In determining - even
provisionally - whether genocide has been committed, the point of departure is,
of course, the definition of genocide in Article II of the Genocide Convention:
"In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
| (a) | | Killing members of the group; |
| (b) | | Causing serious bodily or mental harm to members of the group; |
| (c) | | Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; |
| (d) | | Imposing measures intended to prevent births within the group; |
| (e) | | Forcibly transferring children of the group to another group." |
69. The Yugoslav conduct alleged by the Applicant in its first request of
March 1993 consisted of
"military and paramilitary activities, including the bombing and
shelling of towns and villages, the destruction of houses and forced migration
of civilians, and acts of violence, including execution, murder, torture and
rape".
In the light of the material available to the Court in April 1993 and which
has accumulated further since then, it is impossible to deny either the
occurrence or the massive scale of these crimes. The evidence also indicates
plainly that, in particular, the forced migration of civilians, more commonly
known as "ethnic cleansing", is, in truth, part of a deliberate
campaign by the Serbs to eliminate Muslim control of, and presence in,
substantial parts of Bosnia-Herzegovina. Such being the case, it is difficult to
regard the Serbian acts as other than acts of genocide in that they clearly fall
within categories (a), (b) and (c) of the definition of genocide
quoted above, they are clearly directed against an ethnical or religious group
as such, and they are intended to destroy that group, if not in whole certainly
in part, to the extent necessary to ensure that that group no longer occupies
the parts of Bosnia-Herzegovina coveted by the Serbs. The Respondent stands
behind the Bosnian Serbs and it must, therefore, be seen as an accomplice to, if
not an actual participant in, this genocidal behaviour.
70. Should there be any disposition to regard "ethnic cleansing"
as no more than an aspect of a particularly vicious territorial conflict between
Serbs and Muslims and, therefore, as not being carried out "with intent to
destroy, in whole or in part, a[n] ... ethnical ... or religious group, as such",
it must be recalled that the Respondent has itself also characterized "ethnic
cleansing or comparable conduct" as genocide. In its request of 1 April
1993 (discussed in paragraphs 24-37 above in connection with forum
prorogatum) the Respondent adopted a broad view of genocide by speaking (in
its second proposal) of "the genocide of the Serbs" as a consequence
of "the commission of very serious war crimes". Further, and more
specifically, in its sixth proposal, the Respondent requested, within the
framework of its assertion that the jurisdiction of the Court was limited to
disputes arising under the Genocide Convention, that the Court should direct the
Applicant "to put an end to ... the practice of 'ethnic cleansing'".
Most recently, in the formal submissions made at the close of the hearings on 26
August 1993, the Respondent asked the Court to require the Applicant Government
"in pursuance of its obligation under the [Genocide] Convention... [to]
take all measures within its power to prevent commission of the crime of
genocide against the Serb ethnic group".
Since the evidence presently before the Court of such "genocide against
the Serb ethnic group" is of a limited kind, and in terms of expulsion by
Bosnian Muslims of Bosnian Serbs from the areas in which they were living does
not approach the same order of magnitude as the expulsion of Bosnian Muslims by
the Serbs, it would appear a fortiori that the Respondent also regards
the "ethnic cleansing" as carried out in this conflict as a breach of
Article II of the Genocide Convention.
[p. 434 S.O. Lauterpacht] 78. Once one speaks of a "national"
group defined by reference to the people resident within the territory of
Bosnia-Herzegovina, one immediately excludes any "national" group that
may be described by reference exclusively to a single ethnical, racial or
religious qualification. The population of Bosnia-Herzegovina includes not only
Muslim elements, but also Serbs, Croats and other minority religious or ethnical
groups. Since the conduct which is the subject of the evidence produced by the
Applicant is aimed not at all the people of Bosnia-Herzegovina, but principally
at the Muslim population, it cannot be said to be aimed at the "nation",
i.e., the totality of the people, that lives in the territory of that country.
79. While it would be undesirable to adopt a restrictive view of the concept
of genocide as covered by the Convention, care must be taken that a treaty aimed
at preventing and punishing a relatively specific evil is not converted into a
device for challenging territorial change even though brought about by conflict.
International law, to the extent that it can be effective in this most difficult
of areas, already has available to it the necessary legal rules, in the shape
principally of those that deny legal effect to territorial change brought about
by aggression. It is not necessary for this purpose to invoke and overstretch
the Genocide Convention.
[pp. 435-436 S.O. Lauterpacht] 84. The fourth request is:
"That the Government of Bosnia and Herzegovina must have the means 'to
prevent' the commission of acts of genocide against its own People as required
by Article I of the Genocide Convention."
85. It is convenient to approach this request with some analysis of the
duties and rights created by Article I of the Genocide Convention wherein the
Contracting Parties:
"confirm that genocide, whether committed in time of peace or in time
of war, is a crime under international law which they undertake to prevent and
to punish".
86. The duty to "prevent" genocide is a duty that rests upon all
parties and is a duty owed by each party to every other. This network of duties
is matched by a network of correlative rights which it is not necessary now to
analyse in full detail.
[pp. 442-445 S.O. Lauterpacht] 109. As is apparent on the face of
the Convention, most of its provisions are taken up with aspects of the
prevention and punishment of genocide within the national legal sphere, that is
to say, with breaches of the Convention by individuals. Thus Article III
describes genocide and related acts as being "punishable" - a process
more obviously applicable to individuals than to States. Article IV prescribes
that "persons committing genocide ... shall be punished". Article V
requires the Contracting Parties "to enact legislation to give effect to
the provisions of the Convention" - again reflecting the concern of the
Convention with the individual violator. This is reinforced by Article VI which
provides that persons charged with genocide shall be tried by a competent
tribunal of the State in the territory of which the act was committed or by an
appropriate international penal tribunal. Yet again, Article VII provides that,
for the purpose of extradition, genocide shall not be considered as a political
crime. All this, therefore, strongly suggests that the Convention does no more
than establish for the Contracting States duties that are to be implemented by
legislative action within their domestic legal spheres.
110. Any such narrow view must, however, be rejected. The statement in
Article I that the Contracting Parties undertake "to prevent and to punish"
genocide is comprehensive and unqualified. The undertaking establishes two
distinct duties: the duty "to prevent" and the duty "to punish".
Thus, a breach of duty can arise solely from failure to prevent or solely from
failure to punish, and does not depend on there being a failure both to prevent
and to punish. The confirmation in the same Article that genocide "is a
crime under international law" does not change the position or restrict the
application of the concept of genocide exclusively to individual criminal
liability. The purpose of this latter provision is to permit parties, within the
domestic legislation that they adopt, to assume universal jurisdiction over the
crime of genocide - that is to say, even when the acts have been committed
outside their respective territories by persons who are not their nationals.
111. Thus the effect of the Convention is also to place upon States duties
to prevent and to punish genocide on the inter-State level. This is the plain
meaning of the words of Article I and it is confirmed to some extent by Article
VIII and most clearly by Article IX. The latter Article contains the disputes
settlement provision of the Convention:
"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." (Emphasis added.)
It is the italicized words, "including those relating to the
responsibility of a State for genocide", and especially the words "for
genocide", that make it clear that the Convention contemplates the
possibility that a State may commit genocide and, therefore, that the obligation
"to prevent" genocide extends also to the obligation to prevent a
State from committing genocide. If the Convention were limited to the creation
of a duty upon States to prevent and to punish genocide within their national
legal systems and, by definition, committed by persons not possessing the
quality of statehood, how could there be any possibility of the State itself
being responsible for genocide, a possibility evidently anticipated in Article
IX?
112. The above interpretation, it should be said, is based exclusively upon
the plain meaning of the words actually used in the Convention. There is no
doubt or ambiguity on the face of the text and preliminary scrutiny of the travaux
préparatoires does not suggest anything that requires departure from
this plain meaning.
113. There is, thus, no difficulty in declaring that all the parties to the
Genocide Convention are under a duty to prevent genocide. This is merely a
matter of reading the words of Article I of the Convention. Nor is it out of
place for the Court to make such a declaration in the present case as part of
the indication of provisional measures of protection directed towards the
Respondent. What is more controversial is whether this duty extends beyond the
duty of each party to prevent genocide within its own territory to that of
preventing genocide wherever it may occur.
114. Obviously, an absolutely territorial view of the duty to prevent
genocide would not make sense since this would mean that a party, though obliged
to prevent genocide within its own territory, is not obliged to prevent it in
territory which it invades and occupies. That would be nonsense. So there is an
obligation, at any rate for a State involved in a conflict, to concern itself
with the prevention of genocide outside its territory.
115. But does the duty of prevention that rests upon a party in respect of
its own conduct, or that of persons subject to its authority or control,
outside its territory also mean that every party is under an obligation
individually and actively to intervene to prevent genocide outside its territory
when committed by or under the authority of some other party? As already stated,
the undertaking in Article I of the Convention "to prevent" genocide
is not limited by reference to person or place so that, on its face, it could be
said to require every party positively to prevent genocide wherever it occurs.
At this point, however, it becomes necessary to look at State practice. Since
the Second World War, there have regrettably been a number of cases of genocide.
As Mr. B. Whitaker, the Special Rapporteur of the United Nations Sub-Commission
on Prevention of Discrimination and Protection of Minorities, has stated in the
Revised and Updated Report on the Question of the Prevention and Punishment
of Genocide (E/CN.4/Sub.2/1985/6, 2 July 1985) requested by the Economic and
Social Council, the examples which may be cited are
"the Tutsi massacre of Hutu in Burundi in 1965 and 1972, the Paraguayan
massacre of Aché Indians prior to 1974, the Khmer Rouge massacre in
Kampuchea between 1975 and 1978 and the contemporary Iranian killings of Bahai's"
(pp. 9-10, para. 24).
The limited reaction of the parties to the Genocide Convention in relation
to these episodes may represent a practice suggesting the permissibility of
inactivity. In contrast with the position that I have taken on other
debatable aspects of this case that have not been fully argued by the Parties, I
do not feel able, in the absence of a full treatment of this subject by both
sides to express a view on it at this stage - sympathetic though I am in
principle to the idea of an individual and collective responsibility of States
for the prevention of genocide wherever it may occur.
